Although some divorces are very simple and can be handled with a minimum amount of red tape and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. The following, however, is a basic outline of the divorce process.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
The parties in a divorce can agree to the division of, or the judge will divide, all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties’ lawyers can help. Through the legal process known as discovery, the parties’ attorneys exchange documents that reveal each party’s income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party’s financial situation. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
In most states, whether they follow a community-property or equitable-distribution scheme, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse’s separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.
In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.
Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home’s maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property. Perhaps the fairer resolution, however, applied in other states, is that the amount of equity in the home at the time of marriage remains the original owner-spouse’s property, but the increase in equity value during the marriage is marital property that belongs to both spouses. The same principles apply in cases involving increases in the value of a family business owned by one spouse before marriage.
Although a legal agreement is not required when a couple decides to separate, working out certain details can preserve harmony, protect rights, and promote predictability. A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple’s children. A formal separation agreement can help ensure that all family members’ needs will be met.
An attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party’s best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client’s needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:
A separation agreement does not need to be filed with the court, but can be presented to the court if a dispute arises. As with pre-and post-marital agreements, a separation agreement may be unenforceable if either party failed to make a full disclosure or coerced the other to enter into it. If and when the parties officially file for divorce, the separation agreement’s terms may be incorporated into a settlement agreement, but the parties will have an opportunity to change the terms if necessary.
No, in most states, the victim of an abusive live-in lover can obtain a TRO or emergency protective order. In a few states, the victim of any adult relative, an abusive lover (non-live-in) or even a roommate can obtain such an order. To learn about your state’s rule, contact a local crisis intervention center, social service organization or battered women’s shelter.
Copyright 2005 Nolo
Typically, a guardian takes care of a child’s personal needs, including shelter, education, and medical care. A guardian may also provide financial management for a child’s assets, although sometimes a second person (often called a “guardian of the estate”) is appointed for this purpose.
A guardianship ordinarily lasts until the earliest of these events:
Even if a guardianship remains in force, a guardian may step down from his or her role with permission from the court. In that case, a judge will appoint a replacement guardian if necessary.
A guardian ad litem is a person appointed by the court to stand in the shoes of a minor in a court proceeding in which the minor has some interest. The court can also appoint a guardian ad litem for an adult who can’t care for him or herself. Often, the guardian ad litem is a parent, close relative, or attorney. Some states also authorize the appointment of a guardian ad litem to represent a child’s interests in a divorce case that involves custody issues.
If a guardian ad litem is not an attorney, the minor or disabled adult is frequently represented by an attorney as well.
Copyright 2005 Nolo
A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and it specifies what each person’s property rights will be after they tie the knot. Premarital agreements often specify how property will be divided — and whether spousal support (alimony) will be paid — in the event of a divorce. In addition, an agreement may set out the couple’s intentions about distributing property after one of them dies. (This is especially useful for second marriages when one or both spouses wants to preserve property for children or grandchildren from a former union.)
In some states, a premarital agreement is known as an “antenuptial agreement,” or in slightly more modern terms, as a “prenuptial agreement” or “prenup.”
As divorce and remarriage have become more prevalent, and with growing equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair, that seems to promote divorce or that otherwise fails to meet state requirements will still be set aside. And courts won’t uphold agreements of a non-monetary nature. For example, you can agree on how you will divide your property if you divorce, but you can’t sue your spouse for failure to take out the garbage, even if your premarital agreement says that he or she must do so every Tuesday night.
Whether you should make a premarital agreement depends on your circumstances and on the two of you as individuals. Most premarital agreements are made by couples who want to circumvent the mandates of state law in the event of a divorce or at death. Often this happens when one partner has property that he or she wishes to keep if the marriage ends — for example, a considerable income or a family business. Perhaps most frequently, premarital agreements are made by individuals who have children or grandchildren from prior marriages. The premarital agreement allows the partner to ensure that the bulk of his or her property passes to the children or grandchildren rather than to the current spouse.
Copyright © 2002 Nolo
No. When you marry, you are free to keep your own name, take your husband’s name or, if you wish, adopt a completely different name. Your husband can even adopt your name, if that’s what you both prefer. Give some careful thought to what name feels best for you. You can save yourself considerable time and trouble by making sure you are happy with your choice of name before you change any records. Any change other than taking your husband’s name will probably require a petition to the court.
