smoke-QandAbanner

Frequently Asked Questions

In order to properly file for divorce in a particular state, you must first meet its residency requirements. Individual state requirements can range from no statutory requirement of time living in the state in South Dakota and Washington State, to Alaska requiring 30 days, to states with a one year requirement. Check your state, or the state you might wish to move to. Use caution when considering the relocation to another state. Its residency requirements and divorce laws could be different than your current state’s, and you might be trading for a more difficult divorce by moving. In addition, exercise caution if children are involved. Remember, they are your spouse’s children too, and courts can and do frown on one parent’s leaving the state without the other’s consent.

We would suggest you get legal advice before the move, and here’s why: The state you may move to could have laws that negatively affect you as opposed to your current state’s laws. In Texas, alimony for marriages of medium term (10+ years) is often limited to several (2-3) years, and is intended to provide a financial cushion while you return to the work force, whereas, in other states, alimony is awarded more liberally.

Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a fair determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

Generally alimony lasts for a specific period of time. This is often known as Rehabilitative Alimony or Rehabilitative Spousal Support. The term Spousal Maintenance is also common among the states. Depending on your state, spousal support can be permanent (ends at remarriage or death) or can be for half the length of the marriage. Check your state’s terms. The court will likely consider the following:

  • A marriage of over 10 years is often a candidate for permanent alimony
  • Time separated while still married – In some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states (such as New Jersey) do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage
  • Age of the parties at the time of the divorce – Generally more youthful spouses are considered to be more able to ‘get on’ with their lives and therefore thought to require shorter periods of support
  • Relative income of the parties – In U.S. states that recognize a right of the spouses to live according to the means they have become accustomed, alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle. This tends to strongly equalize post-divorce income, heavily penalizing the higher-earning spouse
  • Future financial prospects of the parties – A spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not
  • Health of the parties – Poor health goes towards need, and potentially an inability to support for oneself. The courts do not want to leave one party indigent
  • Fault in marital breakdown – In U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are ‘no-fault’ states, where one does not have to show fault to get divorced. No-fault divorce has the advantage of sparing the spouses the acrimony of the ‘fault’ processes, and the disadvantage of closing the door on reconciliation.

The 2004 survey found that 93% of divorce cases were petitioned by women, very few of which were contested.

  1. According to this survey, men engaged in extra-marital affairs in 75% (55%) of cases; women in 25% (45%)
  2. In cases of family strain, women’s families were the primary source of strain in 78%, compared to 22% of men’s families. Emotional and physical abuse were more evenly split, with women affected in 60% and men in 40% of cases. In 70% of workaholism-related divorces it was men who were the cause, and 30% women
  3. 53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce
  4. Regarding divorce settlements, as defined by this survey women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The 2004 report concluded that campaigns like that of Fathers 4 Justice must succeed in increasing the percentage of shared residence orders, in order for more equitable financial divisions to become the norm

The prospect of spousal support being granted in your particular case will depend on where you live (what state), the laws that have (or have not) been enacted by your state legislature, the judge that oversees your case, what contributions each spouse made to the overall marital estate, what roles each of you played in the marriage, how much one spouse mat have contributed to the other spouse’s education, and the degree of  any marital misconduct.

How divorce-related tax issues are settled can be as important as child support or maintenance. You will do yourself a great favor by reading IRS Publication 504, which was designed as help for separating and divorcing couples. This guide covers  alimony, exemptions, filing status, retirement accounts and pensions, QDROs (Qualified Domestic Relations Orders), community property, property settlements, court costs, and legal fees.

Your attorney will likely ask you to consult with a tax professional, or ask that you engage one so that these considerations can be addressed.

Courts will often freeze assets via a restraining order during the separation so that a fair accounting in totality can be made. Should there be a need to sell any asset, be certain there is no court order barring that, and then make sure a tax professional is consulted prior to that event.

Worried that you might not be able to figure out what divorce forms you will need? Worry no more. We are pleased to make available an assisted divorce forms process that takes you step by step through the process and completes the forms as you type in answers to the questions. Go check it out. We love it and we think you will too.

In the U. S. There are two types of divorce- absolute and limited. An absolute divorce, (legally known as a divorce a vinculo matrimonii) is a judicial termination of a marriage based on marital misconduct or other statutory cause arising during the marriage. An absolute divorce results in both parties’ status becoming single again.

Several jurisdictions’ statutes authorize limited divorces, legally known as a divorce a mensa et thoro. The consequences of limited divorces vary from state to state. A limited divorce is more commonly referred to as a separation decree; the right to cohabitation is terminated but the marriage is undissolved and the legal status of the parties is not altered.

