New York has two basic requirements that you must meet in order to get a divorce in the state: a legally accepted reason for ending your marriage, and a residency requirement.
To begin a divorce case in New York, you must have one of the legally acceptable reasons, or "grounds, for ending your marriage. New York has both “fault” and “no-fault” grounds. Fault grounds come into play when you’re accusing your spouse of wrongdoing, such as adultery, mental or physical cruelty, or desertion. With no-fault grounds, neither spouse is blaming the other for the collapse of the marriage.
New York law provides three no-fault grounds:
In New York, a judge may not grant a divorce based on the marriage's breakdown unless all of the issues in the divorce have been resolved, either by the judge or the spouses themselves, in a marital settlement agreement. (N.Y. Dom. Rel. Law § 170 (2022).)
Because your spouse is likely to dispute claims of misconduct when you choose one of the fault-based divorce grounds, you're almost always better off filing for a no-fault divorce if you want to avoid an unnecessary (and costly) legal battle.
Before you can file for divorce in New York, you must meet at least one of the following criteria:
(N.Y. Dom. Rel. Law § 230 (2022).)
The New York Courts website provides an overview of the divorce process, as well as forms you’ll need to move forward. If you're the one starting the divorce process (the "plaintiff"), you'll need to complete and file certain documents with the court, including:
When you've completed the forms and signed them in the presence of a notary, make at least two copies and bring them to the county clerk’s office in the county where either you or your spouse lives. (N.Y. C.P.L.R. § 530 (2022).)
You'll need to purchase an index number, which will go on all the documents.
The requirements and procedures for filing for divorce may vary from county to county. Check with the clerk’s office of the county where you’re filing to determine the local rules. If you’re interested, you can also ask about filing your forms electronically, which is available in some counties.
When you submit your divorce papers to the court, you have to pay various fees at different times. The total fees (including the initial fee for purchasing an "index number") are at least $335 but are always subject to change.
If you can’t afford to pay the filing fees, you can submit a request for a fee waiver. Based on the information you provide about your income, assets, and debts, the court will determine whether you qualify. Information necessary for a waiver may vary by county, so ask your county clerk’s office about the local requirements.
After you’ve filed your initial divorce papers, the process of getting a final divorce in New York depends in large part on whether your case is contested or uncontested, as well as local rules.
In an uncontested divorce, the spouses have agreed about all the issues involved in ending their marriage, including:
Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. That way, once they have a settlement agreement, the rest of the divorce process will be relatively simple, and the couple can request that the court include the agreement in the judgment of divorce.
Also, if couples have a settlement agreement, they may use an online divorce service that will supply the correct forms and basically walk them through the process.
Here are the basic steps for an uncontested divorce in New York:
The court will consider your New York divorce to be contested when you and your spouse have disputes over any issues in your case, such as child custody and visitation, child support, alimony, or property and debt distribution.
Contested cases are much more complex than uncontested ones and involve extra steps in the process, including the following:
There are also additional forms in contested cases, including financial disclosure statements. These documents require you to provide a great deal of data about your income and assets, and it’s imperative that you be thorough and honest in completing them. A spouse who fails to disclose all accounts, debts, or assets could face penalties in a divorce case, such as fines and possible jail time.
Even in divorces that start out as contested cases, most couples manage to reach agreement on their issues at some point during the divorce process, usually with the help of their lawyers, a mediator, or both. (In fact, New York now requires “alternative dispute resolution,” such as mediation, in contested divorces.)
If spouses don’t settle all their issues, they’ll have to go to trial to have a judge make the final decision on unresolved matters.
Some disputes are more difficult to resolve than others. Without an agreement, New York law will guide judges in their decisions on these issues:
Contested divorces tend to be very expensive. (Think legal fees.) The cost of divorce climbs as cases drag on without a settlement—and the bills are highest for couples who need a trial to resolve their issues.
The amount of time it will take to complete your case will largely depend on the type of divorce. Obviously, an uncontested divorce will take less time than a contested one, because the spouses have resolved all their issues. So there’s nothing left to fight about.
You certainly have the right to represent yourself in your divorce. But whether you should do that is a different matter. Self-representation (known as appearing “pro se”) is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But in situations where you have custody disputes or a significant amount of property, you may be better off retaining an attorney. Divorce laws can be quite complicated. A qualified divorce lawyer will know the intricacies of the law, as well as the ins-and-outs of the court system.
Remember, you’re likely going to have to live with the results of your case well after the divorce is over. If, down the road, you realize you made a mistake, there’s no guarantee you’ll be able to correct it. So it pays to get it right the first time.
]]>I have been married for one year at the end of this month, and it seems that the marriage is mutually over. We have no joint assets and no children; this is my first marriage, his second. What is the difference between an annulment and a divorce? Is there an advantage to one over the other?
It’s a common misconception that if you’ve been married for a short period, you can ask the court to annul—or, erase—your marriage. While there are certain limited situations where an annulment is appropriate, most couples need to ask the court for a traditional divorce. If you and your spouse have only been married for a short period, don’t have children, and don’t have assets or debts to separate, you can file for a no-fault divorce, or in some states, an uncontested divorce.
A no-fault divorce begins when either spouse files a request with the local court. If you meet the state’s residency and no-fault divorce requirements, the court will grant your request. Every state has a no-fault divorce policy, meaning that neither spouse must point fingers or place blame on the other for the breakdown of the relationship.
Although no-fault divorce requirements may vary depending on where you live, typically, if you can demonstrate that you and your spouse are separated, you suffer from irreconcilable differences, or you’re incompatible, you will be successful in your request for a divorce. If there are unresolved issues on child custody, visitation, child support, alimony, or property division, the court will decide how to handle the disputes before entering a final judgment.
From your question, it sounds like you may qualify for a more streamlined process called uncontested divorce. If you and your spouse agree on all divorce-related issues, such as property and debt division, and you’re willing to put the details of your agreement in a written contract—often called a divorce settlement agreement—which you then present to the judge, the court will likely grant your request. Because you and your spouse handle any divorce-related issues before you see the judge, the process for an uncontested divorce is typically less time-consuming and less expensive than a traditional divorce.
Annulment is like divorce in that the couple (or a judge) decides how to handle custody, property division, and support issues, but in the end, the court treats an annulled marriage as if it never happened. In order to obtain an annulment, one spouse must demonstrate that the marriage was not valid (wasn’t legal) from the beginning. Although the grounds for annulment may vary from state to state, the following are the most common:
If you can show grounds for an annulment, and a judge grants your request, the court will treat your marriage as if it never happened. Overall, there’s no real advantage to annulment, unless you’re concerned with the stigma that may come with a divorce. Some couples would like to avoid divorce for religious reasons, but you'll still need to meet your state's requirements for a legal annulment of your marriage.
If you’re considering divorce or annulment, consult an experienced family law attorney near you for more details.
]]>When a married woman has a child, state laws presume that her husband is the baby’s parent (more on that below). So if the couple splits up and the mother seeks child support from her husband, she won’t need to prove he’s the father.
In contrast, when parents were never married, the mother may not seek child support from the man she believes is the father until she gets a court order stating that he is, in fact, the child’s legal father. Usually, the easiest way to establish paternity is for both parents to sign a form agreeing that the man is the father, or to undergo DNA testing.
All states have paternity acknowledgment forms that unmarried parents can sign, either at the hospital when the baby is born or later (although there might be a time limit on that). In many states, a paternity acknowledgment signed by both parents has the same legal effect as a court order establishing the father’s paternity and giving him all the legal rights and responsibilities of parenthood, including the obligation to support his child. It’s important that parents use their state’s official form, because a homemade version is unlikely to carry the same weight.
Parents may also establish paternity by listing both of their names on the birth certificate when the baby is born. But some states will require unmarried parents to sign the paternity acknowledgment form before they can do that. Also, most states won’t let them add the father’s name to the birth certificate later unless they both sign the acknowledgment.
Disputes over a child’s parenthood usually begin after a man who isn’t married to a child’s mother receives official paperwork from a court or child support agency notifying him of a request to pay child support. This request, often labeled a “petition” or “complaint,” is typically addressed to the child’s “alleged father,” meaning the court or agency has reason to believe he’s the biological father. This request may have been initiated by the child’s mother, or by the child support agency in an attempt to recover funds after the mother has applied for public assistance.
This paperwork typically directs the alleged father to submit employment and financial information that’ll be used to determine the amount of child support owed. It also generally explains the steps the man must take if he denies that he’s the father or objects to any part of the request.
It’s important to respond to a child support petition promptly. If you’ve received this paperwork and don’t file a complete response before the deadline, a judge may issue an order declaring that you’re the child’s legal father and requiring you to pay child support without your input.
A judge may order a child’s parents to undergo DNA genetic testing to establish paternity, but that’s not always necessary. Either the mother or the alleged father may simply submit a request for DNA testing to their state or tribal child support agency, which will generally help to coordinate the testing process.
Once the agency or court has ordered it, the mother, child, and alleged father will each be required to have a DNA test performed by a state-authorized laboratory. If the mother has named more than one potential father, they might all need to be tested.
The test results, which are generally very accurate, provide a percentage of probability (likelihood) that the alleged father is, or isn’t, the child’s biological father. The guidelines for interpreting paternity test results vary by state. In many states, a person is legally presumed to be a child’s father if his DNA test results indicate a certain minimum percentage of probability (typically 97% to 99%) that he’s the biological father.
If the mother or alleged father objects to the test results, they may request additional DNA tests. As a general rule, the state must administer at least one more round of DNA testing after such a request. Here’s what happens next once the official testing is complete:
The state will generally pay for DNA paternity testing when a court or child support agency ordered the tests. Some states require the alleged father to reimburse the state for the costs if he denied paternity but the test results indicate that he’s the biological father. Also, anyone who objects to the initial results will typically need to pay for the second round of testing.
You’ll usually have to pay the bill if you choose to take a DNA paternity test even though you weren’t required to do so. There are several companies that offer to administer “legal” DNA paternity tests, which generally means the company believes the results will qualify as evidence in a court case. This testing process may cost $300 to $500 or more. Many companies also offer less expensive at-home DNA paternity tests, but at-home tests generally can’t be admitted as evidence court.
What if you’ve been asked to pay support for a child who was born or conceived while you were married to the mother, but you don’t believe the child is yours? Even though the state will presume that you’re the father, you might be able to prove otherwise.
Laws on the paternity presumption (sometimes called the marital or parenthood presumption) vary from state to state. Typically, you may try to “rebut” (overcome) the presumption, but there may be limits on the circumstances and timing for doing that. You’ll generally start by filing paperwork with the court to start a legal parentage proceeding.
You’ll need to submit evidence showing that you couldn’t be the child’s biological father or that someone else is the father. Depending on the laws in your state, this evidence might include:
After the U.S. Supreme Court declared that same-sex marriage is legal in all 50 states (Obergefell v. Hodges, 576 U.S. 644 (2015)), the Court extended that decision to other benefits of marriage, including parentage (Pavan v. Smith, 582 U.S. 563 (2017).)
Since then, some states have amended their laws on child support and parentage to use gender-neutral language or to apply the laws regardless of gender. And the courts in several states have held that the paternity presumption also applies to the wife of a woman who had a child during the marriage using assisted reproduction. However, state courts haven’t been consistent in their treatment of same-sex child support obligations, and most states’ laws don’t provide guidance on how the paternity presumption should be applied to same sex spouses.
So if you’re seeking child support (or fighting a child support request) from a same-sex spouse, you should consider speaking with a family lawyer who can offer advice on same-sex divorce in your state.
For most parents, your first stop to get help with paternity issues and child support will be your state or tribal child support agency. The agency can generally provide information and help answer questions about applying for (or modifying) child support, establishing your child’s paternity, and the process for requesting DNA testing.
If your case is more complicated—for instance, if it involves surrogacy or overcoming a paternity presumption—you should consider speaking with an experienced lawyer who can explain the laws and options in your state. If you can’t afford a lawyer, you might try contacting your local legal aid office to find out if you’re eligible for free or low-cost legal services. Some state courts also have free legal self-help program.
]]>When you’re getting divorced and have children, or if you’re involved in a paternity case, the court will require you to submit a proposed order (sometimes referred to as a parenting plan) outlining a custody arrangement and a visitation schedule. If you’ve worked out a parenting agreement, a judge will usually approve your plan as long as it appears to be in your child’s best interests. Without an agreement, the judge will have to decide what’s best for the child, after reviewing each parent’s proposed order and the evidence they present at a court hearing on the issue.
The custody arrangement will usually designate the primary custodial parent (sometimes called the residential parent). The child will live with the primary custodial parent all or most of the time but will usually spend some amount of time with the noncustodial parent. The visitation or parenting time schedule will detail when and where each parent will have time with the child during the school year, holidays, and school breaks. Until a judge issues a new order changing the custody arrangement, you’re expected to continue following this parenting time schedule, even if your child refuses to visit the noncustodial parent.
If your child doesn’t want to visit the other parent, it’s important that you do everything you can to get your child to cooperate with the scheduled parenting time. If you allow your child to miss parenting time, without making a serious effort to work the issue out, a judge may very well conclude that you’re interfering with the other parent’s visitation. This could lead to a variety of consequences, such as:
Fortunately, there are a number of steps you can try to resolve the problem.
As soon as you’re having problems getting your child to the scheduled parenting time, it’s crucial to give the other parent proper notice about what’s going on. Typically, your parenting agreement will say which methods of communication you and the other parent should use to discuss parenting issues. If it does, be sure to use this method to notify the other parent about the visitation problem. Otherwise, use any method (such as a text message or email) that will allow you to prove when you communicated the issue to the other parent. Be sure to explain what you’ve already done to try to get your child to visit.
It’s also important to communicate with your child. Along with explaining the importance of parenting time and obeying court orders, see if you can find out whether there’s a reason your child doesn't want to spend time with the other parent. Depending on what your kid has to say, the answers might give you an opportunity to talk through and resolve the issue with the child and the other parent.
If the answers to your questions lead you to believe your child is being abused during visitation, immediately write down everything your child says, along with anything you’ve seen that back up those statements (like sudden changes in behavior or school performance after earlier visits). Whenever there are credible claims of abuse, go to court as soon as possible and request a temporary protective order that will require the other parent to stay away from your child.
Because that protective order is only temporary, you’ll also need to ask the family court for a modification of the current custody and visitation orders (more on that below). It’s important to act quickly. If at all possible, you should speak with an experienced family law attorney to get help with your modification request. You can also learn more about domestic violence and child custody, including other resources for assistance and advice.
Children don’t always give clear answers about why they’re refusing to visit a parent—or their explanations don’t necessarily lead to easy resolution. You might try family counseling or custody mediation to get help coming up with a solution that would work for everyone involved. .
Some parents also turn to “reunification therapy” when kids are resisting visitation—although it’s usually noncustodial parents who ask judges to order children to participate. Reunification therapy typically involves counseling sessions between the child and one or both parents. Sometimes, it also means cutting off all contact with the custodial parent for the duration of the program, or even sending the child away to a “camp” with the noncustodial parent. The goal is to strengthen the child’s relationship with an estranged parent and ultimately repair their relationship so that parenting time can proceed successfully.
Reunification therapy has become controversial, particularly when it requires children to spend time alone with a parent they’ve accused of abuse. But with proper protections, it might be helpful in some situations.
If you’re not able to resolve the issue of your child’s visitation refusal, either parent may seek to change (modify) the current custody arrangement or parenting time schedule. For instance, if your teenager no longer wants to be away from friends and school activities during long visits with a noncustodial parent who lives far away, you might want to change the parenting time schedule to allow for less visitation during the school year.
If you and the other parent are able to agree on a new schedule, you can submit the agreement to the judge for approval. Without an agreement, however, you’ll need to file a motion (formal request) with the court to modify the existing parenting schedule. Many states will require you to show that there’s been a substantial change in circumstances since the previous agreement or order, but some states won’t require this when you’re requesting only a change in the visitation schedule rather than a change in custody (that is, where the child primarily lives). The fact that an adolescent has refused to continue cooperating with the parenting schedule—or that the custodial parent has stopped trying to get the child to obey—might qualify as a change of circumstances.
Whether or not you must prove there’s been a change in circumstances, you’ll need to convince a judge that the requested modification would be in the child’s best interests. When making that decision, the judge will typically consider the same best-interest factors that go into all custody decisions.
Children who are considered legal adults (age 18 in most states) may always refuse to spend time with a parent. Technically, any child who is not yet a legal adult isn’t allowed to refuse visitation. In practice, however, the situation is a bit murkier than that.
As any parent knows, it can be difficult to force teenagers to do anything they absolutely don’t want to do—including visiting a noncustodial parent. In many states, judges may take some children’s wishes into account when considering changes in visitation or custody. The rules on considering children’s custody preferences vary from state to state, but judges may usually hear from children who are mature enough to express a thoughtful, reasonable opinion as to why they’d prefer to live with one parent or why they don’t want to visit with the other parent. Typically, the child’s wishes will be one factor among many that the judge will consider—although the preferences of older children might carry greater weight.
If you’re the noncustodial parent and your child refuses to return to the custodial parent after visiting you, you should follow many of the same steps outlined above. It’s important that you continue to do everything you can to get the child to go home when the parenting schedule calls for it. Notify the custodial parent of any issues and make sure you have a record of your communications (preferably in writing). You should also speak with your child to determine what’s behind the refusal and try to help resolve any problems.
If the child continues to refuse to go back to the custodial parent, you may be able to request a modification that would make you the custodial parent.
Unless the custodial parent agrees with your proposed change, you’ll need to file a modification motion in the court. As discussed above, you typically must show that there’s been a change in circumstances since the time of the previous custody order, and that the requested modification would be in the child’s best interests. Here again, the judge might take into account your child’s preference when determining whether or not to grant the change in custody.
If you’re seeking a custody modification, you’ll probably also want to request a change in child support, so that the other parent will begin paying you support once you become the custodial parent.
There are many downsides to legal custody battles, including the expense and emotional toll on everyone involved—especially the kids. That’s why it’s always best to try to work out an agreement with the other parent—either on your own or with the help of a mediator—when your child is refusing to cooperate with the parenting schedule.
But if you can’t find a solution you can all live with, you’ll need to navigate the legal system to enforce or change the current parenting schedule. The courts in some states provide simplified procedures for enforcing custody orders. Check with your local court clerk’s office or online self-help resources to see what might be available in your state. Otherwise, you should strongly consider speaking with a family lawyer who can help protect your legal rights and your child’s welfare.
]]>Courts in the United States have long held that parents have a fundamental right to the care and companionship of their children, as long as they don’t pose a danger to the kids. And most state laws on child custody recognize that it’s usually best for children to have regular contact with both of their parents after divorce or separation.
In specific cases, a parent’s right to visitation is typically part of the court’s custody orders. There are different types of child custody: legal custody (the right to make important decisions about your children’s lives) and physical custody (the right to have your children living with you). When one parent has sole physical custody, the other parent usually has visitation rights.
As the trend in custody arrangements has increasingly moved toward shared physical custody, many states use terms like “parenting time” rather than visitation. But even when parents share custody, it’s rarely an exact 50-50 split. In these situations, the parents who don’t have the kids more than half of the overnights in a year are generally called noncustodial parents, and the time they have with their children may be called parenting time or visitation.
Most of the time, parents work out their own custody and visitation agreement, either as part of an overall divorce settlement agreement or as a stand-alone parenting agreement. The parents might simply agree that one of them will have sole physical custody and the other will have “reasonable visitation” (more on that below). More typically, however, the parents will work out a parenting plan that includes details such as:
Some typical schedules call for the noncustodial parent to have the children one evening a week, overnight on the weekends (or alternating weekends), alternating holidays, and extended visitation over summer vacations. But the beauty of a parenting agreement is that you and your co-parent can come up with a schedule that’s tailored to your needs and those of your children, rather than relying on a judge to dictate your custody arrangements.
If you’re having trouble agreeing about custody and visitation, custody mediation may help you find solutions and resolve your disagreements. In fact, courts in many states will require parents to participate in mediation of any custody disputes they still have after they’ve filed for divorce or a separate custody proceeding.
Once you’ve agreed about your parenting plan, you’ll need to submit your signed, written agreement to the court for a judge’s approval. But a judge will usually approve the parents’ agreement and make it part of an official court order, as long as the parenting plan appears to be in the children’s best interests.
If you and the other parent aren’t able to agree about visitation, even after trying mediation, a judge will decide what custody arrangements would be in the best interests of the child, based on the specific circumstances.
Some states require parents to submit a proposed parenting plan. The judge will then consider both parents’ proposed plan, along with the evidence they’ve submitted to support their proposals. Judges may also order an investigation, such as a child custody evaluation, to help them decide what would be best for the kids.
Sometimes, a custody order—whether based on the parents’ agreement or on the court’s decision—will award physical custody to one parent and “reasonable visitation” to the noncustodial parent, without specifying a schedule or frequency for that visitation.
There are no guidelines for what’s considered reasonable visitation. Instead, it will be up to the parents to work out when and how often the visits will take place. That’s why this type of visitation order is usually only appropriate when the parents can cooperate and communicate well. As a practical matter, custodial parents usually get to decide whenever there’s a dispute. And noncustodial parents who don’t like those decisions will have to go back to court to ask a judge to enforce the orders or change the custody arrangement (more on that below).
To avoid these problems, many parents and judges prefer to come up with a parenting plan that provides a fixed visitation schedule. That way, there’s more predictability and less room for argument.
Judges usually find that it’s in the child’s best interests to have ongoing relationships with both parents. But when it’s not safe for a child to be alone with a parent—such as when the parent has a history of child abuse, domestic violence, or serious substance abuse or other mental health conditions—judges will place restrictions on that parent's visitation rights.
Even when a parent’s past behavior or mental health condition presents a danger to a child, judges usually prefer to allow some parent-child contact under restrictions meant to protect the child from harm. The most typical protection is to allow only supervised visitation. With supervised visitation, the parent and child will meet at an approved location, with a social worker or other reliable monitor in the room during the entire visit. Sometimes, judges will allow families to choose the monitor and the place.
When judges order supervised visitation, they typically attach conditions for removing the restrictions. For instance, parents with a history of drug or alcohol abuse may be able to move on to unsupervised visitation once they’ve successfully completed treatment and have provided regular “clean” drug tests or alcohol monitoring.
You shouldn’t be able to limit your ex’s visitation rights simply by throwing around unsubstantiated claims of abuse or other behavior that could harm your child. Instead, you’ll need to provide evidence to support those claims. And if you’re the one being accused of endangering your child, you have the right to present evidence to counter those claims, such as testimony from independent witnesses. You may also request a court-appointed custody evaluator (or even hire your own evaluator) to investigate and prepare a report for the court.
If you believe your ex is guilty of abuse or some other behavior that would mean it’s dangerous for your child to spend time with that parent—or if you’re on the receiving end of claims like that—it’s important that you speak with a lawyer. An experienced family law attorney should be able to evaluate your case, gather the kind of evidence you’ll need to convince a judge, and help protect your rights and your children’s best interests.
It’s worth pointing out that if a judge finds that a parent has made unsubstantiated claims of abuse, the judge may award physical custody to the other parent. Although judges will consider any history of abuse when they’re awarding custody, they typically will also consider each parent’s willingness to encourage the child’s ongoing relationship with the other parent.
Just because parents have a visitation agreement and custody orders, that doesn’t mean they’ll always abide by the schedule and other provisions. Problems with visitation include when:
You should contact law enforcement if you believe your ex is guilty of parental kidnapping. With more usual types of visitation violations, you may need to go back to the family court to ask a judge to enforce the custody orders. If the violations are relatively serious and repeated, the judge will typically order the other parent to obey the orders and then, if the behavior continues, will impose penalties for contempt of court.
If you and your co-parent can agree on changes to your current visitation and parenting plan, the judge will usually approve your agreement and make it part of a new court order, as long as it appears to be in the child’s best interests.
But if you can’t agree on a change, one of you will need to file a motion (a formal written request) with the court to request a custody modification. Usually, it’s easier to make changes to the visitation schedule than it is to switch physical custody from one parent to the other. The requirements vary from state to state. But most states require that whenever you’re seeking a modification of custody orders, you must show that there's been a significant change in circumstances, and that the existing orders no longer serve the child's best interest.
Because the rules and procedures can be complicated, you’ll usually need the help of lawyer to navigate custody modification proceedings unless you and the other parent have an agreement.
Parents may always choose to allow grandparents to visit with their children. But sometimes parents cut off contact, because of disagreements in the extended family, when the parents divorce, or when one parent dies. When that happens, the grandparents might be able to request visitation orders from the court—but that will depend on the specific circumstances and the state where the child is living.
Several states allow grandparents to seek visitation rights over the parents’ objections, but only under limited conditions. For instance, grandparents in Texas may request visitation (known in Texas as “access”) only if:
(Tex. Fam. Code § 153.434 (2023).)
The limitations in some states are less stringent. In California, for example, grandparents may request visitation if:
Even when grandparents meet one of those threshold requirements, the judge must find that the grandparents were already bonded with the child, such that allowing them to visit would be in the child’s best interests. Also, the judge must balance the child’s interests in seeing the grandparents with the parent’s rights to exercise their authority. (Cal. Fam. Code § 3104 (2023).)
Courts have set limits on when states may allow grandparent visitation over parents’ objections. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court laid out three fundamental principles that apply to grandparent visitation:
Based on those principles, the Idaho Supreme Court ruled in 2022 that Idaho’s grandparent visitation law violated parents’ fundamental rights to make decisions about their children, because it didn’t set any limits on when grandparents could request visitation, nor did the law require proof that not awarding the visitation would harm the child. (Nelson v. Evans, 517 P.3d 816 (Idaho Sup. Ct. 2022).)
