- What is the process for obtaining a divorce?
- How is property divided?
- How are debt and other liabilities and obligations divided?
- How is alimony, or spousal support or maintenance determined?
- Who will win custody of the children?
- What happens when a custody or visitation order is violated?
- How is child support determined?
- Can a divorce decree be changed?
- What role does domestic violence play in divorce?
- What is collaborative law?
- Learn More: Divorce
Every state has its own laws for obtaining a divorce, or dissolution of marriage as it is called in some states. Like many other types of civil process, the legal process is somewhat similar in all states. The first step, in any divorce, is that one spouse or both spouses make a decision to initiate a termination of their marriage. Arriving at this decision is different for each individual. While generally not considered part of the legal process per se, how this decision is made may have significant legal consequences. Persons making this decision should consult first with a trusted attorney, a marriage counselor, a financial consultant, and/or any other trusted third party, before taking this often-drastic step.
At first, the legal process may seem complicated and confusing, but usually follows a rational and reasoned course. All issues to be decided, if taken individually, are typically resolved by taking the time to give each some careful consideration, investigation, and objectivity.
The normal issues to be decided in a divorce are how property is divided, how debts are divided, and, between parties with children, how legal and physical custody will be arranged and setting a visitation schedule. Other issues that may arise when children are involved are child support, and medical and childcare expenses. In longer-term marriages, the issue of spousal support may be addressed, and the terms of any prenuptial agreement will be analyzed. Those able to maintain objectivity and detachment while sorting through these issues often find the divorce process can actually help them move on in their lives without the battle scars some receive during their divorce process.
All states provide for a more-or-less equitable, but not necessarily equal, division of marital property. Marital property includes the parties’ incomes, acquired during the course of the marriage. Those states with community property laws set forth in more specific detail precisely what property is considered community property and thus, available for division, and, what property is considered separate property and thus, not available for division. Once community property is identifies, some community property states mandate an equal division of the property. Others apply the same principles as those states that use the equitable division of property model.
If the parties are able to come to a mutual agreement, the decision of who gets what property in either type of state is, of course, up to the parties, but usually with approval by the court. Despite lore to the contrary, most divorcing couples are able to negotiate a fair and equitable division of the property without resort to a court’s decision-making process. However, for those unable to come up with a mutually agreed upon division of property, most state law provides a list of factors that courts consider in making a final. Generally among these factors are:
- Length of the marriage
- Age and health of the spouses
- Contribution of each spouse to the acquisition of property
- Contribution of one spouse to the education or training of the other
- Custodial provisions for children of the marriage
- Whether either of the spouses will be awarded spousal support
- Present and potential earning power of each spouse
- The total economic circumstances of the spouses
- The existence of any pre- or post-marital agreement between the spouses
Debt division is considered part of the property division process. In community property states, liabilities, like assets, that are brought into the marriage belong to the spouse who incurred them. In equitable distribution of property states, the debt, like the property, is divided equitably between the parties. If the debt is secured debt, the general rule is that the value of the encumbered asset is reduced by the amount of the debt in determining division. For instance, this often happens in the case of family cars. For many divorcing couples, each spouse has a vehicle, but one may be a paid-for clunker worth relatively little with no car payment. The other may be a late model car worth well over $10,000, but with a loan balance equal to its present value. Despite the fact that the vehicles may have very different gross values, the net value for them is equal.
A very common problem for couples in our current economy is that they have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This situation poses a complicated issue for debt division. In cases such as these, the advice of a financial consultant, or even a bankruptcy attorney, could be very helpful to the parties.
As with other property issues, if the parties cannot come to a fair and equitable division of debt on their own, state laws typically provide a rationale for courts to follow in making debt division decisions.
All state divorce laws address the issue of whether, and for how long, one spouse shall be required to make support payments to the other spouse after termination of their marriage. In cases involving equitable division of property, one of the usual factors for division of property is whether one spouse will pay support to the other. On the other hand, when determining spousal support, or maintenance, as it is known in some states, one of the factors to be considered is the division of property.
In community property states, the division of property between the parties is not necessarily a factor to be considered in the determination of support, but their prior standard of living and the relative economic status of the two parties are relevant factors. In the so-called equitable distribution property states, other factors to be considered are much the same as the factors to be considered by the court in the division of property, such as:
- Length of the marriage
- The extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse
- The presence of young children in the home
- Employment opportunities available to the spouse requesting support
Ironically enough, though spousal support may be a highly contentious issue in divorce, many couples are mutually able to make fair and reasonable support agreements as well. And, generally, at the end of a short-term marriage, in the absence of extraordinary circumstances, neither party is likely to end up with an award of spousal support.
