DivorceAttorney.pro
Professional Divorce Counsel
2010
Divorce
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Q: What is meant by the term "divorce?
A: A divorce, sometimes called a “decree of dissolution of marriage,” is a court
order terminating a marriage. After a divorce, the marriage no longer
exists. Unlike an annulment (see below), which states that the marriage
was never valid or never existed, a divorce is the termination of a valid
marriage. The outcome of the divorce should seek to resolve all issues
between the parties, such as the division of property, child custody and
visitation, and spousal and child support.
Q: What is an "annulment?
A: An annulment is a court order declaring that a marriage is not valid and was
never valid. The most common ground for annulment is fraud-- when one
spouse never disclosed to the other spouse important information
such as a previous marriage, an infectious disease, the inability to have
children, or the desire not to have children. In addition, an annulment
might be granted because one party is already married, the parties are too
closely related, or one party is underage and did not obtain appropriate
parental consent. An experienced family lawyer can help you determine if
an annulment is appropriate in your case.
Q: What is a separation?
A: A separation occurs when a married couple decides they no longer want to live
together, and to live apart for a while, though they are still married. In some
states, living apart for a certain amount of time can constitute grounds for
divorce or desertion.
Q: What is "mediation?
A: Mediation is an informal process where you and your spouse meet with a
neutral third party, called a “mediator,” in an attempt to try to negotiate an
agreement in regards to your divorce.
The goal is to reach an agreement on things like property distribution,
child support and child custody without going to court. Some mediators
prefer to meet with both of you at the same time, while others prefer to meet
with each of you separately and act as a "go between." You and your
spouse
should discuss your preferences as to how you want the mediation to be run and
make sure that the mediator you select will accommodate your preferences.
Mediation is most successful in cases where there are not many contested issues
and the parties on relatively good terms.
Q: I want to initiate a divorce. What is the first step I should
take?
A: There are many complex issues when it comes to divorce—from the division of
property and debts, to child custody, child support, and visitation rights.
You should seek a qualified family law lawyer before beginning the
process of divorce.
If you have been married only a short time, have no children and little
property, it may seem financially advantageous to “do it yourself.”
However, timing can often be crucial in getting a divorce, and an attorney can
best advise you when it will make the most sense in terms of insurance and
taxes. A skilled attorney can help you avoid landmines that may cost you
money down the road, and will represent your best interests in resolving any
financial complications that may arise. An attorney also can help avoid
the possibility of one party claiming that he or she was taken advantage of
because all facts were not disclosed.
A lawyer can also help you determine if
mediation or a more collaborative approach is appropriate in your case.
Q: Can my spouse and I use the same lawyer?
A: When a couple thinks they agree on all issues involved in a divorce, it may seem logical to attempt to save money and use one attorney to just “handle the paperwork.” This is almost always a bad idea because as opposing parties, your interests will never be completely aligned. Lawyers recognize the possibility of conflict of interest, in which it is impossible to represent both sides fairly. Most attorneys would advise against using a shared attorney. However, some states allow a lawyer to represent clients with opposing interests if the lawyer has informed both clients of the conflict in writing and the clients have agreed in writing to the dual representation. When an attorney does represent both sides, it may open the door to malpractice claims if you were harmed by the lawyer's dual representation.
Q: Do I need to give a
reason to get divorced?
A: Each state has its own laws determining when and under what circumstances a
divorce can be sought and granted. In some states, both sides can agree to
obtain a divorce with only a brief waiting period. Other states, however,
have laws that claim to permit a divorce only if there are “grounds,” meaning
that one spouse is at “fault” for the divorce.
Q: What if I want a divorce and my spouse does not?
A: Divorce can be entered
unilaterally, meaning that as long as one party seeks a divorce, the marriage
can be ended. That being said, the
divorce process goes much more smoothly and quickly if both parties agree upon
getting divorced and one party is not trying to impede the process, which can be
accomplished by various means of contesting the divorce, hiding assets, etc.
Q: What do the terms "fault" and "no fault" mean?
A: When a state requires “fault” in order to obtain a divorce, it means that one
party must blame the other for the failure of the marriage by citing wrongdoing.
Grounds for fault can include adultery, physical or mental cruelty, desertion,
alcohol or drug abuse, insanity, impotence or infecting the other spouse with a
sexually transmitted disease.