Yes. Some couples want to be known by a hyphenated combination of their last names, and a few even make up new names that combine elements of each. For example, Ellen Berman and Jack Gendler might become Ellen and Jack Berman-Gendler or, perhaps, Ellen and Jack Bergen. You can also pick a name that’s entirely different from the names you have now, just because you like it better. In the past, it was relatively easy to make all these changes simply by consistently using your new name. Today, unless you follow the traditional pattern of a woman adopting her new husband’s last name, you will probably need to go to court to get an official order changing your name.
A woman who wants to take her husband’s name upon marriage need do nothing beyond promptly beginning to use that name. Use your new name consistently, and be sure to change your name on all of your identification, accounts and important documents. To change some of your identification papers — your Social Security card, for example — you’ll need a certified copy of your marriage certificate, which you should receive within a few weeks after the marriage ceremony.
Copyright 2005 Nolo
If you haven’t been together long and don’t own much, it’s really not necessary. But the longer you live together, the more important it is to prepare a written contract making it clear who owns what — especially if you begin to accumulate a lot of property. Otherwise, you might face a serious (and potentially expensive) battle if you split up and can’t agree on how to divide what you’ve acquired. And when things are good, taking the time to draft a well-thought-out contract helps you clarify your intentions.
You can tailor your property agreement to meet the needs of your relationship. The major areas of concern for most unmarried couples are:
Some couples choose to keep all property owned before the agreement — a car, house, furniture and the like — completely separate, while others choose to share some or all of their property by transferring part ownership to each other. You can also specify how you will own property that you acquire during your relationship. (And if you decide not to prepare a comprehensive property agreement that covers this issue, you should use a “joint purchase agreement” for major items of property as you buy them.)
Similarly, you may use your agreement to split income and expenses in any number of ways. You can keep separate bank and checking accounts, credit cards and insurance, or you can agree to handle some or all of these things jointly.
In your agreement, you may also want to decide in advance who gets what should you separate, or agree to a process for resolving any property disputes that arise if you part ways.
Absolutely. Although each person starts out owning all of his or her job-related income, many states allow this to be changed by an oral contract or even by a contract implied from the circumstances of how you live. These types of contracts often lead to misunderstandings during a breakup. For example, absent a written agreement stating whether income will be shared or kept separate, one partner might falsely claim the other promised to split his income 50-50. Although this can be tough to prove in court, the very fact that a lawsuit can be brought creates a huge problem. For obvious reasons, it’s an especially good idea to make a written agreement if a person with a big income is living with and supporting someone with little or no income.
Example: Jon and Rose plan to buy a fixer-upper house and move in together. Jon is a carpenter; Rose is a university professor who makes nearly twice as much as Jon. Jon and Rose plan to own their home equally, so they agree in writing as follows: Rose will pay two-thirds of the mortgage, and Jon will pay one-third. Rose and Jon will equally pay for the materials to fix up the house, and Jon will contribute all the labor. Rose and Jon also agree to equally own all the property, furniture and fixtures they buy once they move in together.
Copyright 2005 Nolo
It is common for a divorcing couple to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leave it to the judge. But if a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property.
Division of property does not necessarily mean a physical division. Rather, the court may award each spouse a percentage of the total value of the property. (It is illegal for either spouse to hide assets in order to shield them from property division.) Each spouse will get personal property, assets, and debts the total net worth of which add up to his or her percentage.
Courts divide property under one of two basic schemes: community property or equitable distribution. Community debts are divided according to the same principles.
Very generally, here are the rules for determining what’s community property and what isn’t:
If children are involved, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don’t have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave.
If, however, you don’t have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn’t have to. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in. When you both own the home, the only time you can get your spouse to leave is if your spouse has committed domestic violence and a judge grants a restraining order.
Whatever you do, do not claim domestic violence has occured, just to get your spouse removed from the home. (Some people have resorted to this extreme tactic.) Once a judge realizes this has occurred, the party claiming violence may be asked to vacate the home, and the judge may be biased againt him or her during future negotiations.
If you believe you are a victim of domestic violence, but are not sure, go to the Yellow Pages and call your local domestic violence hotline.
Copyright 2005 Nolo
No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes at least one of three forms:
In every state, courts are willing to order joint legal custody. About half the states are reluctant to order joint physical custody unless both parents agree to it and appear to be able to communicate effectively and cooperate with each other. In New Mexico and New Hampshire, courts are required to award joint custody, except where the children’s best interests — or a parent’s health or safety — would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.
Sometimes neither parent can appropriately assume custody of the children — perhaps because of substance abuse, a mental health problem, absence or incarceration. In these situations, someone other than the parents may be granted custody of the children or given a temporary guardianship or foster care arrangement by a court. A court would rather have a child remain with family members than go with strangers. So if you are in this situation and you don’t want your child to wind up in foster care, speak to relatives who may be willing to assume temporary custody.
