Divorce and Divorce Attorneys
The term divorce refers to the legal dissolution or termination of the marital contract. Divorce and family law is primarily governed by State law and each State has its own set of laws, rules, guidelines, and procedures. Traditional divorce is adversarial in nature. Your soon-to-be ex-spouse will be seeking the most beneficial outcome in their favor at your expense! Your AffordDivorce.com divorce attorney will be able to represent you in your divorce and guide and advise you throughout the process.
Divorce is a very complicated process that involves every aspect of your life, now and into the future. Achieving a good result in a divorce proceeding or other family law matter requires starts with having an experienced and expert divorce and family law attorney representing your best interests. In many cases, issues concerning alimony, child support, visitation, division of assets and debts, child custody and visitation, and other related matters must be addressed with your soon-to-be ex-spouse, and your AffordDivorce.com divorce attorney will be able to handle those for you. It is very important to get the terms of your Divorce Agreement right the first time and to avoid costly mistakes by either trying to represent yourself in your divorce or using an attorney who is inexperienced in divorce cases. Traditional adversarial divorce is the most expensive option regarding legal fees as multiple court hearings and negotiations among the parties will increase the amount of time your lawyer will spend on your case. This may be necessary, however, if your spouse is being unreasonable in his or her demands.
Mediation is generally considered a cooperative process of resolving differences and negotiating the terms of the divorce. Mediation works best when you and your spouse are in basic agreement about such matters as alimony, child support, child custody and visitation, and property and debt distribution. Your mediator is a neutral third party who doesn’t advocate for either party. Instead, the mediator facilitates a fair and reasonable outcome. In most cases, your AffordDivorce.com divorce attorney can serve as your mediator and act as a neutral third party to take you and your spouse through the divorce process. If the mediation process is unsuccessful, the mediator can no longer represent either party and cannot be called as a witness in contested divorce matters.
The goal of mediation is to have you and your spouse focus on your post-divorce lives, that is, reaching an agreement that will enable you both to go on with your lives, comfortably, after the divorce.
So, of course, mediation will work best in situations where the couple has mutually agreed to the divorce, neither spouse wants to “stick it to” the other spouse, and both want to maintain a good relationship after the divorce, such as when the parties have a child and joint or shared parenting is desired. Mediation is the lowest cost option regarding legal fees as both you and your spouse will only be incurring the legal fees of one lawyer.
A Collaborative Divorce can best be described as somewhere between a traditional adversarial divorce and a mediation. With a collaborative divorce, each spouse retains their own attorney, but all parties including the attorneys, agree to work together in settling their differences outside of the courtroom. Together, the parties will reach agreement regarding such issues as alimony, child custody and visitation, and division of assets. Collaborative divorce is the middle-cost option of the three divorce types. Each spouse will retain their own lawyer, but the legal fees should be kept to a minimum due to the absence of an adversarial environment.
In many divorce cases, alimony or support payments are sought from the spouse who is the primary wage earner. The majority of cases usually involve the wife seeking alimony payments from the husband because the husband has traditionally been the bread-winner while the wife has stayed home to raise the children and care for the home. The theory behind alimony is that the spouse that stays at home has forgone career opportunities in favor of the working spouse and so the working spouse is obligated to continue that support until the stay-at-home spouse has been given the opportunity to reestablish his or her ability to earn their own income.
The amount of alimony awarded is determined by the divorce court on a case by case basis. The court will consider the financial status of each party and order an alimony award sufficient enough to maintain the same lifestyle that he or she is accustomed to. Each state maintains their own laws regarding alimony and courts will follow those laws and decisions of previous divorce cases when considering a spouse’s request for alimony.
Alimony payments may be ordered for a few years or may be ordered for several years depending on the circumstances surrounding the divorce. The courts will consider several factors including who was at fault for causing the divorce, each spouse’s age and health, and each spouse’s educational level and employment experience, to name a few.
Alimony payments may be ordered temporarily during the time in between when the divorce has been filed and the time the divorce becomes final.
Each state maintains its own laws regarding child support for minor children. In most cases, child support is shared among the parents based upon a formula that is based on the proportionate share of the total income between the two parents. For example, if the father earns 75% of the income between the two parents, he will have to pay 75% of the state mandated child support amount. Child support involves not only the money to pay for the child’s necessary living expenses, but includes such additional expenses as health insurance and educational costs.
Many divorce agreements will also include post-secondary child support. Post-secondary child support is usually not mandated by state law and is negotiated between the parties during the divorce proceedings. This provision will determine how much each parent will contribute to the support and education of the child once the child reaches the age of 18 or graduates from high school. Sometimes this isn’t included in the divorce agreement because the children are young and it is too far into the future to determine actual support amounts. In those cases, either percentages are agreed upon or the issue is left to the parties to resolve when the time comes.