Many states have turned to “no-fault” divorces, as it is an easier and generally
less acrimonious method of ending a marriage. A no-fault divorce is one in
which neither party blames the other for the breakdown of the marriage.
Both spouses agree that "irreconcilable differences" have arisen, and that
neither time nor counseling will save the marriage; it simply will not work.
An attorney can explain if you live in a fault or no-fault state.
Q: What is the difference between contested divorce and uncontested
divorce?
A: A contested divorce is one where the couple have one or more issues, usually custody and property, that they cannot settle and are not resolved. An uncontested divorce is one without unresolved issues and when a final judgment can be entered without a trial. When there are no contested issues in the divorce, it may appropriate to try mediation or a collaborative law approach.
Q: Is there a requirement that I physically live apart from my spouse when I file for divorce?
A: There is no requirement that you live apart, unless you
are proceeding on no-fault grounds that are based upon separation.
It is important to keep track of when you began living apart from a spouse for
the purpose of accounting for community property and debts incurred after that
date, as it would be considered separate property after the date of separation.
Q: How is property divided in a divorce?
A: How property is divided depends upon the laws of the state where you are filing for divorce. There are nine community property states - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
These states generally consider all property that has been acquired during the
marriage to be community property, with the exception of property acquired
through a gift or inheritance. Property includes personal property, cars,
real estate, shared savings and checking accounts, stocks, bonds, shares or
interest in a business, and insurance policies.
You might think property is something with value, but in fact even things
that you might think have "no value" can be classified as property.
Examples include: debt (auto loans, credit card debt) goodwill, business name,
professional degree or license, trade marks, etc.
Even if one spouse has earned all the money or a greater portion of the
money to acquire the property, all the property is considered community
property. While there are a number of differences in each state, all
states have special laws that operate on the theory that both spouses contribute
equally to the marriage; thus all property acquired during the marriage is the
result of the combined efforts of both spouses. In community property
jurisdictions, spouses equally own all community property (fifty percent owned
by the husband and fifty percent owned by the wife).
Non-community property states generally use the concept of marital property.
Property that is acquired by either spouse individually or the couple together
during a marriage is considered marital property. The time frame "during the
marriage" starts as of the day the couple marries, and generally is regarded as
ending on the date that the spouses begin to live apart (or the date that the
spouses intend to live apart if they are unable to physically separate).
Marital property is then divided in a manner that the court finds equitable.
Q: What does equitable distribution mean?
A: "Equitable" means a "fair" distribution not necessarily an
"equal" distribution. It may be more equitable, given the state of the
marriage and the conditions of the spouses, for the majority of the property to
go to the husband, instead of the wife, or vice versa.
In some cases, equitable could mean an equal split of all of the marital
property. A skilled attorney can help you maximize your share of the equitable
distribution.
Q: What about separate property?
A: Separate property is property that is not part of the marriage as a whole,
but rather belongs exclusively to either the husband or the wife. Any property
that can be "alienated" (disposed of, sold, given away, left in a will) by one
partner without requiring the permission of the other partner is separate
property. Common examples are property acquired through gift or an inheritance,
or one spouse's interest in property acquired before marriage. However, keep in
mind that the laws governing what constitutes separate property vary from state
to state. In some states, these
same gifts and inheritances would be considered separate property only if they
were also kept separate from the spouse and not shared.
Separate property is not divided during the divorce, but rather is retained by
the spouse who owned it during the marriage.
Q: How will are debts be divided?
A: In addition to the property acquired during the marriage, the debts incurred
during the marriage is divided upon divorce. Dividing the debt upon divorce
determines who is responsible to repay the debt.
If both spouses co-signed for a debt, both spouses will probably be held to
"joint and several liability" for the debt. "Joint and several liability" means
that each spouse is responsible for the entire debt, but also the spouses are
jointly responsible for the debt. When a joint and several liability is divided,
the debt is attributed to both spouses. Often, however, one spouse is made
responsible for the entire amount of the debt. This is generally offset by an
"equalization" payment; that is, the spouse who pays the debt receives more
property in the settlement than the spouse who is left free from the debt.
In some states debts that were incurred for the benefit of the family are joint
and several liabilities of both spouses. For example, housing, furniture,
furnishings for the home, child care and children's doctor expenses would be
considered as being incurred for the benefit of the family. Since both spouses
benefited from these family expenses, both spouses would be responsible for the
repayment of these debts.
