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A V V O . C O M P R E S E N T S
DIVORCE
E V E R Y T H I N G Y O U N E E D T O K N O WTable of Contents
OVERVIEW ... 6
THE TOP FIVE SIGNS YOUR MARRIAGE IS IN TROUBLE ... 7
BASICS ... 9
NO-FAULT DIVORCE ... 10
UNCONTESTED DIVORCE VS. CONTESTED DIVORCE ... 12
SIMPLE DIVORCE / SUMMARY DIVORCE BASICS ... 14
COLLABORATIVE DIVORCE ... 16
DIVORCE MEDIATION... 18
CHOOSING A LAWYER ... 21
HOW TO HIRE A DIVORCE LAWYER ... 22 HOW TO PREPARE FOR (AND GET THE MOST OUT OF) YOUR FIRST
COSTS ... 38
HOW MUCH WILL MY DIVORCE COST & HOW DO I SAVE MONEY ON IT? ………39
FIVE TIPS THAT WILL HELP SAVE MONEY ON YOUR DIVORCE ... 43
HOW TO PREPARE YOUR FINANCES IN THE TIME OF DIVORCE ... 47
DIVORCE AND TAXES ... 52
PROCESS ... 55
PROPERTY DIVISION ... 67
COMMUNITY PROPERTY DIVISION VS. EQUITABLE PROPERTY DIVISION IN DIVORCE ... 68
WHAT IS NON-MARITAL PROPERTY? ... 71
DIVORCE PROPERTY SETTLEMENT: TIPS FOR PROPERTY DIVISION ... 75
DIVIDING PROPERTY IN A DIVORCE: WHO GETS THE FAMILY HOME? 78 DIVIDING RETIREMENT PLANS IN DIVORCE ... 80
DIVIDING A BUSINESS IN A DIVORCE ... 84
DIVORCE DEBT AND CREDIT ISSUES ... 87
UNDERSTANDING BANKRUPTCY AND DIVORCE ... 91
HIDDEN ASSETS AND DIVORCE ... 93
PAYING ALIMONY (SPOUSAL SUPPORT) ... 98
ALIMONY (SPOUSAL SUPPORT) MODIFICATION ... 107
ALIMONY (SPOUSAL SUPPORT) TERMINATION ... 109
CHILDREN AND DIVORCE ... 113
HOW TO TELL YOUR CHILDREN YOU’RE DIVORCING ... 114
WAYS TO HELP YOUR CHILDREN GET THROUGH A DIVORCE ... 117
PARENTING PLANS ... 123
HOW DO I CALCULATE CHILD SUPPORT? ... 125
FAMILY LAW - RELOCATION WITH CHILDREN ... 128
AFTER DIVORCE ... 132
ENFORCING YOUR DIVORCE DECREE ... 133
APPEALING YOUR DIVORCE DECREE ... 136
Overview
Whether you're just starting the divorce process or you're in the midst of a custody battle with your ex-spouse, we have you covered. Here you'll find everything you need to know about divorce, property division, alimony, and choosing a divorce lawyer.
The Top Five Signs Your Marriage is in Trouble
Written by: Nathan Templeton Anderson, Litigation Lawyer
1. You Dream of a Life Without Your Spouse
It is not uncommon for us all to wonder “what if” during our day-to-day lives, but when you start thinking about how your life would be better without your spouse, you’ve definitely got a sign that your marriage is in trouble.
2. You Keep Things to Yourself
I’m surprised at how often clients come in and tell me that they simply quit communicating their needs and concerns to their spouse. When your marriage has reached a point to where it's not worth it to “bother” your spouse with your concerns and needs, this is another sign the marriage is in trouble. Open
communication is a key to any successful relationship, and holding things back from your spouse is quite
however, feeling a lack of reciprocal effort is a definite sign the marriage is on rocky grounds.
4. Your Marriage Lacks Intimacy
Sex is an important part of any healthy marriage. If one spouse seems uninterested in sexual intimacy with the other, this is a sign the marriage is in trouble. Even more so, if one spouse is withholding sex as a form of “revenge,” then this too indicates a storm is brewing.
5. The Bad Outweighs the Good
This one ties in closely with all the other signs. If you feel there is more trouble in paradise, then there are some issues that need to be confronted.
Basics
The kind of divorce you want and how well you and your spouse can agree on issues will affect the choice to hire an attorney, and what type of services you need from them. Learn more about the different types of divorce and determine which one is right for your circumstances.
No-Fault Divorce
No-fault divorce is the most common type of divorce case,
and is available in all states except New York. A no-fault divorce is one where the spouse seeking a divorce doesn't have to prove the other spouse did something wrong, but instead gives a reason recognized by their state, such as irreconcilable differences.
Getting a no-fault divorce
If you are seeking a divorce, a no-fault divorce may save you money as you do not have to sue your spouse and prove that he or she caused the marriage to break up due to an issue such as adultery or spousal abuse. However, some states require the couple to live apart for a period of time before a no-fault divorce can be granted.
If the couple agrees on how to divide their assets and on alimony, child support, and custody issues, they may
save money by representing themselves, or by using a family mediator to hammer out the details of their divorce. If there is disagreement about these issues, you will want to get a divorce lawyer to represent you in court.
No-fault vs. fault divorce
In some states, you can still pursue a fault divorce, where the spouse seeking the divorce must prove that his or her spouse is at fault for breaking up the marriage. Typical grounds for a fault divorce are cruelty, adultery, desertion, imprisonment for a period of time, and inability to have sex if that wasn't known before the marriage.
While no-fault divorce is far more common and easier to obtain, some people choose a fault divorce. They may not want to wait through their state's required separation period. In some states, they may receive more of the assets or more alimony by proving fault.
If you choose a no-fault divorce, your spouse cannot stop the divorce. In a fault divorce, however, the spouse could prevent the divorce by proving the charge against them is
Where to file for divorce
Ideally, you will want to file for divorce in the state where you live. All states require that you reside in the state before filing for divorce there, though the length of residency required varies from state to state. Divorce proceedings may drag on for some time, so you will save on travel and lost work time if the divorce court is near you. If you suspect your spouse may file for divorce in another state, you may want to take the lead and file in your home state.