All states have enacted what are called no-fault divorce statutes. This is a response to outdated common law divorce which required proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. This entailed proving that the spouse had committed adultery, or some other unsavory act. No-fault divorce eliminates this potentially embarrassing and undesirable requirement by providing for the dissolution of a marriage on a finding that the relationship is no longer viable. It is hard to tell whether no-fault divorce statutes are the cause or an effect of the rising national divorce rate in America.

Despite all 50 states having no-fault divorces, fault grounds are still used, and when selected, are often for leverage. In particular, marital indiscretions (infidelity) can impact the outcomes of  a judge’s decisions on the division of assets, the amount of spousal support granted, and to some degree, child custody. States and courts vary in how much, if any, fault grounds can impact a judge’s decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.

Mediation is gaining in popularity as a means to resolving divorce issues. The process tends to be less adversarial (particularly important for any children), allows the parties greater control and privacy, saves money, and generally achieves similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly [Hoffman 1999]. A new movement towards Collaborative Law, where both sides are represented by attorneys but commit to negotiating a settlement and refraining from litigation, is also gaining momentum. If the parties and their collaborative law attorneys fail to reach a settlement, the collaborative lawyers are replaced by new counsel on the theory that the first set of lawyers will try harder if they know they will be “fired” if the dispute has to be resolved by a judge. Relatively amicable approaches such as this may reduce the trauma of divorce for all parties. Most experts agree that these methods are not appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties’ finances, for example.

Hostile divorces, in contrast, can be expensive both financially and emotionally. Fault grounds can be unpleasant enough when true, and may sometimes be falsely alleged, as may anything else that an unethical spouse can think of. In the 1990’s heated debate arose over accusations of domestic violence and of child sexual abuse arising in the course of hostile divorces. Some found a rapid increase in such charges and in the percentage of them eventually that were found baseless; others found there to be no such problems. It is unlikely the truth will ever be fully known.

States vary in their rules for division of assets in a divorce. Some states are “community property” states, while others are “equitable distribution” states. “Community property” states start with the presumption that assets will be divided equally, whereas “equitable distribution” states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their 21st birthday. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.

Alimony, also known as maintenance or spousal support is still being granted in many cases, especially in longer term marriages. Connecticut, for instance, grants alimony in over 25% of cases. Alimony is also likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in marriages that exceed 12 years. A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved.

Child support is the ongoing obligation for a periodic payment made by a non-custodial parent to a custodial parent, caregiver or guardian, for the care and support of children of a relationship or marriage that has broken down. In family law, child support is often arranged as part of a divorce, marital separation, dissolution, annulment or dissolution of a civil union and may supplement alimony (spousal support) arrangements.

In general, financial support for the child(ren) should come from both partners. As a rule, the partner that leaves the home where the child lives is most often required to forward money to the custodial spouse. Both parents are required to pay toward the support needs of their children. The lower-earning spouse’s support obligation offsets an equal amount of the higher wage earners obligation, resulting in the higher wage earner paying the difference. However, until the custodial spouse make a request to the courts to put a child support order in place, payment is largely voluntary by the non-custodial partner. The most effective way to have these support payments begin is to retain an attorney that will request from the court such an order.

Most parents recognize the ongoing needs of their children, and continue to provide for them, although in the case of some newly separated couples, the amount of the support (without a support order in place) is often disputed. In general terms, child support for one child can be 18-25% of the non-custodial’s income. States vary on whether they figure child support on gross income or net income. Additional children can increase that amount significantly. The amount of child support awarded is always a calculation, and, depending on the state in which you reside, can be based on such criteria as percentage of income each contributes (gross monthly income), percentage of parenting time, social security or veterans benefits, the number of non-joint children if any, child care and medical expenses, and other considerations. Support payments can be ordered to be paid weekly, bimonthly or monthly.

Generally speaking, visitation is considered a right granted to the non-custodial parent of any child of the family. The standard visitation awards by the family court in most U.S. states consists of alternating weekends and some holidays (usually amounting to four days a month unless the mother allows an increase in shared parenting time).

However, the child, at or around the age of 13, depending on the state, may choose in which parent’s home to live without government interference.

Parents (and in some jurisdictions grandparents) frequently believe that they have a right to visitation or access; however, courts in several countries have used the subjective doctrine of the best interests of the child to deny parental or grandparental access to the child. This is commonly found in cases when custody of the child is disputed and there is a history of interference with visitation. In such high conflict cases, there are often allegations of child abuse and/or domestic violence.

In high conflict cases, visitation may be supervised by a social worker, psychologist, guardian ad litem, or other third party while the non-custodial parent visits with the child.