If your grandchildren’s parents won’t let you visit with their children, despite your attempts to talk about the issue, you can always ask them to participate in mediation. A custody mediator—especially one who’s trained in family relationships, such as a social worker or licensed marriage and family therapist—may be able to help you find solutions that all of you can live with. And reaching an agreement through mediation will almost certainly result in less hurt feelings and bitterness than a court battle.
]]>While there are differences in the emotional impact of divorce for couples who end their marriage later in life, the biggest difference is that there is less time to recover financially, and this reality colors many of the issues that are unique to late-life divorce. If you're filing for divorce later in life (or are just considering it), here's a look at some of the challenges you might face.
Part of the divorce process will be dividing assets with your spouse. The market value of an asset isn't always the only consideration when you're making these decisions, because some assets will be more useful to you later in life than others. Let's look at several types of assets.
Keeping your house provides you with future benefits that might be more important the older you are because of the following factors.
With these considerations in mind, as well as the emotional impact of potentially losing the residence in which you raised your family, the stakes involved in negotiating the division of the family home are even higher than they might be in a younger divorce.
Dividing retirement savings in a divorce can be complicated. You might need a separate court order, usually called a “Qualified Domestic Relations Order” (QDRO), to cover the division of retirement benefits. Before making any decisions about retirement, get a copy of the Summary Plan Description from the retirement plan administrator.
Because of the complexity of QDROs and retirement benefits, it’s a good idea to consult with a lawyer to discuss:
Divorce courts can’t divide Social Security benefits, but the rules about benefits are relevant to your post-divorce income.
You can collect retirement benefits on your former spouse's Social Security record, without reducing your former spouse's benefits, when:
If your former spouse dies, you might be eligible to receive survivor benefits from your former spouse's Social Security benefit. You must meet certain eligibility requirements, such as having been married to your ex for at least 10 years and not being remarried (unless you remarried after age 60).
You can find the latest information on the Social Security Administration’s divorce and benefits website. When you’re considering divorce, it’s a good idea to obtain a current Statement of Earnings for yourself and your spouse.
Most of us plan to coast in our later years. If you suddenly find yourself getting divorced, you might also find you'll have to live on less than you anticipated. You might even be forced to re-enter the workplace or work longer than expected. These are reasons why financial planning becomes crucial in late-life divorces. In particular, it makes sense to:
Serious health conditions can influence how a marital estate is divided and whether one spouse needs alimony, especially if that spouse isn't able to earn income and doesn't have sufficient assets to live on. And a spouse with serious cognitive impairments (for example, Alzheimer's or other dementia) might need a court-appointed guardian or guardian ad litem (a representative appointed by the divorce judge) to provide surrogate decision making.
The cost and availability of health care are major concerns for those over age 50 who are trying to bridge the gap to Medicare eligibility.
During and after your divorce, it's important to evaluate the beneficiaries you've designated in wills or retirement plans, as well as agent designations in medical directives or powers of attorney, to be sure your documents reflect your wishes. Estate planning can be an integral part of your divorce settlement in a number of ways.
A few other issues unique to late-life divorces are worth noting.
Even though they’re grown up, adult children don’t escape the emotional impact of their parents' divorce—especially when they're still financially dependent. In turn, adult children can affect their parents' divorce (for better or worse) by taking on a variety of roles ranging from "Confidante" to "Fixer."
Another unique late-life divorce question is whether to resolve financial issues by separating and entering into a postmarital agreement, rather than via a full-fledged legal divorce.
Sometimes, getting a legal separation, but maintaining a legal marriage, might allow spouses to:
You can find in-depth information on all key issues related to late-life divorce in Nolo’s Divorce After 50: Your Guide to the Unique Legal and Financial Challenges, by Janice Green.
]]>All parents have a legal obligation to support their children financially. Sometimes even nonbiological parents are also responsible for this support (more on that below).
When the parents are living together, they meet their support obligation by directly providing for the children's needs. When they split up—or if they never lived together—the question of who pays child support depends largely on the physical custody arrangements. Typically, the noncustodial parent typically pays their share of the child support obligation to the custodial parent.
You can't get out of paying child support by voluntarily relinquishing your parental rights, unless you child is being adopted (such as by a stepparent).
Child support laws don't discriminate based on gender. The child support obligation is primarily based on parental income and custody arrangements.
Historically, women were much more likely to have primary physical custody of their children, which meant that men were more likely to pay child support. However, it's becoming more common for fathers to have shared parenting or even primary physical custody. If you’re a father who has (or will have) primary physical custody of your children, you have the right to request child support from the mother.
Yes. The legal obligation to support your children applies to all parents, whether or not they ever married. If you never married the child's mother, however, there's an important first step before you'll be ordered to pay child support: establishing paternity (or parenthood, as some states call it).
In all states, unmarried fathers may sign a voluntary declaration of paternity or parentage. If both parents sign and submit the official form (by the deadline, if there is one in their state), it will be the same as if a court entered a paternity judgment. That means that both of them will have the same legal rights and obligations of parenthood.
If you don't believe you're the child's father, a judge will have to decide the issue. Usually, this will involve genetic testing, along with other proof of paternity. (Learn more about establishing paternity in your state.)
Don't ignore any official documents (from the court or a child support agency) that list you as a child's alleged biological father. If you miss the deadline for responding, the judge may enter a default judgment against you. That means you wouldn't have the opportunity to participate in the proceedings and present proof that you weren't the father. It also could mean that you’ll be on the hook for child support, even if you’re not the biological parent.
Under the law in most states, if a child was born or conceived while the mother was married, the law will assume that the husband is the natural father. Typically, this presumption is "rebuttable," which means that the husband may present evidence to prove that he isn't the child's biological father.
In some states, such as Texas, the law will also presume that a man is the father if he held the child out as his own and lived with the child, at least for a certain period of time. (Tex. Fam. Code § 160.204 (2023).)
When the paternity presumption applies and hasn't been successfully rebutted, the mother's ex may have to pay child support even if he isn't the biological father.
If you're hoping to challenge a paternity presumption, you should speak with an experienced family law attorney who will know how to gather and present the kind of evidence you'll need.
People who've been raising a child with a same-sex spouse may have to pay child support when they separate or divorce, even if they didn't go through a legal adoption and aren't genetically related to the child. But it might depend on where they live.
A few states have rewritten their laws on the paternity presumption (discussed above) to use gender-neutral language, so that the presumption clearly applies to same-sex couples. For instance, the laws in California and Washington provide that a "person" or "individual" is presumed to be the parent of a child born or conceived during that person's marriage to the child's mother. (Cal. Fam. Code § 7611; Wash. Rev. Code § 26.26A.115 (2023).)
Most states still use gender-specific language in their laws on the parenthood presumption for children born of a marriage. However, a growing number of state courts have held that those laws must be interpreted in a gender-neutral way, so that they don't run afoul of the U.S. Supreme Court's holding that same-sex spouses are entitled to equal rights when it comes to children born of the marriage (Pavan v. Smith, 137 S.Ct. 2075 (2017)) . For example, courts in Texas and Pennsylvania have applied the paternity presumption to same-sex spouses of the biological mothers (Interest of D.A.A.-B, 657 S.W.3d 549 (Tex. Ct. App. 2022); Interest of A.M., 223 A.3d 691 (Pa. Super. Ct. 2019).)
Here again, it's important that you speak with an experienced family law attorney in your state if you're dealing with a dispute about support or custody of a child born during a same-sex marriage.
The exact formula for calculating child support is different from state to state. In general, the basic support amount is primarily based on parental income. But the definition of parental income can vary. For example, some states use only the noncustodial parent's income. Other states take both parents' incomes into account. State guidelines generally provide detailed lists of the kinds of income that are included, as well as the items that may be deducted from gross income.
Also, the states' child support guidelines typically make various adjustments to the basic support amount, such as for shared parenting and health care expenses. And state laws typically allow judges to order an amount of child support that's higher or lower than the guideline amount when strict application of the guidelines would be inappropriate or unjust under the specific circumstances. (Learn more about the child support laws in your state.)
The child support order will usually state exactly how often support must be paid. Monthly payments are fairly standard, but they might be weekly, biweekly, or even bimonthly. You may request a particular schedule, but it’s up to the judge to determine whether the requested schedule is acceptable.
Payment of child support is coordinated by and through the state's designated child support agency. The default payment method is for the support amount to be withheld from the paying parent’s income, and then paid to the state agency for distribution to the parent who's receiving child support.
In situations where income withholding isn’t possible or appropriate (such as when a parent is self-employed), states normally provide a variety of other methods for making payments to the relevant state agency. These may include sending a check or money order or using credit, debit card, or other payment services approved by the state.
Legal requirements for when child support ends vary from state to state. In general, parents must provide financial support until their children reach the age of majority (which is 18 in most states) or are otherwise emancipated—usually when they're married, join the military, or get a court order for emanicipation.
If children are still in high school when they reach the age of majority, many states require their parents to continue supporting them for a certain period of time, usually until the child graduates or reaches a certain age. For example, Michigan law requires parents to continue paying child support until the child turns 19-1/2, but only if the child is still living full time with the custodial parent while attending high school full time, and the child has a reasonable expectation of graduating. (Mich. Comp. Laws § 552.605b(2) (2023).)
Depending on the state, child support may continue beyond the age of majority (and high school graduation) in certain other situations, such as when:
Depending on where you live, you might have to submit a formal request to have the court issue an order ending your child support obligation. If you just assume that you don’t have to pay anymore, you could end up owing back support ("arrears"). It’s important that you make this request as soon as possible, especially if your support payments are being withheld from your wages.
If a judge terminates your parental rights through a court hearing, that will end your support obligation along with your rights. So in most cases, you will no longer have to pay child support, whether you consented to the termination to allow another person to adopt your child, or a judge terminated parental rights after finding you guilty of abuse or neglect. If you owe back support, however, you’ll still be responsible for paying those arrears unless the judge grants you a waiver.
Yes. Your duty to pay child support is separate from any rights you have to visitation or parenting time. Once a court has issued a child support order, you must obey it even if the other parent isn't complying with the custody orders. Otherwise, you risk being subject to any of a number of child support enforcement actions—including having your tax refunds or other assets seized, losing your driver's or professional license, paying fines, or even going to jail.
If the other parent is withholding visitation or parenting time, you should file a motion (written request) to ask the court to enforce the custody orders.
In most cases, stepparents don't have to support their stepchildren financially unless they've adopted the children. However, some states do make stepparents responsible for providing support for their stepchildren, at least in some situations. In Missouri, all stepparents must support their stepchildren to the same extent as natural or adoptive parents, as long as they're living in the same home. (Mo. Rev. Stat. § 453.400 (2023).)
In a few other states, stepparents have a duty to support their stepchildren only if the parents can't do so. In Hawaii, for example, stepparents who living with their stepchildren and acting as their parents have a duty to support them if the legal parents have deserted the children or aren't able to support them. (Haw. Rev. Stat. § 577-4 (2023).)
Also, most states exclude a stepparent’s income in the child support calculation. But in some states, judges may consider the income of a parent's new spouse when determining how much income that parent has available to pay child support. For instance, if the new spouse (the child's stepparent) covers all of the parent’s monthly expenses and costs, the judge may (if the law allows it) decide that the parent has more available income and therefore can pay more in child support.
]]>When judges are making decisions about child custody, the highest priority is to come up with a parenting arrangement that will be in the child’s best interests. At the same time, judges must be careful not to violate religious freedom, guaranteed under the First Amendment.
That means that judges may not favor one parent’s religion over the other’s faith—such as by deciding it would be better for a child to live with the parent who’s a mainstream Christian rather than the one who’s a Muslim or Buddhist. Courts in some states have also found that judges may not base custody decisions on the fact that one parent has no religious affiliation. (Osteraas v. Osteraas, 859 P.2d 948 (Id. Sup. Ct. 1993).)
However, judges may generally consider religious issues in their custody decisions when those issues directly affect what’s best for the child and aren’t the only reason for a custody award.
State laws on child custody typically include a list of factors that judges must consider when deciding what custody arrangements would be best for the children. Just a few states, such as Minnesota, specifically include the child’s spiritual or religious needs on the list (Minn. Stat. § 518.17 (2023)).
But many states require judges to consider the child’s existing community ties—which could include connections to a church or other religious community. That means a judge may decide that it’s best for the child to stay with the parent who can continue those connections. For instance, in a case where children had been raised in a Hasidic Jewish community, and the mother had decided to leave that community, the judge awarded custody to the father. The appeals court upheld that decision, because it wasn’t based on religion itself but rather on the children’s need for stability and the potential impact of uprooting them from the only lifestyle they had known. (Gribeluk v. Gribeluk, 120 A.D.3d 579 (N.Y. Sup. Ct. App. Div. 2014).)
Because the child’s best interest is the primary focus of custody decisions, judges may base these decisions on a parent’s religious practices when they’re harmful to the child. For instance, Utah law specifically includes the parents’ “religious compatibility with the child” among the considerations that go into custody decisions. But courts in that state have held that judges may not rely on this factor to favor one parent over the other unless a parent’s actions related to religion have a negative effect on the child—such as by hurting the child’s self-image or interfering with stability in the child’s life. (Utah Code § 30-3-10 (2023)); Hudema v. Carpenter, 989 P.2d 491 (Utah Ct. App. 1999).)
Some other examples of how a parent’s religious practices might harm a child:
It’s worth pointing out that some courts will require evidence of actual, substantial harm to the child before judges may base custody decisions on a parent’s religious practices. Other courts allow judges to make these decisions based on a risk of harm to the child. Either way, judges must be careful not to allow their religious biases and value judgments to affect their decisions, when the parent’s beliefs don’t pose a direct threat to the children’s welfare. For instance, just because a mother’s faith as a Jehovah’s Witness meant that her children wouldn’t be allowed to participate in certain activities—like celebrating holidays or birthdays—one court found that wasn’t enough to prove that the children would be harmed by living with her. (Pater v. Pater, 588 N.E.2d 794 (Ohio Sup. Ct. 1992).)
Courts have long recognized that fit parents have a fundamental, constitutional right to make decisions about how their children should be raised. (Santosky v. Kramer, 455 U.S. 745 (1982).) That includes the right to choose their religious upbringing, such as where they’ll go to church and which spiritual practices they’ll follow. Of course, conflicts between parents and children can arise when children get older and resist their parents’ religious training (more on that below). But when parents are divorced (or were never married), the question of who decides a child’s religion will depend mostly on the nature of their custody arrangements—especially legal custody.
A parent with sole legal and physical custody has the right to make decisions about the child’s religious upbringing, and the other parent will usually have to follow those religious practices during visitation time. For instance, as long as it doesn’t harm the child or create an unreasonable interference with parenting time, the noncustodial parent might be required to:
(A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120 (Ind. Ct. App. 2004).)
However, some courts have found that judges aren’t required to force a noncustodial parent to take the child to the custodial parent’s church. As one Kentucky court found, a father’s right to direct the child’s religious upbringing didn’t mean he could force the mother to take the child to the church of his choice, without any evidence that the child would be harmed otherwise. (Wireman v. Perkins, 229 S.W.3d 919 (Ky. Ct. App. 2007).)
Even though custodial parents have the right to make ultimate decisions about their children’s religious upbringing, that doesn’t strip noncustodial parents of their own religious rights. For instance, courts in most states have found that judges may not prohibit noncustodial parents from exposing their children to their religious beliefs and practices, as long as those beliefs and practices aren’t harming the kids. (Pierson v. Pierson, 143 So. 3d 1201 (Fla. Ct. App. 2014); In re Marriage of McSoud, 131 P.3d 1208 (Colo. Ct. App. 2006).)
However, judges may limit noncustodial parents’ harmful religious talk or activities with their children—such as when a father’s repeated threats of damnation and demonization of his children’s mother caused the kids to suffer severe anxiety and emotional distress. (Koch v. Koch, 207 So.3d 914 (Fla. Ct. App. 2016).)
These days, regardless of where children primarily live after divorce, most parents have joint legal custody (sometimes called shared parental responsibility or decision-making). Among other things, shared legal custody means the parents must make decisions together about their children’s religious training and activities. Lawmakers, judges, and parents usually prefer this arrangement except when:
But if parents with shared decision-making can’t agree about their children’s religious upbringing, they’ll have to go back to court and ask a judge to resolve the issue for them or to change their existing custody orders. These court battles can be expensive and hard on everyone involved, including the kids.
That’s one reason judges sometimes split up areas of decision-making responsibility between the parents. For instance, one parent might have the right to decide on the child’s religious activities and training, while the other parent will have the final say about the child’s medical care, education, and extracurricular activities.
Judges might also impose certain restrictions along with joint legal custody. For instance, in Florida—where it’s presumed that parents will share parental responsibility—a court held that a judge could order the parent with physical custody to follow the noncustodial parent’s wishes about the children's Catholic education. (Vazquez v. Vazquez, 443 So.2d 313 (Fla. Ct. App. 1983).)
Because parents have a constitutional right to raise their children in the religion they choose, children don’t have equal rights to choose their own religion (or no religion). As long as kids are still minors, their parents may require them to go to church, Bible camp, or parochial schools.
However, when parents disagree about certain religious practices—like rituals that involve shaving the head or circumcision—judges might be more likely to take the child’s wishes into account. For instance, the Oregon Supreme Court found that if a 12-year-old boy objected to his father’s plan to have him circumcised as part of his conversion to Judaism, that would justify considering the mother’s request to change custody. (In re Marriage of Boldt, 176 P.3d 388 (Ore. Sup. Ct. 2008).)
Also, there are times when judges may take children’s custody preferences into account. For instance, a child may want to live with the parent who shares the child’s religion of choice—or who doesn’t force religious practices on the child. The laws vary from state to state, but judges may typically consider the wishes of a child who’s mature enough to express a reasonable, thoughtful opinion on the subject.
Of course, it’s up to the judge to determine if the child’s custody preference is reasonable. And even if it is, that will be only one factor in deciding what would be in the child’s best interest. For instance, if a 13-year-old kid doesn’t want to go to church with the custodial parent, most judges probably won’t think that’s a good enough reason on its own to change custody.
When divorced parents have conflicts over religion, some children may become confused and upset. But that doesn’t necessarily mean all kids will be harmed simply by being exposed to different religious beliefs. It depends on how the parents handle their differences and whether they can put their children’s needs first. The best approach is to reach an agreement on a child’s religious upbringing—rather than fighting about it in court.
Parents in interfaith marriages often agree on how they’ll handle their children’s religious upbringing. But if they disagree on the issue later, judges may or may not enforce those agreements depending on the circumstances, including:
If you and your co-parent are having trouble resolving disputes about your children and religion, it's a good idea to try custody mediation. A skilled, experienced mediator can help you work out a parenting plan that will serve your child’s best interests while respecting both parents religious rights. You can also find more information, worksheets, and an agreement template in Nolo’s book, Building a Parenting Agreement That Works.
However, if all of your efforts to reach an agreement fail, you should speak with a family law attorney who can help you gather the right kind of evidence—including a custody evaluation or psychologist’s testimony—to convince a judge that what you’re requesting is in the child’s best interests.
]]>In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve the issues in your divorce. Mediation sessions often take place in an informal office setting, but you might also be able to go through your mediation online.
A mediator can help you reach agreement on the issues you and your spouse need to resolve in order to finalize your divorce, such as child custody, child support, and property division. Mediators don’t make decisions or offer legal advice, but rather serve as facilitators to help spouses figure out what’s best for their situation.
When spouses reach agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement.
Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own—either before you file for divorce or at any time after. Mediating your divorce has a lot of advantages over litigating it (fighting it out in court).
Successful mediation makes the rest of your divorce easier: Because you’ve done all the hard work of hammering out the details in the mediation, you can file an “uncontested” divorce. Uncontested divorces are usually less expensive and faster than litigated divorces (divorces where the couple battles in court).
With an uncontested divorce, you’ll save money on attorneys’ fees and the costs of going to trial. Also, many courts fast-track uncontested cases because everything has been worked out in advance, meaning that a judge will be able to finalize your divorce faster than if you’d gone to trial.
Mediation can work for many if not most divorcing couples, even ones who have hard feelings and lots of issues to resolve. While mediation is worth trying for most pairs, not all of them belong in mediation. Mediation might not be for you if:
For divorces without those kinds of circumstances, divorce mediation can be a great option. It’s especially effective when both people show up open to compromise.
Don’t reject mediation just because you and your spouse see a particular issue very differently—in other words, don’t give up before you’ve begun. Mediation is a powerful process, and many cases that seem impossible to resolve at the beginning end up in a settlement.
Although every mediator will have their own style, the general process of mediation is pretty consistent.
Before the mediation, you might speak with the mediator or an assistant and provide background information about your marriage, your family, and the issues in your divorce. Or your mediator might have you fill out a questionnaire. The mediator might also ask you to write up a “mediation statement” outlining your basic information and the divorce-related issues you think need to be resolved.
The mediator might also ask you to sign an agreement that says that you’ll keep what’s said in the mediation confidential and that you understand that the mediator can’t disclose any of what goes on in your session in court.
Unless you do online mediation, mediation sessions are usually held in a conference room or comfortable office. Some mediators meet with everyone in the same room for the entire mediation, while others might break the spouses out into separate rooms for private discussions. For couples who have attorneys with them at mediation, the mediator might ask to meet privately with both sides before beginning the session.
After the mediator takes care of housekeeping issues such as the agenda for the session, you’ll probably get a chance to make a short statement about your situation, as will your spouse. After you’ve each had a chance to speak, the mediator might ask some questions to clarify or get more information. Your mediator might repeat or summarize your points to confirm that they understand what you’re trying to say.
The next step will be to figure out what issues you and your spouse really agree and don’t agree on.
The two most important things you can do to reach an agreement are to:
Understanding your spouse’s position doesn’t mean you have to agree with it. But it’s possible that, once you’ve listened closely to your spouse’s concerns, you’ll have new ideas about how to resolve disagreements.
If you finish negotiations and resolve some or all of your divorce-related issues, the mediator will write an agreement and, in many cases, a parenting schedule or parenting plan. Your settlement agreement will include only the topics that you resolved during mediation. (If you aren’t able to agree on all the topics, you’ll have to either agree on the unresolved issues later or ask a court to decide them after a court hearing.)
Some mediators will help you file divorce your paperwork with the court; others won’t. (You’ll want to ask potential mediators about the scope of the services they provide.)
If the court approves your settlement agreement, the agreement will become part of the final divorce decree. You can then enforce the terms of the settlement agreement just as you would any other order from a court.
Unless a judge orders you and your spouse to attempt mediation, divorce mediation is voluntary. That means you and your spouse will have to agree to mediate. If your spouse is on board, your next step is to find a knowledgeable, skilled divorce mediator.
When a judge orders mediation, you meet with a court-appointed mediator or, if the court allows it, a private mediator of your own choosing. If you’re trying mediation on your own, though, you and your spouse will have to find a mediator you both agree to. One way to possibly avoid argument over the choice of mediator is to research potential mediators on your own and pick three that you’d be willing to hire. Then you could present the list to your spouse and let them make the final choice.
Personal recommendations are a great way to find qualified mediators. For example, you could ask a marriage counselor, a lawyer, or friends who’ve been through a divorce for referrals. Other sources for mediator referrals include:
If you make a list of potential mediators, you’ll want to research each person’s experience and specialty. At a minimum, you should make sure that they are experienced in divorce mediation (and if you have children, cases involving child custody and support).
Mediators can have a variety of backgrounds—for example, they can be lawyers, CPAs (certified public accountants), social workers, or other people with specialized training. The best mediator for your divorce will have experience helping spouses who face issues similar to the ones you and your spouse are dealing with.
Many mediators will agree to meet with you in person or on the phone to explain their process and answer any general questions you have. Before you talk with potential mediators, take a look at their websites and make a list of any questions you have.
]]>When it comes to divorce and property, you may think the most important question is who gets what in the divorce. Of course, that’s the bottom line at the end of the process. But the first question is whether you and your spouse can agree on how to split assets and debts rather than have a judge decide for you. That’s because the cost of divorce shoots way up when you go to trial.
We’ll talk more below about how to prepare a divorce property settlement—including how to get help when you’re having trouble agreeing with your spouse, and what happens after you’ve signed an agreement. For now, you should know that as long as both you and your spouse agree, you’re free to come up with any way of dividing your property that you want—regardless of how a judge would decide on the issue under your state’s laws. Still, the judge might not approve your agreement—a necessary step before getting your final divorce—if it seems unfair.
Even if you hope to avoid trial by working out a property settlement, you should understand the basic legal rules of property division. Those rules will be in the background when you’re negotiating with your spouse, because they’ll govern a judge’s decision on the issue if it comes to that.
The rules on property division in divorce are based on state law, and there are some significant differences from state to state. But the general principles are similar across the United States.
In most (but not all) states, only your marital property will be divided in divorce, while you and your spouse will each keep your own separate property. But how do you know which assets are marital and which are separate?
As a general rule, marital property includes any money or other assets that either spouse earned or acquired during the marriage—unless they both signed a written agreement (such as a prenuptial agreement) to keep some or all of that property separate.
Separate property typically includes:
There are a few differences in how states define separate and marital property. In some states, for example, the rule on property “acquired during the marriage” doesn’t apply after separation. That means that once a couple permanently separates, each spouse’s earnings are their separate property, even though they're still legally married.
The distinction between separate and marital property can sometimes get complicated, such as when couples mix (“commingle”) separate and marital funds in a bank account, or when they use money from a joint account to make improvements or mortgage payments on a house that one spouse owned before they got married. But the distinction won't matter in a few states, where the laws allow judges to include all of a couple's assets and debts (both separate and marital) in the property division.
Most states use a rule known as “equitable division” when judges divide marital property in divorce. Basically, this means that a couple’s marital assets and debts will be distributed between them in a way that the judge believes is equitable (fair) under the circumstances in the case. It does not necessarily mean that the property will be split equally.