Uncontested Divorce vs. Contested Divorce
When people think of divorce, many usually envision a nasty battle in court over every last stick of property—even the ugly wedding china no one really wants. However, what they may not know is that approximately 90% of divorces are uncontested. What this means is that the parties involved are able to settle their differences without even going to trial.
Uncontested divorces
In an uncontested divorce, the spouses reach mutual agreement on relevant issues like alimony, child custody, child support, and asset division. The court doesn’t get involved because the two parties manage to settle all their issues without litigation. Because of this, uncontested divorces usually save significant time and money compared to contested divorces.
Contested divorces
By contrast, two spouses go through a contested divorce process when they’re unable to reach an agreement on
issues even after trying alternatives like mediation. When this happens, the divorce case then goes before the court where the judge (or jury) makes the final call on each issue. Whereas having an attorney isn’t always necessary for an uncontested divorce, getting an attorney for a contested
Simple Divorce / Summary Divorce Basics
If you want a divorce and you and your spouse have no children and no property together, then you may want to consider getting a simple divorce (aka summary divorce, summary dissolution). A simple divorce is the cheapest type of divorce and also the quickest to complete.
Requirements of a summary divorce
Each state’s laws may have slightly varying requirements for a married couple’s eligibility for a summary divorce, but they usually include some version of the following conditions:
No children
A short marriage (typically 5 years or shorter)
Little or no property/debts owned together
Total value of marital property is less than a certain amount (usually about $35,000)
Each spouse’s total separate property value is less than a certain amount (usually same ceiling as marital property)
Benefits of a simple divorce
Benefits of a simple divorce compared to a traditional divorce:
Much cheaper. The costs usually only encompass the
filing fee, and minimal attorney fees if you hired representation.
Few or no court appearances. In some states a court
doesn’t require you to make an appearance at all, whereas courts in other states may have you show up just once or twice.
Extremely quick. Since couples filing for a simple
divorce have no children and very little to no
property, a big portion of what usually takes up most of the time in normal divorces is cut out. In some states a simple divorce can be completely concluded in about one month if all the paperwork is filed on time.
Collaborative Divorce
Collaborative divorce occurs when spouses and their lawyers commit to negotiating a settlement agreement without going to trial. This increasingly popular approach brings each spouse and their specially trained collaborative lawyers together in face-to-face meetings to work out their issues. Often, a collaborative divorce is simpler, quicker to achieve, cheaper, and less acrimonious than a traditional
divorce trial.
How collaborative divorce works
Each spouse hires his or her own lawyer experienced in collaborative law. In a series of four-way meetings, the lawyers facilitate communication between the husband and wife regarding child custody, property distribution, alimony, and other issues. Each party identifies its goals and
priorities and listens to the other's point of view.
Documents that clarify issues are disclosed to ensure
complete transparency. The spouses and their lawyers work as a team to solve problems and brainstorm solutions until
If the husband and wife fail to reach a settlement and the case goes to court, the collaborative lawyers are legally bound to withdraw from the case. Each spouse will need to hire new lawyers for litigation.
Collaborative divorce versus divorce mediation
The critical difference between collaborative divorce
and divorce mediation is that a mediator can't provide legal advice. A mediator helps spouses identify issues, examine
options, and reach resolution without advocating for either side. If either spouse needs advice in regard to a particular issue, they must turn to a lawyer.
However, both mediation and a collaborative approach help reduce the emotional strain of divorce and keep decision-making in the divorcing couple's control. They create conditions where a couple can continue to have a civil relationship. This is especially important when divorcing
Furthermore, if there is a history of abuse, serious mental illness, or financial misconduct, a collaborative divorce isn't an option.
Divorce Mediation
In some states, divorce mediation is an alternative to going to trial to decide the issues of a divorce. In others, divorce
mediation is required before a divorce trial can begin. In divorce mediation, a mediator meets with a husband and wife and acts as an impartial third party to facilitate an agreement. Often, mediation is a quick, less costly way to resolve disputes and reach a mutually beneficial outcome.
How divorce mediation works
In divorce mediation, couples choose a mediator (or the court appoints one) to discuss their cases. The mediator is often a lawyer or retired judge, but is not required to be. Over a single or several formal sessions, the mediator meets with the husband and wife separately or, at times, separately with the husband and wife and their lawyers. The mediator helps each party clearly define their issues and
encourages both parties to identify common goals, brainstorm options and accept compromise.
The husband and wife evaluate their options and decide upon workable solutions. The process concludes with a written mediation agreement, sometimes called a
Memorandum of Understanding, which outlines all the
details that the mediation has covered.
It's important to note that a mediator tries to guide couples to reach an acceptable settlement. He or she does not give legal advice or make decisions for the couple. Both the husband and wife should have their lawyers review the mediation agreement before signing it. Once it's signed, the court uses the mediation agreement to create the final divorce settlement.
Divorce mediation doesn't simply decide who gets what. It takes into account the unique issues that underlie the couple's conflicts. The process is intended to resolve differences and create a situation where a relationship can continue. This is especially important where divorcing couples have children and plan to share custody. In fact, many state courts mandate mediation in child custody disputes.
When to seek divorce mediation
If your state does not already require divorce mediation, it may be a wise choice if you and your spouse seek joint child custody, or agree about parenting issues, and plan on a fair distribution of property. Divorce mediation creates a less adversarial environment for your children and helps you and your spouse put together a co-parenting plan based on mutual interests.
Divorce mediation is also recommended after a divorce has dragged on for some time, to reduce additional costs and delays.
Choosing a Lawyer
If you've decided that you need a divorce lawyer, you may want to check out these tips. Find out how to choose a good divorce attorney, get the most of your consultation, and what documents to prepare for meeting with your lawyer.