Many non-custodial parents have visitation orders that allow the child to visit with them without any supervision. These visits often take place away from the custodial residence. Often the non-custodial parent is granted overnight visitation, weekend visitation, or vacation visitation.

Parents may also share custody and may agree to allow visitation. In these situations a court order may not be needed, though sometimes it is obtained to forestall later disputes about what the parents had previously agreed to, and to allow the courts to have some oversight over the children (which they normally have under statute and under the parens patriae power).

The system is changing though, in that courts are now recognizing the term visitation is confrontational in nature, and are opting for the gentler term parenting time or parenting schedule. In a conventional parenting schedule, the mother maintains physical custody of the child, and the father has access to the child two nights per week, and every other weekend.

Gaining popularity in recent years has been 50/50 parenting (or split-parenting), where the parents split the amount of time they spend with their children roughly in half. Split-parenting tends to reduce the amount of child support money exchanged between the parties.

Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child.

Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as custody and access (known as visitation in the United States) have been superseded by the concepts of residence and contact. Instead of a parent having custody of or access to a child, a child is now said to reside or have contact with a parent. Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard. Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. It is not uncommon for one parent to accuse the other of trying to “turn” the child(ren) against him or her, allege some form of emotional, physical, or even sexual abuse by the other parent, or for the “residence” parent to disrupt the other parent’s contact or communication with the child(ren). Cases of parents removing children from the jurisdiction in violation of court orders, so as to frustrate the other parent’s contact with the children.

Courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and non-custodial parents, and also attempts to build upon the so-called best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.

Historically, precedence has been that the mothers received physical custody of the children, and fathers were granted visitation, or time with them. However, in today’s changing world, final custody decisions are made using a combination of precedent and the facts about parenting behavior that both you and your divorcing spouse bring to the table. The majority of custody awards tend to favor the mother, although in recent years we have seen a shift to less bias in that regard.

No. Divorce law requires that you make a good faith effort in finding your spouse and can swear under oath and penalty of perjury that you do not know the current whereabouts of the respondent and have made an effort to find him/her, then you may serve the missing respondent by publishing a notice in a local newspaper (or in some states post a notice in the local courthouse). A good faith effort would include sending a registered letter to the spouse’s last known address, an internet search, or contact utility companies and relatives or friends of the missing respondent. Make sure you document everything as the courts will want to see evidence. Your spouse will need to be missing for a minimum amount of time (one to three years usually) before your request will be granted. As always, get legal advice on what conditions apply where you reside.
In the absence of abuse, it’s generally recommended to consult with a divorce attorney before making any decision to leave your marital home. It is not unusual for a legal argument of abandonment to be made against a spouse that has left the home in which his/her spouse and children reside. While that argument can be thwarted, leaving can create a difficult condition that can compromise your success in court.

Leaving the marital home is typically defined as taking with you personal possessions (clothing, automobiles, sentimental possessions, etc.) and behaving in a manner consistent with arranging for a new permanent residence elsewhere. This act can be important if custody battles take place, as this departure can legally work against those that have left. Storming out of the house, and staying with friends or relatives for a number of days does not constitute leaving the marital home, however.

Joint physical custody refers to the amount of time a child actually lives with each of his/her parents. It is an agreement reached in the divorce process, and is mandated by the divorce decree to have certain parameters, or agreements. Typical shared physical custody approximates a 50/50 split where the two parents live close together. The parents’ living in close proximity to each other gives an even split of time in each home the best chance of being successful.

Legal custody refers to totality of the decisions parents make that have a material impact on the child’s health and safety. Joint legal custody gives each parent an equal say in important matters involving their child. Some examples of legal custody decisions can be about schooling, religion and medical care. If the courts award you joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement, This can be costly (more legal fees), possibly embarrassing, and might negatively impact your child.

Annulment

Annulment is a legal procedure for declaring a marriage null and void. Annulment differs from divorce where the court ends an otherwise legal marriage on a specific date.

In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process.