Although the decision of what’s fair in your case will ultimately be up to the judge, state laws do provide guidelines. Some of the typical factors judges must consider include:
Nine states in the U.S. use the community property rules for determining the ownership of married couple's assets and debts:
In those states, both spouses share joint ownership of all marital (or community) property. Historically, the laws in these states presumed that community property should be equally divided between the spouses. But several of these states have been moving away from that equal division requirement. For instance, Texas and Arizona simply call for a fair division of community property. And while both California and Nevada call for an equal division, Nevada allows an exception when the judge finds a compelling reason for an unequal but fair distribution of the marital property. (Ariz. Rev. Stat. § 25-318; Cal. Fam. Code § 2550; Nev. Rev. Stat. § 125.150; Tex. Fam. Code § 7.001 (2022).)
A few of the equitable division states—including Florida, Kentucky, and Tennessee—allow couples to opt into the community property system or identify certain assets as community property, often by creating a special trust.
Of course, when we’re talking about property division in divorce, that doesn’t mean physically splitting each asset between the spouses. Usually, judges will assign each spouse a percentage of the total value of all the couple’s marital property (sometimes called the marital or community estate), minus their debts. Then, the judge will distribute assets and allocate debts so that each spouse’s share of the estate comes up to the assigned percentage. Couples typically go through a similar process when they’re working out a property settlement agreement.
But what if a couple owns one piece of property—like a house—that's worth far more than all of their other assets combined? We’ll talk below about different ways of dealing with a house in divorce. But this problem can also come up when couples have two valuable assets that don’t balance each other out (like retirement accounts), and there aren’t enough other assets to make up the difference. One solution is to have the spouse who gets the more valuable asset make what’s known as an equalization or equalizing payment to the other spouse. (Despite the name, this kind of payment may also be used in states where the property division isn’t necessarily equal.)
Obviously, the cash for an equalizing payment must come out of the paying spouse’s separate property, share of the marital property, or a combination of the two. When that spouse doesn’t have enough cash to cover the amount, the judge might order future installment payments. But if you’re considering a settlement agreement with this type of arrangement, you should be aware of the potential pitfalls and speak to an experienced divorce lawyer first.
If you own a house with your spouse, it may very well be your most valuable marital asset. That fact—along with the emotional connection to the family home, especially for children—means that dealing with the house will often be the most difficult part of property division. It’s not just a question of who gets the house in the divorce, how the other spouse is compensated for their share of the equity, and whether you should move out during the divorce process. Decisions about the family home are also closely linked to other issues in the divorce, such as child custody, child support, and alimony.
There are several different ways of addressing what will happen to your house after divorce, including:
If the house is one spouse’s separate property, that spouse will usually keep it. But if marital funds went to mortgage payments, renovations, and repairs, the other spouse could be entitled to part of the increase in the property’s value during the marriage.
As a general rule, final divorce judgments must include orders dividing the couple’s marital property and assigning responsibility for marital debts. But depending on your situation and where you live, you might be able to get what’s known as a “status-only” divorce—meaning the judge will issue a divorce decree that legally ends your marriage but doesn’t include orders on the other issues in your divorce, including the distribution of your marital property or debts. For example:
Even if you're able to get a divorce without a property division in your state, this could lead to unforeseen tax and other financial consequences. But there might be ways of preventing these outcomes, and a status-only divorce would allow you and your ex to get on with your separate lives (and maybe new marriages) while you continue trying to resolve your property disputes. So you should speak with an experienced divorce lawyer in your state if you’re considering this option.
If you and your spouse haven’t been married long and own only a modest amount of personal property, it might not be that difficult to agree on how to split it between the two of you. But if you just can’t agree—or if you own complicated or valuable assets together—you’ll probably need help.
There are three basic sources of assistance with property settlements:
Whether you get professional help with a property settlement or work out an agreement on your own, you’ll still need to take some preliminary steps:
You must submit your signed, written settlement agreement to the judge for approval. If you’re filing for an uncontested divorce, you’ll typically include the agreement with all of the other divorce paperwork that you file to start the process. Otherwise, you’ll submit the agreement at some point before your final divorce hearing. The judge may ask you a few questions to be sure that you understand the provisions in the agreement and that you signed it voluntarily, without being pressured or coerced. The law in your state might include specific guidance for approving property settlements, but judges usually approve these agreements unless they’re clearly unfair.
If you took on joint debt during your marriage—like a mortgage, car payment, or tax debt—you’ll probably have to split the responsibility for paying that debt when you get divorced. The same is true of credit cards that are in both your names or were used to buy things for the two of you.
There’s one important thing you should remember when you’re dividing marital debts in divorce. Even when your divorce agreement or judgment assigns a debt to one spouse, that won’t change the contract you have with your creditors.
So, for example, say your divorce judgment requires your spouse to pay off a joint credit card. If your ex misses payments, the credit card company can—and will—come after you for payment. Or say your divorce judgment orders you to pay off a credit card, but your ex continues to use the card after the divorce. In situations like this, you'll need to pay the bills and then go back to court and ask the judge to order your ex to reimburse you.
If at all possible, the best way to avoid this kind of problem is to close all joint accounts when you're separating or are planning a divorce. And if your settlement agreement (or the divorce judgment) will require you to pay off a credit card debt, make sure that your spouse's name is removed from the card.
]]>Each state has its own set of guidelines for establishing and calculating child support payments. The formulas vary from state to state. In some states, the calculation is simply based on one or both parents’ net income available for support and the number of children being supported. Other states also factor in things like the amount of time a child will spend with each parent, health insurance and uninsured medical expenses for the child, day care costs, and whether either parent is supporting (or receiving support for) children from another relationship.
State laws usually allow judges some freedom to deviate from the child support guidelines if the guideline amount would be unjust or inappropriate under the specific circumstances. Some of these laws spell out certain factors that judges must consider when deciding whether to order a support amount that’s higher or lower than the guidelines, such as the child’s age and special needs, the standard of living the child would have enjoyed if the parents were still married, and extraordinary travel costs for exchanging children between parents who live far apart.
Just as with an initial child support order, any modification will need to be consistent with the state guidelines, unless the judge finds an acceptable reason for deviating from them.
If you want to convince a judge to modify your child support order, you’ll need to prove that there’s been a change in circumstances since the order was established. Generally speaking, the change must be:
Even if these conditions are met, some states won’t allow you to request a child support modification unless a certain amount of time has passed since the existing order was established.
There are many valid reasons why your circumstances may have changed since the time of your child support order. A few common scenarios include:
You can save time, money, and stress if you can work out an agreement with your co-parent on a child support modification. However, it’s dangerous to rely on an informal agreement, because you wouldn’t be able to ask the court to enforce it if your ex doesn’t pay the new amount. Instead, you’ll need to submit a written and signed agreement to the court. The judge may only approve it if the new amount meets the state’s child support guidelines or qualifies for a deviation from the guideline.
Until the judge issues a new order, the receiving parent will only be entitled to the amount from the existing order, and the paying parent will still be legally obligated to pay that amount.
If you haven’t reached an agreement with your child’s other parent, your two basic options for pursuing a child support modification are to request an agency review or file a motion (formal request) in court.
Every state has a child support enforcement agency, and part of the agency’s job is to review existing child support orders to evaluate whether they need to be adjusted. Parents are generally entitled to have the state agency review their existing order once every three years, and sometimes sooner if there has been a significant change in circumstances.
As part of the review process, the agency will require both parents to submit updated financial information and documentation. If the agency decides that the existing child support order needs to be changed, the agency will generally file a modification request directly with the court. In a few states, the agency might handle the modification itself through an administrative procedure. Either way, parents have an opportunity to object to the agency’s recommendation.
You can learn more about the review process and find your local child support enforcement agency in this state-by-state guide to changing child support from the federal Office of Child Support Enforcement.
If you choose to ask the court directly for a change in your support payments, you’ll need to file a motion for a modification to your existing child support order. In most cases, you’ll file the motion in the same court that issued your existing order. The motion should include an explanation of why you believe you’ve met your state’s changed circumstances requirements.
Both parents will need to submit their current financial information and supporting documentation to the court. For instance, if you’re asking for your payments to be reduced because your income has decreased, you might submit a doctor’s note as evidence that you were unable to work because of a long-term injury or disability. If you’re fighting against an increase to your child support payments based on increased income, you might submit evidence from your employer showing that the extra income was temporary, like a one-time bonus or overtime payment.
At the hearing on the modification request, both parents can make their arguments for why the existing child support order should or shouldn’t be changed. After the judge issues a decision, either parent may file an appeal within a certain time period.
If you and your child’s other parent agree on a change, you can probably avoid the expense of hiring a lawyer to handle your modification request. You also don’t need a lawyer to request an agency review of your child support order. As we mentioned above, if the agency decides that a modification is necessary, it will usually handle filing the request with the court.
If you can’t reach an agreement with your child’s parent or get help from an agency, you might be able to file a modification request on your own. Your court clerk’s office or self-help desk can provide the relevant forms and information to get started.
However, if the other parent has already hired a lawyer or your case involves interstate support or other complications, you could be at a serious disadvantage without a lawyer’s help. Consider consulting with an experienced family lawyer in your state who can offer advice on your best path forward.
]]>Whether you're considering temporarily taking a break from your marriage or you plan to file for divorce, the chances are that you'll experience a separation (if you haven't already) from your spouse. Couples can decide to separate on their own or formally ask the court to issue a legal separation (depending on where they live). Regardless of how you separate, it's important to understand that a separation is not the same as divorce. A divorce permanently dissolves your marriage, but with a separation, the couple remains legally married until one spouse asks for a formal divorce.
Depending on where you live, the court may require a couple to separate before allowing them to start or complete the divorce process (more below on those requirements). Several states don't require couples to live separate and apart before asking for a divorce, but in many marriages, once a spouse files for divorce, living together may be impossible. Every state has its own definition of "separation." Some may require a couple to live in separate homes. Others may allow couples to remain in the same home as long as they live separate lives and don't have sexual relations.
Every marriage has it's ups and downs. If you and your spouse feel like you need a break from each other, but reconciliation is still a possibility, you can choose to live apart during a trial separation. Some couples will attend therapy during the trial separation to try and resolve their marital problems.
Court's don't get involved with trial separations, so typically both spouses have to be on board with the decision to separate. Generally speaking, during a short trial separation, your state's marital property laws still apply—meaning anything you or your spouse acquire during this trial period will still be considered marital property and belong to both spouses.
If the trial separation is going to last for more than a month, couples may want to put the terms of the separation into an informal agreement, so there's no confusion and the expectations are spelled out clearly. For example, you can state the amount of time you plan to be apart, how you'll manage parental responsibilities, who will pay the bills, when each parent will see the children (if any), whether you'll continue sharing a bank account, how you'll manage the family home, and anything else that's important to you.
In some states, couples who can't reconcile, but don't want to file for divorce can ask the court for a legal separation. Legal separation may be appropriate in marriages where the couple's religion prohibits divorce, where a couple needs to stay married for health care or tax purposes, or, in some cases, to share Social Security benefits. Not all states offer legal separation, but in the states that do, the process is very similar to traditional divorce, except that in the end, you're still legally married. Both spouses must agree to file for a separation. If either spouse asks for a divorce, the court will proceed with a traditional divorce.
If your state doesn't offer legal separation, you may still be able to permanently separate by entering into a formal, written settlement agreement with your spouse that covers how you will handle any and all marital issues that apply to your case, such as:
If you're unsure whether your state offers legal separation or whether it's the right approach for you case, you should speak with an experienced family law attorney near you.
If you've decided that divorce is the right choice for you, you'll need to initiate the legal process to get your divorce case started. Before you file any paperwork, check with the court to determine if your state requires you and your spouse to live separately before filing. If you file too early, you risk the court rejecting your case, and you'll have to start over.
The spouse requesting the divorce must a file divorce petition (sometimes called a complaint for dissolution of marriage) with the local court in order to start the divorce case. Typically, the petition will include the following:
Once you have the petition completed, you'll need to bring it to your local court, along with any other required documents, and pay the filing fee. If you can't afford to pay, you can complete a fee waiver request. If the judge approves your request, you won't have to pay the court's filing fee.
There are two types of divorce: no-fault and fault-based. No-fault divorce means that the filing spouse asks for a divorce without alleging that the other spouse did something wrong. Instead, the spouse tells the court that the marriage is irretrievably broken, or that the couple suffers irreconcilable differences. In some states, you can request a divorce based on separation for a certain period of time. While this is no the classic "no-fault" ground, it is similar in that it doesn't require either spouse to allege the other is at fault for the divorce.
All states offer a no-fault divorce (or divorce based on separation). No-fault divorces are less expensive and time-consuming than fault divorces.
Some states still allow spouses to file for fault-based divorce. In a fault divorce, a spouse will alleges in the divorce complaint that the other spouse's misconduct caused the breakup. Some spouses ask for a fault divorce to feel vindicated for the other spouse's wrongdoing. Others ask for a fault divorce to try and influence the judge's property and spousal support decisions.
In the states that permit fault divorce, the most common grounds are adultery, alcohol or drug abuse, abandonment, and physical abuse. Fault divorces require the filing spouse to prove the allegations in court, so the process tends to take much longer and cost more than a no-fault divorce. If you're considering a fault divorce, you should speak to a local attorney to determine if you qualify and whether the added expense is worth it in your case.
Regardless of the "type" of divorce you choose, after you file your documents with the court, you must serve (deliver) a copy of the paperwork to your spouse. You can ask your local sheriff's department to give the documents to your spouse, or you can hire a private process server to do it for a fee. If you can't find your spouse, you can ask the judge for permission to publish the divorce information in a local newspaper.
Service is important because it ensures that both spouses have time to review and respond to the complaint before the court acts. Nearly every state has a "waiting period" that the court must allow to pass before the judge can finalize the divorce—which is the state's way of allowing the couple time to either reconcile or negotiate the terms of the divorce. The filing spouse must complete and provide proof of service to the court before the waiting period begins to run.
After you deliver the paperwork to your spouse, the law generally allows the responding spouse 21-28 days to answer. If your spouse fails to respond by the deadline, you can ask the court to issue a default judgment in your favor. A default divorce means that the court will award you everything you asked for in your complaint. If there are minor children involved, the judge will ensure that your requests in the complaint are in the children's best interests before issuing an order. Once the judge signs the final documents and issues a divorce decree, your marriage is over.
If your spouse responds to the complaint, the court must proceed with the traditional divorce process. The responding spouse (respondent) can submit an "answer" to the complaint, which agrees or disagrees with the filing spouse's (petitioner's) allegations, or the respondent can file a counter-complaint, alleging new facts for the judge to consider. Like with the original divorce complaint, the respondent must serve a copy of the answer to the petitioner and then provide proof of service to the court.
Even in cases where divorcing spouses agree on everything in their case, the process can still take time. Depending on where you live, some states require couples to live separately for up to a year before the court can finalize a divorce. Other states have waiting periods in excess of 6 months. Because of this, the court has the power to hold temporary hearings to resolve any essential issues while the divorce is pending.
Common reasons for temporary hearings may include:
If you need assistance—financial or otherwise—while your divorce is pending, you should speak to an experienced attorney who can help.
If you and your spouse agree on all your divorce-related issues, you should put your terms in a settlement agreement. A divorce settlement agreement is a legally binding contract that outlines how the couple resolved divorce-related issues.
The couple will submit the signed settlement agreement to the judge and if it meets the state's requirements for fairness to both spouses, the judge will sign it and incorporate it into the final divorce judgement.
A settlement agreement allows the couple to maintain control over the most important aspects of their divorce, including:
Contrary to what you may see in mainstream media, most couples can work through their issues and agree on the divorce terms without a drawn-out trial. Some couples agree on everything right away and hire attorneys just to memorialize the agreement for them to present to the judge.
However, if you need a little help communicating and working through unresolved issues with your spouse, you can consider divorce mediation. Mediation is a voluntary (in most cases) process where the couple meets with a neutral third-party, who will facilitate the negotiations between the couple. If the couple agrees on their issues, the mediator will draft the settlement agreement for both spouses to sign.
Mediation is also popular because if there are unresolved issues after the session, the couple can ask the court to decide those limited issues, so mediation can be a valuable service even if the couples doesn't resolve every issue their case. Mediators don't have the power to make binding decisions, so divorcing couples often feel more powerful after negotiating their settlement together.
Settling your divorce may not be easy, but if you go into negotiations understanding that you and your spouse will both need to sacrifice a little to meet in the middle, you will spend significantly less time and money on your divorce than if you go to trial.
For some couples, negotiation is impossible, and a divorce trial is necessary. A trial means that there are unresolved issues between the spouses. Typically, the spouses and their lawyers will attend multiple court hearings to present witnesses, evidence, and testimony to the judge, and the judge will decide how to handle the case.
If there's a custody dispute, a court may require the family to complete a custody evaluation. A custody evaluator will conduct an investigation by interviewing the parents, children, other relatives, teachers, caregivers, and/or therapists in order to prepare a recommendation on how much time the child should live with each parent. This process is expensive, invasive, and can take several months to a year to complete.
A divorce trial can cost many thousands of dollars, and you may be unhappy with the end result, so it's important to think long and hard before you walk away from your settlement negotiations with your spouse.
It depends. If you and your spouse agree on the issues right away, you may only need to wait until your state's mandatory waiting period expires to finalize your divorce. Some states offer streamlined divorces where the couple presents a signed settlement agreement to the court, and the divorce is over in a matter of 60 days. If you and your spouse butt heads at every issue, you can expect your divorce to take years.
It depends on where you file for divorce, and it might depend on whether you file for a no-fault or fault divorce. North Carolina requires all couples who want a divorce to live separate and apart for at least a full year before they may file for divorce. Some states, like Arkansas and Virginia, require a period of separation before you may file for a no-fault divorce but not for a fault divorce. And in a few states, like Louisiana, you'll need to be separated for a period of time by the time you get your final divorce but not necessarily before you start the divorce process.
However, many states don't require couples to live apart before they file for divorce or even before they finalize the divorce process. Learn more about the requirements to file for divorce in your state.
In most cases, it's the date listed on your final judgment of divorce. In some states, you'll need to attend a final divorce hearing, even if you settled your case outside of court. During the final divorce hearing, the court will ask you questions "on the record"—meaning in court while you are under oath—to verify that you meet all your state's divorce requirements. Once the court is satisfied, the judge will sign the final judgment of divorce and submit it to the clerk to record. The clerk will provide you with a final copy.
If you don't need to attend a hearing, the date of your divorce is the date located under the judge's signature on the final order.
Orders from the court are not optional, so if either spouse fails to follow the order, the other spouse can ask the court for help enforcing it. The court may require the offender to attend a "show cause" hearing, which is where the spouse will appear in front of the judge to explain the violation. Repeated failures to abide by a court order may result in the court finding the spouse in contempt, which carries penalties ranging from legal fees and court costs to time in jail.
If you disagree with a provision in your divorce decree, follow the legal steps to change it in order to avoid punishment from the court.
A contested divorce means that there's at least one issue where you and your spouse can't agree. If you dispute your spouse's allegations in the original divorce complaint, you can contest it by filing a response (or answer) with the court. Your response should list the allegations you disagree with, and you should also include any new allegations. You should let the court know which remedies you're seeking and what you would like in terms of child custody and support, alimony, and property.
If you and your souse are unable to settle your contested issues, then a judge will have to decide them for you at trial.
]]>There’s no law preventing anyone from living with someone who’s not their spouse during a divorce. However, depending on where you live, and depending on the nature of your relationship with the other person, you might be committing a crime—adultery is illegal in a number of states, such as Florida, New York, and Oklahoma. In most states where it’s illegal, adultery is a misdemeanor.
Simply dating during divorce likely isn’t enough to get you in criminal trouble for adultery, nor is living with a friend (or even someone you’re romantically interested in). Most laws that criminalize adultery require the relationship to be more than an occasional encounter—the couple must be living together openly and romantically for the relationship to constitute illegal adultery. So, under these laws, it’s possible that moving in with your significant other while your divorce is pending could qualify as criminal adultery. For example, in Florida, anyone who “lives in an open state of adultery” is guilty of a second degree misdemeanor. (Fla. Stat. § 798.01 (2022).)
Even though you might technically be committing a crime by moving in with someone during your divorce, adultery as a crime is hardly ever prosecuted. So, regardless of whether your state considers adultery a crime, it’s important to consider not only whether you can move in with someone during your divorce, but also whether you should.
If you’re considering moving in with someone while you’re separated from your spouse or while a divorce is pending, consider the following ways this decision might affect your divorce.
Alimony—also called spousal support—is the money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Each state has its own laws about how and when courts should order alimony.
In some states, judges are allowed to consider the fault of the spouses when determining whether alimony is appropriate. In these states, moving in with someone before your divorce is final could be considered marital fault, and provide the court with grounds to deny alimony.
In other states, although the court can consider marital misconduct when awarding alimony, it can’t consider marital misconduct that happens after the separation date. For example, Pennsylvania courts can’t consider any adultery that happens after the date of final separation. (23 Pa. Cons. Stat. § 3701(b)(14) (2022).) In these states, and in states where marital fault isn’t considered when awarding alimony, moving in with a significant other before your divorce is final shouldn’t affect any alimony award.
The laws that apply to permanent alimony typically apply to temporary alimony awards, too, so moving in with a romantic partner before your divorce is final could also ruin your chances of getting temporary alimony.
Moving in with someone while your divorce is pending might affect decisions relating to other issues in your divorce beyond alimony, such as:
Although the rules vary from state to state, generally, alimony is based on the recipient spouse’s financial need and the other spouse’s ability to pay. In some states, judges can award a higher amount of alimony because of a spouse's marital misdeeds (such as desertion, cruelty, adultery, or reckless spending). On the other hand, some states’ laws specifically prohibit judges from factoring marital fault into a support award.
For example, alimony is awarded in Texas only in rare circumstances, such as when a couple has been married at least 10 years or there has been domestic violence. But in many other states, one spouse’s affair can be grounds for obtaining or increasing an alimony award. Even in states that don’t allow fault-based divorces, such as Florida, one spouse’s adultery can still lead to an increased alimony award for the innocent spouse—especially when the cheating involved the use of marital funds.
The takeaway here is that the risks of living with someone before your divorce is final often outweigh the benefits. But, if you still want to make the move, and given all the possible ways that living with someone could affect the outcome of your divorce, it’s a good idea to get a grasp on the laws in your state. A local divorce lawyer can quickly fill you in on how this arrangement might play out in your divorce, and help you weigh the pros and cons specific to your situation.
]]>While are there are specific rules that apply to retirement accounts, the basic rules of property division in divorce still apply to these assets. That means that if you want to know which spouse will get all or part of a retirement account, you first need to know the answer to two questions:
Couples can decide for themselves how they will divide their marital assets, with a divorce settlement agreement. But if their agreement doesn't follow the basic rules of property division, a judge might decide the settlement is unfair and refuse to approve it.
There are several types of retirement accounts, but they can be broken down into three main categories:
A couple's retirement accounts are considered property that can be divided in a divorc.
Calculating the marital portion of retirement accounts can be complicated, depending on the type of account or plan and when it was first started.
When one spouse opened an IRA or started participating in a 401(k) during the marriage, the entire account balance at the end of the marriage (when the couple separated, divorced, or started the divorce proceedings) is marital property. If a spouse contributed to a retirement plan before getting married, the marital portion of the account would typically be the difference between its value at the start and end of the marriage.
With defined-benefit plans, you’ll almost certainly need an expert (like a pension actuary) to calculate each spouse's interest in the pension.
There isn’t one set rule for collecting your share of retirement accounts in a divorce. For example, if you're what's known as the "alternate payee" (meaning the spouse who didn't open an IRA or wasn't the employee with a 401(k) or pension), you could agree to get a lump-sum payment for your share of the account. Or you could wait until the plan starts paying retirement benefits down the road and get a share of those benefit payments.
In some situations, it might make sense to agree that the spouse with the retirement account or plan (often called the "participant") will keep it, while the alternate payee will get additional marital assets to make up for that spouse's interest in the retirement funds. Here's an easy example: Let’s say the marital portion of your spouse's 401(k) is worth $400,000, and the two of your own a mortgage-free home worth the same amount. Rather than hassling with splitting both the retirement account and the value of the house (which might involve selling it against your wishes), you could simply agree to a trade-off. Your spouse keeps the 401(k), and you keep the house.
Of course, the trade-off approach is usually more complicated than this example, and it may or may not make sense depending on the specifics of your situation and the assets involved.
It's critical that you closely follow IRS rules on retirement accounts when you're dividing these assets in your divorce. Otherwise, you could wind up paying penalties for withdrawing retirement funds too early—or the account managers might not even honor your settlement agreement.
For employment-related retirement plans—such as 401(k)s and defined-benefit pensions—you must have what's known as a "Qualified Domestic Relations Order" (QDRO) to divide the plan in a divorce. (I.R.C. § 414(p)(1)(B). (2021).) It doesn’t matter whether a judge decides how the accounts will be split, or you and your spouse come to an agreement—on your own or with the aid of mediation. Either way, you'll still have to get a QDRO (more on what that entails below).
You don’t need a QDRO to divide an IRA. However, you'll have to pay taxes on the transfer of IRA funds from one spouse to another unless it meets the requirements for a "transfer of account incident to divorce.” (I.R.C. § 408(d)(6).) This usually isn’t an issue, because the divorce judgment or decree will state that. But you'll typically need to submit a special form to the bank or investment firm that holds the account, along with a copy of your divorce decree. Ordinarily, couples divide IRA funds by transferring one spouse's share into another IRA account in that spouse's name.
If you or your spouse has been in the U.S. military long enough to qualify for a pension, be aware that there are complex rules that control dividing military pensions.
The contents of your QDRO will depend on the requirements of the particular pension plan. Plan administrators often provide a sample document, but that will have to be adapted to address the facts of your case.