How to Hire a Divorce Lawyer
Written by: Marshall William Waller, Divorce / Separation Lawyer
I’m Thinking about a Divorce: What Do I Do Now?
Developing a plan of action for handling your divorce is not all that hard to do. Sit down with a pad of paper and list the issues that you feel you will be dealing with during the divorce. The major issues are: child custody, child support, spousal support (alimony) and property division. Do you and your soon-to-be ex-spouse agree on any of these issues? The more you agree upon the less there is to fight about, and the less there is to fight about, the less costly the process will be, both financially and emotionally. On the issues where you have agreement, write down in simple and clear terms exactly what you and your spouse agree on. Don’t leave anything out; if you wonder whether or not a detail is important, it is.
Should I Hire an Attorney Or Should I Go it Alone?
If you are financially able to afford an attorney, you will almost always be better served by hiring a professional to represent your interests than by trying to do it yourself. This
attorneys who find they getting a divorce do not represent themselves, not even the divorce attorneys.
I Don’t Know Anything about Attorneys. What Kind of
Attorney Should I Hire?
Most people spend more time buying a new car than they do picking out an attorney to represent them in one of the most emotionally trying and difficult times of their lives. You should first gather up all the information and personal referrals you can from friends, family, co-workers and other people who went through the same thing that you are about to go through and who were happy with their attorney. Next, research and review the qualifications of attorneys in your area on the Internet. Then, go out and interview lawyers. Make sure the attorney practices in the area of Family Law. Be aware that some lawyers these days advertise themselves as being the “best lawyer” or “super lawyers,” but
Should I Go to War with My Ex-Spouse?
A divorce should not be a war. The quickest way to burn through your savings, your children’s college funds, all of your assets, and everything that you have worked so hard for throughout your life, is to go to war with your spouse. It is such an easy thing to do; many good and decent people are drawn into that without even realizing what is happening. It is said that criminal lawyers see bad people at their best and family lawyers see good people at their worst. Don’t be one of the good people who end up behaving “at your worst.” Nobody will win, except the attorneys.
What Is a Certified Family Law Specialist?
Not every family law attorney is a Certified Family Law Specialist, and depending on the complexity of your case, you may not always need a specialist. Certification requires extensive education and experience in the field of family law. In California, to become certified as a Family Law Specialist by the Board of Certification of the state Bar of California, a lawyer must pass a second specialized bar examination in the subject area. They must demonstrate that they have a certain level of experience handling a sufficient number of family law
It normally takes years of family law practice for an attorney to acquire the experience of the various types of family law cases required by the Board of legal specialization. Theuy must also undergo a positive peer review process and maintain a minimum number of hours of continuing education in the family law field.
What Can I Expect at the First Meeting with the Lawyer?
This initial consultation gives you both the opportunity to screen and evaluate one another. You need to have a sense of trust and confidence in the attorney.
Don’t be afraid to ask questions: Where did you go to school? How long have you been practicing this kind of law? Do you know my spouse? Do you know my spouse’s attorney? How many of these cases (like yours) have you handled? Do you have any specialties or specializations? What percentage of your practice is devoted to family law? How many family law
What Should I Expect Regarding Fees?
This initial consultation gives you both the opportunity to screen and evaluate one another. You need to have a sense of trust and confidence in the attorney.
Don’t be afraid to ask questions: Where did you go to school? How long have you been practicing this kind of law? Do you know my spouse? Do you know my spouse’s attorney? How many of these cases (like yours) have you handled? Do you have any specialties or specializations? What percentage of your practice is devoted to family law? How many family law cases have you taken to trial? How many have you won? (As a point of personal observation, be wary of the attorney who says he or she has never lost a case. That usually means they are not taking very many of them to trial). Have you ever been sued for malpractice and, if so, why? Has anyone ever filed a complaint against you with the state bar?
How to Prepare for (and Get the Most Out of)
Your First Meeting with a Divorce Lawyer
Written by: Monica H Donaldson Stewart, Divorce / Separation Lawyer
Prepare a list of questions in advance.
Before your appointment, prepare a list of questions regarding your situation. The most frequently asked
questions we encounter are 1) How long will this take; and 2) How much will this cost. Do not be afraid to ask any
questions, even if you think they are silly or minor. Be prepared that the attorney may not be able to answer all of your questions immediately. Many of the answers will depend on the information you provide. You may not like all of the answers you receive. If you get the sense that an attorney is only telling you what you want to hear, it is probably not the right attorney for you.
not had access to this information, your attorney can request that the other spouse provide the information. Try to gather details regarding both party's incomes (e.g. copies of
paystubs, prior years tax returns, etc.).
Finally, be prepared to discuss a budget of what your combined household expenses have been vs. what you anticipate your expenses will be after separation. Do not hold back information - an attorney cannot effectively represent you without full, accurate information.
Arrive a few minutes before your appointment is scheduled
Usually, attorneys will expect you to complete intake
paperwork prior to the start of your appointment. If you can request this paperwork in advance, you can save some time. Otherwise, arrive early and make sure you have basic
information such as both parties' full names, contact
information, employment and income information, dates of birth and social security numbers. Further, if you have children, you will need their names, dates of birth, and addresses for the past 5 years.
Bring any paperwork that has been filed
If you have already been served with paperwork, bring it with you so your attorney can review it and provide you with specific information rather than having to speculate based on what the papers "might" say. Further, if you have been served, make your appointment as soon as possible. There may be deadlines for responding to the paperwork and if you fail to meet the deadline, your rights may be affected.
Ask your attorney to discuss a budget for your case
Unless you are quoted a fixed/flat fee (unusual in divorce cases), it is impossible at the first meeting for an attorney to definitively say how much the case will cost. Every case is different, and there is no way to predict how complicated a case might become. Nevertheless, there are certain steps that will occur in any divorce action, and your attorney should be able to give you a sense of how much time should be involved in each of these steps. If you have limited
If you don't get a good feeling, this is not the lawyer for you.