When a court determines the visitation rights of a noncustodial parent, it usually orders visitation at reasonable times and places, leaving it to the parents to work out a more precise schedule. Reasonable visitation allows the parents to exercise flexibility by taking into consideration both the parents’ and the children’s schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times and duration of visits. He or she isn’t legally obligated to agree to any particular schedule.
For the reasonable visitation approach to succeed, the parents must cooperate and communicate with each other frequently. If you suspect right off the bat that reasonable visitation won’t work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you’ve already agreed to reasonable visitation and it isn’t working out — for example, one parent is consistently late, skips scheduled visits or doesn’t inform the other parent where he or she is planning on taking the children — you can go back to court and ask that the arrangement be changed.
Copyright 2005 Nolo
“No fault” divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at “fault.”
To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it’s enough to declare that the couple cannot get along (this reason goes by such names as “incompatibility,” “irreconcilable differences,” or “irremediable breakdown of the marriage”).
In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.
When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called “comparative rectitude.” Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.
Nowadays, it’s usually one spouse who files the divorce papers first; if the other person disagrees with the “fault” accusations, he or she can file an “answer” to the divorce complaint.
While this may go a long way to soothe someone’s pride, it adds up to a longer divorce process and more money spent on legal work and court filings.
One spouse cannot stop a no fault divorce. Objecting to the other spouse’s request for divorce is itself an irreconcilable difference that would justify the divorce.
A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:
Condonation. Condonation is someone’s approval of another’s activities. For example, a wife who does not object to her husband’s adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband’s lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived — that is, set up — his actions.
Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
Collusion. If the no fault divorce available in a state requires that the couple separate for a long time and the couple doesn’t want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.
But think twice before you raise a defense to a fault divorce. These defenses are rarely used — for a couple of practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don’t wish to be. Your money and energy may be better spent elsewhere — say, on paying mutual debt or saving for the children’s college education.
Copyright 2005 Nolo
Do consider entering into a prenuptial or premarital agreement prior to marriage to make it clear which property is not subject to division upon your death or divorce.
Do maintain accurate and complete books and records to establish the separate nature of property you wish to keep separate from the marital estate, such as that held by you prior to marriage or received by you alone as a gift or inheritance during the marriage.
Do continue to keep all separate property separate throughout the marriage if you are concerned about keeping it in your family or as your personal asset upon your death or divorce. That means, very generally, that you should not “commingle” property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult–if not impossible–to legally determine which is which.
Do be aware that the increase in value of nonmarital property may be considered marital, such that each spouse is entitled to a share upon divorce or the death of the property owner, especially if the appreciation in value is considered “active” rather than “passive.” Passive appreciation is, for instance, the increase in value of a bank account as a result of interest earned, or the increase in value of property merely as a result of inflation. Active appreciation, on the other hand, occurs as a result of some form of actual effort, such as by repainting the rental property, actively managing the stock portfolio, or working behind the counter at your spouse’s ice cream store.
Do use only your nonmarital property to purchase or in exchange for other property if you want that other property to be nonmarital. In other words, a boat that you pay for with money you had before marriage and kept in a separate account after marriage will be considered nonmarital property, but if your spouse pays for part of it, or even helps maintain it, it could lose that characterization.
Do keep personal injury proceeds you acquire during marriage separate if you want them to retain their nonmarital character. The money you get from a personal injury lawsuit is yours alone, except for any portion that compensates you for your lost income or your spouse for the loss of your services.
Don’t use nonmarital money to pay off a marital debt, or it could lose its nonmarital quality.
Don’t make deposits of income earned during the marriage (which is usually considered marital property) into nonmarital accounts or the money in those accounts could lose its nonmarital quality.
Don’t open a joint bank account with nonmarital funds, even if you intend to keep track of which portion is nonmarital, or which portion is your nonmarital and which is your spouse’s nonmarital money. It is much more prudent to maintain separate accounts if you wish to keep the assets separate.
Don’t assume that just because you owned property prior to marriage no portion of it will be deemed marital property. If, for instance, the home you owned before marriage increases in value during the marriage as a result of you and your spouse’s efforts to maintain and improve it, your spouse may be entitled to an equitable portion of that increase in value.
Don’t assume that your business remains entirely a nonmarital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse’s contributions, whether they are in the form of doing the bookkeeping, entertaining clients, or taking care of the home and children so that you can put in those long hours, your spouse may be entitled to a share of the increase in value upon divorce or your death.
Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage and the requirements of each are listed below. In addition, various other states will recognize a common law marriage if it was valid in one of these states and meets these requirements, even though those states do not themselves have statutes providing for common law marriages.
Alabama. In this state, the parties must agree to be husband and wife, they must have the mental capacity to enter into and understand such an agreement, and they must consummate the marital relationship.
Colorado. In order for a common law marriage to exist in Colorado, the relationship must be proven by the cohabitation of the common law spouses and their reputation for being married.
District of Columbia. In the District, a common law marriage is established by the parties’ explicit intent to be married and by their cohabitation.
Iowa. A common law marriage is established in Iowa by the parties’ intent and agreement to be married, their continuous cohabitation, and their public declarations that they are husband and wife.
Kansas. In Kansas, the man and woman must have the mental capacity to marry, they must agree to be married at the present time, and they must represent to the public that they are married in order for a common law marriage to exist.
New Hampshire. This state recognizes common law marriages only upon the death of one of the spouses. In other words, common law marriages are recognized in New Hampshire for inheritance purposes only.
Montana. In Montana, the parties must have the capacity to consent to marriage, they must agree to be married, they must cohabitate, and they must have a reputation of being married.
Oklahoma. The parties must be competent, agree to enter into a marriage relationship, and cohabitate in order to be considered as having a common law marriage.
Pennsylvania. A common law marriage is established in Pennsylvania by the exchanging of words between a man and a woman indicating an intent to be married at the present time.
Rhode Island. In Rhode Island, a common law marriage exists if a man and woman have a serious intent to be married and engage in conduct that leads to a reasonable belief by others in the community that they are married.
South Carolina. In this state, if a man and woman intend for others to believe they are married, a common law marriage may be established.
Texas. If a man and woman in Texas sign a form provided by the county clerk, agree to be married, cohabitate, and represent to others that they are married, a common law marriage exists.
Utah. In Utah, a common law marriage is established if the man and woman are capable of giving consent and getting married, if they cohabitate, and if they have a reputation of being husband and wife.
The laws relating to families have changed dramatically since the 1970s as judges and legislators have reexamined and redefined the legal issues involved in divorces, child custody disputes, child support, domestic violence, and other family law matters. Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large. Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.
Divorce, or dissolution of marriage as some states call it, is no longer fault-based and has become easier to obtain. Whereas not too long ago one spouse had to accuse the other of some grave misdeed, such as adultery, cruelty, alcoholism, or drug addiction, divorce is now available on the basis of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The division of marital property has also changed in recent years, so that now each spouse is given a more equitable share of the property upon divorce. One change that demonstrates this phenomenon is the recognition of the homemaker spouse’s contributions to the accumulation of marital property. For example, whereas once the husband who developed and grew his own business while his “nonworking” wife stayed home would walk away from the marriage with all of the business assets, courts now award a significant portion of the business assets to the wife, who enabled that business growth by taking care of the home and children, and by entertaining business clients and associates. On the other hand, homemaker spouses are not considered as dependent as they once were, and as a result alimony, if awarded at all, is now often temporary, with the thought that after a period of “rehabilitation” these spouses can become self-sufficient.
Issues like child custody, too, have evolved in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but now fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult, and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting, too, presents heart-wrenching custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights, and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.
Another major change in family law in recent years is the recognition that many family disputes can be resolved more expediently and in a less acrimonious manner than through the traditional litigation process. In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible.
Family law lawyers can provide valuable counsel and objective representation in what can be emotionally charged situations. Their experience may focus on a particular area, or may include several or even all of the following family law issues.
a) Divorce Litigation – Custody, Parenting Time, Alimony, Child Support, Equitable Marital Distribution of Assets and Debts;
b) Post Judgment Litigation – Modification or Enforcement of Existing Judgment or Orders
c) Pre- Litigation Settlement Negotiations – Legal representation of one party in negotiating a Marital Settlement Agreement before a complaint for divorce is filed in Court.
a) Mediation for Separation and Divorce – As Mediator
b) Mediation of Post Judgment Disputes – As Mediator
c) Mediation Review – As attorney for one party
d) Mediation Coaching – As attorney for one Party
A process in which specially trained attorneys, financial experts and mental health professionals work together with divorcing families in a mutually supportive team environment designed to avoid involving the court system, and in which the common goal is to assist families in planning for life after divorce in as healthy and constructive a manner as possible.
Attorney, Michael R. Magaril