There are some basic elements to any QDRO, however. Federal law (I.R.C § 414(p) (2021)) spells out detailed requirements for what a valid QDRO must include and what it may not require the plan to do. Because these orders can be quite lengthy and complicated, there are lawyers and other experts who specialize in preparing QDROs. In the interest of accuracy and saving time (and sometimes money), most spouses or their lawyers prefer to have these specialists work with the plan administrator and prepare the order.
The U.S. Department of Labor provides an online publication that explains QDRO’s in detail.
Because of the relative complexity of dividing retirement accounts, it’s probably in your best interest to hire an attorney or financial advisor familiar with the procedures involved. Trying to handle it on your own could be extraordinarily time-consuming, prolong the divorce, and—if you run afoul of IRS requirements—end up costing you a lot amount of money.
]]>The answers to those (and other) questions will depend on where you live, as well as your specific circumstances. But here’s a general overview of the rules on inheritance and divorce.
State laws determine how property is divided in divorce. Depending on where you live, the first question is whether an inheritance is considered your separate property or marital property? That’s because, in most states, only marital property will be divided between the spouses when they get divorced. They usually get to keep their own separate property.
Unfortunately, there’s no simple answer to the question of whether an inheritance is marital property subject to division (or “distribution”) in a divorce. As with so many things in the law, it depends—on your state’s laws and on your individual circumstances.
If you’re worried about whether your spouse is entitled to your inheritance, the good news is that the vast majority of states view an inheritance as separate property. That’s true no matter when you inherited the money or other assets—before you married, during your marriage, or after you were divorced. Unless you live in one of the states that allow judges to include separate property when they're dividing a divorcing couple's assets, that means you won’t have to split the inheritance with your spouse.
But here’s the thing—unless you’re careful, what you do with your inherited assets during your marriage can change that outcome.
Even when an inheritance is initially considered separate property, you can convert it into marital property. In the law, this is known as—brace yourself—“transmutation of property.” Sometimes transmutation results from something you did intentionally. Let’s say your parents left you a house. Being the devoted, generous person you are, you put your spouse’s name on the deed. You both move into the house, sharing costs as you would likely do with any family home. But then your marriage goes south, a divorce is in progress, and you want the house excluded from the property division, claiming you never intended it to be marital property. Good luck selling that argument to a judge.
But even if you never put your spouse’s name on the deed, there are certain situations in which your spouse might be entitled to some of the house’s value. The most common scenario for this would be when you and your spouse used marital funds to pay for improvements on the house. Although the house itself might still be considered your separate property, the laws in your state may consider any increase in the house’s value that is a result of those improvements (rather than a result of a general increase in property values over time) to be marital property that is subject to division in divorce.
The most common example of converting an inheritance to marital property is when inherited money is “commingled” (mixed) with marital assets. For example, your favorite aunt passes away and leaves you $20,000 in her will. You then put the money in an existing savings account that you and your spouse jointly own, and that you both have access to. If it was your intention to share the inheritance with your spouse, no problem. But if you put it in the account assuming it would still be exclusively yours . . . well, you know what they say about assuming. The reality is you’ve probably converted the inheritance into marital property.
Obviously, the lesson to be learned here is that if you don’t want your spouse to get any of your inheritance in a divorce, take every precaution to keep it separate and apart from any joint accounts. And don’t do anything that could reasonably be construed as an intention to share it with your spouse. If you’re not sure what to do, consider consulting with a divorce attorney who knows the laws in your state.
Especially in the current real estate market, some couples are only able to buy a house when one spouse inherits a chunk of money and uses it for the down payment. They then take title together, move in, and use marital funds to pay the mortgage. If you’ve done something like this—contributed inherited money to purchase marital property—is the inheritance automatically converted from separate property into marital property? Not necessarily. The laws in some states allow you to get a reimbursement for the amount you contributed when the marital property is divided in divorce.
Once you’re divorced, any property you acquire—including an inheritance—is ordinarily yours alone—unless your divorce judgment or divorce settlement agreement specifically provides otherwise. In some states (like California), the same is true for property you acquire after you and your spouse separate but before you’re divorced.
However, depending on the laws in your state, a post-divorce inheritance could conceivably affect the amount of child support or alimony (known as spousal support or maintenance in some states) being paid under a divorce judgment. As a general rule, parents who are receiving support payments for their children may go back to the judge and request a change (or “modification”) in child support if the circumstances have significantly changed since the divorce. Although temporary changes usually don’t count, a judge might increase support levels when a large inheritance has increased the other parent’s ability to pay support—especially if the amount was below the state’s child support guideline.
When it comes to changes in alimony, many settlement agreements and divorce judgments include provisions that say exactly when spousal support may be modified—or that it’s “nonmodifiable.” And some states don’t allow any modifications in alimony. If your agreement, order, or state law doesn’t rule it out, you may request a modification in maintenance payments based on significantly changed circumstances—for instance, if you’ve been paying alimony to an ex who no longer needs the support after receiving a large inheritance.
More and more couples are using prenuptial agreements (also known as “antenuptial agreements” or “premarital agreements”) to protect assets they’ve accumulated before they got married. You see this a lot with second marriages, where the spouses tend to be older and want to protect assets they plan to leave to their children.
A prenuptial agreement (prenup) is a contract, legally obligating the couple to abide by its terms. The beauty of a prenup is that it takes the guesswork out of what will happen down the road to the assets addressed in the agreement, including an inheritance. Additionally, prenups often take precedence over state divorce laws on many issues. But here’s a caveat: There are very strict rules governing the validity of prenups, so your best bet is to consult a knowledgeable divorce attorney to help you draft or review one.
If your state allows it, you may also enter into a postnuptial agreement. This is similar to a prenup except, as the name implies, you and your spouse reach the agreement at some point after you got married.
Also, if you’re concerned about the effect of a post-divorce inheritance, you can include language in your divorce settlement agreement to specifically address that issue.
]]>Generally, marital property is anything that you or your spouse earned or acquired during your marriage. (In some states that means before you were separated, while in others it means before you were divorced.)
Depending on your state, marital property may include any of the following types of assets, as long as they meet the “when acquired” rule:
The title to the property isn’t always relevant. So, for instance, you might put an asset (including a bank account where you deposit your earnings during your marriage) in your name alone, but that won't disqualify it from being considered marital property.
Separate property belongs only to one spouse. Although there are some differences in state rules, there are some categories of separate property that are pretty much universal. Some of these are:
Separate property can change into marital property in some circumstances. Usually this happens when separate property has been mixed (or “commingled”) with marital property. For example, let’s say Spouse A had a $20,000 certificate of deposit before the marriage. Usually that would be considered Spouse A’s separate property and wouldn’t be part of the property distribution when the couple divorced. But if Spouse A deposited the proceeds of that CD into a joint account with Spouse B during their marriage, the CD funds would no longer be Spouse A’s separate property, because they were commingled with joint funds.
Sometimes a portion—but not all—of separate property can become marital property. You find this most often in situations where a spouse made contributions that increased the value of the other spouse’s separate property. For example, say that Spouse A owned a house before getting married and never put Spouse B’s name on the title. So far, separate property. But during the marriage, the couple used marital funds to make improvements to the house. Although that’s generally not enough to convert the house to marital property, Spouse B might be entitled to some of the increase in the house’s value attributable to the improvements.
In many cases where a couple is fighting over property in their divorce, a judge will have to look closely at the specific facts and decide whether the assets are separate or marital property, under that state’s rules.
Once it’s clear which assets are separate property and which are marital property, the marital property will then be divided between the spouses under their state’s laws. There are basically two different methods states use to divide marital property: under “equitable distribution” or “community property” rules. However, as we explain below, the distinction between these two methods isn't always that clear in the context of divorce.
The vast majority of states use the rule of equitable distribution. In a nutshell, the judge will divide all of the couple’s marital property (and allocate their marital debts) based on the judge’s decision as to what is fair to both spouses under the particular facts of each case. Because of this case-by-case approach, it’s important to note that “equitable” doesn’t necessarily mean equal (50-50) split.
Each state has its own guidelines for judges to follow when deciding how to distribute property equitably. Some of the more common factors include:
There are nine community property states in the U.S.: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, each spouse owns half of the income the other spouse earned during the marriage, and debts that either spouse incurred during the marriage are generally considered joint debts. (In a few other states, you may opt in to a community property system or designate certain assets as community property. But this can have serious financial consequences, so you should consult with an attorney or financial advisor first.)
Traditionally, community property states required an equal division of a couple's community property (and debts) when they divorced. That's still true in a few of these states—most notably California. By now, however, several community property states follow the principle of equitable division in the context of divorce, at least partially. For example, Arizona and Texas require judges to divide a couple's community property "equitably," or in a "just and right" manner. (Ariz. Rev. Stat. § 25-318; Tex. Fam. Code § 7.001 (2022).) And while Nevada still calls for an equal division "to the extent practicable," it allows judges to divide a couple's community property fairly but unequally if there are "compelling reasons" to do so. (Nev. Rev. Stat. § 125.150 (2022).)
Even when a judge orders a 50-50 property division in divorce, that doesn’t mean each individual asset has to be split in half. For example, let’s say one of the spouses needs to remain in the marital home, in order to care for a disabled child’s special needs. The judge may award the home to that spouse but then order that different assets be sold—with the proceeds going to the other spouse to compensate for half the value of the home.
In most states, spouses keep their own separate property when they divorce. However, some states—including Massachusetts and Washington—allow judges to include the spouses' separate property when they're distributing the couple's property during divorce. (Mass. Gen. Laws ch. 208, § 34; Wash. Rev. Code § 26.09.080 (2022).)
The more you fight about anything in a divorce, the more anxiety it produces and the more expense you’ll face, particularly in legal fees. But if you and your spouse having a hard time agreeing about how to divide your property, that doesn't necessarily mean that you'll have to go to trial and have a judge make that decision for you.
One good option is to try divorce mediation with a trained, neutral mediator who can help the two of you identify and negotiate a property settlement agreement that will be fair to both of you. And if you're able to reach agreement about all of the issues in your divorce—including alimony (spousal support), child support, child custody and visitation (parenting time)—you can file for an uncontested divorce, which is almost always much cheaper and quicker than a traditional contested divorce.
Many couples who start out with an agreement are able to get an uncontested DIY divorce without hiring lawyers. But there are some situations when you need a divorce lawyer, including when:
Note that hiring a lawyer isn't necessarily an all-or-nothing proposition. Under some circumstances, it may make sense to use an attorney's services on a consulting basis—for instance, to help draft or review your settlement agreement. You might also want expert help with specific issues in your property division, such as splitting retirement accounts in divorce.
]]>In every divorce, a couple’s property and debts must be divided between them. But in most states, each spouse will keep their own separate property, and they’ll be responsible for their own separate debts. (Learn about the difference between marital and separate property.)
The rules in your state will mostly determine how your property will be divided in your divorce. The particular circumstances of your marriage and finances may also play a role, as long as state law allows that. And even if you live in one of the few states that require a 50/50 split, you and your spouse may agree on a different way of dividing your property. Although a judge will need to review your settlement agreement before granting a divorce, judges typically approve property agreements unless they’re obviously unfair.
Basically, states have two different approaches to the ownership and division of marital property: equitable division or community property.
In most states, the laws on marital property and divorce use what’s known as the “equitable division” rule. But remember that equitable doesn’t always mean equal. Instead, judges must consider the specific circumstances in each divorce before deciding on a fair way to split the couple’s assets and debts.
In nine states in the U.S., the law typically presumes that both spouses share joint ownership and control of any property that either one of them has, acquires, or accumulates during the marriage—unless that property qualifies as separate property.
Usually, that means the judge will split the community property 50/50 between the spouses when they get divorced. But even in some community property states, the law requires or allows judges to divide a divorcing couple’s assets unequally, as long as the distribution is fair. For example:
Even though the laws in the vast majority of states don’t require a 50/50 property split in divorce, judges typically prefer a roughly equal division in most cases. As a practical matter, it’s usually easier to see that it’s fair when each spouse walks away from the marriage with close to the same amount of marital assets (minus debts).
So if you’re arguing for a different result in your divorce, you’ll need to provide evidence that your proposed property division would be equitable because of specific financial and other circumstances in your marriage. And if you’re going to court, you’ll almost certainly need a divorce lawyer to help gather that evidence and make that argument before a judge.
But even if you’re hoping to reach a property agreement with your spouse, you’ll be in a stronger negotiating position when you know what a judge might decide in the event that you and your spouse can’t resolve your disputes. That means understanding the laws in your state and the factors judges must consider when cases go to trial. Learn more about dividing property during divorce and how to reach a property agreement.
]]>Although divorce is one of the most complex and emotional legal processes in family law, not all couples require in-depth court assistance to end their marriage. If you and your spouse are on the same page about what you want for your family, you may be able to negotiate a divorce settlement on your own.
When you and your spouse decide to divorce, if you can communicate, try to talk about each of your ideal outcomes for child custody, visitation, child support, property division, and alimony. It’s no surprise that children fare much better after a divorce if the parents can continue to facilitate a quality relationship with the child and each other. If you find that you’re on the same page and are both willing to put your agreement in writing, you might be able to save time and money by not hiring an attorney to go to trial for your case. However, even the most agreeable couples can hit roadblocks during the settlement process, so be prepared to consider mediation and/or hire an attorney if that happens.
Another thing to consider is hiring a consulting attorney, who can simply perform a review of your proposed divorce settlement before you sign it. It's important to understand that when you agree to the terms of the divorce, and a judge signs your judgment, you will be bound by that agreement and court order.
If you think you entered into a bad deal or agreed to something you didn't understand, your only recourse will be to go back to court to try and change your final order. But undoing a divorce agreement is difficult and generally only allowed under very limited circumstances. For this reason, it's wise to hire a divorce lawyer to review your settlement agreement before you sign it.
Although you might be hesitant to hire an attorney to get you through your divorce, you should understand that experienced, local divorce lawyers know the law, especially as it pertains to your state. Every state has different divorce requirements, so unless you’re confident in your ability to interpret statutes and correctly complete legal paperwork, you might consult with a family law attorney in your area.
It's a good idea to interview a few attorneys before you decide on one. You should ask whether the attorney is in favor of alternative dispute resolution—or, mediation—to resolve disputes. If yes, then your attorney will probably not advocate for a trial unless your spouse is uncooperative or unreasonable. If the attorney you interview doesn’t have experience with negotiations, settlements, or is a zealous advocate of litigation, you might want to move on with your search.
Most attorneys will advocate for their clients while also attempting to resolve the case as quickly as possible. You can visit Nolo’s lawyer directory to learn about an individual attorney’s philosophy on the practice of law. If you’re still searching, ask friends and family for personal references.
While most attorneys are willing to utilize alternative divorce solutions, like mediation, some are trying a new divorce method called “collaborative practice,” which is where the clients and lawyers agree, in advance, not to litigate in court. In collaborative practice, both sides agree to share information voluntarily and work towards a settlement.
In order to use this process, your spouse will need to agree to a collaborative divorce and hire a collaborative lawyer as well. Both spouses and their attorneys will sign a contract that states if the parties can’t reach an agreement using the collaborative process, each client will hire a new attorney to handle the contested case. By eliminating the option for trial, both parties (and their attorneys) will work harder to settle, which saves both time and money.
There are certain situations where you should always hire an attorney. If there’s a history of domestic violence, child abuse, substance abuse, or sexual abuse, hiring an attorney is the best way to protect your rights. When there is a power imbalance and/or violence between partners, a fair negotiation can become impossible.
If your spouse hires an attorney, you should do the same. Although you might feel like you can represent yourself in your divorce, when one side has an attorney and the other doesn’t, it often results in the unrepresented party walking away without a fair deal. Do yourself a favor, hire an attorney and level the playing field.
Although no divorce is pleasant, some are outright unbearable, especially if the other party in your case is hiding assets, destroying property, wasting marital funds, or threatening you with physical or financial ruin for filing for divorce. If you find that you can’t work with your spouse, hiring a qualified attorney to represent you may be your only option. Not only will the attorney advocate for your rights throughout the divorce, but there’s also no question that you will feel some relief from the stress of your divorce knowing that you have someone in your corner.
Depending on where you live, divorce can cost more than $25,000 when you hire an attorney. If you can’t afford an attorney, you can call your local legal aid office to see if you qualify for assistance. Most legal aid programs have limited resources, so you might only have the opportunity to speak with an attorney over the phone. In some cases, especially those involving domestic violence, legal aid can furnish an attorney to work with you for the entirety of your case.
If you don’t qualify for legal aid, you may be able to find an attorney willing to take your case “pro bono,” which means for free. Some states, but not all, require attorneys to provide a specific number of pro bono hours per year. The best way to find a pro bono or low-cost attorney is to contact your state bar association and ask for referrals. Although not all attorneys have the resources to provide free services, some may offer lower prices or payment plans.
Finally, some family law courthouses offer clinics or volunteer legal staff who can point you to the right paperwork, review settlement agreements, and even assist in filling out paperwork. Contact your local courthouse and/or check its website to find out if there are any services you can use.
Nolo.com also provides legal information about divorce and offers low-cost products, such as books on divorce, that can help you understand the process and allow you to download useful forms.
If you fear that your spouse will harm you or your children, get help. You may need to move to a safe location without disclosing it to your spouse. If necessary, ask your attorney for a restraining order against your spouse, which will prevent the abuser from coming near you or contacting you. Before you remove your children from home (or as soon as possible after you move), you need to obtain a temporary order for custody, so you aren’t accused later of kidnapping.
Most cities have free services for domestic violence survivors. Contact your local agencies for more information on the resources available to you, which may include low-cost legal assistance.
When looking for help as a victim of abuse, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.
]]>Our quiz can help you decide which option is best for your situation. But here are some general guidelines.
While the details depend on the rules in your state or county, there are three basic paths to getting divorced:
These options aren’t mutually exclusive. For instance, a mediator could help you reach a marital settlement agreement, which would then allow you to get a DIY uncontested divorce.
Also, you may decide to work with both a lawyer and a mediator. For example, you could hire a lawyer to help you behind the scenes during mediation and to draft or review any settlement agreement that you’ve reached during the process. And even if you’ve decided it’s best to have an attorney represent you throughout your case, you may still use mediation at any point during the process.
You can probably get a DIY divorce when you and your spouse have been able to agree on the important issues—on your own or through mediation—and you don’t have substantial or complicated assets to divide. If you don’t have the time, patience, or inclination to track down and complete all of the divorce paperwork, you could use an online divorce service that will provide you with the proper forms, completed based on your answers to an online questionnaire.
You should strongly consider hiring a divorce lawyer in some situations, such as when your spouse already has an attorney. This is especially true if you’ve been served with divorce paperwork signed by that lawyer—a sign that your spouse is ready for a fight over the issues. Navigating a contested divorce—when you and your spouse haven’t agreed on the issues before starting the legal process—can require knowledge of complex laws, legal procedures, court policies, rules of evidence, and legal strategies. You would be at a severe disadvantage if you tried to take on an experienced family law attorney without your own lawyer who can advocate on your behalf, protect your rights, and get the best possible result for you and your family.
It’s also important, if at all possible, to have a lawyer advocate on your behalf if you’ve experienced domestic abuse. And you should at least speak with a family law attorney when you haven’t been able to reach a settlement agreement or when your case involves other complicated issues like splitting retirement accounts or a family business.
]]>In order to get a divorce in California, you or your spouse must have lived for the past six months in the state and the past three months in the county where the divorce petition was filed.
There’s one narrow exception to these residency requirements: when the spouses were married in California but they wouldn’t be able to get a divorce where they both currently live—for instance, in a country that doesn’t recognize same-sex marriage. (Cal. Fam. Code § 2320 (2022).)
California is a purely "no-fault" divorce state. That means the state doesn’t allow you to claim that the legal reason (or “ground”) for your divorce was some form of wrongdoing on your spouse’s part.
Almost all divorces in California are based on the ground of “irreconcilable differences” that caused an "irremediable breakdown of the marriage." Basically, this means that you and your spouse can't get along, and there's no reasonable chance of fixing your marriage. You may also file for divorce on the ground that your spouse is permanently and legally incapable of making decisions. (Cal. Fam. Code § 2310 (2022).)
Note that because California doesn't allow common law marriage, you generally can't get a divorce unless you got a marriage license, had a ceremony (which California law calls "solemnization"), and followed the other requirements for legal marriage. It doesn't matter how long you've lived together or whether one of you took the other's name. However, you might be able to get a divorce if you moved to California after establishing a valid common law marriage in one of the few states that recognizes these informal marriages. That's because the U.S. Constitution requires states to give "full faith and credit" to the laws in other states—including marriage laws.
There are several basic steps to starting the legal divorce process in California, all of which involve completing and filing forms with the court. You can find the forms and instructions for each step on the California Courts website. Or you can get help with the process by using a service (such as Nolo’s Online Divorce) that will complete the right forms for your situation.
You might be able to skip some of these steps if you and your spouse have already agreed about all the issues in your divorce and you file the written agreement with the initial petition (more below on the uncontested divorce process in California).
One spouse (the “petitioner”) will file a petition and summons. If the couple has any minor children, the initial paperwork must also include a declaration concerning those children, and it may include an attachment with details about requests for child custody and visitation (parenting time).
If you’re the petitioner, you’ll need to take the completed forms (plus two copies) for filing to the court in the county where you or your spouse has lived for the past three months. You’ll usually need to pay a filing fee (more on that below).
The next step is to “serve” your spouse with copies of the petition and other divorce papers you filed, along with blank forms for your spouse’s response and declaration about children. Usually, you’ll do this by having a county sheriff or professional process server hand over the documents to your spouse in person. (An adult friend or relative who’s not involved in the divorce case could also deliver the documents, but you may not do this yourself.)
If your spouse will agree to accept service by mail, you may instead have another adult (who’s not involved in the case) mail the documents, along with two copies of a form that your spouse will sign and return to acknowledge having received the divorce papers.
After you’ve finished serving your spouse, you’ll need to file a “proof of service” form with the court. If you haven’t been able to find or serve your spouse (or if your spouse is in the military or incarcerated), ask the court clerk for information about other ways of completing service of process. (Cal. Rules of Court, rules 5.66, 5.68 (2022).)
After receiving service of the divorce petition and other paperwork, the respondent has 30 days to file a response (along with the other required forms), serve those papers on the petitioner, and file proof of that service with the court. (Cal. Fam. Code § 2020 (2022).)
California requires divorcing couples to exchange forms with detailed information about their income, expenses, assets, and debts. Although they don’t have to file these financial disclosures with the court, each spouse must file a declaration confirming that the documents were served on the other spouse.
You may include the financial disclosures when you serve the petition or response on your spouse. Otherwise, you must serve them no later than 60 days after that. (Cal. Fam. Code §§ 2103, 2104 (2022).)
When you file a divorce petition or response, the court will normally charge a filing fee (which was $435 as of 2022). But if you can’t afford to pay, you may file a request to have the court fees waived.
In what’s known as an uncontested divorce, the spouses have agreed on the issues involved in ending their marriage, such as dividing their property, alimony, child custody, and child support (more on those issues below). That way, they can avoid having to go to court to have a judge decide those matters for them.
If you can work out a marital settlement agreement (MSA) before you file for divorce, you may skip some of the steps outlined above—while speeding up the divorce timeline and saving a lot of money on the cost of divorce. There are different ways of filing for an uncontested divorce:
In some cases, couples have disagreements when they start the divorce process but eventually manage to reach a settlement. This might happen early on, after court-ordered mediation of custody disputes (more on that below), or later in the process—often through their lawyers and after the evidence-gathering legal process known as discovery.
If you and your spouse don’t reach an agreement on all the important issues in your divorce, a judge will make decisions based on the principles in California law. Judges may also issue (or couples may agree to) temporary orders that apply while the divorce case is proceeding.
California is a community property state. That means both spouses equally own any income or other assets that either of them earns or acquires during the marriage. That community property is then equally divided between them when they get divorced. Both spouses are also jointly responsible for any debts that either one took on during the marriage. (Cal. Fam. Code §§ 760, 910 (2022).)
In California, this community property rule doesn’t apply to the spouses’ earnings, accumulations (the increase in value of their assets), and debts after they’ve separated. They don't have to have a legal separation, but California courts have held that the split must be permanent. (Cal. Fam. Code § 771 (2022).)
Learn more about property division in California divorces.
California courts begin with a presumption that it's best for a child to have frequent and continuing contact with both parents after a divorce. (Cal. Fam. Code § 3020 (2022).)
That means judges prefer joint custody arrangements if possible. But they’ll always put the child’s best interests first when considering the details in the parents’ agreement—or when resolving custody disputes at trial. (Learn more about California’s child custody laws.)
Like all states, California requires both parents to support their children, even after a divorce. Any agreements or orders for child support must follow California’s child support guidelines. Under the guidelines, the amount of support depends primarily on the parents’ income and other resources, as well as the amount of time each parent spends with the child. There must be a good reason—based on specific circumstances spelled out in the law—to justify a level of child support that’s higher or lower than the guideline amount. (Cal. Fam. Code §§ 4050-4076 (2022).)
Couples may agree that one spouse will pay a certain amount of alimony (known as “spousal support” in California) for a period of time. If one wants alimony but they don’t agree on the issue, the judge may order spousal support after taking into account a number of factors, including the goal that spouses who are receiving alimony should be able to support themselves within a reasonable amount of time. (Cal. Fam C § 4320 (2022).)
If you aren’t able to reach an agreement with your spouse about any or all of the issues in your divorce, you can turn to a mediator for help. When you reach an agreement through mediation before filing for divorce, you’ll be able to take advantage of the savings (in time and money) of an uncontested divorce.
You may also use mediation at any point during the divorce process. You can also mediate disputes with your ex that come up after the divorce is final—such as disagreements over a spouse's request to change custody or the level of alimony or child support. Learn more details of how divorce mediation works in California, including when a judge will require you to mediate certain disputes.