You must feel comfortable with the person you choose to represent/advise you. Your attorney will know everything about your life and will be counseling you on how to conduct yourself during the course of your case and beyond. No matter how highly recommended someone comes, if you don't think it is a good "fit," move on to someone else.
Documents to Gather for Your Attorney in a Divorce
Written by: Alan Scott Funk, Divorce / Separation Lawyer
Here is a list of the main source documents used in a divorce:
1. Real property records.
o Local address o Legal description
o Copy of the most recent real estate assessor's
statement
o Information as to any outstanding mortgage,
deed of trust or real estate contract
o Exact name(s) in which title is held o Estimated value of property
2. Bank records
o All bank accounts of either party or businesses
owned by either party
3. Tax returns and supporting documents both personal and business
7. Investment account records with sufficient information to assess tax consequences of sale of stock after award. If tracing is an issue, continuous records without a gap are necessary
8. Promissory notes, including those showing obligation and those showing right to income
9. Purchase / sale agreements - car
10. Statements for retirement benefits, and copy of Defined benefits plan, or other documents describing rights
11. Shareholders agreements, and other corporate documents for closely held businesses
12. Lists, loan applications, or other documents showing assets owned by either party
13. Present and prior Wills
14. Trust instruments with party either grantor, trustee or beneficiary
15. Gift tax returns (all) 16. Credit card statements
17. Real and personal property tax bills 18. Deeds to property
Tips for Budgeting and Organizing Records
During a Divorce
Written by: Constance Pifer Brunt, Divorce / Separation Lawyer
Divorce can be a very stressful and confusing time. Being organized and gathering the information needed to make educated decisions is critical. This transition can also be financially challenging, requiring preparation for the necessary budget adjustments.
Gather Important Records
When contemplating or beginning a divorce process, one of your most important tasks is to gather the records and documents that will help develop a complete picture of your family’s financial situation. In order for you to make solid long-term decisions about the distribution of assets, the payment of debts and management of the family’s cash flow, it is critical to have comprehensive, accurate and current information.
What Records Will I Need?
Although each family’s situation is unique, here are some of the more common records that should be accumulated:
Income tax returns for the past 3 years
Most recent paystubs
Employment contracts
Statements of employment benefits
Current statements for all retirement plans and IRAs
Copies of all stocks, bonds, savings bonds, CDs, options, employee stock ownership plans, etc.
Current statements for all bank or credit union accounts, investment accounts and mutual funds
Life insurance policy declaration pages & current statements of value
Deeds to all real estate
Current statements for all debts
Vehicle titles and registration documents
Homeowners and auto insurance policy declaration sheets
Current financial statements, tax returns, partnership or shareholder agreements for businesses
What About Personal Papers?
In addition to financial documents, you should locate and secure in a safe place these important personal papers:
Birth certificates for the entire family
Social security cards for everyone
Marriage license or certificate
Military paperwork
Passports
Wills, trusts and other estate planning documents that have been created
Get Your Budget in Order
Separating or divorcing families almost always experience significant financial strain as they restructure into two separate households. Lifestyles of intact families are usually premised on a single household, often with two incomes. The addition of extra expenses for a second residence can
How Can I Prepare For The Financial Transition?
Here are some ways to prepare for this transitional period:
Develop a budget, listing all expenses. Reviewing credit card statements and check registers for the last year can help in this task.
Cut non-essential spending by identifying expenses that can be reduced, eliminated or postponed.
Examples might include dining out, clothing purchases, gym fees, and entertainment expenses. Try to pay cash for any purchases, reducing credit card use.
Identify your fixed, necessary expenses such as rent or mortgage payments, car payments, utilities, food, medical insurance and expenses, etc.
Review all outstanding debt to see if some can be eliminated or minimized by transferring balances to lower interest-rate credit cards or loans.
Try to accumulate a cash reserve. This can be a lifeline if you lose your job or have difficulty receiving support payments. It will also help you fund the cost of divorce proceedings and prepare for a secure financial future.
Summary
Separation and divorce can be a scary time emotionally. It can also be a very financially challenging lifestyle change. Preparation and thoughtful budgeting can ease the
transition. It is also important to seek legal advice as early as possible to avoid costly mistakes and to help you to plan most effectively for this huge change in your life.
Costs
To most people, divorce can be painful not just emotionally, but also financially. Below you'll find a wealth of information on how to manage your divorce costs. Discover great tips such as how to keep your legal fees from breaking the bank and how to get your finances in order at the time of divorce.
How Much Will My Divorce Cost AND How Do
I Save Money On It?
Written by: David Alexander Browde, Divorce / Separation Lawyer
How Do the Charges Work in a Divorce Case?
Lawyers in divorce cases work for an hourly rate, usually billed in tenths of an hour. That's because most states do not allow any other form of compensation - contingent fees in divorce cases are usually prohibited by state law. Atop your lawyer's fee will be fees charged by the Court - these vary by state but usually are less than $500 even in the most bitterly contested divorce cases. In New York there is an Index Fee (currently $210) at the start of the case, and several other fees along the way, including separate fees for the Request for Judicial Intervention ($95), the Note of Issue ($30) and any motions along the way ($45 each). Think of these fees as tolls taken by the State Court system as your case travels through the courthouse. In a truly uncontested divorce the
How Expensive Should My Lawyer Be?
Lawyers charge fees based on their experience and upon what they think the market will bear. Depending on where you live, lawyers who work on divorce cases usually charge hourly fees that range anywhere between $150 and $1100 - no kidding, there are top level divorce attorneys who can and do charge well above one thousand dollars an hour. Your next question will likely be "Can you tell how good an
attorney is by the amount they charge?" The answer is what you'd expect: no. In choosing an attorney you should look not just at the hourly rate but at how efficiently they work, what their reputation is and, most importantly, whether you can communicate effectively with the lawyer. Does the attorney understand your situation? Has he or she dealt with these issues before? Do the solutions and tactics being proposed make sense? Are they likely to be cost effective?
What Drives the Cost of the Divorce?
