Divorce Legal Information
Divorce lawyers are part of a broad area of the law commonly referred to as Family Law. Often the term divorce lawyer and family lawyer will be used interchangeably because in addition to divorce, a family lawyer will also handle cases involving family related issues such as marriage, child support, alimony, child custody, adoption, and even 401k issues. Because the issue of divorce can be extremely complicated, especially the division of assets, it may be important to enlist the help of a lawyer to assist in the divorce process.
"WHAT CAN A DIVORCE DO FOR ME?"
- A divorce is used to legally say you are no longer married to your spouse.
- Allows you to remarry.
- Division of property: based on a fair division in the most economic way possible.
- Determines support obligations: both child support and spousal support, also know as alimony, are determined during the divorce process.
- Determines child custody and visitation: the court will try to make these decisions based on the best interests of the children.
"WHAT CAN'T A DIVORCE DO FOR ME?"
- Guarantee precise and equal division of property: no two divorces are the same, but the courts will do their best they can to ensure property is divided up fairly and equitably.
- Ensure civil relations: divorce is just a piece of paper. It is up to you and your spouse to act in a civil manner and keep the best interest of your children in mind.
- Maintain your standard of living: living in a single household allows a family to share expenses, responsibilities, and incomes. With two separate households after the divorce, you may not have as high of a standard of living as when you were married.
- Resolve emotional issues: you may need the help of a therapist and support groups to resolve these issues.
"WHAT ARE SOME DO'S AND DONT'S DURING MY DIVORCE?"
- Be reasonable and cooperate with your spouse.
- Support your children.
- Communicate with your spouse about when and where you will spend time with your kids. Talk about custody issues and come to an agreement.
- Fully disclose all assets and property. If you withhold information your divorce can be invalidated later on.
- Ask your lawyer for clarification if something is confusing. Divorces are complicated and a lawyer can help guide you through the process.
- Make plans to take a job in another state or move out of state until after your divorce is finalized.
- Violate any temporary custody or visitation arrangements.
- "Give away" your property to friends or family and arrange to get it back after your divorce.
- Go it alone if you are nsure of the process. It's very complicated and a lawyer can help protect your interests.
"I WANT TO FILE FOR DIVORCE, DO I NEED A LAWYER?"
When filing for a divorce you are not required to employ a lawyer. However, the issues related to divorce are very complicated and the aid of a qualified lawyer can help you through this difficult time. A lawyer who specializes in divorce can assist you with issues related to the division of property, child support, custody, visitation, and alimony. These issues are extremely important to the whole family. It can be very difficult to deal with them alone. A lawyer who is knowledgeable in this area of the law can be a great help.
There are instances where you should absolutely hire a lawyer. You should hire a divorce lawyer when:
- there is spousal or child abuse in the marriage. A lawyer can use the court system to help protect you and your children throughout the divorce process.
- your spouse is being dishonest or vindictive. If a spouse becomes too difficult to deal with, it is important to hire a lawyer to assist you. Emotions can run high during a divorce and a lawyer will make sure you are protected and will serve your interests.
- your spouse has hired a lawyer. If you are unfamiliar with the divorce laws, it may be very difficult to understand everything your spouse's lawyer is doing. That lawyer will have your spouse's interests in mind, not yours. Having your own lawyer will ensure that your interests are protected during the divorce and will ensure the issues such as division of property, child support and custody, and alimony are fair.
- your financial situation or custody situation is very complicated. It may be too difficult to understand or learn about these issues. The easiest way to resolve these issues may be to allow a lawyer to take care of the legal processes for you.
"I'VE HIRED A LAWYER BUT WANT TO KEEP MY DIVORCE AS SIMPLE AS POSSIBLE, WHAT CAN I DO?"
The following are tips you can use if you want to minimize the cost of your divorce, stay out of court as much as possible, and keep the emotional strain on your family to a minimum.
- Make decisions yourself: it may be necessary to seek the aid of a neutral third party but if you want to minimize your cost and simplify your divorce, you and your spouse should personally decide on things such as how the children should be raised, visitation schedules, spousal support (alimony), and how your property and finances will be divided.
- Don't let the lawyers run the show: emotions can run high during the divorce process. Lawyers are usually only concerned with one spouse's interests, their client's. When this is the case, lawyers can sometimes be overzealous about their client's best interests and may not have the best interests of the family in mind.
- Keep the lawyers civil: you and your spouse should tell your lawyers that you believe in a collaborative approach to your divorce and that a combative approach would not be in the best interests of your children. Lawyers should respect their client's wishes in this matter. If they don't, you should find a new lawyer.
- Hire a Collaborative Lawyer: there is a method being practiced by some divorce lawyers called "collaborative law." This occurs when both spouses and their lawyers agree not to go to court and to share information voluntarily. The two sides work cooperatively to reach an agreed upon settlement. A collaborative lawyer will only work with another collaborative lawyer and will not go to court to represent their client.
"CAN MY SPOUSE AND I USE THE SAME LAWYER DURING OUR DIVORCE?"