If you and your spouse have a settlement agreement, you’ll need to submit some final forms and request a divorce judgment. The court clerk will then pass on the documents to a judge for review. Usually, you won’t have to appear in court as long as everything is in order. The judge will simply incorporate the agreement in the divorce judgment and sign it. But if there’s a problem, the judge might order you to appear at a hearing—or simply to fix the paperwork if it’s a minor mistake.
Either way, you should know that California has a six-month waiting period before any divorce is final. That means that even in uncontested cases, the divorce judgment won’t be effective until six months have passed since the petition was served on the respondent, or the respondent made an “appearance” (by filing either a response or the Appearance, Stipulations, and Waivers form with the paperwork for a default divorce with written agreement), whichever of those dates came first. If the judge signs the divorce judgment before the end of the waiting period, the document will state when the divorce will be final. (Fam C § 2339 (2022).)
Of course, your divorce could take longer than six months if you don’t reach a settlement agreement before or soon after you file the initial paperwork—much longer if you never reach a complete agreement and have to go to trial. Nolo's survey of divorce in California showed that for people who went to trial to have a judge decide at least one contested issue, it took an average of 16 months to complete their divorce.
Even though same-sex marriage is legal, California continues to allow couples to register as domestic partners and to legally end those partnerships. In some limited circumstances, couples who want to end their partnership may simply file a Notice of Termination of Domestic Partnership with the California Secretary of State. Most of time, however, registered domestic partners must go through the same divorce process as married couples to end their partnership. (Cal. Fam. Code § 299 (2022).)
]]>As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts.
To get a divorce in Illinois, at least one spouse must live in the state for a minimum of 90 days before filing. (750 Ill. Comp. Stat § 5/401(a) (2021).)
The purpose of state residency requirements is to prevent one spouse from moving to another state to “shop” for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.
Illinois is a “no-fault” divorce state—meaning that the courts don’t require one spouse to prove that the other’s bad acts were the cause of the divorce. No-fault divorces reach resolution faster than fault-based divorces because the spouses don’t have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you do not have to have your spouse’s consent to end the marriage.
An Illinois court will grant a divorce when:
(750 Ill. Comp. Stat. § 5/401 (2021).)
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.
Uncontested divorces are generally faster and less expensive than contested divorces because there’s no fighting in court—all the judge must do is review and approve the spouses’ marital settlement agreement and issue a divorce decree.
Illinois’ circuit courts are the courts that hear and finalize divorces.
If you and your spouse agree on the terms of your divorce, the next step is to file the required paperwork in the appropriate court. You’ll need to file:
These are the basic forms to get started with your divorce in Illinois; depending on your situation you might have to file additional forms. Read the forms and their instructions carefully.
Although you can hire an attorney to help you file an uncontested divorce in Illinois, many people decide to represent themselves. If you need assistance but can’t afford to hire a lawyer, you might be able to use an online divorce service or seek advice from legal aid.
Couples who agree on all the issues in their divorce and who meet certain requirements may file for an expedited form of divorce called “joint simplified dissolution.” To qualify for a joint simplified dissolution, the following must apply:
(750 Ill. Comp. Stat. § 5/452 (2021).)
Like most legal proceedings, you must pay court filing fees to begin your divorce. Filing fees in Illinois vary from county to county, so you’ll need to contact the circuit clerk to find out the fees where you will file. As just one example, as of 2021 the filing fees for a dissolution of marriage in Lake County are $334.
If you can’t afford to pay the filing fees, you can ask the judge to waive the fees. You can request a fee waiver by filing an Application for Waiver of Court Fees. Illinois Legal Aid Online has an online program to help you prepare a fee waiver. If the court grants your request to waive fees, you will not have to pay any court costs—such as filing fees or fees for issuance of service of process—during your divorce.
Once you file the paperwork, you will need to provide notice to your spouse of the divorce. Illinois has two ways to give your spouse notice of the divorce:
To start a contested divorce, you will file a petition for divorce with the court. Many of the documents you’ll need for a contested divorce are the same as those required for an uncontested divorce. Whatever issues you and your spouse don’t agree on will be decided by the judge. After your spouse responds to the petition, the court will schedule a court date for a hearing (if your court’s clerk doesn’t automatically schedule a hearing date, you’ll have to request one).
After the hearing is over, if the judge has enough information to make a decision, the judge might enter a Judgment of Dissolution of Marriage on the spot. If the judge needs more time, the court will alert you when the judge has made a decision.
Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the court.
It can take from six months to two years to finalize a contested divorce in Illinois.
Unlike some states, Illinois doesn’t have a “waiting period” between when you file your divorce and when the court can start processing it. Instead, an Illinois court can begin processing your case as soon as the time has passed for your spouse to file a response to the petition (usually 30 days).
Most Illinois judges will schedule a hearing in court for both uncontested and contested divorces. The judge might also schedule hearings on any motions (requests) you or your spouse file.
Here are some of the issues a judge will address in your divorce.
Illinois is an equitable division state, which means the court will divide marital property and debt fairly—but not necessarily equally.
First, the judge will determine whether property is martial or non-marital property. Judges presume that all property acquired by either spouse after the marriage is marital property, so it’s up to the spouses to prove that something is non-marital property.
Next, the judge will divide marital property in “just proportions.” Judges don’t consider a spouse’s bad behavior in distributing property. Instead, to figure out a just way of dividing property, Illinois judges consider:
(750 Ill. Comp. Stat. § 5/503 (2021).) Overall, Illinois judges have a lot of discretion in deciding how to divide assets and debts between divorcing spouses.
See Illinois Divorce: Dividing Property for more details.
Illinois judges can award spousal support (“maintenance”) for an amount of time that the court considers “just” and without regarding marital conduct. In deciding whether maintenance is appropriate, Illinois judges will consider all relevant factors, including:
(750 Ill. Comp. Stat. § 5/504 (2021).)
See Illinois Alimony FAQs for more information.
Like all states, Illinois courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. Illinois law refers to child custody as “parental responsibilities.”
Illinois judges decide the allocation of:
Decisions about these issues are based on the judge’s assessment of what is in the child’s best interests. (750 Ill. Comp. Stat. §§ 5/602.5 and 5/602.7 (2021).)
Illinois law allows judges to consider whether to award one or both of the parents the right of first refusal to provide child care. This means that if one of the parents intends to leave the child with a care-provider for a significant amount of time, that parent must first offer the other parent the opportunity to personally care for the child. (750 Ill. Comp. Stat. § 5/602.3 (2021).)
For more details about child custody in Illinois, see Illinois Child Custody Law and Illinois Child Custody and Support FAQs. Illinois Legal Aid Online also has comprehensive information on its child custody site.
Illinois requires both parents to support their children after divorce. Illinois courts use the state’s child support guidelines to evaluate how much support a parent must pay. Child support payments are not affected by the parents’ behavior during marriage. Instead, the court will consider factors such as:
(750 Ill. Comp. Stat. § 5/505 (2021).) You can use the Illinois Legal Aid Online’s child support tool to get an estimate of any child support award in your case. For more details, see Child Support in Illinois.
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
Divorcing spouses can choose to mediate on their own with a private mediator. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Illinois courts must order parents to mediate when they can’t agree on formulating a parenting plan. (750 Ill. Comp. Stat. §5/602.10(c) (2021).)
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
The judge will finalize a dissolution of marriage within 60 days of the final hearing (although the judge can request an extra 30 days if needed). A judge’s final order is called a “judgment of dissolution of marriage.”
If desired by a spouse, the judgment will contain a provision authorizing the spouse to resume the use of a former or maiden name. So long as this provision is in the judgment, the spouse doesn’t have to file a separate petition for a name change. (750 Ill. Comp. Stat. § 5/413 (2021).)
To get a certified copy of your final divorce decree, contact the clerk of the court that granted the divorce. If you need a divorce certificate (to verify the facts of a dissolution), you can contact the Illinois Department of Public Health, Division of Vital Records.
There are two initial requirements for getting a New Jersey divorce: You you need a legally accepted reason for ending your marriage, and you must meet the state’s residency requirement.
Like all states, New Jersey requires that you have a “ground” for divorce, meaning a legally acceptable reason for ending the marriage. New Jersey law includes both “fault” and “no-fault” divorce grounds. Fault grounds apply when you’re accusing your spouse of wrongdoing, such as desertion, adultery, or mental or physical cruelty. No-fault grounds come into play when neither spouse is blaming the other for the breakdown of the marriage.
There are two grounds for no-fault divorce in New Jersey:
(N.J. Rev. Stat. § 2A-34:2 (2022).)
Because your spouse is likely to contest claims of misconduct when you choose one of the fault-based divorce grounds, you’re almost always better off filing for a no-fault divorce, in the interest of saving time, money, and increased anxiety.
In order to get a New Jersey divorce, either you or your spouse must have been a resident of the state for at least one year just before your file your divorce papers. The only exception to this year-long residency requirement is when you're seeking a fault divorce based on your spouse’s adultery. (N.J. Rev. Stat. § 2A-34:10 (2022).)
The way to start a New Jersey divorce is by filing a divorce “complaint” with the court. This document will include information about your New Jersey residency, your grounds for divorce, and the different issues you want addressed in your divorce judgment (like child custody, financial support, and the division of your property and debts). When you fill out the complaint, you're the “plaintiff,” and your spouse is the “defendant.”
There are different forms for the complaint, depending on your grounds for divorce. For example:
Along with the complaint, you’ll also need to complete and file some other documents, including:
You can find some of the forms you’ll need to start the divorce process at the New Jersey Court’s online self-help center. Legal Services of New Jersey has a divorce kit, with instructions and forms, available for a small fee. If you have an uncontested divorce (more on that below), you also have the option of using an online divorce service that will supply the correct forms and complete them for you, based on your answers to a questionnaire.
Once you’ve completed all the forms, you'll need to file them with to the Family Division court clerk’s office in the New Jersey county where you resided when your ground for divorce (also called a “cause of action”) happened. If you didn’t live in New Jersey when that happened, file the divorce papers in the New Jersey county where your spouse resided at that time. If neither of you were residents when the cause of action arose, you’ll file in the New Jersey county where you currently reside. (N. J. Rules of Ct., rule 5:7-1 (2022).)
The court requires that you file an original and two copies of your documents, but it’s a good idea to make a couple of additional copies just in case. You should provide the clerk’s office with a self-addressed stamped envelope so they can give you a copy marked “filed.”
You also have the option of filing your divorce papers electronically.
Courts charge a fee to file for divorce. The fee was $300 as of 2022. But it's always subject to change, so check the court's current filing fees page, which also has information on how to apply for a waiver if you can't afford to pay the fee.
After you’ve filed your initial divorce papers, the process of getting a final divorce in New Jersey depends in large part on whether your case is “contested” or “uncontested.”
To get an uncontested divorce, you and your spouse must agree about all the issues involved in ending your marriage, including:
Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. If mediation is successful, the mediator will prepare a document than can form the basis for a marital settlement agreement (also known as a "property settlement agreement" in New Jersey). Having this document makes the rest of the divorce process relatively simple, and you can ask the judge to include the agreement in the judgment of divorce.
After you've filed your paperwork, there are several more basic steps for getting your uncontested divorce in New Jersey.
When you and your spouse have disputes over any issues in your case, your case will move ahead as a contested divorce.
Both you and your spouse will have to complete and file a Family Case Information Statement within 20 days after the defendant spouse files an Answer or Appearance. (N.J. Rules of Ct., rule 5:5-2 (2022).) This form calls for a lot of details about your income and assets. You need to complete it as thoroughly as possible. And you must be honest. There are serious consequences for hiding assets during a divorce.
New Jersey courts attempt to help couples resolve their disputes as their divorce case proceeds, and court rules require them to participate in mediation of certain issues. (Learn more about mandatory and voluntary divorce mediation in New Jersey.)
Most couples are able to reach agreement on the issues at some point during the divorce process, usually with the help of their lawyers, a mediator, or both. But if they don’t, they’ll have to go to trial to have a judge decide the issues for them. Some disputes are more difficult to resolve than others. Without an agreement, New Jersey law will guide judges in their decisions on these issues:
Contested divorces tend to be very expensive. (Think legal fees.) The cost of divorce climbs as cases drag on without a settlement—and the bills are highest for couples who need a trial to resolve their issues.
The amount of time it will take to complete your case will largely depend on the type of divorce. Obviously, an uncontested divorce will take less time than a contested one, because the spouses have resolved all their issues. So there’s nothing left to fight about.
You certainly have the right to represent yourself in your divorce. But whether you should do that is a different matter. Self-representation (known as appearing “pro se”) is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But when you have nasty custody disputes or complicated finances, you're probably better off hiring a lawyer. Divorce laws can be quite complicated. A qualified divorce attorney will understand how the law works, as well as the ins-and-outs of the court system.
Remember, you'll probably have to live with the results of your case long after the divorce is over. If, down the road, you realize you made a mistake, there’s no guarantee you’ll be able to correct it. So it pays to get it right the first time.
]]>There are two basic requirements to get a divorce in Pennsylvania: You have to meet the state’s residency standards, and you need a legally accepted reason for ending your marriage.
You must meet a state’s residency requirements before you can file for divorce in its courts. To get a divorce in Pennsylvania, at least one of the spouses must have been a resident of the state for at least six months immediately before filing the divorce case. (23 Pa. Cons. Stat. § 3104(b) (2022).)
You must also have “grounds” for divorce, meaning a legally acceptable reason for ending the marriage. Pennsylvania has both “fault” and “no-fault” grounds. Fault grounds apply when you’re accusing your spouse of wrongdoing, such as willful desertion, adultery, or cruelty that endangers the life or health of the injured and innocent spouse. (23 Pa. Cons. Stat. § 3301(a) (2022).)
No-fault grounds come into play when neither spouse is blaming the other for the breakdown of the marriage. There are two grounds for no-fault divorce in Pennsylvania:
If you choose one of the fault-based grounds, there’s a good possibility that your spouse will contest any claims of misconduct. So you’re almost always better off filing for a no-fault divorce, in the interest of saving money (on attorney's fees) and additional anxiety.
You’ll begin the divorce process in Pennsylvania by filing a divorce “Complaint,” a “Notice to Defend” (similar to a summons in other states), and other accompanying documents with the Pennsylvania Court of Common Pleas in the county where you’re starting the divorce. The basic rule is that you should file in the county where your spouse lives.
However, you may file in your own Pennsylvania county when:
And if you and your spouse agree in writing (and attach the agreement to your divorce complaint), you may file in any other Pennsylvania county (23 Pa. Cons. Stat. § 3104(e); 231 Pa. Code Rule 1920.2 (2022).)
You must submit the documents to the office of the court clerk (known as the "Prothonotary" in most Pennsylvania counties). It’s important to note that, in addition to the Complaint and Notice to Defend, each Pennsylvania county may have its own schedule of forms required to begin the divorce. So you should check with the Prothonotary's office in the county where you'll be filing to determine what you’ll need.
The particular complaint form you’ll use depends on whether your case is “uncontested” or “contested.” For a case to be uncontested, you and your spouse must have agreed on all the divorce issues (more on that below). If there’s disagreement on any issue, the court will consider the case to be contested. You can find the appropriate forms and a “how-to” divorce information on the Pennsylvania courts’ divorce website.
The court requires that you file an original and two copies of your documents, but it’s a good idea to make a couple of additional copies just in case. If you’d like, you can opt to file your documents electronically in counties where it’s permitted.
When you’re ready to file your case, be prepared to pay a divorce filing fee. Filing fees in Pennsylvania may vary from county to county. In most counties, the filing fees for divorce total between $200 and $300. Information on court filing fees is available from the county clerk’s office.
If you can’t afford to pay the filing fees, you can request a waiver, by filing a Petition to Proceed In Forma Pauperis. If the court grants your request to waive fees, you won’t have to pay any court costs during your divorce.
After you’ve filed your initial divorce papers, the process of getting a final divorce in Pennsylvania depends in large part on whether your case is contested or uncontested.
In an uncontested divorce, the spouses have agreed about all the issues involved in ending their marriage, including:
Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. Successful mediation can lead to the preparation of a marital settlement agreement.
If you can reach an agreement at this stage, the rest of the divorce process will be relatively simple, and you can ask the judge to make it part of the divorce judgment. (Also, with an agreement, you may be able to use an online divorce service that will supply the correct forms and basically walk you through the process.)
Here are the basic steps for an uncontested divorce in Pennsylvania:
In a contested divorce, your spouse will file a response to your divorce complaint that disagrees with at least some parts of what you've stated or requested. Also, both of you will have to complete and file an Income Statement. This document requires you to provide a great deal of data about your income and assets. It’s a good idea to gather as much of this information in advance as you can, because it’s important that you be as thorough as possible in completing this form. It’s imperative that you be honest, because you could face penalties (such as fines and possible jail time) if you knowingly fail to disclose all accounts, debts, or assets could face penalties.
Pennsylvania courts attempt to help couples resolve their disputes as their divorce case proceeds, and courts may require them to participate in mediation of certain issues. Most couples are able to reach agreement on the issues at some point during the divorce process (usually with the help of their lawyers, a mediator, or both). But if they don’t, they’ll have to go to trial to have a judge decide the issues for them.
Some disputes are more difficult to resolve than others. Without an agreement, Pennsylvania law will guide judges in their decisions on these issues:
Note that although custody and child support issues can be raised separately from divorce, if you don’t specifically address alimony and equitable distribution in the divorce complaint, you may be barred from raising these topics at a later date.
Contested divorces tend to be very expensive. (Think legal fees.) The cost of divorce climbs as cases drag on without a settlement—and the bills are highest for couples who need a trial to resolve their issues.
The timeframe for getting a divorce in Pennsylvania will largely depend on whether it's contested or uncontested. An uncontested divorce will almost always take less time than a contested one, because the spouses have resolved all their issues, so there’s nothing left to fight about.
You certainly have the right to represent yourself in your divorce. (If you do so in Pennsylvania, you’ll have to file a Self-represented Party Notice of Appearance.) But whether you should represent yourself is a different matter. Self-representation (known as appearing “pro se”) is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But in situations where you have custody disputes or a significant amount of property, you might be better off retaining an attorney—or at least using a mediator with expertise in the issues you're facing. Divorce laws can be quite complicated. A qualified divorce lawyer will know the intricacies of the law, as well as the ins-and-outs of the court system.
Remember, you’re likely going to have to live with the results of your case well after the divorce is over. If, down the road, you realize you made a mistake, there’s no guarantee you’ll be able to correct it. So it pays to get it right the first time.
]]>Georgia has two basic requirements that you must meet in order to get a divorce in the state: a residency requirement, and a legally accepted reason for ending your marriage.
Before you can file for divorce in Georgia, either you or your spouse must have been a Georgia resident for the last six months. (Ga. Code § 19-5-2 (2022).)
You could potentially meet this residency requirement if you lived as a couple in another state before you moved alone to Georgia (leaving your spouse behind) six months before you filed for divorce in the state. But that could lead to problems down the road in your divorce, because the judge might not be able to order your spouse to pay child support or alimony (spousal support) if your spouse never lived in Georgia.
The rules governing the court’s authority to decide on a person’s rights (known as “personal jurisdiction”) are complicated. (Ga. Code § 9-10-91 (2022).) So you should speak with an attorney if you’re in this situation.
You must also have “grounds” for divorce, meaning a legally acceptable reason for ending the marriage. Georgia has both “fault” and “no-fault” grounds. (Ga. Code § 19-5-3 (2022).)
Fault grounds come into play when you’re accusing your spouse of wrongdoing, such as adultery, mental or physical cruelty, or desertion. With no-fault grounds, neither spouse is blaming the other for the collapse of the marriage. The only no-fault ground available in Georgia is that the marriage is “irretrievably broken.” This basically means the spouses can’t get along and there’s no reasonable prospect of that changing.
Because your spouse is likely to dispute claims of misconduct when you choose one of the fault-based divorce grounds, you’re almost always better off filing for a no-fault divorce if you want to avoid an unnecessary legal battle.
You start a Georgia divorce by filing a divorce “complaint” and some accompanying documents with the court. Usually, you'll file with the Superior Court clerk’s office in the county where your spouse resides. But you may file in the county where you reside if your spouse lives out of state or moved within the last six months out of the county where the two of you lived as a couple, and where you still live. (Ga. Const., Art. VI, Sec. II, Par. 1.)
Some Georgia counties may require that you file your divorce papers electronically (even if you don't have an attorney), so check with the court clerk’s office of the county where you’re filing to determine the local rules. If you don't have to use the e-filing system, you can go in person to the court clerk's office to file your paperwork.
The Georgia courts have online packets of the basic forms you’ll need to start your divorce, along with instructions, checklists, and videos that walk you through the process. The forms will be different depending on whether you and your spouse have minor children.
Note that many counties have their own forms, so be sure to check the website of the court clerk’s office in the county where you will file your paperwork, or call the office for more information.
When you’re ready to file your case, be prepared to pay a divorce filing fee. The fees vary from county to county—usually around $200 to $300. There might be additional fees for e-filing.
If you can’t afford to pay the filing fees, ask the court clerk about applying for a waiver. Based on the information you provide about your income, assets, and debts, the court will determine whether you qualify.
After you’ve filed your initial divorce papers, the process of getting a final divorce in Georgia depends in large part on whether your case is contested or uncontested.
In an uncontested divorce, the spouses have agreed about all the issues involved in ending their marriage, including:
Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. That way, once they have a marital settlement agreement, the rest of the divorce process will be relatively simple, and the couple can request that the court include the agreement in the judgment of divorce. (Also, if couples have a settlement agreement, they may use an online divorce service that will supply the correct forms and basically walk them through the process.)
Here are the basic steps for an uncontested divorce in Georgia:
The court will consider your Georgia divorce to be contested when you and your spouse have disputes over any issues in your case, such as child custody and visitation, child support, alimony, or property and debt distribution.
Georgia courts attempt to help couples resolve their disputes as their divorce case proceeds, and judges may require them to participate in mediation of certain issues. Even if they've started out with a contested case, most couples manage to reach agreement on the issues at some point during the divorce process (usually with the help of their lawyers, a mediator, or both). But if they don’t, they’ll have to go to trial to have a judge decide the issues for them.
Some disputes are more difficult to resolve than others. Without an agreement, Georgia law will guide judges in their decisions on these issues:
Contested divorces tend to be very expensive. (Think legal fees.) The cost of divorce climbs as cases drag on without a settlement—and the bills are highest for couples who need a trial to resolve their issues.
The amount of time it will take to complete your case will largely depend on the type of divorce. Obviously, an uncontested divorce will take less time than a contested one, because the spouses have resolved all their issues and so there’s nothing left to fight about.
You certainly have the right to represent yourself in your divorce. But whether you should do that is a different matter. Self-representation (known as appearing “pro se”) is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But in situations where you have custody disputes or a significant amount of property, you may be better off retaining an attorney. Divorce laws can be quite complicated. A qualified divorce lawyer will know the intricacies of the law, as well as the ins-and-outs of the court system.
Remember, you’ll probably have to live with the results of your case well after the divorce is over. If, down the road, you realize you made a mistake, there’s no guarantee you’ll be able to correct it. So it pays to get it right the first time.
]]>Florida has two basic requirements that you must meet in order to get a divorce (or “dissolution of marriage”) in the state: a residency requirement and a legally accepted reason for ending your marriage.
You may not get a divorce in Florida unless either you or your spouse resided in the state for at least six months immediately before you filed the initial divorce papers. You’ll need to prove this to the court at the final hearing on your divorce, either with documentation (such as a Florida driver’s license or voter registration card) or a sworn statement (“Affidavit of Corroborating Witness”) from someone who knows you’ve lived in Florida for the required time period. (Fla. Stat. §§ 61.021, 61.052 (2022).)
When you file for divorce in Florida, you must state the legal reason for ending your marriage. Florida is strictly a “no-fault divorce” state, meaning that the law allows only two grounds for divorce, neither of which involve accusing your spouse of wrongdoing. The vast majority of divorcing couples will simply declare that their marriage is “irretrievably broken,” meaning they can’t get along and there’s no reasonable prospect of that changing.
In rare cases, you may also file for divorce in Florida on the ground that your spouse has been mentally incapacitated for at least three years before the divorce process begins. You’ll need to attach a copy of the court’s “Judgment of Incapacity.” (Fla. Stat. § 61.052 (2022).)
In order to start the divorce process in Florida, you’ll file a Petition for Dissolution of Marriage with the circuit court clerk’s office in the county where you and your spouse last lived together with the shared intention of staying married. (Fla. Stat. § 47.011 (2022); Butler v. Butler, 866 So.2d 1280 (Fla. Dist. Ct. App. 2004).)
There are different versions of the dissolution petition, depending on whether you:
To help residents navigate the divorce process, Florida courts have a website that provides the forms you'll need, as well as instructions and additional divorce information. The instructions will tell you what other forms you might need to file along with the petition.
Florida courts charge a fee to file a divorce petition. The exact amount varies slightly from county to county, but you can expect to pay around $400.
If you can’t afford to pay the fee, you may apply for a waiver. When you’re filing the petition, submit an Application for Determination of Civil Indigent Status. (You can get the form online or from the court clerk.) Based on the information you’ve provided about your income, assets, and debts, the clerk will determine if you’re eligible for a waiver. You may request a review by a judge if you’ve been denied. Even if you get a waiver for the filing fee, you’ll have to pay a small administrative fee (which also varies from county to county.)
After you’ve filed your initial divorce papers, the process of getting a final divorce in Florida depends primarily on whether your case is contested or uncontested.
In an uncontested divorce, the spouses have agreed about all the issues involved in ending their marriage, including:
Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. That way, once they have a marital settlement agreement, they can attach the signed agreement (on the appropriate Florida form, depending on their circumstances) to the dissolution petition—and the rest of the divorce process will be relatively simple. (Also, if couples have a settlement agreement, they may use an online divorce service that will provide them with the correct, completed forms and basically walk them through the process.)