What drives divorce costs dramatically higher is one thing and one thing only: disagreement between the parties. If the husband and wife can agree on the key issues, such as grounds, custody, child support and property division, all that remains is drafting of documents. But when there are battles, negotiations, debates - all those things take time. And as noted above, the lawyers are charging by the tenth of an hour. So, if both sides are represented by attorneys (and they should be!) a debate over who gets to keep the painting in the living room or Aunt Sally's wedding present can quickly become far more expensive than the painting or buying a new toaster oven. That's not to say that key issues and disagreements shouldn't be fought out - either in negotiation or litigation - but simply a word to the wise. It often makes sense to settle economic issues rather than litigate them.
your divorce. Each of those bumps can cause delays and increase costs, as issues come up that have to be resolved, delaying resolution of the case and adding to the legal fees.
What Can I Do to Keep My Divorce Costs Down?
This could become a guide all by itself, but the primary points to remember are:
1. Be organized. Your lawyer will need documents and
information in order to negotiate and prepare your divorce. If you have that information available, you can save time and money.
2. Try to control your emotions. Divorce is a difficult
thing for many people, but try to see this aspect as a business deal. You've already dealt with the
emotionally difficult issue of breaking up. Now you're just dividing the dishes.
3. Be reasonable. Litigating issues is expensive. If you
can reach an agreement, do so. Save the fights for the really important things.
4. Communicate honestly with your lawyer. Ask
questions when you have them. But make sure you've given accurate answers to the lawyer's questions, in order to avoid expense and delays when the other side comes up with something that surprises your attorney.
Five Tips that Will Help Save Money on Your Divorce
Written by: David Alexander Browde, Divorce / Separation Lawyer
Divorce is almost always a painful experience. But you can limit the pain to your finances if you remember one basic principle: your lawyer is working on an hourly basis. That means that to save money you will want to minimize the number of hours the lawyer spends working on your case. Your mileage may vary, and some of the suggestions in this guide may not be appropriate for your case. But for most, these guidelines will steer you away from the pitfalls that can
1. Be organized
Organize your personal information in advance. Have the statistical information ready: full names of adults and children, social security numbers, dates and places of birth, date and place of marriage, whether it was a civil or religious ceremony. If you have all this information in advance, your lawyer will be able to plug it in to the multiple places the statistical stuff is needed as you move towards your divorce. Get your tax returns and other financial information ready. If child support or spousal support is at issue you'll need up to three years of tax returns as well as your most recent check stubs to show current income.
2. Control your emotions
Divorce is a difficult thing for many people, but tries to see this aspect as a business deal. Sure, you'll have to deal with the emotionally difficult issue of breaking up. But try to deal with the legal aspect as just dividing the dishes. Think of this as #2-A: be reasonable.
Litigating is expensive, so you should always try to resolve as much as you can with your spouse before bringing in the
the negotiations the lawyers will be doing. Remember, when the lawyers are negotiating, the clock is ticking – at least double time. The lawyers can help you get past issues on which you disagree, but if you're arguing over little things, the cost of the argument will be more than the cost of replacing whatever wedding present you think you should have.
3. Unless you need instant answers, e-mail your attorney
with questions rather than asking them on the phone
That way you'll get a complete answer that you'll be able to absorb at your own pace, rather than trying to take notes on a conversation and perhaps having to repeat things that you don't understand when they're spoken rather than written. Don't let your lawyer get caught by surprise. That means don't be embarrassed, tell your lawyer the unvarnished truth about everything you're asked. The attorney won't be judging you, but you and the attorney will be the losers if the other
4. Try to limit the amount of hand holding you need
Of course divorce is an painful process, an emotional rollercoaster. You'll need to talk to your lawyer about any number of important issues. Ask questions whenever you have them, and don't be shy about making suggestions if you have them. But if you can get your emotional support from friends rather than your attorney, you can save significant amounts of money.
5. Above all, remember, you can be penny wise and
pound foolish
Saving money on legal fees isn't a good idea if the result is a bad outcome. But if you can use some of these suggestions you'll find that your legal costs are lowered substantially over the course of a contested divorce.
How to Prepare Your Finances in the Time of Divorce
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer
Close Joint Accounts
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed.
You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by
Establish Your Own Credit
Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.
Keep Non-Marital Assets Separate
Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include: property you inherit; proceeds from personal injury awards (eg. Worker's compensation or accident proceeds); items owned prior to marriage; and gifts to one party rather than the family.
If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For
the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds are used to buy a new car.
Review Your Financial Holdings Regularly
Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.
Time Your Divorce
The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't re-marry,
Video Tape Assets
You should photograph of videotape the contents of your home including any garages, sheds or out buildings, to record the assets and fixtures contained in each. In any divorce, it is possible that one party may be required to relocate from the family residence. Once you relocate, it may be difficult to recall all of the assets and furnishings that are contained in the house. If you forget them, there is a good chance that they won't be factored into the values that each party receives in the property settlement.
Don't Leave the Marital Residence
In a custody case, leaving the marital residence may impair your ability to successfully seek custody of the children or an award of the real estate after the divorce. By relocating, you create a sort of status quo that courts are often reluctant to disturb.
Freeze or Cancel Joint Credit Cards
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for
creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed.
Collect Information Related to Children
In any case that involves children, custody disputes are a distinct possibility. As a result, documents relating to your children may be critical to support your contention
regarding medical issues, care during the marriage, or who was the parent providing their primary care.
Some items you may wish to obtain or retain include: Family photographs including those depicting family vacations or the children's extracurricular activities; Social Security, Student Body, and State ID cards; Medical records and prescription information including the names and addresses of any treating physicians or counselors for the children or the parties; Report cards and school records.
lawyers to choose from so it is important that you ask important questions in order to choose one that is
knowledgeable and right for you. Ask about their experience in family practice and specifically divorce. Ask the attorney to explain the legal issues as well as the legal process in your particular county.