Expenses that were incurred solely for the benefit of one spouse, such as a
vacation for one spouse, or a hobby of a spouse, may be left as the
responsibility of the spouse who obtained the benefit. However, in most
community property states, both spouses are equally responsible for the
repayment of debt incurred during the marriage, even if only one spouse enjoyed
the benefit.
Typically, the debts that one spouse brings into the marriage (separate or
non-marital debt) remain the responsibility of that spouse. In special
circumstances (in community property states), both spouses can be held
responsible for separate (non-marital) debt.
When a joint tax return is filed, the Internal Revenue Service holds both
spouses to joint and several liability for the tax.
Q: What about my pension or retirement fund?
A: In most states, pensions and retirement funds accrued during the time of
marriage are considered part of the community/marital property that is to be
divided among the parties in a divorce. If the pension is already being paid,
the pension plan administrator can usually pay your portion directly to you.
In some states, pensions and retirement funds accrued during marriage but
that have not yet “vested” or begun paying out, remain separate property if the
marriage ends before the retirement fund or pension begins to make payments.
Q: Would my spouse be entitled to a share of the retirement I earn after we are
divorced?
A: It depends on the state. In some states, the ex's interest ends with your
divorce, so the pension benefits accrued during those years would normally be
yours. In other states, the benefits sort of build on top of the prior benefits,
and the ex may enjoy a share in the benefits accrued during those years also.
Q: What is alimony?
A: Today, alimony is more commonly termed “spousal support” or “spousal
maintenance,” referring to payments or transfers of money or assets from one
spouse to another after a divorce. Spousal support laws throughout the United
States seek to prevent a divorced spouse from suffering from a decrease in his
or her standard of living. Often times after divorce, one spouse is untrained or
has been out of the workforce for such a significant amount of time that it
would be difficult, if not impossible, for them to quickly attain a job or
professional position that would allow them to maintain the standard of living
that they may have had while they were married.
Q: Do all divorces involve a spousal support settlement?
A: No, this is a common misconception. Only about ten to fifteen percent of all
divorces or separations have any sort of spousal support as part of the final
divorce judgment or decree.
Q: What is rehabilitative alimony?
A: Rehabilitative alimony is financial support that is provided for a short
period of time; to allow the receiving spouse time to get adjusted, establish
him or herself, financially. This type of alimony will allow the divorced spouse
time to "rehabilitate" him or herself and become completely self-supporting.
Q: Are spousal support payments considered expenses for tax purposes?
A: Yes, in general, spousal support payments are counted as deductible expenses
for the spouse making the payments, and considered taxable income for the spouse
receiving the payments.
Q: What is child custody?
A: Child custody laws throughout the United States seek to provide some sense of
order to the disruption of divorce and separation in efforts to smooth over this
transition from a unified, nuclear family to a two-household family, with the
spouses/parents living separate and apart.
One parent, generally termed the "custodial parent," will receive custody of the
child(ren) from the court. The child(ren) will live for the most part with this
custodial parent and visit with the "noncustodial parent" for short periods of
time (hours or days). One exception to this rule is the "joint physical custody"
arrangement.
Under joint physical custody, the time is divided more evenly or equitably (not
always the same thing, so ask your attorney what may happen in your particular
case). The child will spend significant amounts of time with each parent, often
weeks at a time.
Q: What is joint legal custody?
A: Joint legal custody, which is much more common than joint physical custody, means that both parents make decisions regarding the child’s health, education, welfare, etc. Joint physical custody means that the children spend a significant amount of time with each parent (multiple overnights in a row on a consistent basis). This does not necessarily mean that the time with the children is divided evenly between the parents.
Q: How is child custody determined?
A: Courts use the standard of the “best interests of the children” in determining child custody arrangements. Each state has laws that govern child custody and each state lists several factors that the court will consider in deciding which custody arrangement will serve in “the best interests of the children.” That said, these several factors often provide only minimal guidance for the judge. The “best interests of the children” standard gives a good deal of power to the judge and is typically the most influential factor for the judge in making a custody decisions.
Q: What is visitation?
A: When one parent is granted primary custody of the child or children, that
parent is termed the "custodial parent." The "noncustodial parent" is granted
visitation rights. Through visitation, the state and the judge are attempting to
provide a system whereby the parent can maintain a healthy relationship with his
or her child.
