WHAT IS A "DIVORCE"?
A divorce, sometimes called a decree of "dissolution
of marriage", is a court order terminating a marriage.
It no longer exists. Unlike an annulment, which states that
the marriage never existed, a divorce is the termination
of a valid marriage.
Typically in the divorce the parties and/or court resolve
all issues between them, such as division of property, child
custody and visitation, and spousal and child support.
CAN I GET DIVORCED BEFORE WE FINALIZE ALL THE DETAILS?
In many states the answer is "yes". The typical
case is one in which one spouse wants to remarry before
all the other issues such as child custody and visitation,
support, distribution of property and attorney fees are
resolved. In states permitting this "bifurcation",
the court will handle the end of the marriage separately
from the other issues. This permits the parties to remarry
while providing them additional time to resolve the remaining
issues. If the parties cannot negotiate matters themselves,
the court retains the ability to resolve all remaining issues
at trial.
CAN ONE SPOUSE GET A DIVORCE JUST BECAUSE S/HE IS TIRED
OF BEING MARRIED?
Each state has its own laws determining when and under
what circumstances a divorce can be sought and granted.
In some states both sides can agree to obtain a divorce
with only a brief waiting period. Other states, however,
have laws that claim to permit a divorce only if there are
"grounds", meaning that the divorce is one spouse's
"fault".
WHAT IS A "FAULT" DIVORCE?
A "fault" divorce is one in which one party blames
the other for the failure of the marriage by citing wrongdoing.
Grounds for fault can include adultery, physical or mental
cruelty, desertion, alcohol or drug abuse, insanity, impotence
or infecting the other spouse with a venereal disease.
WHAT IS A "NO-FAULT" DIVORCE?
Many states now permit "no-fault" divorces. A
no-fault divorce is one in which neither spouse blames the
other for the breakdown of the marriage. Both spouses agree
that "irreconcilable differences" have arisen,
and that neither time nor counseling will save the marriage;
it simply will not work. A "no-fault" divorce
is a more humane way to end a marriage in those states that
permit it.
I LIVE IN A STATE THAT MAKES IT HARD TO GET A DIVORCE,
BY REQUIRING SERIOUS FAULT. WHAT CAN I DO?
Under many circumstances it would be possible to change
your residence to a different state that has no-fault divorce,
or has more liberal grounds, and file for divorce in that
state. Under the United States Constitution, a court decree
in one state must be honored in all other states. However,
to avoid problems, this should never be attempted without
the advice of an attorney.
WILL THE DIVISION OF PROPERTY AND POTENTIAL SPOUSAL
SUPPORT BE AFFECTED BY WHETHER OR NOT I OBTAIN A FAULT OR
NO-FAULT DIVORCE?
That depends on the state. In some states the court can
consider the spouses' faults in deciding how to distribute
property and provide spousal support. In a no fault divorce
situation, the actions of the respective spouses in the
breakdown of the marriage do not affect property distribution
or spousal support rights. Again, an attorney is vital to
represent your best interests in the division of property
in the dissolution of a marriage.
DO I NEED TO HAVE AN ATTORNEY TO GET A DIVORCE?
Although it is legal in many states to obtain a divorce
without representation by counsel, it is always inadvisable,
because of the complex issues involved.
If you have been married only a short time, have no children
and little property, it may seem financially advantageous
to "do it yourself". However, a good lawyer will
always pay for him/herself. Timing can often be crucial
in getting a divorce; an attorney can best advise you when
it will make the most sense in terms of insurance and taxes.
A skilled attorney can help you avoid personal and/or property
matters that may cost you money down the road, and will
represent your best interests in resolving any financial
complications that may arise. An attorney also can help
avoid the possibility of one party claiming that s/he was
taken advantage of because all facts were not disclosed.
CAN MY SOON-TO-BE-EX-SPOUSE AND I SHARE AN ATTORNEY?
Where a couple thinks they agree on all issues, it may
seem logical to save money and use one attorney to "handle
paperwork". This almost uniformly is a very bad idea.
Lawyers recognize the possibility of conflict of interest,
in which it is impossible to represent both sides fairly.
Most lawyers won't even entertain the idea of doing this.
Using separate lawyers does not have to lead to creating
conflict where none existed; it may be invaluable, however,
in making it clear that parties have not considered every
potential issue, and have disregarded something that may
come back to haunt them later.
DIVIDING PROPERTY IN A DIVORCE
WHAT IS MARITAL PROPERTY?
Property that is acquired by either spouse individually
or the couple together during a marriage is considered marital
property. The time frame "during the marriage"
starts as of the day the couple marries, and generally is
regarded as ending on the date that the spouses begin to
live apart (or the date that the spouses intend to live
apart if they are unable to physically separate).
WHAT IS COMMUNITY PROPERTY?
There are nine community property states - Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington
and Wisconsin. In addition, Puerto Rico is a community property
jurisdiction.