Grounds for a marriage being voidable or void ab initio vary in different legal jurisdictions, but are typically limited to fraud, bigamy, and mental incompetence including that:

1. Either spouse was already married to someone else at the time of the marriage
2. Either spouse was too young to be married, or too young without required court or parental consent
3. Either spouse was under the influence of drugs or alcohol at the time of the marriage
4. Either spouse was mentally incompetent at the time of the marriage
5. If the consent to the marriage was based on fraud or force
6. Either spouse was physically incapable to be married (typically, inability to have sexual intercourse which persists) at the time of the marriage
7. The marriage is prohibited by law due to the relationship between the parties
8. Infidelity exists in marriage, or partners are unfaithful

Annulment in the Catholic Church

In the case of the Catholic Church, annulment does not mean the same thing as divorce. Though some criticize the Catholic Church, characterizing it as preaching that all marriages are permanent but providing the means of annulment. The Church reconciles these two seeming opposing ideas by understanding that a “Declaration nullity” is not a dissolution of a marriage, but rather to determine whether a marriage was a sacrament (valid) or in contrary in some way to Divine Law as understood by the Catholic Church. While some may try to use an annulment to get around the “no divorce” rule, that is not the Church’s reason for the availability of annulment. According to the Church, an annulment affirms the Scriptural basis of divorce and at the same time affirms that in a true marriage, a man and a woman become one flesh before the eyes of God.

For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. -Catechism of the Catholic Church #1629. However, Canon 1137 of the Code of Canon Law specifically affirms the legitimacy of children born in both recognized and putative marriages (those later declared null).

An annulment verified by the Catholic Church is independent from obtaining a civil divorce, although before beginning a process in front of the Ecclesiastical Tribunal, it has to be clear that the marriage community cannot be rebuilt.

If someone has all the signs of being married previously, he or she must get an annulment before entering into a marriage in the Catholic Church, even if the individual was not married in the Catholic Church previously. Catholics acknowledge the indissolubility of marriage for any baptized persons who give themselves freely in the bond of marriage and recognizes the marriages of other Christians in most cases.

Marriages that are annulled under the Catholic Church are usually considered as ab initio, meaning that the marriage has been essentially invalid from the beginning.

Annulment in New York State

The cause of action for annulment in New York State is generally fraud.

Fraud generally means the intentional deception of the Plaintiff by the Defendant in order to induce the Plaintiff to marry. The misrepresentation must be substantial in nature, and the Plaintiff’s consent to the marriage predicated on the Defendant’s statement. The perpetration of the fraud (prior to the marriage), and the discovery of the fraud (subsequent to the marriage) must be proven by corroboration of a witness or other external proof, even if the Defendant admits guilt. The time limit to file for an annulment is three years (not one year). This does not begin from the date of the marriage, but the date the fraud was discovered, or could reasonably have been discovered.

The grounds for annulment in New York State include any of the following:

  • Failure to consummate the marriage
  • Failure to live together
  • Marriage less than 1 year
  • Mutual consent
  • Mistake
  • Already married
  • A bigamous marriage

A bigamous marriage (one party was still married at the time of the second marriage) cannot be annulled- it is void ab initio (not legal from its inception). However, either party (as well as certain other parties) can petition the Court with an Action to Declare the Nullity of a Void Marriage. The Court, upon proper pleadings, renders a judgment that the marriage is void. There may be effects of marriage such as a property settlement or maintenance if the court finds it equitable to order such relief.

A military divorce is one defined as where at least one of the parties is a service member on active duty, reserves or the National Guard, or retired military. The Service Members Civil Relief Act of 2003 (SCRA) formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) is a federal law that confers to all military members as they enter some important rights not commonly found in civilian divorces. Follow this link to The Judge Advocate General’s Corps FAQ page regarding the particulars of the SCRA. Frequently asked questions about military divorce in general can be found here on the same site as well. See our special section on military divorces in another section of this site.
The courts generally consider the child’s best interest when determining who stays in the marital home, and who must find another permanent residence. Since most custody awards go to mothers, both mother and child are often awarded the marital home, and the father is instructed to find an alternate permanent residence.

The non-custodial parent’s relocation to another permanent residence doesn’t absolve him of the legal obligation of a mortgage loan on the property. If the mortgage was obtained in joint names, the obligation continues as joint. Your attorney and the courts will attempt an equitable distribution if at all possible. There is no such thing as getting him off the mortgage, however. Should one party wish to carry a mortgage in individual name, that person must refinance the existing joint loan as they would any other refinancing effort.

Occasionally parties discover the quit-claim deed, which operates to release any interest one of the parties has in a property without a representation that he or she actually has a right in that property. Confusing as this might be, the quit-claim deed is sometimes erroneously thought of as a release from a bank mortgage obligation. It does not release anyone from any mortgage contracts. Do not provide anyone with a quit-claim deed without consulting an attorney first.

If you are awarded the marital home, you will be expected to be responsible for the mortgage by yourself. Should the costs be too much of a burden, you may be forced to sell the home and find more suitable living conditions. Unless stated otherwise in your divorce decree, you will be free to negotiate its sale, as well as determining where the net proceeds are to be placed.

Site AdminFrequently Asked Questions

Leave a Reply