Divorce And Taxes
Written by: Mary G. Commander, Divorce / Separation Lawyer
Transfers Between Spouses
Under the general rule, transfers of property between spouses and former spouses is not a taxable event if it is "incident to the divorce". If the transfer is NOT made pursuant to a written separation/divorce agreement or decree OR the transfer takes place more than 6 years after the end of the marriage, there is a rebuttable presumption that it was not related to the cessation of the marriage. The burden then would shift to the taxpayer.
reality be "child support"; it must be received by or or behalf of the payee; it must end on the payee's death and it must be payable under an existing agreement or order. The parties cannot file a joint tax return, and they cannot be members of the same household.
House Payments
Especially in temporary orders, one party may be required to make payments on the former marital residence while it is occupied by the other party. If the payor spouse is the sole owner of the house and is solely liable on the mortgage that he is paying, then he cannot deduct the payment as spousal support. If both parties own the house and are liable on the mortgage, one-half will be treated as spousal support. If the payee owns the house the mortgage payments are spousal support.
Tax Refunds
Nothing is held hostage so often in divorce cases as the income tax refund check. Generally speaking, just because the parties file a joint return does not mean that they are entitled to share equally in the refund amount. Instead, this is determined by the income earned by each as if they filed separate returns.
Dependents
The custodial parent is the one who can claim the child(ren) as a dependent. This can be given to the other party by execution of IRS Form 8332. If both parents claim the child, you WILL be audited.
Process
Most divorces tend to follow similar procedures. Check out the Legal Guides below to learn what to expect in the divorce process from beginning to end, both inside and outside the courtroom.
Just keep in mind that there may be some variation in the process across different states. This is because the divorce process is dictated by the laws of the state in which you file for divorce.
The Complete Divorce Process
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer
Cases vary state to state
The length of your case may depend on the state and county that your case is filed in. It often depends on how crowded the court docket may be and often may take a year or more for your case to get to trial.
Jurisdiction
Before a divorce is filed, you must determine where the matter will be heard. Different states have different rules for bestowing jurisdiction. In many states, a party must have lived in that state for 180 days prior to filing. If there are two possible jurisdictions, it may benefit the party filing to serve the Divorce documents first to choose jurisdiction in their state. That is the primary benefit of serving and filing first. There is little benefit to serving and filing first other than to prepare in advance and to choose the jurisdiction.
Summons
A divorce case is usually commenced by serving on the other party a Summons and Petition for Divorce or Legal
Separation. In some states, a divorce is also called a Dissolution of Marriage. Service in most states must be complete by actually personally serving the other party or a person who resides in their home who is considered to be of suitable age and maturity.
In most states, a party may not serve their own divorce papers. The Summons is a generally document announcing that a divorce or legal separation action is being
commenced. In some states, that document also indicates that from that point forward neither party may dispose of marital assets, change insurance coverage or modify any other significant holdings except for the necessities of life.
that will often seek as much relief as the proponent could possibly seek.
Answer and Counter-petition
The opposing party has thirty (30) days in most states to submit an answer to the petition. The Answer is very simply the opposing party’s statement of facts and their request for relief. Often the service of an Answer is waived. This is often done to save the parties the cost of an additional filing fee should the matter be settled. However, if a waiver or extension is not granted by the opposing party and an answer is not filed within thirty (30) Days, the original party may seek a default. A default means that the original moving party may request the relief requested in their petition without opposition. Late answers are often accepted since Courts prefer determining cases on their merits rather than by default.
Temporary Hearings
A temporary hearing may also be called a “Pendente lite hearing”. Such hearings may be scheduled by either party by filing a Motion supported by an affidavit.
Temporary/Pendente lite hearings are designed to resolve issues while the divorce is pending such as who will have temporary custody; temporary support and/or maintenance; where the parties are going to reside pending the resolution of the case; protection from harassment and domestic violence; injunctions against financial improprieties; use of assets. In most states, temporary hearings should not affect the final outcome. However, from a practical perspective, temporary hearings can be very important since Courts often favor a policy of maintaining the status quo. Temporary orders may be changed if there is a substantial change in circumstance during the pendency of the divorce to make the change in the temporary order necessary.
Mediation
Many courts require the parties to attempt to mediate their disputes before the matter is submitted to the Court. One exception to this rule may be where domestic abuse has occurred. Mediation may occur between the parties of with
information between the parties to help them resolve their differences.
Co-parenting Classes
Many states have adopted a policy that requires parents to attend co-parenting classes where children are involved. The goal is to teach parents how to minimize the impact of
children involve in a divorce. In most cases, the parents need not attend together. Some states also require that children of a certain age attend a class to teach them the skills to deal with divorcing parents. This is not embraced in all states and is primarily found in Northern states.
Advance Case Review
Many states have a hearing that is called an advance case review or early case resolution meeting or Case Management Conference. In such a hearing, the parties meet with the Judge assigned to the case or a referee to discuss the issues, or what discovery may be necessary. This is the parties first chance to resolve the case or portion of the case.
determination of assets, income and debt of the parties. This exchange of information can be conducted informally with eth parties agreeing to freely exchange the information or formally, through the submission of formal documents that require answers under oath.
Interrogatories
Interrogatories refer to a form of discovery where written questions are submitted to the opposing party to a lawsuit. These questions must be answered in writing under oath or under penalty of perjury within a specified time (usually 30 days). Objections may be made to questions that are
overbroad or unlikely to lead to admissible evidence. Most states limit the number of interrogatories that may be asked without the court's permission to keep the questions from being a means of oppression rather than a source of information.
documents requested that they have in their possession within a specified period of time (usually 30 days). If you do not possess the documents requested, you do not have to acquire them if it is not easy to do so. The opposing counsel may acquire those documents through other remedies such as subpoena or by having a party sign a Release of
Information.
Releases of Information
The opposing party may send a release of information to the other party seeking to acquire documents from a third party that is relevant to the case. Examples of documents that may be requested include bank statements, medical records, financial records, work schedules and income information.