Failure to pay court-ordered child support is a very serious matter. If you cannot afford to pay child support, you should ask the court to reduce the amount you are obligated to pay. You will have to show the court that your financial situation has changed dramatically warranting the reduction. If you fail to pay child support as ordered, the state will attempt to collect it on your ex-spouse’s behalf by garnishing your assets and your wages.
Eventually, continued failure to pay child support will result in your arrest leading to a jail sentence.
Child custody generally involves two very important aspects concerning your minor children. The first aspect of child custody is “legal custody.” Legal custody involves giving rights to either of the parents or both parents when it comes to making decisions about raising the children. A parent who has legal custody will be able to make decisions about the child’s education, religion, medical issues, and discipline, as well as where the child will live, or their physical custody. With “sole custody”, you alone have legal and physical custody of your child. In a “joint custody” or “shared custody” arrangement, you and your ex-spouse share legal and/or physical child custody. If you and your spouse cannot agree on a child custody arrangement, the court will likely make a child custody decision based on the “best interests of your child.” Once child custody is ordered by a court in a divorce decree and you have lost your custody rights, it is very difficult to gain them back.
Child Visitation is the legal term for the right of a non-custodial parent to visit with their children. In most cases, a visitation schedule is negotiated between the parties so that it is very clear when the child will be with the non-custodial parent. Questions such as who will pick-up and drop-off the child, what exceptions will be made to the visitation schedule for holidays, school vacations, summer vacations, birthdays, family events, travel, etc., should be answered in the divorce agreement. Typically, the non-custodial spouse has legal visitation rights to child visitation or parenting time unless the family court finds that visitation is not in the best interest of the child. States vary in their approach to visitation and child visitation rights; although, it generally consists of alternating weekends and some holidays. The amount of time and visitation schedule is stated in the final divorce agreement and may be modified by further court order.
Division of Property and Assets
Each state, as part of their divorce laws, will employ one of two types of distribution methods when it comes to dividing marital property in a divorce. The two types are the “community” property method and the “equitable” property method.
In a community property state, all of the assets acquired during the marriage belong equally to both spouses. Therefore, when dividing the property among the spouses as a result of a divorce, the state will give half to one spouse and half to the other spouse.
Of course, the court will not order you to physically split your property in half, but rather, each spouse will receive property of an equal value to the other. That is why it is extremely important to make sure assets are properly valued when disclosing them to the court and to each other’s divorce attorney.
The splitting of property in a community property state only applies to property acquired during the marriage. If you owned property prior to the marriage, in most cases, you will be able to keep it without regard to the property distribution of the marital assets.
In an equitable distribution state, the court will divide the couple’s assets in what it considers to be an equitable or fair manner. Equitable and fair does not necessarily mean equal. Many factors are considered by the court when making property distributions in an equitable distribution state. These include the length of the marriage, the work history and job prospects of each spouse, the physical and mental health of each spouse, the source of particular assets, expenses of the children, and the expenses of the custodial parent. In some cases, the court will consider the conduct of the parties leading up to or causing the divorce when distributing property.
Just as each state orders the division of property pursuant to a divorce, each state will also order the division of debts incurred during the marriage. Many common factors to consider when dividing the marital debts include who will keep the property that has the debt attached to it, how much of the marital assets are being received by each spouse, what the terms of alimony are, and the ability for each spouse to secure credit in the future.
In many cases, especially those involving mortgage loans, car loans, and credit card debts, both spouses may be personally responsible on the promissory note or credit agreement. These creditors are not usually willing to take someone’s name off an account due to a divorce agreement unless the debts are actually refinanced. Just because a divorce agreement states that your spouse is responsible for paying a particular debt, that doesn’t mean that if your spouse fails to make payment, you won’t be held responsible by the creditor. In fact, that is exactly what will happen.
Your credit rating can continue to be affected by the actions of your ex-spouse many months after a divorce is finalized. It is always good advice to either refinance debts out of your name or get them paid off as a condition of the divorce, so that your ex-spouse’s debts don’t become your debts once again.
Bankruptcy as an Option
If you or your spouse do not have the resources to satisfy the marital debts either before or after your divorce, you and your spouse may wish to consider filing for bankruptcy. Divorce-related bankruptcy is a very common and popular option when dealing with debt management. Depending on your individual circumstances, if may be advisable to file for bankruptcy before you actually get divorced. Of course, the other option is to file after you get divorced. The timing of your divorce and your bankruptcy is a strategic decision that can have a real impact on your ability to keep your property and discharge your debts. The bankruptcy laws are complicated and you and your divorce attorney should seek the advice of a bankruptcy professional as part of the divorce planning process.
Bankruptcy Has No Impact on Child Support and Alimony
Court ordered alimony and child support are non-dischargeable in bankruptcy court, so you don’t have to worry about losing your rights to those benefits if your ex-spouse files for bankruptcy protection. Conversely, if you owe alimony and/or child support, you cannot discharge those debts by filing for bankruptcy.