The fact is that in 90% of cases in the United States where parents have decided they will not parent together, the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents, children, the extended families, and even for professionals involved in their cases.
Because of the high potential that a custody battle can have long-lasting negative impact on children, most states have instituted as many safeguards against that possibility as possible. In general, all child custody decisions are to be based on “the best interests of the children.” In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. Safeguards in place include:
- In many states, parents with a child custody dispute are required to attempt mediation of the custody issue before a contested custody case may go further
- In some states, in any contested custody matter, the court must appoint a guardian ad litem, an attorney whose role is to represent the best interests of the child during the course of litigation
- Sometimes the courts order “custody evaluations” which are investigations and reports from impartial professionals with specific training for the task, usually social workers or mental health professionals
- In some states, depending on the age of the children, courts allow children to have some input into their custody decisions
- All states have a long list of statutory factors that the court must take into account prior to making such determinations
The consequences for violating child custody and visitation orders almost always correlate to the magnitude of the violation. For instance, if a parent is a few minutes late in arriving to pick up a child at the time for exchange, even though it may happen repeatedly, it is likely there will be little or no consequences for this minimal violation. For the most part, a few minutes difference in arrival time will not endanger the children in any way. On the other end of the spectrum, of course, is the situation in which a parent fails to return the children at the designated time and disappears with them with no trace for days, months and sometimes even years.
At the lower end of the spectrum of violations, most states do not provide much assistance to parties trying to force compliance with a court order. Often a parent, frustrated by such behavior from the other parent, may merely have to have ready a ‘plan B’ that insures the safety of the children while allowing the parent to minimize the inconvenience of the repeated tardiness or other minor violations.
At the upper end of the spectrum, depending on how long the children are gone and whether the parent has crossed state lines, and at even the middle of the spectrum, the full force of both state and federal law enforcement is enlisted to protect children and penalize offenders. It should be noted that the violation must demonstrate a criminal intent to withhold or conceal the child from a party with the right of custody before law enforcement considers a crime to have been committed.
All states have procedures for seeking enforcement of a court order through contempt proceedings. These procedures generally require the assistance of an attorney. Most courts look very unfavorably upon violations of its orders, typically providing a remedy for the other parent. Courts have been known to alter a custody or visitation schedule completely in response to a parent’s significant or repeated violation of their order.
Prior to the institution of child support guidelines, child support determinations were entirely within the judge’s purview, based on only two factors. The first factor was the level of ability for the obligated parent to pay. The second related to the needs of the child. This situation has changed dramatically over the years, with changes gaining momentum from federal legislation that required more uniformity among the states in exchange for federal child support funding.
Now all states have adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. States have, for the most part, made a determination that every child has the right to the support of both parents while at the same time, parents’ rights and needs are to be taken into consideration as well. Based on these principles, states have adopted formulas for determining what the level of child support should be. Generally, these guidelines are based on a percentage of the payor parent’s gross income. Of late, more states are taking into account the income and standard of living of both parents, and the actual percentage of time that the children spend with each parent. Most states also provide that the formulas are presumed to result in a correct amount; however, states have also adopted procedures for deviating from the guidelines.
Because of child support guidelines, a determination of child support in a particular case generally requires only entering the parties’ incomes and the percentage of time spent with the children into the formula to arrive at a solution. In other words, current state of the law does not provide much room for disputes about who should pay what amount of child support. Admittedly, the amount of time that children spend with each parent often does come into consideration, and some parties find themselves in the middle of a custody or visitation battle that may actually be a child support battle.
As the answers to legal questions often do, the answer to this question usually generates a set of additional questions, such as:
- Who wants the order modified?
In almost all cases in which someone other than a party to the divorce wishes to change the divorce decree the answer is no. Thus, the question should be, can the divorce decree be changed upon the request of a party to the divorce. This leads to more questions.
- What part of the order does the party want to modify?
If the modification has to do with property division, in most states, the answer is again no, unless there is evidence that the original decree was based on significantly incorrect information. In this event, states provide procedures for correction of the order based on the newly revealed information. Since states generally require that the parties provide full disclosure of assets and liabilities, if the incorrect information was intentionally provided in order to conceal assets, the court may also impose significant penalties.
If, on the other hand, the desired modification involves other issues, child support, spousal support, child custody and visitation, the next question is typically:
- Has there been a significant change in circumstances since the entry of the decree that warrants a change?
- In child custody matters, a number of different factors can come into play so that the court may find there is a significant change in circumstances justifying modification. Some states require an even higher standard for modification of the decree in the first two years of an order simply to help insure that parents do not keep disrupting their children’s lives by dragging the other parent back to court.
