Divorce Law

Authored by Wendy Witt, Esq.

Because 50% of all first marriages and even a higher percentage of second and third marriages end in divorce, a general understanding of divorce law is beneficial.

Under the law, you always have the right to represent yourself “pro se” in any legal process. Proceeding pro se may not be in your best interests.

  • If you give up legal rights during divorce, you cannot later say that you've changed your mind and assert them then.
  • It's imperative you fully understand your legal rights and make educated decisions. A divorce attorney helps you to do these two things.

Identifying Divorce Law Issues

These are the issues that a divorce, matrimonial, and family law attorney can assist you with:

  • Prenuptial, marital, partnership, and civil union agreements
  • The dissolution of a marriage, domestic partnership, or civil union
  • Property distribution and alimony
  • Child custody and support
  • Name changes
  • Domestic violence
  • Paternity
  • Child abduction
  • Child abuse
  • Minor emancipation
  • Guardianship

There is no uniformity in divorce law; each state creates its own laws and vary greatly from one jurisdiction to another.

Only a divorce attorney, who has examined all the facts in your particular case, can provide legal advice and answer these important questions. However, we can show you how to find a divorce lawyer and provide a lot of good information that others going through divorce have found extremely helpful.

Marriage and Living Together

Common Law Marriage

In most states, you must follow statutory procedure to be married. For example, you need to apply and receive a license and have some sort of ceremony.

  • However, in a few states, common-law marriages are real marriages.
  • You and your spouse only need to have had the intent to be married and act like you're married.
  • For example, you tell people that you're married; wear wedding rings, change last names, live together, and share bank accounts.
  • Pretending to be married to check into a hotel or at a party does not create a common law marriage.

If recognized by your state's law, a common law marriage is very real with all the duty to financially support your spouse - and if you break up, a formal divorce is required.

Only a few states recognize common law marriages:

Not all states are explicit in their statutes allowing common law marriages. In some states case law recognizes them, including Alabama and Rhode Island. In other states such as Oklahoma, case law has upheld them.

States that did allow common law marriage, and still recognize as valid if contracted prior to the date it was abolished:

Joint Property

Property is jointly owned when it is owned by two or more people such as a married couple.

Often, married people own their assets jointly:

  • Community Property
  • Joint Tenants with Right of Survivorship
  • Tenancy by the Entireties
  • Tenants in Common (not common between married persons)

How property is owned may affect property distribution upon divorce and inheritances after death.

Separate Property

In most cases, any assets obtained during marriage are considered to be marital property.

  • In the 9 community property states, community property is the form of marital property - and upon divorce, all such property (unless agreed otherwise) is split 50/50 between the spouses.

Community property states include Louisiana, Texas, New Mexico, Arizona, Nevada, California, Washington, Idaho, and Wisconsin. Alaska is a community property state but only if both spouses opt in.

  • Regardless of whether you live in a community property state or a separate property state, if you want to maintain some asset (e.g. pre-marital property, inheritance, or gift) as separate property, you must make an effort to do so. Never comingle these separate property assets with marital property or community property assets.

Keep separate property in your own name or if you have a trust, make sure the separate property is identified on a trust funding schedule.

Marital Property

Separate property is owned by just one of the spouses - examples of separate property would be an inheritance or gift - and assets owned before marriage - that are not commingled (i.e. put in both names).

On the other hand, marital property is owned by both spouses such as a house or investment accounts in joint names. Some states have community property laws, which provide - unless you and your spouse agree otherwise - that upon divorce, all assets attained during marriage will be divided 50 - 50.

Equitable Distribution

All 50 states either follow separate property laws or community property laws for married couples. Unless spouses agree otherwise in a prenuptial agreement, postnuptial agreement, or marital settlement (divorce) agreement property is divided pursuant to state law.

  • In separate property states, financial assets are divided based on what is fair and equitable - not necessarily equal. This is called "equitable distribution".
  • In community property states, during divorce, community property assets - those obtained during marriage - are divided 50/50.

Community property states include Louisiana Texas, New Mexico, Arizona, California, Nevada, Washington, Idaho, Wisconsin, and Alaska (but only if the couple so chooses).

All other states are separate property states.

Filing for Divorce

Complaint for Divorce

The first step in the divorce process is filing a "complaint" with the court - it is also called a "petition". This initial filing details the requested action (e.g. divorce) and the reasons why the divorce should be granted.

If your spouse files a petition/claim and names you as the defendant/respondent, it's essential that you respond.

  • Ignoring a lawsuit will not make it go away and will result in a default judgment being granted against you and in your spouse’s favor.
  • If you don't assert your legal marital rights such as to alimony, you can lose them.

Grounds for Divorce

When filing for divorce, your state law likely requires that you list a reason (aka "grounds) for your divorce. Most states now allow no-fault divorces so you don't need to say that your spouse did anything wrong.

In no-fault states, you just have to say that you and your spouse have irreconcilable differences or that your marriage is irretrievably broken.

  • In many cases, there is no good reason to state grounds for divorce - it would likely just serve to antagonize.
  • However, in some cases, grounds are required by state law or may change the financial distribution between spouses so you may wish to cite adultery, drunkenness, abuse, impotence, and the like.

