Answers to the Most Commonly Asked Questions about Divorce
1. Should I be the first to file?
That depends. In some instances there may be a tactical advantage in filing first but in most instances it doesn't matter.
2. Why did my spouse ask for so much in the Complaint? I thought we agreed on some of those things.
Before knowing what the issues will be and what might happen under the law and facts of the case, no one wants to take the chance of asking for too little. So people tend to ask for more than they really expect. Like when you read in the newspaper that someone has filed a $10 million dollar lawsuit what is demanded in the complaint usually has little real meaning.
3. What are the chances my case can be settled?
Most cases are settled before trial.
4. May I date while the divorce is pending?
Until your divorce is final, you are still considered a married person. Even though a temporary order has been entered, this does not create a legal separation. As a practical matter, most judges will not be concerned with dating while the divorce is pending but dating someone else may anger your spouse and impede settlement. It may also complicate your chances of success in obtaining custody of children if there is a dispute about custody. Most important, however, is the likely emotional impact on children. You might consider some professional advice about how much your children should know about your love life.
5. How long will be divorce take?
There is no way of really predicting. If you have children, both you and your spouse must first attend a class to assist in avoiding problems relating to your children. It will also depend on whether you are able to settle your case or if it has to go to trial. Generally speaking, a divorce that is settled can be obtained shortly after the settlement papers are signed. Cases that are in dispute will depend on schedules of the lawyers, the parties, the Court, cooperation of witnesses, the speed of appraisers or home evaluation experts as well as the overall complexity of the case.
If there are minor children in the divorce, the parents are required to attend a divorce education class before the divorce can be finalized. If there are no minor children, there is a 90 day waiting period after a divorce is filed, before it can be granted. This waiting period can be waived by the judge for good cause. The parties can agree to, or the Court may require, that the divorce not become final when it is granted and the additional waiting period before it does become final may be as long as six months.
6. How will Assets and Debts Be Divided?
To divide marital assets and debt fairly and equitably, courts consider a number of different factors, including was the asset obtained during the marriage? Generally speaking, assets that were obtained and paid for prior to the marriage will not be considered as part of the marital property. There are exceptions to this rule.
Was the asset a gift or inheritance? Most of the time, assets that are acquired by gift or through inheritance will remain the property of the person to whom they were given without being considered as part of the marital property. There are exceptions.
What is the value of the asset? When an agreement cannot be made on value, then an appraisal may be necessary. This can be expensive and it would be helpful if the parties could provide any documentation concerning the value.
When was it purchased? How much? Value is not tied to replacement costs. It is based on what you could reasonably sell the asset for if you could find a willing buyer.
What if both want the same asset? While this poses a difficult dilemma, the Court will often consider which side has the strongest ties or needs for a particular asset.
Will the Court order that assets be sold? Sometimes this will happen if there are substantial debts to be paid and liquidation of assets is necessary in order to eliminate indebtedness. Generally however, if there is no real necessity to sell an asset, the Court will not order sale just to avoid a decision on who will get it.
Was the debt a marital obligation? Sometimes debts are created during a marriage that are not considered to be part of the marriage purpose. This is a difficult concept to explain and there is no easy answer. Suffice it to say, if the Court is persuaded that debt was created by one spouse without the knowledge or consent of the other and there is no real relationship to the family needs or uses, then the debt may not be considered in the overall equitable division.
What if you didn't sign on the obligation? This is not critical. If the debt was created for some family purpose then it will be a marital debt for overall consideration and division.
AFTER THE DIVORCE
Whether the issues in the divorce are settled by the parties or decided by a judge, some things can be changed after the divorce. Usually, child support, alimony, child custody and parent-time can be modified, but only if one party can show that there has been a substantial change in circumstances. Grounds to change support may arise from a loss or increase in income for one or the other of the parties. Changes in custody or visitation may be appropriate when the needs of the children change substantially or parenting duties of the custodial parent become seriously deficient.
A party wanting a modification must first file a Petition for Modification and the steps for it follow much the same path as an original divorce complaint.
Some orders are not modifiable. Usually the division of property is not subject to future changes.
If either party disobeys an order that the Court makes in the divorce, or fails to honor any part of a settlement agreement, there are ways to enforce those orders. Examples of disobedience of an order are failure to pay support, failure to turn over property awarded and refusal to allow Court parent-time.
Child support orders may have an associated order requiring the spouse's employer to withhold the support directly from the paychecks. Other orders to pay money can be enforced by garnishing wages or bank accounts or having the sheriff seize and sell property. Other orders can usually be enforced by contempt of Court proceedings. Papers are prepared and served on the disobedient person, ordering that person to appear in Court. This is called an Order to Show Cause In Re Contempt. After a hearing, the judge may put the person in jail or impose a fine as necessary to make the person obey the order.
Sometime divorce seems the only solution to problems in a marriage; often it is not. Sometimes it takes the start of a divorce to motivate people to make an effort to save a once cherished relationship. Parties should be encouraged not to feel embarrassed to change their mind about divorce and work on reconciliation. Efforts at reconciliation however, require the consent of both parties. If a divorce has been started, either party will always be able to insist that it be completed.