Under certain circumstances, yes. If you and your spouse want to use the same lawyer during your divorce certain issues must be agreed upon. First, you must agree with your spouse on the major issues. These include the division of property, child custody, child support, and alimony. You must also be comfortable enough with your spouse to work out the minor issues that may arise during your divorce. Both spouses must understand these circumstances and must agree in writing. As a result, your lawyer should just be filing the necessary paperwork to help the divorce run smoothly.
"IF I DON'T HIRE A LAWYER WHAT ARE THE STEPS INVOLVED IN A DIVORCE?"
- One spouse writes a petition (complaint) explaining why they want a divorce. They include how they want to divide up the property, how they wish the custody of the children to be handled, and how they want to settle the financial terms, including alimony and child support.
- The complaint is filed with the courts.
- The complaint is then served, or given to the other spouse.
- This spouse can then answer the complaint. This spouse can agree with the complaint or can indicate how they would prefer to deal with the issues involving property, children, and finances.
- The spouses exchange documents. These documents include anything about property owned and income for each spouse so that child support and alimony can be determined.
- A mediation or settlement can then resolve the divorce. This occurs when both spouses agree on all the issues involving the division of property, finances, and their children.
- If a settlement is reached between the spouses, their agreement is then shown to a judge.
- The judge will question the couple, usually to ensure that the division of property, child support, and alimony are fair for both spouses. If the judge approves, the divorce is final. If the judge does not approve (this is rare) then the couple goes to trial to decide the issues.
"HOW CAN MY SPOUSE AND I DIVIDE UP OUR PROPERTY IN THE MOST EQUITABLE WAY POSSIBLE?"
- BE HONEST.
- List all of the belongings you own jointly.
- Value the property. In the case of a house or antiques you may need to ask a qualified realtor about the price of your home and enlist experts to put a price on your antiques.
- Decide the logical owner. Go through the list and start with the big items. Try to be as fair as possible. Your goal is to keep lawyers out of these types of decisions. The less you use lawyers and courts during your divorce, the less money you will spend and the less heartache you will cause for everyone involved.
"WHAT IS THE DIFFERENCE BETWEEN A NO-FAULT AND A FAULT DIVORCE?"
A no-fault divorce occurs when neither spouse blames the other for the breakdown of the marriage. The reason for divorce in this case is most often "irreconcilable differences" or "incompatibility."
A fault divorce occurs when one spouse is clearly at fault for the breakdown in the marriage. This can effect the division of property, child custody, and financial arrangements during the divorce process. Examples of when one spouse is at fault include but are not limited to: adultery, physical or mental abuse, attempted murder, desertion, habitual drunkenness, habitual drug use, insanity, impotency (not known at the time of marriage), or one spouse infecting the other with a venereal disease. If you want to file for a fault divorce you should always seek the advice of a lawyer.
"INSTEAD OF A DIVORCE CAN I GET AN ANNULMENT?"
There is no timeline for getting an annulment on your marriage. Basically, an annulment dissolves the marriage and as far as the courts are concerned, the marriage never happened. In the case of lengthy marriages, the couple will still need to divide their property and decide on financial issues such as child and spousal support. In order to have an annulment, one of the following must usually be the case: one spouse misrepresented their true self, there was concealment of some kind (drug use is one example), one spouse refuses to consummate the marriage, or there was an irreconcilable misunderstanding between the couple (and example is if one wanted children and the other didn't).
"MY SPOUSE AND I WANT TO SEPARATE FOR A TIME, WILL THIS AFFECT OUR DIVORCE LATER ON?"
Separating before filing for divorce will not affect the process once you decide to file. However, a separation can affect property ownership and the division of property once you decide to file for divorce. The law recognizes four types of separation and they each affect property ownership a bit differently.
- Trial separation: this is when a couple lives apart in order to decide whether to get a divorce and separate permanently. The assets, property, and debt accumulated by both spouses during this time are still considered to joint property.
- Living apart: this is when couples no longer live together for any reason. In some states couples must live apart for a certain amount of time before filing a no-fault divorce. During this time, some states consider property and debt accumulated to be separate and some states consider it to be joint property and debt until the divorce is filed.
- Permanent separation: this occurs when the couple splits up for good. The assets, property, and debt accumulated are considered separate for each spouse. They are now each responsible for themselves.
- Legal separation: this is when a couple separates and the court makes a decision about property division, alimony, child support, custody, and visitation. The court does not grant a divorce in this case (reasons maybe financial, person, religious, etc.)
Divorce lawyers most often charge hourly fees figured in blocks of 15 minutes. It is important when you first speak with a divorce lawyer to find out how much they charge and by what method they calculate their fee. Find out if the lawyer requires an initial retainer. This is money paid to your lawyer up front in case you can't pay the hourly fee later on. If they do require a retainer, how much is it? Keep in mind that complex divorces will cost more money than simple ones. You should always inform your lawyer you want to keep your costs to a reasonable minimum and you would like them to help you do so.