Here are the basic steps for a regular uncontested divorce in Florida:
Florida also has a streamlined uncontested divorce procedure known as a “Simplified Dissolution of Marriage.” But you must meet all the following requirements to use this procedure:
Because you will both sign the “Simplified Dissolution of Marriage Petition,” you can skip the steps for serving and answering the petition. Depending on the county, you’ll either request a hearing date, or the court clerk will simply give you a date. (Fla. Fam. Law Rules Proc., rules 12.105, 12.901(a) (2022).)
Your Florida divorce will be considered contested when you and your spouse have disputes over any issues in your case, such as child custody and parenting time (visitation), child support, alimony, or property and debt distribution.
The courts in Florida attempt to help couples resolve their disputes as their divorce case proceeds, and judges may require them to participate in mediation of certain issues. Most couples manage to reach agreement on the issues at some point during the divorce process (usually with the help of their lawyers, a mediator, or both). But if they don’t, they’ll have to go to trial to have a judge decide the issues for them.
Some disputes are more difficult to resolve than others. Without an agreement, Florida law will guide judges in their decisions on these issues:
Contested divorces tend to be very expensive. The cost of divorce climbs as cases drag on without a settlement—and the total bills are the highest for couples who need a trial to resolve those issues.
Florida law requires only a 20-day waiting period before the court may enter a final dissolution judgment—starting from the date you file your initial divorce papers. (Fla. Stat. § 61.19 (2022).) But not many divorces are finalized that quickly. The amount of time it will take in your case will largely depend on the type of divorce:
You certainly have the right to represent yourself in your divorce. But whether you should do that is a different matter. Self-representation (known as appearing “pro se”) is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But in situations where you have custody disputes or a significant amount of property, you may be better off retaining an attorney. Divorce laws can be quite complicated. A qualified divorce lawyer will know the intricacies of the law, as well as the ins-and-outs of the court system.
Remember, you’re likely going to have to live with the results of your case well after the divorce is over. If, down the road, you realize you made a mistake, there’s no guarantee you’ll be able to correct it. So it pays to get it right the first time.
]]>As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts.
If you were married in Oregon and either you or your spouse is a resident of Oregon at the time you file for divorce, you meet Oregon’s residency requirements. However, if you weren’t married in Oregon, at least one spouse must reside in Oregon for six continuous months before filing for divorce. (Or. Rev. Stat. § 107.075 (2021).) You must file in the county where one of you lives.
The purpose of state residency requirements is to prevent one spouse from moving to another state (or county) to “shop” for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.
Oregon is a “no-fault” divorce state—meaning that the courts don’t require one spouse to prove that the other’s bad acts were the cause of the divorce. No-fault divorces reach resolution faster than fault-based divorces because the spouses don’t have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you don’t have to have your spouse’s consent to end the marriage.
An Oregon court will grant a divorce when “irreconcilable differences” between the parties have caused the marriage to break down, and there is no hope that the couple will get back together. (Or. Rev. Stat. § 107.025 (2021).)
Generally, there are two types of divorce—contested and uncontested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.
Uncontested divorces are usually faster and less expensive than contested divorces because there’s no fighting in court—all the judge must do is review and approve the spouses’ marital settlement agreement and issue a divorce decree.
If you and your spouse agree on the terms of your divorce, the next step is to file the required paperwork in the circuit court clerk’s office at your local court. You and your spouse can file together as “co-petitioners,” but Oregon courts recommend contacting a lawyer if you choose this option. You’ll need to file:
You might need to file additional forms depending on your situation. You can download all the forms and instructions from the Oregon Judicial Branch’s website.
Uncontested divorces in Oregon usually take about three months after filing to finalize.
Couples who agree on all the issues in their divorce and who meet certain requirements may file for an expedited form of divorce called “short-form summary dissolution.” This type of divorce allows couples to end their marriage without ever appearing in court. To qualify for a summary dissolution, the following must apply:
(Or. Rev. Stat. § 107.485 (2021).)
To start a contested divorce, you will file a petition for divorce with the court. Many of the documents you’ll need for a contested divorce are the same as those required for an uncontested divorce. Whatever issues you and your spouse don’t agree on will be decided by the judge. After your spouse responds to the petition, the court will likely schedule a conference hearing. If you and your spouse don’t resolve your issues while the divorce is pending, the court will schedule your case for trial.
Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the judge.
It can take six months to two years to finalize a contested divorce in Oregon.
Like most legal proceedings, you must pay court filing fees to being your divorce. As of 2021, it costs $301 to file a dissolution of marriage in Oregon. Filing fees do change, though, so you’ll want to confirm the fee with the clerk of the court where you’ll be filing your petition. Most of the time, you pay the filing fee at the same time you file the petition.
If you can’t afford to pay the filing fees, you can ask the judge to waive the fees. You can request a fee waiver by filing an Application for Deferral or Waiver of Fees & Declaration in Support. Oregon courts provide detailed instructions online.
Once you file the paperwork, you will need to provide notice to your spouse of the divorce. Oregon has two ways to give your spouse notice of the divorce.
Unlike some states, Oregon doesn’t have a “waiting period” between when you file your divorce complaint and when the court can start processing it. Instead, an Oregon court can begin processing your case as soon as the time has passed for your spouse to file an answer or response (usually 30 days).
If your divorce is uncontested (or “by agreement”), the court might grand the divorce without holding a hearing.
If you’ve filed a contested divorce, most Oregon judges will schedule a “status,” “pretrial,” or “settlement” conference at the beginning of the case. Every judge handles this conference differently, but it usually involves a discussion of how the case will proceed and the setting of future court dates, including a trial date. The judge might also order you and your spouse to participate in arbitration or mediation.
Here are the issues you can expect a judge to address in a contested divorce:
Oregon is an equitable division state, which means the court will divide marital property fairly—but not necessarily equally. Courts in equitable division states consider both spouses to be equal owners of any property either spouse acquired during the marriage. Instead of a 50/50 split, Oregon courts will attempt to divide property in a “just and proper” manner. (Ore. Rev. Stat. § 107.105 (2021).)
In Oregon, if the only issue that the spouses disagree on is property division, the judge will order them to participate in arbitration. (Ore. Rev. Stat. § 36.405 (2021).)
See Oregon Divorce: Dividing Property for more details.
Like all states, Oregon courts begin with a presumption that a child should have frequent and continuing contact with both parents after a divorce. If possible, Oregon judges will try to arrange for joint custody, but will evaluate what’s in the best interests of the child to determine the exact nature of custody and visitation. No preference is given to a parent based on the parent’s status as “mother” or “father.” (Ore. Rev. Stat. § 107.137 (2021).)
Oregon requires both parents to support their children after divorce. Oregon courts use the state’s child support guidelines to evaluate how much support a parent must pay.
Under Oregon law, all judgments dealing with support or custody must include provisions addressing the issues of:
The order must also contain specific language about violation of the order. (Ore. Rev. Stat. § 107.106 (2021).)
For more details, see Child Support in Oregon.
Oregon judges can award spousal support (“alimony”) for a period of time that is “just and equitable.” Oregon judges do not consider adultery when awarding spousal support; rather, they have broad discretion to award spousal support based on specific factors outlined in Oregon law. (Ore. Rev. Stat. § 107.105 (2021).)
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
Divorcing spouses can choose to mediate on their own. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Oregon judges have the discretion to order divorcing couples to attend mediation.
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
To finalize your divorce, the judge will sign a form called a “General Judgment of Dissolution of Marriage/RDP.” The judge might fill out the judgment, or might ask you and your spouse to fill it out. Your divorce is final as of the date the judge signs the judgment. The court will send you a Notice of Entry of Judgment to let you know that the judge has signed and the court has entered the judgment.
To get a certified copy of your final divorce decree, contact the clerk of the court that granted the divorce. If you need a divorce certificate (to verify the facts of a dissolution), you can contact the Oregon Vital Records office.
Every state has specific requirements for an uncontested divorce. For example, you will need to meet the state’s residency requirements and waiting period before you can ask the judge to finalize your divorce. You will also need to have a signed and final marital settlement agreement (MSA) that address all the issues in your case.
In most states, the couple's MSA must cover the following issues:
The first step in the uncontested divorce process is to discuss it with your soon-to-be-ex-spouse. The hallmarks of an uncontested divorce are that you agree to get divorce and to all the issues involved in the divorce.
You’ll need to file a petition for divorce (sometimes called a complaint) with your local court and pay a filing fee. If you can’t afford the filing fee, most jurisdictions allow you to ask the court to waive it by submitting a fee waiver request.
Every state’s uncontested divorce process varies, but generally, you’ll need to submit your signed settlement agreement to the court. You might also need to file additional documents and serve the divorce papers on your spouse, and your spouse might need to file a response (which, in an uncontested divorce, should agree with all of the requests in the divorce petition).
If your state requires that you attend a final hearing, you should go prepared to answer a few questions on the record (under oath) from the judge. Usually, the purpose of this final hearing is for the court to ensure you meet the state’s divorce requirements and that you both voluntarily agree to the terms of the settlement. In some states, the judge will simply review your agreement and other paperwork without a hearing. Either way, the judge will usually sign the final divorce judgment unless there's a problem.
Many states have a waiting period before your divorce can be finalized, usually between one and six months.
By far, getting an uncontested divorce is the most important way to save on the cost of divorce and get a final divorce more quickly. If at any time, however, either spouse disagrees with the provisions in the agreement or asks the judge to resolve a conflict, it will turn your uncontested divorce into a contested divorce.
A contested divorce means that you and your spouse disagree about at least some issues, which you can't resolve that require court intervention. Contested divorces often take much longer than uncontested divorces because the spouses (or their attorneys) must conduct discovery. Discovery is a legal process where both sides ask the other to produce evidence, like financial documents, text messages, and anything else relevant to the contested issue. For example, if one spouse claims that the other is hiding assets, that spouse can serve discovery including a request to produce documents, like bank records and tax returns and even send a subpoena to third parties like banks, partners, and personal accountants.
Additionally, it takes significantly longer to complete a contested divorce because spouses and their attorneys need to present evidence, such as documents and witnesses, to the court during the trial. As with any legal proceeding, the entire process costs more money the longer it takes and becomes more involved.
Aside from time and money, one of the biggest downfalls of a contested divorce is that the judge (not the spouses) maintains control over the outcome. When couples work together to create a divorce settlement agreement, they control what happens to their family. For example, although the couple may disagree on frequency and the exact days for custody exchanges, they may agree that shared custody is best for the children. However, when the court becomes involved, a judge may see custody completely different.
There are many benefits to using your state’s uncontested divorce process. For example:
It depends. In most cases, couples will only need to wait for their state’s mandatory waiting period to expire before the judge will finalize the divorce. For states with these waiting periods, the time is typically between one and six months.
Divorces are expensive, but uncontested divorces are historically cheaper than contested ones. Couples will need to pay the filing fee to start the legal process. Filing fees vary widely from state to state (and sometimes from county to county), but they're typically between $200 and $400. All states allow you to apply for a waiver if you can't afford to pay the fees.
If you choose to simplify the process even further by using online divorce, you will pay a fee for the service—usually between $150 and $500. And if you need a mediator's help to work out an agreement with your spouse, the cost of divorce mediation can vary a lot, depending on the specifics of your case. Finally, if you hire a lawyer—either to help with the entire uncontested divorce process or simply to review your settlement agreement—you'll have to pay the attorney's fee.
But even with these additional costs for an uncontested divorce, you'll still save a lot of money in legal fees by avoiding discovery, court hearings, and fighting between spouses and lawyers.
No state requires couples to hire attorneys to file for divorce. You can proceed without an attorney. However, if you choose to represent yourself, the court will expect you to understand the law and the documents you sign and submit to the court. It might be a good idea to at least have a lawyer review your settlement agreement, particularly if your case involves complicated issues or financial assets (such as a family business or retirement accounts).
Depending on where you live, you might have to attend a hearing to finalize your divorce. But in some states, you won't need to appear in person. A judge will simply review your paperwork, approve it (unless there's a problem), and sign the final divorce judgment.
Because you need to provide a signed settlement agreement with your divorce petition, it’s unusual for an uncontested divorce to become contested. However, if you or your spouse has a change of heart and disagrees with any provision in the agreement before the judge finalizes your divorce, then you will be forced to move forward with a contested divorce.
You can contest a divorce at any point until the judge signs the final judgment of divorce. But once the judgment is entered, your divorce is final. After that, if you want to change any of the court's orders in the divorce judgment, you’ll need to follow your state’s steps for a "modification" of the order.
]]>Fortunately, there’s an alternative if you aren’t comfortable going the full DIY route, and hiring an attorney is too heavy a financial lift. You might consider using an online divorce service.
An online divorce service is an internet-based company that guides you through the steps necessary to file for divorce. Typically, these companies will at the least provide you with the completed divorce complaint (sometimes called a “petition”) and other forms your state requires to file and finalize a divorce, based on your answers to an online questionnaire.
The online divorce forms are drawn specifically for your state. Many of these companies will guarantee a refund if the court doesn’t accept your forms.
Online divorce providers might offer services that go beyond just supplying the basic forms. Some will file the forms for you, but often for an additional fee. Some will also help you prepare a divorce settlement agreement (more on that below).
Just to be clear: Filing for divorce online doesn’t mean the service provider will actually hand you a written divorce judgment. Only a judge can issue that. What the service will do is lead you to a point where you can confidently ask the court to sign a judgment of divorce.
With so many online divorce services out there today, make sure you check out their reliability in advance. Websites like Trustpilot and Investopedia can help, as can blogs that are dedicated to the divorce process. These blogs frequently contain comments from people who’ve used a particular online service.
In order to use online divorce service, you should have an uncontested divorce—meaning that you and your spouse have agreed about all the issues involved in ending your marriage, including:
Your agreements on these and any other relevant issues should be spelled out in a written divorce settlement agreement (sometimes called a “marital settlement agreement” or “property settlement agreement”), which ultimately will become a part of your divorce judgment.
If you want to use online divorce but haven’t been able to agree with your spouse on some issues, you might try divorce mediation. A qualified mediator can be an immense help in getting you past the hurdles standing in the way of a meeting of the minds.
Even for couples with uncontested cases, online divorce might not be the best option in all situations. For instance:
Remember, once your divorce is finalized, you’re going to have to live with the agreement that was incorporated in the divorce judgment. State laws do allow you to request changes in those provisions. But before a judge will grant a modification, you’ll probably have to prove that the circumstances have changed substantially since your final divorce.
Standard procedure for using an online divorce service is to start by opening an account, which will require you to choose a password. Security on these sites is crucial, because you’ll be providing a great deal of personal information required to complete the necessary court documents.
The website will then guide you through a series of questions, relating to items such as:
To save yourself some time—and also ensure that you’ve been thorough—it’s a good idea to gather as much of your financial information as possible in advance, rather than having to hunt for it while you’re working on the questionnaire.
After you’ve completed the questionnaire, the site will generate the necessary, completed forms, along with with instructions on where and how to file them.
Prices for an online divorce can vary quite a bit, generally running anywhere from $199 to $2,500, depending on the services the company is providing. Although the high end of that price range might seem a little steep, it’s still far cheaper than the cost of divorce when you take the traditional, contested route involving attorneys and a trial. Also, the fact that you and your spouse can split the cost might lessen the sting a bit.
Some online divorce companies bill on a monthly basis, until the divorce is finalized. Others may charge a flat fee. The company’s billing policy is usually available on its website.
The price of an online divorce service doesn’t include court fees for filing your divorce paperwork (or the cost of serving the papers on your spouse if your state requires that and you have to use a process server). Filing fees vary from state to state, and sometimes from one county to another within the same state, ranging from less than $100 to more than $400.
Gathering the information you need to complete the questionnaire can be time consuming, depending on your financial situation and record keeping. Filling out the questionnaire itself usually takes only an hour or so.
However, once you’ve filed your paperwork, you’ll be subject to the time periods set out in your state’s divorce rules and regulations (as well as any court backlogs). Depending on your state, the time from when you file the divorce complaint to when the divorce is final can range from a matter of weeks to many months. Courts usually fast-track uncontested divorces, meaning you can avoid most—if not all—of the court appearances and other procedural matters associated with contested divorces. But some states have mandatory waiting periods before a judge may issue a final divorce judgment. In California, for example, divorces won’t be final until at least six months after the divorce complaint is filed. So in terms of a timeline, you're at the mercy of your state’s divorce laws.
]]>Depending on where you live or whom you talk to, you may hear different names for the settlement agreements that couples reach in divorces. Along with the most common—marital settlement agreement (MSA)—these other names include:
In the end, all these names mean the same thing: a written document that details how a couple has agreed to handle all of the issues that must be addressed when they get divorced, including:,
An MSA usually also has other provisions (“terms”) that detail how the couple will handle possible future events. For instance, spouses might agree that they will at least try mediation if they have any disputes in the future.
You can get a divorce without an MSA—or any other agreement. All you need is a written divorce judgment signed by a judge.
If you’ve reached a settlement, your MSA will be made part of the divorce judgment. But if you haven’t settled all of the issues in your divorce, you’ll have to go to trial. After the trial, the judge will make decisions about the unresolved issues and will then sign a judgment that reflects those decisions.
In some cases, couples might choose to place an oral agreement on the record—by simply telling the judge what they’ve agreed to when they appear at the final hearing in their divorce. However, the vast majority of couples use a written MSA when they settle their divorce—and with good reason.
With oral agreements, it’s not unusual for couples to hit only the main points of their settlement. For example, they may say that the children will live with Spouse A, while Spouse B will have parenting time every Wednesday evening and every other weekend. That’s all well and good, but it doesn’t specify what happens if Spouse B has to miss a scheduled parenting time for a legitimate reason. It’s not clear whether Spouse B will be able to make up the missed day or weekend.
A carefully written MSA should go into detail about each part of the agreement, leaving as little as possible up to interpretation. Remember, circumstances and attitudes can change down the road, such as when an opinionated new spouse enters the picture. If something in the agreement becomes a bone of contention in the future, your unhappy ex might latch on to any unclear wording in the MSA—arguing that it means something different than what both of you originally intended. This opens the door to legal battles. Your ex might not prevail, but that’s small consolation when you’ve had to spend time and money to fight it out in court.
A written MSA can also provide for specific sanctions when a spouse violates (“breaches,” in legalese) the agreement’s provisions—consequences that might not be standard under state law for enforcing divorce judgment, such as paying the other spouse’s attorney’s fees for enforcing the MSA in court (more on that below).
Although there’s nothing to prevent spouses from drawing up their own MSA, it would almost always be a mistake to do that. Most lay people don’t understand all of the legal implications of what they might be agreeing to, nor are they likely to be aware of other helpful provisions that the agreement could include.
So when the spouses have lawyers and reach an agreement through their attorneys, one of their lawyers typically prepares a draft of the MSA. After that, the other spouse’s lawyer reviews it and suggests changes if needed.
When couples reach an agreement in mediation before filing for divorce, the mediators will often prepare the written agreement. Whether they’re lawyers or not, mediators usually recommend that the spouses have separate attorneys review the proposed agreement, to ensure that each spouse has had independent counsel and that they fully understand the legal consequences of signing the MSA. (It’s worth noting, however, that couples who’ve signed an MSA before filing for divorce can usually complete an uncontested divorce without having to hire attorneys to represent them in the case.)
You should know, by the way, that judges won’t ever get involved with preparing MSAs. A judge’s role is limited to reviewing the agreement, approving it (or having the spouses make changes if, for example, the agreement doesn’t appear to be in the children’s best interests), and making the MSA part of the final divorce judgment.
Once an MSA is included in the final divorce judgment, a judge may enforce it like any other court order. The same is true when couples reach partial or interim agreements on one or more issues—such as temporary child support while a divorce case is ongoing—and have a judge include those agreements in an order (often called a “consent order.”)
If your ex violates the terms of your MSA and divorce judgment, you’ll usually need to file a request with the court to enforce the order. There are different enforcement methods, depending on the laws in your state and the type of provision involved. For example:
It's worth pointing out that not every violation of an MSA and divorce judgment has to end up in court. Sometimes, a strongly worded letter from an attorney might be enough to convince your ex to obey the terms of your agreement.
Spouses may agree to change (modify) an existing agreement, even when it’s part of the divorce judgment. In fact, most MSAs address this possibility. Just be aware that you might have to get a judge’s court approval of the proposed modification.
If spouses can't agree on a change that one of them wants, states provide guidelines for modifying settlement agreements, either in their statutes or in law that’s been established through court decisions. Judges will almost never allow a modification unless there’s been a significant change in circumstances since the original agreement. For example:
The important thing to remember is that a court will base its modification decision on the particular facts of each case.
]]>As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts.
To get a divorce in Indiana, at least one spouse must have been:
(Ind. Code § 31-15-2-6 (2021).)
The purpose of state residency requirements is to prevent one spouse from moving to another state (or county) to “shop” for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.
Indiana allows both “no-fault” and “fault-based” divorces. A no-fault divorce is one in which the court doesn’t require either spouse to prove that the other’s bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other’s actions caused the marriage to fail.
No-fault divorces reach resolution faster than fault-based divorces because the spouses don’t have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you don’t have to have your spouse’s consent to end the marriage.
The no-fault ground (reason) for divorce in Indiana is the “irretrievable breakdown” of the marriage. (Ind. Code § 31-15-2-3(1) (2021).) The key issue is whether there is any possibility that the spouses can reconcile. If not, the court will grant the divorce on this ground.
In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves the spouse committed acts that meet one of Indiana’s fault-based grounds for divorce. Fault-based divorces are often more contentious, more expensive, and last longer than no-fault divorces. The fault-based grounds for divorce in Indiana are:
(Ind. Code § 31-15-2-3 (2021).)
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.
Uncontested divorces are usually faster and less expensive than contested divorces because there’s no fighting in court—all the judge must do is review and approve the spouses’ marital settlement agreement and issue a divorce decree.
An uncontested divorce in Indiana is called a divorce “with agreement.” The forms you’ll use depend on your situation. Click on the link that best describes your situation to obtain the forms for filing your divorce.
Check out Indiana Legal Help’s detailed instructions for help filling out these forms.
The court will issue a summary dissolution decree (an order that finalizes your divorce) without holding a final hearing if you file:
The court must wait at least 60 days after the petition is filed to enter the decree. (Ind. Code § 31-15-2-13 (2021).)
If you and your spouse can’t agree on all the issues in your divorce, you will be filing a divorce “without agreement.” The forms you’ll use depend on your situation. Click on the link that best describes your situation to obtain the forms for filing your divorce.
Check out Indiana Legal Help’s detailed instructions for help filling out these forms.
Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the court.
By law, the court can’t hold a final hearing on your divorce until at least 60 days after the petition is filed. (Ind. Code § 31-15-2-10 (2021).) Most contested divorces will take longer—it can take up to a year and a half (or more, depending on the circumstances) to finalize a contested divorce in Indiana.
Like most legal proceedings, you must pay court filing fees to begin your divorce. As of 2021, the filing fee for a civil case (such as divorce) is $157. Your cost might be different if you pay to have the divorce papers served on your spouse or if the clerk of the court assesses other fees. Contact the court clerk in the county where you will file your divorce to find out the current filing fee.
If you can’t afford to pay the filing fees, you can ask the judge to waive the fees. You can request a waiver by filing a Verified Motion for Fee Waiver (make sure you’re using the correct fee waiver form for family law cases). If the court grants your request to waive fees, you will not have to pay any court costs—such as filing fees or fees for issuance of service of process—during your divorce.
Once you file the paperwork, you will need to provide copies of all the documents to (“serve”) your spouse and submit proof of service to the court. You can’t serve the papers yourself—you must hire someone over age 18 and who is not a party to the case to serve them. Many people hire law enforcement (such as the sheriff) or a professional process server to serve divorce papers.
Service of divorce papers can be done by:
If you’re unable to serve your spouse this way, you can ask the court for permission to serve your spouse in another way, such as by publication or posting.
You can avoid hiring law enforcement or a process server to serve your spouse if your spouse agrees to “waive” service. To waive service, your spouse must fill out and sign a Verified Waiver of Service of Process and Acknowledgement of Receipt of Petition and Summons. The form must be signed in front of a notary.
Indiana Legal Help provides a video with information about how to serve your spouse in Indiana.
When you file for divorce in Indiana, if you need the court to enter temporary orders about child custody, support, or another issue while the divorce is pending, you can request a provisional hearing. If the judge issues temporary orders, these orders will be replaced with permanent orders when your divorce is final.
Indiana is an equitable division state, which means the court will divide marital property and debt fairly—but not necessarily equally. Indiana courts presume that dividing marital property equally between the parties is “just and reasonable,” but may divide property unequally if a spouse shows that equal division would be unfair. The judge will consider:
(Ind. Code §§ 31-15-7-5, 31-15-7-7 (2021).)
Indiana law also accounts for the situation where one spouse has paid for the other’s postsecondary education tuition, books, and laboratory fees, but the parties don’t have a lot of marital property. For example, if a husband helped his wife pay for law school, but the marriage ended before the couple acquired a lot of property (or otherwise benefited financially from the wife’s law career), an Indiana judge can order the wife to make payments to reimburse the husband for his share of her law school costs. (Ind. Code § 31-15-7-6 (2021).)
See Indiana Divorce: Dividing Property for more details.
Indiana judges can award spousal support (“maintenance”) when they find that one spouse
Indiana judges may also award maintenance after considering:
If the court evaluates these factors and decides maintenance is necessary, the court can award maintenance for up to three years from the date the divorce is finalized. (Ind. Code § 31-15-7-2 (2021).)
Like all states, Indiana courts begin with a presumption that it's best for a child to have frequent and continuing contact with both parents after a divorce. If possible, Indiana judges will try to arrange for joint custody, but will evaluate what’s in the best interests of the child to determine the exact nature of custody and visitation. (Ind. Code § 31-17-2-13 (2021).)