Counseling may assist in saving your marriage. Even if it does not, counseling has many other possible benefits, including helping parties help children through the breakup of the family; helping parties work together for your children's welfare and helping the parties' improve their lives.
Ordinarily parents make decisions about their children together. When parents divorce, the hostility sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.
Mediation provides a fertile arena for reaching decisions with as little as possible acrimony. In mediation, parents will always agree that they would like to have their divorce cause as little detrimental impact on the children as possible. What they sometimes lose sight of is that only they and the other parent can make that happen.
Unless the parties agree or the Court awards joint legal or joint physical custody, the remaining label for a parenting role is sole custody. This means one parent is designated as the only legal custodian of the children and the other parent is usually only awarded parent-time rights. The non-custodial parent may be granted other specific rights involving the children such as the right to be informed of or participate in major events or decisions affecting the children, to be informed of special extracurricular activities and have access to school and medical records. The non-custodial parent may also be allowed to personally provide the day-care duties for the children when it is possible and practicable.
C. JOINT LEGAL CUSTODY
This means that both parents are designated as the legal custodians of the children. One parent is usually designated as the primary caretaker of the children and the other parent is usually designated as the parent having parent-time rights. The primary difference between this and sole custody is the term itself, which signifies that each parent is going to be substantially involved in the children's lives. With joint legal custody, the law also provides that the parents will exchange information concerning the health, education and welfare of the child and where possible, confer before making decisions concerning any of these areas.
D. JOINT PHYSICAL CUSTODY
This means that each parent will have the children in their actual physical custody for periods of time that exceed typical parent-time rights. Very often this involves a situation where each parent has the children about 50% of the time. By statutory definition it is considered joint physical custody if each parent has at least 111 overnights per year with the children.
Very generally, the standard parent-time rights involve every other weekend, alternating major holidays and extended summer time visits, usually four weeks
E. CUSTODY LITIGATION
Many factors are considered by the Courts before awarding custody, including: the child's preference; the benefit of keeping siblings together; the relative strength of the child's bond with one or both of the parents; the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted; and other factors relating to the parents character or status or their capacity or willingness to function as parents, such as their emotional and job stability, their ability to provide personal rather than surrogate care; and any drug or alcohol problems they may have.
When parents can't agree on issues of custody, the Court may order an independent evaluation by a guardian ad litem to represent the children or look out for their interests. The guardian may order psychological testing of and interviews with the parents, the children, their teachers, day care providers, neighbors, doctors and anyone else who may have significant information involving the children. The guardian usually makes an oral recommendation to the parties or their counsel and if they are still unable to reach agreement, a written report and recommendation will be provided to the judge.
The amount of child support paid depends on the average monthly gross income of both parents. Support guidelines and charts have been established by the legislature to assist in the calculation of the amount. The amount of child support established by the guidelines is reduced or increased by costs of medical insurance for the children depending on who is providing the coverage and incurring the cost.
The divorce must assign responsibility as to which parent will pay for medical or dental expenses that are not covered by insurance, either because of co-pays, deductibles or non-covered procedures. Usually, each parent will be required to pay half.
In addition to child support, child care costs that are incurred to permit a parent to work are generally shared equally. The parent who initially incurs this expense has the responsibility for providing the other parent with adequate documentation as to the dates, times and amount of child care costs that are actually provided during work or school hours. The other parent then has the responsibility of paying his or her share promptly.
Alimony, when appropriate, is very difficult to predict with any certainty. The general criteria are that alimony should be paid when one spouse has the need to maintain an established lifestyle and the other spouse has the ability to assist financially. Alimony will not be awarded for a period longer than the length of the marriage. It will also terminate on the death of either party or when the receiving spouse remarries or cohabits.
Alimony is tax deductible by the person paying and the person receiving will have to pay taxes on the amount received. This does not apply to child support.
Alimony awards take into consideration:
The financial condition and needs of the recipient spouse.
The recipient spouse's earning capacity or ability to produce income.
The ability of the payer spouse to provide support.
The length of the marriage.
Whether the recipient spouse has custody of minor children requiring support.
Whether the recipient spouse works in a business owned or operated by the payer spouse.
Whether the recipient spouse directly contributed to any increase in the payer spouse's skill by paying for education received by the payer spouse or allowing the payer to attend school during the marriage.
The standard of living existing at the time of separation and under appropriate circumstances, an attempt to equalize the parties' respective standards of living.
Whether a spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage.
Alimony ordinarily terminates upon remarriage or cohabitation of the receiving spouse or the death of either spouse.
The Court may consider the fault of the parties. When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the martial property and in determining the amount of alimony.
The income of a subsequent spouse of the payer may not be considered except their ability to share in living expenses or because of improper conduct.
ATTORNEY FEES AND COSTS
A Court may order one spouse to contribute to the attorney fees of the other. This will typically occur if the Court feels that one spouse has caused the other to unnecessarily incur some attorney fees or if after the division of assets, debts and income, one spouse has a greater ability to assist with the other spouse's fees.