These states generally regard as community property all
property that has been acquired during the marriage, other
than a gift or inheritance. Even if one spouse earns all
the money to acquire the property, all the property acquired
is considered to be community property. While there are
a number of differences in each state, all states have special
laws that operate on the theory that both spouses contribute
equally to the marriage; thus all property acquired during
the marriage is the result of the combined efforts of both
spouses. In community property jurisdictions, spouses equally
own all community property (fifty percent owned by the husband
and fifty percent owned by the wife)
WHAT IS SEPARATE (NON-MARITAL) PROPERTY?
The property that each spouse brings into the marriage,
that is, the property that s/he owned before the marriage,
is considered to be "separate" or "non-marital"
property. For the property to remain separate, the spouse
must keep it apart from marital or community property; that
is, s/he would keep it entirely in his/her name. Once the
separate property has been commingled (mixed) with marital
or community property, it becomes part of the marital property.
For example, consider a bank account with $10,000 in it
owned by woman before her marriage. This woman then marries
and both she and her husband regularly deposit their respective
paychecks into the account and periodically withdraw money
to pay for their living expenses. At the time of separation
twenty years later, the bank account has $5,000 in it. Since
marital property has gone into it (deposits of the paychecks
and marital or community debts have been paid from it is
impossible to trace the original separate property money
from that of marital or community property. The result is
that this bank account has changed from separate property
to marital property.
Some states, such as California, have a separate property
rule that says that all property brought into the marriage,
(including gifts and inheritance), that is kept separate
and apart from community property remains the separate property
of the spouse that owns it.
WHAT IS THE MAJOR DIFFERENCE BETWEEN MARITAL (COMMUNITY)
AND SEPARATE PROPERTY?
The important distinction is that separate property is
owned by the spouse who acquired it. Upon divorce, separate
property goes completely to the spouse who owns it. Conversely,
marital (community) property is divided between the spouses
in the event of a divorce.
HOW IS THE DEBT INCURRED DURING THE MARRIAGE DIVIDED?
In addition to the property acquired during the marriage,
the debt incurred during the marriage is divided upon divorce.
Dividing the debt upon divorce determines who is responsible
to repay the debt.
If both spouses co-signed for a debt, both spouses will
probably be held to "joint and several liability"
for the debt. "Joint and several liability" means
that each spouse is responsible for the entire debt, but
also the spouses are jointly responsible for the debt. When
a joint and several liability is divided, the debt is attributed
to both spouses. Often, however, one spouse is made responsible
for the entire amount of the debt. This is generally offset
by an "equalization" payment; that is, the spouse
who pays the debt receives more property in the settlement
than the spouse who is left free from the debt.
In some states debts that were incurred for the benefit
of the family are joint and several liabilities of both
spouses. For example, housing, furniture, furnishings for
the home, child care and children's doctor expenses would
be considered as being incurred for the benefit of the family.
Since both spouses benefited from these family expenses,
both spouses would be responsible for the repayment of these
debts.
Expenses that were incurred solely for the benefit of one
spouse, such as a vacation for one spouse, or a hobby of
a spouse, may be left as the responsibility of the spouse
who obtained the benefit. However, in most community property
states, both spouses are equally responsible for the repayment
of debt incurred during the marriage, even if only one spouse
enjoyed the benefit.
Typically, the debts that one spouse brings into the marriage
(separate or non-marital debt) remain the responsibility
of that spouse. In special circumstances (in community property
states), both spouses can be held responsible for separate
(non-marital) debt.
When a joint tax return is filed, the Internal Revenue
Service holds both spouses to joint and several liability
for the tax.
WHY MUST SOME RETIREMENT PLANS BE DIVIDED IN A SPECIAL
MANNER?
Federal law governs most retirement plans. Most retirement
plans receive special tax treatment, allowing contributions
to the plan to go in before taxes are paid, and further
allowing the income on the money in the plan to accumulate
without current tax. Upon divorce, a special order, called
a " Qualified Domestic Relations Order" (QDRO)
must be issued by the court and served upon the plan's trustee.
The QDRO defines how much of each payment is to go to each
spouse.
CAN PREMARITAL AND POST MARITAL AGREEMENTS ALTER THE
DIVISION OF MARITAL (COMMUNITY) PROPERTY?
Yes, as long as the agreement meets with the requirements
under state law.
An "ante-nuptial" (from ante=before, not anti=against)
or "premarital agreement" is a legal contract
between two people who are about to be married. In the agreement,
the prospective husband and wife may agree upon the rights
that each will have to the property that they bring into
the marriage, and/or acquire during the marriage. They may
also agree as to the amount of support owed to the other
in the event of divorce, and their respective inheritance
rights. The premarital contract, if properly made, with
sufficient disclosure, alters the state's typical rules
for the division of marital property upon divorce or death.
A post marital agreement is a similar contract between
a husband and wife, but after they are married. This agreement
may alter the rules for the division of property between
the spouses in the event of divorce or death. A particular
form of post marital agreement, often referred to as a Marital
Settlement Agreement, specifies the distribution of property
and responsibility for debt between the respective spouses
as part of the divorce proceeding.
Laws in each state governing these agreements
vary from state to state. To be valid in most states the
agreement must:
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