Requests for Admissions
Either party may submit to the other a Request for
Admission seeking admissions on certain facts relevant to the proceeding. Much like interrogatories and document requests, the responses must be returned within a specified period of time and must be made under oath (notarized).
may have information relevant to the case. This includes parties and non-parties alike. In a deposition, the party being deposed appears at the attorney’s office or a neutral location to answer questions put by the other side's attorney
regarding the facts of the case. Depositions are under oath with a court reporter present so that everything that is said is recorded. A deposition is scheduled to pin a witness down to certain facts and to discover all possible documents and witnesses related to a case.
Failures to provide discovery
The penalties related to a failure to respond to discovery or to appear at a deposition may be severe. The opposing party may file a motion to compel discovery and/or seek sanctions related to that failure. Severe sanctions may include
establishing facts related to a case. That means that the Court disallows an opposing party from presenting an evidence or testimony at trial to contest an issue where discovery was not provided. Default is the most severe
Experts
Experts are often employed to determine certain facts. Those experts may be jointly agreed upon by the parties, which can save on the cost of having individual experts testify at trial. However, where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial.
Common experts include: custody evaluators; financial planners to determine future economic circumstances; business evaluators to value businesses; real estate
appraisers to value real estate; personal property appraiser to value furnishings and other assets (generally an
auctioneer experience d in home goods); vocational evaluator to determine earning capacity; psychologists to testify to mental health issues.
Settlement
A divorce or legal separation case may be resolved at any time the parties come to an agreement on the issues. In such
Trial
If you are unable to settle your case with your spouse, it will go to trial. Some states have a trial by jury. Other states have a trial by judge. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits. st trial, the moving party (usually called the petitioner or plaintiff) presents their case first. The call their witnesses who are subject to cross-examination by the opposing party. When the plaintiff or petitioner rests their case, the Respondent or Defendant presents their own case with witnesses and evidence, each subject to cross examination by the opposing party.
Appeals
After a divorce, either party has a right to an appeal if they disagree with e Judge’s ruling. The time lines for appeal are severely limited. As a result, you should consult with a lawyer
hearing. Usually, child support, alimony, child custody, and child visitation can be modified, but only if one of you can show that there has been a change in circumstances.
Enforcement
If you or your spouse disobeys an order that the court makes in your divorce judgment, you may file a Motion to compel compliance. Such motions are generally for contempt and require the service of an Order to Show Cause and a Motion.
Property Division
Depending on how contentious your divorce is, the process of dividing all of your marriage assets can be anywhere from relatively painless to extremely complicated. Thankfully, most divorcing couples are able to reach an agreement on their own without resorting to legal warfare. Here you can learn the basics of how property, other assets, and debts are divided in a divorce.
Community Property Division vs. Equitable
Property Division in Divorce
The issue of how to divide property comes up in most divorces, which is why it’s important to know if you live in a community property state or an equitable property state. The way your state handles property division depends on which of these property systems apply. The exceptions to this happen when there was a prenuptial agreement, or if the parties to the divorce draft an agreement that divides the property according to those specific terms.
Equitable property
Most states are equitable property states (or separate
property states). Under the equitable system, a court divides marital property according to what it considers to be
equitable, or just, to both parties. This is why an equitable division isn’t necessarily always a 50-50 split. In some of the rarer circumstances, one spouse can end up with almost all of the assets if this is what the court deems as fair.
In equitable property states spouses are generally awarded property in proportion to how much they contributed to the marriage. Often, the spouse who earned more will receive the larger portion of the property and assets because they contributed more financially to the union.
However, a court often balances things out by taking other factors into consideration as well. Some of examples of these factors include the length of the marriage, the earning
Community property
Community property law only applies to these nine states: California, Arizona, Idaho, Nevada, Louisiana, New Mexico, Wisconsin, Washington, and Texas. (Puerto Rico also falls into this category.)
In a community property state, a court looks at all assets that were acquired during marriage and then divides them
equally between the spouses during divorce. All assets are divided equally regardless of who owns title to them. For example, both spouses are considered to own all money equally even if one spouse doesn’t work. The only time when marital assets aren’t split equally is if a prenuptial agreement was in place.
In addition, community property laws also apply to all joint debts and liabilities because these count as marital property. This means that all debts and liabilities are equally divided between both spouses.
What is Non-Marital Property?
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer
In a divorce, some assets may be considered non-marital and, as a result, are not divided in a divorce proceeding.
What is the marital estate?
In a divorce, the parties divide up what is called the "Marital Estate." The marital estate includes any assets or debts that the parties own at the time of the divorce. Each spouse is deemed to have an equal interest in marital assets or debts. This is true no matter how property is titled or held and no matter which spouse's job paid for the asset or which party incurred the debt. That means the marital estate includes a 401K account or credit card debt that is in your spouse’s name alone.
What are categories of non-marital assets?
Some states have classifications of property that are exceptions from the marital estate that is divided. These assets are often called non-marital assets. Any non-marital assets that you possess remain yours and any non-marital assets of your spouse remain his/her assets. Among states that take this approach, some listed non-marital
classifications include:
Premarital. Any asset acquired before the marriage (if
the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial non-marital value).
Prenuptial Exclusions. An asset excluded by a valid
prenuptial agreement;
Personal Injury Proceeds. Personal injury
settlements are generally considered personal to the injured party and are non-marital in nature. Some states also include Social Security benefits, Worker's Compensation and Disability in this category;
Inheritance. Any proceeds or assets from an
Losing Non-Marital Status
It is possible for non-marital assets may have both a marital and non-marital value. In some cases, non-marital assets may lose their non-marital characteristic. This can occur in several ways:
Commingling: If non-marital proceeds are
co-mingled with marital proceeds so that is becomes difficult to identify the marital asset, the non-marital characteristic may be lost. For example, placing non-marital proceeds in a joint bank account may not immediately eliminate a non-marital interest. However, if marital proceeds are added to the bank account or if proceeds from the account are paid out for regular living expenses, it is more likely that the non-marital value will diminish since it is impossible to determine which proceeds came out first - the marital proceeds or the non-marital proceeds.