Q: Do all parents have the right to visitation? What if I don't want my parents
to visit with my ex-spouse?
A: Typically the spouse who does not have physical custody of the child has the
legal right to visitation. These rights can be withheld if evidence can be
brought forth proving that it is in the best interest of the child not to see
the spouse (examples: excessive use of alcohol, physical or verbal abusiveness).
The amount and schedule of visitation is stated in the final agreement and can
vary according to each family’s situation, lifestyle and circumstance, and may
be quite small or quite substantial.
Q: What is child support?
A: Each state has law requiring parents to support their children. It doesn’t
matter if the parents are married, or if they are living together. The
responsibility of child support is that of the parents as individuals or as a
unit. Indeed, it doesn’t matter if the parents have not had no continued contact
after the conception of the child. All parents are legally responsible for child
support. The term "child support" covers all the economic necessities of life
required by a child. These necessities include, but are not limited to, food,
clothing, shelter, education, medical care, and other day-to-day expenses.
Q: How is child support determined?
A: The child support guidelines of your state set out the method of calculating
child support. Some states are rather simplistic, considering net income and
applying a percentage, while others consider many other factors such as
overnights with each parent, medical expenses, prior child support, alimony,
retirement contributions, FICA, federal, state and local taxes, etc.
Q: What if my child's financial needs change—is it possible to modify the child
support agreement?
A: A child support award is an order of the court, and as such it exists outside another agreement. If you find that your circumstances have changed, and the existing child support award does not apply to these new circumstances, you can petition the court for a "modification" of the award. Be prepared to explain to the judge’s complete satisfaction your reasons for requesting a modification. Typical reasons include: the child is now living with the other parent, the non-custodial parent has more/less overnight visitation with the child, either parent has a substantial increase or decrease in annual income, child needs special care or healthcare, substantial increases or decreases in the child's expenses, or a change in the the child support guidelines of your state.
Q: Can I deduct my child support payments as an expense for tax purposes?
A: As a general rule, child support payments are not deductible on your federal
tax form by the parent paying the child
support. Similarly, child support payments are not considered income by the
parent receiving the child support. The paying parent in child support may
conclude that paying a lower child support and a higher spousal support will
benefit them when tax time comes around. Tax consequences are often given heavy
consideration in all negotiations regarding a divorce settlement.
Q: What will happen to our health insurance for my dependent children and I after I divorce my spouse?
A: Your spouse may keep the children on his or her policy. However, as you are
no longer married you are no longer eligible for coverage on his policy. However
most plans offer a conversion package to individual coverage under COBRA, a
federal law. The cost of insurance is usually the responsibility of the separate
parties after a divorce. However, coverage for the children may be available.
Q: Once the divorce is finalized, is there any way to change it?
A: Unless there is a provision in the separation agreement to do so, they
cannot. However, there is a provision in the law to amend spousal or child
support based upon a change of circumstances.
The only other provision reasonably available is fraud. If a party commits fraud
in the negotiation of an agreement, it may allow for a change in the agreement
to correct it.
There is also a provision in the law to correct mistakes in drafting. However,
usually the mistake must not be unilateral, that is, only one party believes
that the language is in error.
Q:
How much will it cost me to hire a divorce attorney?
A: It is difficult to determine how much a divorce will cost. However, after
reviewing the likely issues, a lawyer may be able to give you a range of
expected expenses. Controlling the expenses in a divorce, however, is no easy
task. Many of the factors contributing to legal costs are outside of your
lawyer’s control. The ability of the parties to cooperate and communicate may
also have a significant impact.
Your attorney will provide you with a written retainer agreement identifying the
costs and hourly fees that will apply to your case. It is important that you
read this document carefully and ask questions regarding any unclear issues.
Once you have signed the retainer agreement, it is a binding and enforceable
contract.
An attorney may also agree to charge a flat fee for handling your divorce.
Fees charged by lawyers can vary from state to state and county to county. You
may find a lawyer who charges a fixed flat fee for motions after a divorce or
for uncontested proceedings where the parties have reached an agreement. In such
instances, the amount of work which must be performed by the lawyer can be
easily determined. This is a favorable payment method since you will know at the
outset the total cost of the proceeding which will allow you to budget
accordingly.
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