- In child support and spousal support matters, the answer again depends on the question of whether there has been a significant change in circumstances to warrant the change. If so, the court may modify its original decree.
As with so many issues involved in divorce cases, domestic violence may or may not play a significant role in the legal process depending upon the exact circumstances. Of course, in cases in which criminal law has been invoked because of the level of domestic violence, it will likely play a significant role in the divorce case. This is especially true in cases involving child custody and visitation determinations. However, if the parties don’t have children and the domestic abuse has been relatively minor, even if law enforcement has been involved, the domestic violence of one party against the other may play a miniscule legal role.
On the other hand, because the very definition of domestic violence implies an on-going pattern of control of one party by the other, using not only physically, but also psychologically and emotionally abusive methods, domestic violence may play a very significant role in the emotional and psychological aspects of divorce. This can be especially true in the original decision-making process of whether or not to initiate a divorce. Many victims of domestic violence leave a marriage because of the abuse, and many victims of domestic violence stay in the marriage because of the abuse, knowing that an attempt at separation might result in an escalation of all aspects of the violence.
Collaborative law is an alternative dispute resolution process gaining popularity in a number of states. In the collaborative law process parties to a divorce, and their attorneys, commit to an honest, open, cooperative resolution of all issues without going to court. In fact, the defining feature of collaborative law is that both parties and both attorneys agree in writing that they will not go to court. Instead, they will provide open, informal, expedited discovery of all relevant facts and documents; they will participate in meetings and commit to bona fide negotiations. Some even agree to the use of a divorce coach or other professionals, such as financial consultants and child specialists, to help them make decisions that result in the best outcome for both parties and their children. If either party or their attorney decides that the case should go to court, the attorneys are both required to withdraw from the case and any disclosures to that point cannot be used in the court case without permission from both parties.
The vast majority of collaborative cases do settle without court intervention. Advocates of the process claim that most parties save significant amounts of money and time through the collaborative divorce process. The atmosphere of cooperation rather than competition sets the stage for future dispute resolution without court involvement, and allows for relationships that are more amicable for the parties.
Alimony, maintenance, and spousal support are legal terms for payments, usually made monthly, from one spouse to the other, often for a certain number of years. Payments may be ordered on a temporary basis during the pendency of the divorce. They also may be permanent obligations. At present, in most states, spousal support payments are used as a means of catching up for those spouses whose circumstances have kept them out of the workplace for a significant period.
Child support is a phrase that generally refers to the amount of money one parent pays to the other to help support their common-children when the parents are not living together. The current state of the law takes most of the contention out of the child support issues. Child support guidelines in most states make it primarily formulaic to determine whom is ordered to pay support, and in what amount.
Physical or legal custody and visitation are terms used when determining the amount of time children spend with each parent and how decision-making authority for major issues is assigned. For instance, a parent may have joint legal custody, the right to share in making decisions, such as in what religion the children will be raised, or what schools they will attend, whether or not they may get their driver license, join the military, or get married, but may have the children physically with them as little as every other weekend.
Divorce and dissolution of marriage are terms for the process by which the marriage of two people is terminated. It may also establish their right to remarry, distribute their property between them according to the law of the state in which they reside, determine whether either party will pay spousal support, and, if they have children, with whom the children shall live and whether one party will pay child support.
Domestic violence is sometimes referred to as intimate partner violence because it is not limited to parties living together. Domestic violence is the control of another through physical, verbal, emotional, psychological and spiritual violence. Intimate partner violence figures broadly in many family law issues, including child custody and visitation. Studies have shown that the period between initial separation and divorce can be the most dangerous for victims of domestic violence and their children.
Prenuptial agreement is a legal term for a contract entered into by parties still contemplating marriage setting forth their intentions how their individual property will be divided should they ultimately separate. If not patently unfair to one party, most prenuptial agreements will be enforced in court so long as the court is convinced the parties entered into the agreement with full disclosure and no coercion, and if the agreement does not work a hardship on either of the parties.
Community property is a legal term that describes the law in some states setting forth the prescribed division of that property that was acquired by the parties, either individually or as a couple, and includes the income of the parties. Some states divide community property equally, while others first make a determination of what constitutes community property and then make an equitable division of the property.
Equitable division is a term that describes the law in most states that provides a process for the division of property of the parties. Taking into account all of the circumstances of the parties division or property is completed according to the equities of those circumstances.
Collaborative law is a process in which divorcing couples and their attorneys make a commitment to alternative dispute resolution instead of resorting first to court. If either party consequently decides to go to court all attorneys must withdraw, and the parties must find new legal counsel.
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