See Child Custody and Visitation in Indiana for more information.
Indiana requires both parents to support their children after divorce. Indiana courts use the state’s child support guidelines to evaluate how much support a parent must pay. Child support payments are not affected by the parent’s behavior during marriage. Instead, the court will consider factors such as the:
(Ind. Code § 31-16-6-1 (2021).)
See Child Support in Indiana for more details.
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
Divorcing spouses can choose to mediate on their own with a private mediator. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Indiana judges have the power to require parties to mediate. (Ind. Code § 31-15-9.4-1 (2021).)
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court.
Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
Indiana courts will issue a final divorce decree after the 60-day waiting period has passed and all issues have been decided (either by the parties or by the judge).
An Indiana divorce is final when the judge signs and the court enters a divorce decree. The date that the divorce decree is signed and entered is known as the “effective date” of your divorce—the day you become officially divorced.
The court will likely provide you with a copy of your final divorce decree. If you need a copy of your divorce decree later, you must contact the clerk’s office in the court that finalized your divorce.
As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts.
To get a divorce in Texas, at least one spouse must have:
(Tex. Fam. Code § 6.301 (2023).)
The purpose of state residency requirements is to prevent one spouse from moving to another state (or county) to “shop” for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.
Texas allows both “no-fault” and “fault-based” divorces. A no-fault divorce is one in which the court doesn’t require either spouse to prove that the other’s bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other’s actions caused the marriage to fail.
No-fault divorces reach resolution faster than fault-based divorces because the spouses don’t have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you do not have to have your spouse’s consent to end the marriage. The no-fault grounds for divorce in Texas are:
In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves the spouse committed acts that meet one of Texas’ fault-based grounds for divorce. Fault-based divorces are often more contentious, more expensive, and last longer than no-fault divorces. The fault-based grounds for divorce in Texas are:
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.
Uncontested divorces are generally faster and less expensive than contested divorces because there's no fighting in court—all the judge must do is review and approve the spouses’ marital settlement agreement and issue a divorce decree.
An uncontested divorce in Texas is called an “agreed divorce.” The forms and procedures you’ll use for an agreed divorce depend on your situation. Click on the link that best describes your situation to obtain information and forms about how to file your divorce.
In an agreed divorce, the responding spouse will usually sign the Final Decree of Divorce that the petitioning spouse filed with the petition.
If you file a petition for divorce and your spouse doesn’t respond, Texas allows you to get a default divorce. This means that the judge will decide the issues in the divorce without input from your spouse.
When a spouse files for divorce in Texas, the court will know that it is contested when the responding spouse (the “respondent”) files an answer but refuses to sign the Final Decree of Divorce that the filing spouse (the “petitioner”) filed with the petition. Many respondents in contested divorces also file a Counter-Petition for Divorce when they answer the petition. A counter-petition lets the court know what the respondent is asking for in the divorce.
Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the court.
It can take up to a year (or more, depending on the circumstances) to finalize a contested divorce.
Like most legal proceedings, you must pay court filing fees to begin your divorce. Divorce filing fees vary by county in Texas. The cost might also differ if you have children. For example, in Harris County, the filing fee in 2023 for a divorce with children is $365. If you don’t have children, the filing fee is $350. Contact the court clerk in the county where you will file your divorce to find out the current filing fee.
If you can’t afford to pay the filing fees, you can ask a judge to waive the fees. You can request a waiver by filing a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond or a sworn and notarized statement that includes the same information contained in this form. If the court grants your request to waive fees, you will not have to pay any court costs—such as filing fees or fees for issuance of service of process—during your divorce.
Once you file the paperwork, you will need to provide copies of all the documents to (“serve”) your spouse and submit proof of service to the court. In Texas, you will need to serve your spouse with:
You’ll need to hire a sheriff, constable, or professional process server to serve the divorce papers on your spouse. (Tex. R. Civ. Pro. R. 103 (2023).) You can’t serve the documents yourself. The documents can be served by delivering them to your spouse in person, or mailing them by registered or certified mail, returned receipt requested. (Tex. R. Civ. Pro. R. 106 (2023).) If neither of these procedures work, you can ask the court for permission to serve your spouse in another way, such as by publication or posting.
You can avoid hiring a sheriff or constable if your spouse agrees to “waive” service. To waive service, your spouse must fill out and sign a:
Once the respondent files an answer, both spouses must exchange initial disclosures, unless the spouses agree to waive this requirement.
Here are the issues you can expect a judge to address in a contested divorce.
Texas is a community property state. “Community property” is any property acquired or earned during the marriage that isn’t separate property. “Separate property” in Texas includes:
(Tex. Fam. Code § 3.001 (2023).)
Texas courts presume that any property that spouses have during their marriage is community property—the spouses must provide proof of separate ownership if they want the court to designate it as separate property. (Tex. Fam. Code § 3.003 (2023).)
Like all states, Texas courts encourage divorced parents to have frequent and continuing contact with their child. Texas courts award custody based on what is in the best interests of the child. (Tex. Fam. Code § 153.002 (2023).) Alternatively, Texas parents can enter into a written agreed parenting plan regarding custody, and the court will approve it as long as it is in the child’s best interests. (Tex. Fam. Code § 153.007 (2023).)
Texas uses unique child custody terminology. Custody is referred to as “conservatorship.” Also, legal custody and physical custody are called “managing conservatorship” and “possessory conservatorship.” Texas law favors giving the parents joint managing conservatorship, but will deviate from this preference if it’s not in the child’s best interests. (Tex. Fam. Code § 153.131 (2023).)
Even when both parents share managing conservatorship (legal custody), the court might allocate possessory conservatorship (physical custody) differently. (Tex. Fam. Code § 153.135 (2023).) Texas has a “standard possession order” most courts apply if the parents can’t agree on the terms of possessory conservatorship. (Tex. Fam. Code §§ 153.3101 through 153.3171 (2023).) Judges who believe the standard possession order isn’t appropriate in a particular case may change the terms.
Although Texas courts can order either or both parents to pay child support, in most cases courts order the parent without primary possessory conservatorship (the “noncustodial parent”) to pay. Texas child support payments continue until:
If the child has a disability, a judge can award child support for an indefinite amount of time. (Tex. Fam. Code § 154.001 (2023).)
Texas child support payment amounts are based on a percentage of the noncustodial parent’s income. You can estimate how much your child support payments will be by using Texas’ child support guidelines.
Texas courts award “spousal maintenance” for either spouse only if the spouse seeking maintenance doesn’t have enough property to provide for their reasonable needs and:
(Tex. Fam. Code § 8.051 (2023).) If the spouse qualifies for maintenance, the judge will evaluate factors such as each spouse’s income and education to determine the nature, amount, duration, and payment method of support. (Tex. Fam. Code § 8.053 (2023).)
See Understanding and Calculating Alimony in Texas for more information about how Texas courts evaluate maintenance and the length of Texas maintenance awards.
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
Divorcing spouses can choose to mediate on their own with a private mediator. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Texas courts can require a divorcing couple to mediate. (Tex. Fam. Code § 6.602 (2023).)
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. In Texas, the court will enter the mediated settlement agreement as an order if it:
(Tex. Fam. Code § 6.602 (2023).)
Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
Even if you have an uncontested divorce, Texas has a “waiting period” of 60 days between when you file your divorce petition and when the court can finalize the divorce. (Tex. Fam. Code § 6.702 (2023).)
Before your final hearing, you must fill out a Final Decree of Divorce. The court can provide you with the right form decree to use, depending on whether or not you have children. After the hearing, the judge will either sign the proposed decree you submitted or, if the judge doesn't agree with what you've proposed, will prepare and sign a different decree.
You’ll receive a copy of your divorce decree after it’s signed by the judge and entered as an order. If you need an additional copy of your Texas divorce decree, you can contact the clerk of the court that granted the divorce.
“Child support arrears” is just a fancy name for unpaid or past-due child support. When a parent gets behind with court-ordered child support—or stops paying completely—the unpaid amounts add up (or “accrue”) and become child support arrears (sometimes called “arrearages”). Because support arrears don’t accrue until there’s an actual child support order in place, any parent who wants to collect past-due support needs to have an official order that establishes who must pay and how much. When parents get divorced, the divorce judgment should include an order like this. When married parents are separated, one of them may ask the court for a temporary child support order until the divorce is final. If the parents were never married, the one with the child (almost always the mother) will also need to legally establish parentage (traditionally paternity) along with a child support order.
Parents may have an agreement about child support, but most state laws require that a judge approve and include the agreement in a court order before it can be enforced. If you don’t yet have a child-support order, you might be able to get help with that from your state’s child support agency (more on that below).
Sometimes, judges will order retroactive child support—requiring a parent to pay support for a period of time before the court order was in place. (But most states have limits on how far back a retroactive support order may go.)
The typical situations when judges order retroactive child support include:
If you’ve been ordered to pay retroactive child support (often under a payment schedule), it won’t be considered child support arrears until you get behind on the payments.
If your child’s other parent owes you past-due child support, you should be able to get help from the child support agency in your state. (You can find links and phone numbers for state and tribal agencies here, along with information on applying for assistance.)
The specific procedures and rules vary from state to state, but your state or local child support agency can provide a range of services, such as:
Depending on the rules in your state and the circumstances in your case, the child support agencies have many ways to collect past due child support, including:
Child support agencies also have other legal tools meant to make life difficult for deadbeat parents who owe a certain amount of past-due support, such as revoking or suspending their driver’s license or other business or professional licenses.
If none of the child-support agency’s collection efforts work, you may need to ask a judge to enforce your child support order by issuing a judgment for child support arrears. The child support agency will often help with this step. If you have a lawyer, the attorney may represent you in the court proceedings (in coordination with the agency, if that agency has been involved in collection efforts).
In most cases, if you win the enforcement action in court, you'll be entitled to collect payment of your attorney’s fees and costs from the deadbeat parent, along with the child support arrearages and any interest due under state law. In extreme situations, such as where a parent refuses to pay the judgment without justification, that parent might be charged with contempt of court, which can result in fine or even jail time.
Child support agencies (and courts) may enforce child-support orders across state lines, in coordination with the parallel agencies and/or courts in the other state. Most of the collection efforts will be the same across the United States.
In fact, federal law provides another possible tool for going after deadbeat parents who live in a different state than their child—or who’ve crossed state lines in order to avoid paying support. It’s a federal crime for a parent to deliberately refuse to pay court-ordered support for a child in another state for more than a year (or when the arrears total more than $5,000). In addition to paying a fine and/or spending time in federal prison, a guilty parent will have to pay the full amount of arrearages as restitution.
There are fewer enforcement options available when deadbeat parents are in another country. However, the U.S. State Department could revoke their passports or, in some cases, even arrest them when they try to reenter the United States.
If you’re behind on the child support payments you owe, it might be a good idea to reach out to your child’s other parent, as long as you have a decent working relationship. The two of you might be able come to an agreement on a payment schedule to catch up with the arrearages. If you aren’t sure how much you owe in past-due support, the local child support agency can figure that out for you.
However, you should know that you can’t automatically get out your obligation to pay child support just because you’ve lost a job or other earnings, have been hit with unexpected medical bills, or even have filed for bankruptcy. If you’re not able to pay the amount of court-ordered child support because your circumstances have changed, you’ll need to request a modification of the support order.
Parents who owe child support can generally turn to the local child support agency for help with seeking a support modification. Generally, this requires filing a petition or motion in court, but your state might have slightly different procedures. For instance, Ohio's child support enforcement agency may conduct an administrative review of modification requests in some cases.
In all states, parents who want to change the amount of court-ordered child support must demonstrate that they have experienced a substantial change in their circumstances since the order was issued. (This requirement also applies when the parents who receive child support want to have the payments increased.) Judges will also consider whether the change was part of a deliberate attempt to avoid paying support. For instance, judges may reduce support when the paying parents were laid off, but not when parents voluntarily quit work to avoid paying child support.
Even if a judge lowered the amount of your current child support obligation, in most cases the change will apply only from when you filed the modification request. You will still be legally responsible for paying any child support arrears. And because arrearages are the unpaid amounts of past support, you still have to pay them off even after you child has turned 18. If you want to contest the amount of arrearages that the agency or court says you owe, you will need to provide evidence (such as bank statements and pay stubs showing withheld support) to back up your claims.
Although you can wipe out many types of debts in bankruptcy, that’s not the case with child support debts, including arrearages. However, filing for bankruptcy could help you pay off your past-due child support by getting rid of other debts. It could also make it easier for the other parent to collect the child-support arrears. (Learn more about how Chapter 7 or Chapter 13 bankruptcy affects enforcement of child support.)
In some extreme circumstances, such as a terminal illness or catastrophic accident, a judge may waive or reduce the amount you owe for child support arrearages. In most cases, however a judge won’t eliminate child support arrearages but instead might come up with a payment plan to let you pay off the balance over time.
Once you’ve finishing paying off your child support arrears, you should ask the court or the child support agency to dismiss or close your case.
]]>But if you and your ex can cooperate and keep the kids’ interests at heart, you can work around these challenges and find ways to deal with the most common visitation issues than can plague noncustodial parents.
Many custody and visitation disputes arise when the parenting schedule isn’t clearly defined. If you and your child's other parent are separated, but there’s no current court order for custody or visitation, take the time to spell out each parent’s expectations and obligations. You'll also need to identify the days and times your children will spend with each parent. Put all the details into a written document and follow it to the letter. If something comes up, and you need to change the schedule, communicate with your ex in advance, so you can work out an alternative arrangement.
If you’re filing for divorce, or just dealing with custody, you can ask the court for temporary custody orders while you're waiting for the final judgment.
Custody cases don’t have to be contentious. Parents who work together to create a parenting and visitation schedule often spend less time in court and less money on lawyers. And if you don’t reach an agreement together, a judge will decide for you—which is not ideal.
When you’re working out the details, make sure to consider each parent’s work and social schedules, as well as your children’s schedules for school and other regular activities. Remember to account for weekends, mid-week visitation, school breaks, holidays, and birthdays. Otherwise, you’ll be heading back to court for clarity later. Once you present your arrangement to the court, the judge will sign it as it as long as it appears to be in your child's best interests.
If you’re having trouble working out all these details with your spouse, a trained divorce and custody mediator can help. In fact, most states require parents to go to mediation if they haven’t been able to agree on custody issues. (Learn more about the cost of divorce mediation, including free or low-cost mediation available through the courts.)
After you and your ex agree to a custody schedule (or a judge issues one for you), make sure you understand the terms. That way, if you have questions later—for example, about transportation or what time the children need to go home—you can simply go back and check the order.
Divorce parents are often upset that they can’t spend every holiday and birthday with their children. Some former couples choose to spend special occasions together, as a family, even after divorce. Regardless of their reasons for breaking up, most parents agree to put the children first—and that means setting aside the parents’ personal grievances and emotions. If you and your ex can’t seem to do this, here are some tips for handling birthdays, holidays, and other special occasions after your divorce or breakup.
Divorce and custody cases can take a toll, and no court expects both parents to memorize the parenting time and custody agreement. That’s why you have a copy of the court order. It’s critical to spend some time reviewing the order, especially before important events, like a child’s birthday. Over time, the schedule will become like second nature. But in the beginning, you can avoid a lot of headaches if you have a copy of the order and review it frequently.
A court order is legally binding, even when it’s based on your agreement with the other parent. That means that you must follow the schedule, even if you want to do something different on a special occasion. But that doesn’t mean you can’t ask to change (or “modify”) the order.
As children grow, their needs change. If the current arrangements for birthdays and holidays aren’t working anymore, you should talk to the other parent and see what changes you can agree on. Here again, you can turn to a mediator if you can’t resolve the issue on your own. Or you can ask the court to make the change for you. Either way, the changes should be formalized in a modified custody and visitation plan.
One of the best things you can do for your children during holidays and birthdays is to remain flexible with the other parent. When both parents are attentive and open-minded, conflict tends to dissipate before the children see it. For example, if you’re supposed to pick up the children on Christmas Eve, but the other parent’s family is hosting an annual holiday party, it may be best for the children if you can work together to arrange a better pick-up time and make up for any lost time at the end of the holiday.
Be sure not to schedule events during the other parent’s visitation. Although it’s wonderful to remain flexible, the court doesn’t look highly on any parent purposely planning events to interfere with the other’s time.
It’s never a good idea to make children take sides in conflicts between their parents about custody and visitation. But as your children grow—and especially during the teenage years—they’ll probably express an opinion about what they want to do and where they want to go for birthdays and holidays. Consider adjusting the schedule to take their wishes into account.
For example, say you’re a noncustodial parent and the children are supposed to spend the first half of summer vacation with you, but your ex's family has scheduled a big reunion during that time. If your kids want to go and see their cousins, you might want to consider letting them do that. You and your ex can arrange make-up parenting time for a later date. By putting your children first, you'll allow them to enjoy the reunion. They’ll also be less likely to resent you for keeping them away from it.
Children from divorced families see a lot of disruption in their lives, but it doesn’t have to be that way during holidays and birthdays. Consider having two holidays, one at each home. Children will feel special in both places, and it’s often the best solution to ensure that they get to see extended family members on those days.
Many families also agree to split special occasions. For example, if the parents live relatively close to one another and can cooperate, one parent can spend the morning and early afternoon celebrating the child's birthday or a holiday, while the other parent celebrates with the child in the afternoon and evening. That way, the child can see both parents for this special day.
Sometimes, it’s easy to forget that children love both parents. Even though you may not get along with your ex, you should do your best to shield your kids from any conflicts between you. Be respectful and don’t speak poorly in front of your kids about their other parents. Holidays and birthdays are a special and exciting time for children, so don’t ruin that time by arguing during pick-up or drop-off.
]]>An annulment is an order that declares a marriage invalid—in other words, it declares that the marriage never happened. There are two types of annulments: civil and religious.
A civil annulment terminates your marriage and is granted by a judge. When a judge grants a request for an annulment, it’s as if the marriage never happened.
Either spouse may seek an annulment by filing a petition (legal request) with the court that states the grounds (reasons) for an annulment. Although each state has its own annulment requirements, the most common grounds for annulment are:
Some annulment laws have time limits on when you can file. Most of these time limits don’t depend on how long you’ve been married. Rather, the deadlines to file depend on the grounds for the annulment. For example, in Colorado, if you want to annul your marriage on fraud grounds, it doesn’t matter how long you’ve been married. Instead, what matters is when you found out about the fraud: You must file for annulment within six months of discovering the fraud. (Colo. Rev. Stat. Ann. § 14-10-111(2)(a) (2021).) But if you want to annul your marriage for reasons of bigamy, you can do so at any time before your death (and your estate might even be able to annul your marriage after your death). (Colo. Rev. Stat. Ann. § 14-10-111(3) (2021).)
Because each state’s laws are different, you’ll want to check your state laws to see if any time limits apply to your situation. Even if you’ve missed a deadline to annul your marriage, you can still get a divorce.
A religious annulment is issued by a church or a religious tribunal, rather than a court. Religious annulments do not terminate a legal marriage. Specifically, the issuance of a religious annulment by a church doesn’t guarantee that a judge will grant a civil annulment in your case. Likewise, a church might not recognize a civil annulment obtained in a court of law.
Divorce is a legal dissolution of marriage. Unlike an annulment, a divorce does not invalidate your marriage, it just ends it. Each state has its own rules governing divorce. All states allow some form of no-fault divorce, meaning either spouse can file for a divorce without having to prove who caused the marriage’s breakdown. Some states allow spouses to file fault-based divorces on grounds like adultery, cruelty, or desertion.
In a divorce, because the court recognizes your marriage as legal, a judge will need to divide marital property and debts. A judge will not divide property in an annulment because you were not legally married—so there is no marital property or marital debt to divide.
Because an annulment erases or invalidates a marriage, it also erases a spouse’s right to seek spousal support (alimony). When you file for an annulment, you waive your right to seek alimony or spousal support. If you feel like spousal support is necessary in your case, you should seek a divorce rather than an annulment.
Annulments and divorces are alike because they are both a legal end to marriage. Whether you have obtained an annulment or a divorce, the outcome is similar: You are single again and free to remarry.
Also, a spouse who seeks an annulment has a burden of proof similar to a spouse seeking a fault-based divorce, because the spouse who files must prove the facts demonstrating that the marriage meets the state’s criteria for granting an annulment.
An annulment doesn’t affect a child's right to financial support. Both parents—no matter their marital status—are responsible for supporting their child. A husband is still the presumed father of any child born during a couple’s marriage, regardless of whether the marriage ends in an annulment or divorce. And, even though an annulment essentially erases a marriage, it doesn’t affect the legitimacy of any children born during that marriage.
When a couple who has annulled their marriage need to decide child custody and child support, courts will apply the same laws that apply to all other parents. In most states, that means that the court will apply the state’s child support guidelines when assessing each parent’s financial responsibilities, and will evaluate what’s in the child’s best interests when deciding custody.
Same-sex couples had a historic victory in 2015 when the United States Supreme Court legalized same-sex marriage throughout the country in the Obergefell decision (Obergefell v. Hodges, 576 U.S. 644 (2015)). As a result of Obergefell, all states must grant divorces and annulments to same-sex couples in the same way they do for opposite-sex couples.
]]>If you and your spouse are having marital problems but aren’t sure if you want a divorce, here’s a legal overview that can help you decide if separation is a good option.
Some married couples want a break from each other but aren’t ready to officially end their marriage. A “separation” means that you and your spouse are living apart but are still legally married. You don’t always have to live in separate residences to be separated—you might choose (for financial or other reasons) to remain in the same house but living as roommates rather than a married couple. (More on “separate and apart” requirements and moving out below.)
A separation can be informal—meaning the spouses work out the terms of the separation without any court involvement—or legal—meaning that a court recognizes the separation and issues an order detailing the terms of the separation. Most separations fall into one of the following three categories.
Trial separations, sometimes called “marriage separations,” are voluntary and don’t require that you file anything with a court. Most spouses choose to try a trial separation when they hope to resolve the problems they’ve been having and remain married. Legally, not much changes for the couple during a trial separation—all marital property laws still apply. For example, any debt or assets either of you acquire during the trial separation period are still considered marital property.
No matter what type of separation you choose, it’s a good idea to work out the terms of your separation with your spouse. This includes writing a separation agreement about topics such as:
You don’t have to enter into a separation agreement to be separated. However, it’s worth taking the time to write out an agreement that both of you sign to avoid confusion and disagreement. And, if you ultimately decide to divorce, you can use the agreement as a starting point for drafting a marital settlement agreement.
When spouses determine that there’s no hope of reconciling, their trial separation becomes a permanent separation.
In a “permanent separation,” you and your spouse live apart and have no hope of reconciling. You don’t have to involve a court to become permanently separated.
Depending on your state’s law, a permanent separation might affect spouses’ property rights. For example, in some states, once a couple permanently separates, each spouse becomes solely responsible for any debts they take on after the date of separation. Because a permanent separation can affect your property rights, you’ll want to determine a firm start date for the separation.
Once you’ve determined that there’s no hope of reconciling with your spouse and the separation is permanent, it’s important that you don’t go out together or spend the night together for old times’ sake. Even a brief reconciliation can change your separation date and affect your and your spouse’s rights to each other’s income, debt, and property.
“Legal separations” are formal separations recognized by the court. Not every state allows legal separations. In states that permit legal separations, the process is similar to getting a divorce: One spouse will file a petition for legal separation, and a judge will oversee division of marital property and debts, decide custody and support, and award alimony, if appropriate. If you and your spouse can work together to decide these issues, you might be able to submit a separation agreement for the judge to approve and incorporate into your separation order.
When a court grants a legal separation, neither spouse can remarry. In order to remarry, you’ll have to officially end your marriage with a divorce. In many states, you can remain legally separated forever, but in some states, the court will place a deadline on the legal separation. If there’s a deadline, you and your spouse will have to decide if you want to reconcile, remain separated, or divorce. Either spouse can file for divorce without permission or agreement from the other.
Some couples choose to remain legally separated indefinitely for reasons such as:
An important note: If you plan to legally separate instead of divorce in order to keep insurance benefits, check your insurance plan before making any decisions. Some insurance companies treat legal separation the same as a divorce for purposes of terminating benefits.
The biggest difference between separation and divorce is that a separation leaves a marriage legally intact while a divorce terminates the marriage. Divorce is permanent, and a divorce order is extremely difficult to appeal.
Separations are easier to reverse. If you’ve done a trial separation or permanently separated from your spouse, you can simply get back together. If you’re legally separated, you just need to file a motion (request) with the court asking the court to end the separation.
Other differences between separation and divorce include:
Several states require married couples to live apart for a certain amount of time before they can divorce. In most states, the required separation period applies to only certain types of divorces. For example, many states require separation only for couples seeking divorce on a fault-based ground. Most states that allow only no-fault divorces don’t have a required separation period. (You can read about “separate and apart” requirements, including as they relate to moving out.)
When you’re certain that your marriage is over, and you know that you want to divorce, separating might still be a good idea. When you separate before divorce, you and your spouse have a chance to resolve some issues—and you can use any agreement you’ve reached to streamline your divorce. If you’re able to agree on all the issues in your divorce, you might even be able to file an uncontested divorce, which can save you money, time, and effort.
If you file for divorce without an agreement in place, your divorce might take a while to complete. It can take months to resolve issues like custody, support, and property division even on a temporary basis.
Some contested divorces can take a year or more to get to trial. And the longer your divorce takes, the higher your legal bill will be if you’ve hired an attorney. Additionally, drawn-out contested divorces usually take a major emotional toll on everyone involved, including children.
Deciding to divorce right away doesn’t mean you can’t resolve your differences before a divorce trial, though. If you think that you might be able to negotiate an agreement with your spouse, divorce mediation might be a good idea. Divorce mediation is successful for a lot of couples, and it allows couples to resolve their divorce on their terms. In fact, many states require couples to participate in mediation before the court will set a trial date.