Appreciation: The Courts make a distinction between
"active" and "passive" appreciation. Passive appreciation of a marital asset remains non-marital. Passive appreciation occurs when an asset increases in value without any action by the parties. For example, if the value of real estate increases without the parties improving the property, it is considered passive. Active appreciation is a marital asset. Active appreciation occurs when the value of an asset increases because of an act by the either of the parties during the marriage. Capital improvements to real estate during a marriage may create a marital interest since a capital improvement is likely to add to the property’s value. Manipulating a stock account or transferring a mutual fund from one account to another resulting in an increase in value may also be "active appreciation" which creates a marital interest in an otherwise non-marital asset.
Tracing Non-Marital Value
Non-marital assets may often be "traced" into later acquired assets giving the party with the original non-marital interest
party may be able to trace a non-marital interest in the new vehicle. Tracing is really the process of establishing a
sufficient paper trail to claim a non-marital interest in a subsequently purchased asset.
Often, presenting a persuasive property case depends on clear cut documentation, and expert testimony.
Divorce Property Settlement: Tips for
Property Division
Every divorce has unique factors, but nearly all divorces involve many of the same issues, such as property division. Although property is one of the biggest sources of
disagreement in divorces, the vast majority of divorcing spouses are able to reach a compromise outside of court. In general, you’re more likely to be satisfied with your property division if you negotiate it yourself.
negotiation guidelines that can help you reach a property settlement without litigation.
Preparing before negotiation
Review your state's property laws. Before you sit
down at the negotiating table, you may want to take a look at your state’s property divorce laws. Knowing what you’re lawfully entitled to will help you ensure that the division is fair when negotiating the terms of the agreement.
Define your financial needs. Next, consider your
financial needs, and define your overall goals for the negotiation. Major components of your financial need include: your income, earning capacity, age, health, number of children, retirement plans, etc.
Know where you stand financially. It’s also important
to look at your asset-to-debt ratio. You may or may not be legally liable for debt incurred during your marriage, so it pays to be informed. If you are liable for the debt, the creditor will still require you to pay even after your divorce. Getting a complete picture of your true financial situation through an inventory will
vehicle(s), insurance, retirement plan(s), any
businesses, securities (stocks, mutual funds, bonds, CDs, etc.), cash, and collections and other valuables. Using a property checklist can help you take a complete inventory of everything. Attorneys usually have these checklists, so make sure to ask yours for one.
The negotiations
Traditional negotiations. Traditional style
negotiations usually involve each spouse’s attorney. Each side presents their respective interests until an agreement is achieved. The negotiations may span several meetings between both parties and their lawyers. In difficult cases when the parties are unable to agree, the lawyers may draft the terms and
negotiate on behalf of their clients.
settlement; if a settlement is not reached then the lawyers withdraw from the subsequent litigation. The parties may use experts or specialists to help them reach mutual agreement on issues.
Other alternatives. If you and your spouse just can't
agree on how to split the property, then you may find these other methods useful (like silent auctions, taking turns from a list, etc.).
Dividing Property in a Divorce: Who gets the
Family Home?
Written by: Suzanne Griffiths, Divorce / Separation Lawyer
Always check your state's specific laws
How courts determine which party gets the family home varies state to state. Remember to always check your state’s specific laws. For example, a Colorado court may rule
differently on the matter than a court in another state. All of the following scenarios are examples of how a Colorado court could handle allocation of the family home.
division of property is to become effective. The Court must consider the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time. Therefore the parent who has primary care of the children has the advantage.
Financial feasibility
A court may also consider whether it is financially feasible for the primary parent to maintain the home, refinance the mortgage and pay the obligations related to the home.
No fault divorce vs. fault divorce states
Whether your state is one that grants divorces based on fault, could possibly affect the court’s decision. For example, Colorado is considered to be a “no fault” state. What this means is that if one of the parties is having an affair or has abused the other, the court cannot take that information
Gift, inheritance, or owned prior to marriage
If the family home in a divorce was received by gift, inheritance or was owned before the marriage then it will generally be awarded to the spouse who received the gift or inheritance or who owned the home prior to marriage.
Additional factors
Other factors that a court will consider in allocating the family home include the contribution of each spouse to the acquisition of the marital property, including the
contribution of a spouse as a homemaker.
Dividing Retirement Plans in Divorce
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer
Deferred compensation refers to pension plans, 401K plans, IRAs and other retirement assets. Such plans are divisible as part of a property settlement in divorce regardless of which party is named on the plan. How they are divided depends on the value and nature of the asset. Perhaps one of the worst
liable for liable for the taxes, including penalties for early withdrawal.
Types of Retirement Assets
There are three main kinds of deferred compensation plans. 1. Savings plans include retirement assets such as IRAs,
401(k) Plans, ESOPs, and Thrift Savings Plans.
2. A defined contribution plan is one in which the value
of the plan is determined in part by the amount of contributions made into the plan. The money contributed may be invested and grow.
3. With a defined benefit plan, an employee is provided
a monthly payment starting at retirement age and ending at the end of his/her lifetime.
Dividing Savings Plans
Dividing Savings Plans: Savings plans such as an IRA are considered "cash" plans since they may be liquidated before
IRA proceeds may be cashed out and paid directly to the receiving spouse or they may be "rolled" over into a new IRA in the name of the receiving spouse. However, the tax consequences related to cashing out the plan may reduce the plan proceeds by more than thirty percent (30%) for taxes and early withdrawal penalties.
Dividing Defined Contribution Plans
Valuing and Dividing Defined Contribution Plans. The valuation of a defined contribution plan can be determined by multiplying the account balance by the percentage of vesting. This is a relatively simple way to value the plan and determine marital value. Generally, such plans may be divided currently with each party receiving one half of the current vested value.
Dividing Defined Benefit Plans
Valuing and Dividing Defined Benefit Plans. With a Defined Benefit Plan, generally the participant's benefits cannot be liquidated prior to retirement age and the non-participant spouse may receive a retirement plan in her name