It may or may not benefit you and your children to state fault grounds for divorce. Be sure to consult with a qualified divorce attorney licensed in your state for guidance in your individual case.

Uncontested vs. Contested Divorce

Most divorce cases are settled through attorney and spousal cooperation and collaboration, mediation, or arbitration.

  • If you and your spouse both agree to a divorce - and agree on property distribution, spousal support (aka alimony), time sharing (aka custody), and child support, your divorce is "uncontested".
  • If you and your spouse can't work out an agreement, you will have to go to court - and your divorce case is “contested”.

You go to court to ask the court to make a decision and impose a court order upon you, regarding property distribution, spousal support, time sharing (custody), or child support.

Annulment

An annulment ends a marriage; however, unlike divorce, an annulment indicates that the marriage was never legally valid - that you were, in fact, never married. For example, someone forced into marriage (against her will) may seek an annulment.

Although it may seem contradictory, children born during an invalid marriage - which is later annulled - are deemed to be legitimate.

Divorce Orders, Custody, and Support

Contract - Agreement

A contract is simply an agreement wherein both spouses either provide or give up something.

For example, the marital settlement agreement is a common contract in most divorce cases. The marital settlement agreement typically outlines property division, spousal support (alimony), timesharing (custody), and child support.

Marital Settlement Agreements

If you and your spouse are on good terms and you want to have control over your property settlement, alimony, child support, and child custody, you and your spouse can design your own marital settlement agreement.

Typically, with the help of lawyers and mediators, spouses come up with their own plan. The alternative is having the court or an arbiter impose terms on you - and paying more money for the privilege of being told what to do.

Alimony - Spousal Support

Many folks don't realize it, but when you get married, you take on the legal obligation to support your spouse. If your marriage ends, that obligation remains, at least for a period of time.

  • In general, the number of months or years alimony is required is based on how long you were married.
  • The dollar amount of alimony is, typically, based on both spouses' incomes.

Of course, other factors may be considered in your individual situation such as length of marriage, health, children, education, and the like.

Joint Custody

If both parents have custody of their children, they have "joint" custody. The term "custody" includes physical custody (i.e. time sharing) - as in with whom the children live and spend time - as well as legal custody.

Legal custody can be shared - or not - and refers to the parent(s) who has legal authority to make health care, education, religious, lifestyle, and general welfare decisions for the children.

Custody - Time Sharing

You and your spouse are free to develop your own agreement for sharing time with children and making decisions for your children's highest and best good. Although this is commonly known as "custody", many states now refer to custody as "time sharing".

There are two types of custody: physical and legal.

  • Physical custody refers to whomever the child spends time with. Sometimes parents share time equally - in other situations, one parent has the majority of time and the other parent has "visitation" or "time sharing".
  • Legal custody refers to which parent is legally entitled to make important decisions for the child such as educational, religious, health care, lifestyle, and general welfare decisions.

If the court gets involved, only the best interests of the child will determine custody arrangements.

Child Support

If one parent has physical custody of the children, the other parent makes payments to the custodial parent for her share of the expenses of raising the children.

While, in theory, such payments are to be used to care for the children, the non-custodial parent has absolutely no control over how the money is actually used.

Going to Court In a Divorce

If you and your spouse CANNOT reach an agreement detailing property distribution, spousal support (aka alimony), time sharing (aka custody), and child support - and you want the matter resolved, you will have to go to court and have a trial.

  • You and your spouse present your evidence and ask the court to proceed in a certain way.
  • The court will decide matters and then tell you and your spouse what to do.
  • Court intervention is a lack of control and greatly increases stress, expenses, time delay, and acrimony.

Alternatives to court are cooperation, collaboration, and negotiation; mediation; and arbitration. A trial is not required by law.

Disclosure, Discovery, and Document Production

Divorce attorneys are very good at finding hidden assets, valuing businesses, and gathering evidence, and investigating to determine whether you, your spouse, and any other witnesses are providing all requested information and answering questions honestly.

  • Disclosure refers to you or some other witness providing requested information. For example, you will be requested to disclose all of your assets.
  • Discovery refers to attorney investigation, including but not limited to interrogatories - which are written questions you or your spouse must answer.
  • If your spouse's attorneys as you to produce documents such as loan applications, business tax returns, or investment results, you must do so. This is called "document production".

Deposition

You've likely seen someone take the witness stand on television. The witness swears or affirms to tell the truth - the whole truth - and nothing but the truth. If the witness lies on the stand, he can be convicted of perjury and be sent to jail.

You may not realize this, but the same truth telling standard is used in out of court -under oath - questioning as well. This out of court questioning is called a "deposition".

Your attorney and your spouse's attorney are permitted to ask you questions during a deposition.

  • You must swear or affirm that you will tell the truth.
  • The deposition is reduced to writing.
  • It can be used in court as your testimony if you are unable to testify in person or to impeach you as a credible witness, if you lie on the stand.

Direct Examination and Cross Examination

If you choose to go to court to have the court decide divorce issues, you'll likely have to take the witness stand.

  • When your own attorney asks you questions, this is "direct examination".
  • If your spouse's attorney asks you questions, it is called "cross-examination".

Please note that going to court is not required - you and your spouse can work out a marital settlement agreement with the help of your divorce attorneys - and avoid court interference.

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