In most states, yes: You and your spouse may remain legally separated forever, as long as you agree. In some states, courts will put an end date on a legal separation. On or before this deadline, you and your spouse must decide whether to reconcile, ask the court to extend the legal separation, or file for divorce.
However, because legal separation doesn’t dissolve a marriage, neither spouse can remarry in the future unless you have a final divorce decree. (Legal separation will end if either spouse files for divorce.)
The point of a legal separation varies depending on the couple. For example, if the couple practices a religion that prohibits divorce, a legal separation might be the only way for the spouses to remain in the religion while living independently.
In many cases, a legal separation allows couples to see what it would be like if they filed for divorce—for instance, they’ll experience co-parenting under a custody order and what it means to live on one income or spousal support.
It depends. If you're living in the same household while you're in a trial or permanent separation, the court might not award child or spousal support. However, when you file for a legal separation, the court will calculate child support and alimony, if appropriate. Once a court has issued a support order as part of a legal separation, you must follow its terms or you could face legal consequences.
Legal separation permits each spouse to move on, independently, from their marriage, without going through the formal divorce process. Legally separated couples can often continue providing each other health care, Social Security benefits, and tax benefits. (Be sure to look at the terms of any benefits you share and determine if they’re affected by a legal separation, as some types of benefits might end upon a legal separation).
A court order in a legal separation carries the same weight as custody, property, and support orders in a divorce decree. This means that both spouses are bound by the separation order, and both can enforce the orders in court.
The answer to this question depends on your individual and family circumstances. Married couples typically share assets and debts unless they sign an agreement that says otherwise. Often, married couples find that sharing assets and debts puts them in a stronger financial position—but not always. In many situations, married couples also enjoy more tax benefits than singles.
Ultimately, there’s no one-size-fits-all answer. To determine whether your financial situation is better if you’re single or divorced, you’ll want to take a close look at your finances, and consider consulting with an accountant, financial advisor, or other qualified expert who can assess your options.
]]>The main difference between fault-based and no-fault divorce is that in a fault-based divorce, one of the spouses claims that something the other did caused the marriage to fall apart. In a no-fault divorce, on the other hand, neither spouse needs to allege a bad act on the part of the other.
Here are answers to some of the most common questions about grounds for divorce and related issues.
In a "no-fault" divorce, neither spouse has to prove that the other spouse did something wrong to cause the breakup. All states offer a no-fault divorce option, though the exact “grounds” (reasons) for the divorce vary state-to-state. For example, your state’s no-fault grounds for divorce might be called:
Regardless of what the basis for no-fault divorce in your state is called, all of these mean simply that you and your spouse can’t get along, and there’s no hope of reconciliation. (Note that in a few states, you’ll have to live apart for a period of time before a court will grant your divorce, even if it’s a no-fault divorce.)
No-fault divorce is less expensive and less time-consuming than a fault-based divorce because the spouses don't need to prove marital misconduct for the court to grant the divorce.
Check out Divorce in Your State to find out more about the grounds for divorce where you live.
Courts will grant a request for a fault-based divorce if:
Only some states allow fault-based divorces.
Common fault-based grounds for divorce include:
The reasons why spouses choose fault-based divorce vary. Some people don't want to wait out the period of separation required by their state's law for a no-fault divorce. And, in some states, a spouse who proves the other's fault might receive a greater share of the marital property or more alimony. For many, though, the choice might be prompted by hurt feelings.
No matter what the reason for choosing a fault-based divorce, though, these divorces tend to be more expensive, as many spouses choose to hire a lawyer to help them present their evidence and convince the judge of their arguments.
What if both spouses are at fault? When both parties have engaged in behavior that qualify for a fault-based divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.
A spouse can’t prevent the court from granting a no-fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.
However, a spouse can prevent a fault divorce by convincing the court that the claims of fault are false. Or, a spouse might admit wrongdoing but present a defense or reason for their behavior, such as:
In practice, spouses rarely use these defenses. That’s because proving a defense often requires producing witnesses or other evidence, and involves a lot of time and expense. And, in the end, these defenses usually fail: Most courts will eventually grant the divorce anyway because there is a strong public policy against forcing people to stay married when they don't wish to be.
All states have a residency requirement that one or both spouses must meet to be eligible to file for a divorce. Often, states require the filing spouse to be a state resident for at least three months or even as long as a year. The filing spouse must provide proof of residence for the required length of time. Only a few states have no time requirement for resident status (being a resident at the time you file is enough).
If you think that your spouse might file for divorce in another state, consider trying to be the first to file—in your own state. Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, after the divorce is over, you must file any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, in the state that heard your divorce, which could require you to travel out of state for years to come. (Get more tips on the divorce process in How to Divorce.)
If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
However, a court's decisions regarding property division, alimony, custody, and child support might not be valid unless the court had jurisdiction over (the legal power to make decisions about) the nonresident spouse. The nonresident spouse falls under the court’s jurisdiction when:
If you receive divorce documents from a foreign country, you might want to consult an attorney about whether your state court or the foreign court governs the issues. Whether a foreign court has the power to decide issues in your divorce depends on many factors, such as which particular country heard the case, where the parties lived and for how long, and whether children are involved.
If you're considering divorce, one of the first things you'll need to do is figure out whether your state only allows no-fault divorce. If it does, you don't have to worry about making a choice as to the grounds for your divorce. On the other hand, if the state allows no-fault divorce, you'll need to decide if it's worth claiming that your spouse is at fault for the marriage's end—or if it will just be easier to file a no-fault divorce.
To help you decide if a fault-based divorce is the right option for you, it's a good idea to get help from a divorce expert or a divorce attorney located in your area.
]]>That basic principle might seem simple, but calculating the amount of support parents should pay can be complicated. Here are some answers to common questions about child support.
When both parents don’t live together, their child usually lives primarily with one parent (known as the “custodial parent”). Child support is the amount of money the noncustodial parent pays to the custodial parent to help cover the child’s basic needs. Child support is generally part of a court order, even if that order is based on an agreement between the parents (more on that below).
Under federal law (45 C.F.R. § 302.56), all states must establish guidelines for calculating child support. However, these guidelines vary from state to state. So if you’re asking how much child support you’ll have to pay, the answer is that it all depends on the guidelines adopted by your state, as well as your unique circumstances.
The guidelines include a formula for calculating child support, based primarily on one or both parents' income and the number of children being supported. The formula might also factor in other items, such as:
Of course, both parents are obligated to support their children, but the guidelines assume that the custodial parent is fulfilling that obligation by paying for the child's needs directly.
Judges generally have the freedom in individual cases to order child support that doesn’t follow the guidelines exactly, if that’s warranted. Typically, the judge may order a higher or lower amount only if it would be unjust or inappropriate to apply the guideline amount. State laws usually spell out factors that judges must consider when making that decision, such as:
Before making a decision on child support, courts normally require both parents to fill out a form that provides a complete picture of their financial situation, including details of their monthly income and expenses.
They can. But your state’s laws will almost certainly require that a judge approve the agreed amount of child support. Judges are duty-bound to give priority to a child’s best interests, and they will do whatever is necessary to ensure that children aren’t shortchanged.
That’s why judges rarely will approve an agreement that provides for zero child support, except in rare cases where there’s a good reason—such as when a noncustodial parent is completely unable to work due to a medical condition.
If you want to come to an agreement with the other parent but are having trouble working out your differences, you might try mediation.
You and your child’s other parent may agree to modify an existing child support order, but the proposed modification can’t be enforced unless a judge approves it.
If you and your ex can’t agree on a change that you want, you’ll have to file a written request (in the form of a motion) in the same court where the original order was issued. A judge will then make a decision on your request.
As a general rule, judges won’t consider modifying existing orders unless the requesting parent can demonstrate that there has been a significant change in circumstances since the existing order was issued. This rule helps prevent courts from becoming overburdened with frequent and repetitive modification requests.
Examples of the types of changes that frequently support modification orders include:
Depending on where you live, the parents’ physical custody of children and parenting time (visitation) can significantly affect child support obligations.
In many states, the child support guidelines take into account the number of overnight stays a child has with a parent under the existing order for custody and/or parenting time. That’s because parents usually have extra expenses when their children stay at their home regularly. For instance, they might need another bedroom and have to pay more for groceries and the like. So judges may consider overnight stays when they are determining the level of child support.
But be aware that each state will have its own rules on how many overnights will factor in to child support calculations.
Unfortunately, some parents purposely lower their income in an effort to reduce their obligation to pay child support. If a judge believes that you’re voluntarily unemployed or underemployed, the judge may “impute” income to you. Basically, this means that child support will be calculated based on what you should be earning, rather than on your actual income.
That said, there may be legitimate reasons why some parents aren’t earning up to their potential. For example, they may have a disability that prevents or limits employment, or they may have been laid off and unable to find a new job despite a diligent search. Also, depending on state law, some judges might not impute income if a parent is pursuing higher education.
When determining a parent’s potential employment and earnings, judges tend to look at the parent’s level of education, recent work history, and occupational qualifications, as well as prevailing job opportunities and pay levels in the community.
When determining a parent’s income for child support purposes, judges typically look at the parent’s gross income from all sources. They then subtract certain required deductions, like income taxes, Social Security taxes, health care, and mandatory union dues.
Judges may or may not consider other expenses, depending on what they’re for. Remember that the top priority for a child support order is to protect the children’s interests. So, for example, it’s not reasonable to expect a judge to lower a child support obligation because a parent has to pay off a gambling debt.
A good way to put this in perspective is to look at some of the factors judges can consider when determining whether to deviate from the guidelines. These factors may include:
A COLA clause in a child support order means that payments automatically increase according to a schedule, at a rate equal to an increase in the cost of living (as determined by an economic indicator such as the Consumer Price Index). This eliminates the need for any modification requests based solely on cost-of-living increases. Some states require that child support orders include COLA clauses.
]]>But that's by no means the end of the story.
Here, we'll uncover what others have typically paid for their divorces under the most common scenarios. We also will help you understand what that might mean for your own case.
Although many couples are able to go through a divorce without hiring an attorney, there are some circumstances where a divorce lawyer is necessary or strongly recommended. Even in other situations, you may simply prefer to have a lawyer take care of all the paperwork, negotiating, and other legal matters involved in a divorce—if you can afford it. But how do you know if you’ll be able to pay the attorney’s fees? Our survey results might help.
The first part of the total bill for a divorce lawyer is the hourly rate. Our survey showed an average rate of $270 an hour for divorce lawyers across the United States, but individual rates varied a lot. Although nearly seven in ten people (69%) paid between $200 and $300 an hour, about one in ten (11%) paid $100 per hour, and two in ten (20%) paid $400 or more. Our separate study on hourly rates reported by family lawyers across the U.S. showed significant regional differences, with the highest rates reported by attorneys in large cities on the coasts. The same study also showed that rates were higher for more experienced attorneys—no big surprise there.
Of course, a lawyer’s hourly rate won’t tell you how many hours will go into the final bill. In our survey, people who hired a full-scope divorce lawyer—meaning the attorney handled everything in the case, from start to finish—paid an average of $11,300 in attorneys’ fees.
If those results give you sticker shock, it may help to remember that a few people with very high costs can skew the average. To learn what costs were more typical for those who hired divorce lawyers, we also looked at the median—the middle of the range, where half paid less and half paid more. In our survey, the median total for attorneys’ fees was $7,000. It may also help to know that more than four in 10 people in our survey (42%) paid $5,000 or less in attorneys’ fees.
When you hire a full-scope attorney to handle your divorce, the lawyer’s fees will be your biggest expense. But there are other expenses as well. You’ll have to pay filing fees and other court costs (more on that below). Also, depending on the circumstances in your divorce, you might have to pay fees for child custody evaluators, real estate appraisers, tax advisors, and other experts. The people in our survey who had had divorce lawyers reported paying an average of $1,480 for these other costs. The more typical median for these expenses was $500.
In order to dig deeper into what can make the total bill for attorneys’ fees and other costs higher in some divorces, our survey asked people about the contested issues in their divorces—such as disagreements over child custody, child support, alimony, and dividing their property and debts. The type of dispute made very little difference in average costs. Instead, the real driver of increased divorce costs was the number of contested issues and whether couples had to go to trial to resolve those issues—as opposed to resolving them through an out-of-court settlement. For instance:
For more details on how and why these contested issues affect costs, see our survey results on divorce with child-related disputes, divorce with alimony disputes, and divorce with property disputes.
If you can’t afford to hire a full-scope divorce attorney, it could still be wise to seek out legal advice or help at some point along the way—especially to make sure that your rights are protected in any settlement. You might be able to hire a consulting attorney for specific tasks, such as helping you understand and complete divorce forms, preparing for mediation, drafting or reviewing a proposed settlement agreement, or representing you in court appearances. In our survey, only one in 10 people said they had hired a consulting lawyer in their divorce. But they typically saved a lot of money on attorneys’ fees; the average total fees for consulting attorneys were $4,600, and the median total was $3,000.
If you and your spouse can go through the divorce process either completely on your own or with help from a mediator and/or an online divorce service, it will almost always be far less expensive than hiring a full-scope attorney. In our survey, people who handled their divorce without hiring a lawyer had an average of $925 in costs, not including the cost of mediation. More typical, however, was the median cost of $300. Let’s look at what went into those expenses, as well as mediation fees.
When you file for divorce, the court will charge a filing fee. And if your spouse is the one who started the process by filing the initial divorce petition, you will typically have to pay a fee to file your answer to the petition.
Filing fees for divorce petitions vary from state to state—and from county to county in certain states—ranging from about $100 to over $400. In some places, fees are lower when you don’t have minor children, or when you meet other qualifications for simplified divorce procedures. And in some states, you and your spouse can save on these fees by filing the divorce petition together if you’ve already reached an agreement about all of the issues in your divorce.
You might also have to pay smaller court fees to hire a process server, file other documents in your case, and get a certified copy of the final divorce decree. (Learn more about the divorce process, including filing and serving the petition.)
In case you can’t afford the filing fees where you live, you can usually apply for a waiver from the court.
For people who pursue a contested divorce without hiring a lawyer, there may also be additional expenses for evaluations and appraisals. (For instance, judges might require custody evaluations when couples haven’t been able to agree on a parenting plan.)
More and more divorcing couples are turning to mediation as a way to save money—as well reduce the conflict and stress of divorce. You can use divorce mediation in a wide range of circumstances. For example:
Like the overall cost of divorce itself, the cost of divorce mediation can vary widely, depending on the circumstances of your case and whether you use private mediation or court-sponsored mediation. Typically, private divorce mediation costs between $3,000 and $8,000—but you’ll usually split that total bill with your spouse.
Most court-sponsored mediation services are free, low cost, or on a sliding scale based on your income. However, these programs typically only cover mediation of disputes related to child custody.
What if you’ve agreed with your spouse about the issues in your divorce—either on your own or with the help of a mediator—but you don’t have the time or other resources to figure out which divorce forms you’ll need, to fill them out properly, and to know where and how to file them? You could use an online divorce service to help with those tasks. These services cost from about $150 to $500 (though some have monthly charges).
The survey results mentioned in this article came from Martindale-Nolo Research’s 2019 divorce survey, which analyzed responses from readers who had recently gone through a divorce and had voluntarily provided their email when they researched hiring a lawyer. All collected data is kept confidential and complies with Nolo's privacy policy. Nolo carefully examined and analyzed the data using sound statistical methods. The Nolo survey project aims to promote transparency and clarity about the legal process.
]]>Whether you and your spouse agree about how to divide your assets and share parenting responsibilities or are completely at odds on all the issues involved in ending your marriage, you’ll need to know these basics to get your divorce started right.
Every state requires couples to meet some basic requirements before they may get a divorce. Before you start the divorce process, check our articles on state laws on filing for divorce to make sure that you're eligible to get a divorce in the state where you're planning to file.
As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. You must meet a state’s residency requirements before you may file for divorce in its courts.
In the vast majority of the states, at least one of the spouses must have lived there for a certain period of time just before filing for divorce. Usually, the minimum time is six months, but it ranges from six weeks to two years in some circumstances. There are variations on this typical residency requirement:
In most states, you don't have to be separated from your spouse before you can get divorced. But a few states require that couples have lived “separate and apart” for a period of time, either before they may file for divorce or before the judge will finalize their divorce. Sometimes, as in South Carolina, the separation requirement only applies to couples filing for a no-fault divorce (more on that below).
The minimum separation time is usually a year, but it might depend on certain circumstances. For instance, Virginia normally requires a one-year separation before couples may file for a no-fault divorce, but the requirement is reduced to six months if they don't have children and have a written separation agreement. (Va. Code 20-91(9) (2022).)
The laws or courts in different states may have different interpretations of what "separate and apart" actually means—such as whether a couple may be considered separated if they continue to live in the same residence but sleep in separate bedrooms and maintain separate households.
You should find out as soon as possible whether your state has a separation requirement and, if so, what you have to do to meet the requirement—including whether you'll need to move out of the family home. Otherwise, the court might reject your divorce petition or put your case on hold if you don’t meet any requirements in your state.
Divorce laws vary from state to state. But one rule in all states is that in your divorce petition (or complaint), you must state a reason (“grounds”) for requesting a divorce. Grounds for divorce fall into two categories: "no-fault" and "fault-based."
Every state gives divorcing couples the option of filing a “no-fault” divorce. In some states, a no-fault divorce is the only option.
In a no-fault divorce, neither spouse has to claim or prove that the actions of the other caused the end of the marriage. Instead, the spouse who files for divorce simply declares that the marriage is over and there’s no reasonable chance of reconciliation. In many states, the reason given for a no-fault marriage is that the couple has “irreconcilable differences” or that there’s been an “irretrievable breakdown of the marriage.”
Most couples choose to pursue a no-fault divorce. No-fault divorces are less complicated and less contentious than fault-based divorces: Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. Not having to accuse your spouse of wrongdoing is especially helpful when you have children who might be affected by the proceedings. Also, when you don’t have to fight about fault, the divorce might move more quickly. And less arguing almost always means lower legal fees.
If you file for a fault-based divorce, you must prove that your spouse did something that caused the marriage to end. Grounds for fault-based divorce typically include adultery, extreme cruelty (physical or mental), and desertion.
Because fault-based divorces can be so contentious (and expensive), most divorcing couples will opt for a no-fault divorce. However, if your state considers fault when dividing marital property or assessing the need for alimony, filing a fault-based divorce might be a good option. (But it might not be necessary to introduce the issue of your spouse's misconduct for the purpose of deciding those issues.)
If you think you might file a fault-based divorce (or if your spouse has filed one already), consider consulting with an attorney—pursuing a fault-based divorce can be a lot more complicated (and more difficult to win) than a no-fault divorce.
As part of your divorce, you'll have to address a number of issues related to ending your marriage. You and your spouse may negotiate and reach agreement on those issues, either on your own or with the help of divorce mediation. If you can't agree on any issue, a judge will have to decide for you after holding a trial (more on that below).
In most divorces, couples will have to divide their property and debts. In most states, only marital property—generally, property the spouses acquired and debts they incurred during the marriage—is distributed between the spouses. The specific rules for dividing marital property largely depend on whether you live in an “equitable distribution” state or a “community property” state.
Most states follow the principle of equitable distribution. That means distributing assets and debts between the spouses in a way that's fair, but not necessarily equal. The judge will consider the circumstances in each case—including any specific circumstances spelled out in the law—before deciding on a fair division.
In community property states, the law presumes that the spouses jointly own all of their marital property, regardless of the title on the property. Community property usually includes:
Historically, community property laws required an equal division of community property in divorce. But some of the community property states now require or allow judges to divide a couple's community property in a way that's fair—basically using the same principle as in equitable division states. Still, judges in these states usually aim for something close to a 50/50 split.
In both equitable distribution states and community property states, some assets are considered the separate property of one of the spouses. Separate property generally includes any assets owned before the marriage, as well as some types of property acquired during the marriage, such as gifts and inheritances. Usually, you'll be able to keep your separate property after the divorce. But a few states allow judges to include separate property as part of the distribution of a couple's assets.
Sometimes,assets that were separate property can become marital property. For instance, if you “commingle” (mix) separate property with marital property during the marriage, the separate property will probably lose its protected status and will divided during the divorce. One way too avoid this result is to keep your separate property in an individual account and keep records of all transactions involving your separate assets.
Alimony (also known as “spousal support” and “maintenance”) refers to payments that one spouse makes to help support the other spouse during or after a divorce.
After considering factors such as the spouses’ income and earning capacity, most courts award alimony for a limited period of time. For example:
When divorcing spouses have been married for a long time—anywhere from 10 to 20 or more years, depending on your state—a judge might award the supported spouse “permanent” or “lifetime” alimony. This type of award is made in rare cases where it’s likely that one of the spouses will never be able to be financially independent from the other.
In deciding child custody and parenting time issues, judges evaluate what is in the “best interests of the child.” As long as it’s in the child’s best interests, most judges craft child custody orders to ensure that both parents remain actively involved in the child’s life.
These days, it's common for judges to award “joint legal custody” to the parents. This means that both parents have a say in important decisions about topics such as education, religious upbringing, and non-emergency medical treatment. However, judges may award “sole legal custody” to only one parent if joint legal custody is not in the child’s best interests—such as when one parent is unfit to make those decisions, or the ongoing conflict between the parents is so great that making decisions together will only lead to more distress.
Joint legal custody doesn’t necessarily mean that the parents will have joint physical custody—meaning that the child spends nearly the same amount of time with each parent. Although the trend is moving toward a preference for joint or shared physical custody, it may not be best for the child for a number of reasons. In that situation, the judge will award sole or primary physical custody to one parent, while normally providing the other parent with a parenting time (“visitation”) schedule.
Both parents are responsible for financially supporting their children. All states use child support guidelines to calculate how much money a parent must contribute. Most states’ guidelines specify that each parent’s income and the amount of time the parent spends with the child must be considered in the support calculations. The amount of child support awarded can also be affected by other related factors, such as a child’s medical needs (like health insurance and medical bills not covered by insurance) and the costs of extracurricular activities.
Your divorce will not be final until a judge signs a written divorce decree or judgment. But that doesn't mean that you and your spouse have to fight out (“litigate”) your issues in court. Here are some possible alternatives.
When you and your spouse can work together and reach agreement on all the issues in your divorce, you might be able to file for an uncontested divorce. Uncontested divorces are simpler, faster ways to end your marriage than traditional contested divorces. Every state has its own procedures for uncontested divorce.
In addition to being less contentious and faster, uncontested divorces are almost always cheaper than contested divorces. Many couples can get through the process without hiring a lawyer, either on their own or with the help of mediation, an online divorce service, or both (more on that below).
In a mediated divorce, a neutral, trained third party (called a “mediator”) helps both spouses work together to reach an agreement about the issues in their divorce. Mediators will never make decisions for you. Rather, they guide you and your spouse through the process of clarifying the issues, identifying possible solutions, and negotiating agreements. If mediation is successful, mediators will generally prepare a document that reflects your agreements. That document can then be the basis for a written marital settlement agreement that you'll submit to the court. If the judge approves the settlement agreement, it will usually become part of your final divorce decree.
Mediation has many advantages:
All in all, mediation is an excellent option for spouses who are willing to work together to reach a compromise and who can negotiate honestly and on a level playing field. However, mediation is not a good option when there is current or threatened domestic violence or when one spouse is unwilling to cooperate.
Collaborative divorce is an option when spouses want to avoid fighting in court but desire to have lawyers negotiate on their behalf. In a collaborative divorce, the spouses and their attorneys agree to try their best to reach agreement on the divorce issues. If they can’t reach agreement, the attorneys must withdraw from representing the spouses, and the spouses must start the divorce process all over—including hiring new attorneys. The risk of having to start from scratch and incur additional attorneys’ fees often provides strong incentive for the couple to negotiate in good faith and reach a compromise.
From the time you file the initial divorce papers, some states have mandatory waiting periods—typically three to six months—before a judge will sign the final divorce decree. But those waiting periods are just the minimum. Depending on the circumstances in your case, it can take longer than that to get divorced—sometimes much longer. In a divorce survey conducted by Martindale-Nolo Research, 35% of people said their divorce took more than a year. As that survey showed, the most important factors that affect how long a divorce will take are:
So if you're concerned about getting divorced as quickly as you can, you should do everything you can to try to reach a fair settlement of the issues in your case, as soon as possible.
Most—if not all—states allow spouses to represent themselves in divorce matters (known as appearing “pro se” or “pro per”). But whether that’s a good idea is another question. Spouses who can’t agree on issues of custody and parenting time, alimony, or distribution of property will probably need to hire an attorney to help them reach the outcome they desire.
On the other hand, when couples agree on all the issues and have a written marital settlement agreement, they might not need to hire a lawyer. They can often DIY their divorce and use the self-help divorce instructions and forms provided by most local courts. Or they can file for divorce online by using a service that will provide them with the completed forms they need, based on their answers to an online questionnaire. Some of these services will even take care of the filing process, for an additional fee.
Finally, if money for a lawyer is a problem but you feel the need for legal advice in your divorce, you might see if a local attorney would be willing to work with you on a consulting or as-needed basis—such as to answer specific questions or review your draft settlement agreement. You might also qualify for free or low-cost legal assistance from your local legal aid office or county bar association (the local professional organization for lawyers).
]]>Here’s an overview of key child custody information for divorcing parents, plus answers to some of the most frequently asked custody questions.
There’s no one-size-fits-all custody arrangement. Your parenting plan should be tailored to meet the needs of your family.
The final custody order will normally address both physical custody (which parent the child lives with) and legal custody (either or both parents' right to make important decisions about the child’s upbringing).
Most custody orders divvy up custody in one of the following ways:
When an order specifies that one parent has sole physical custody, the judge (or the parents, in a custody agreement) will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent. Similarly, shared physical custody orders will usually include a parenting time schedule
As is the case with most family law issues, judges will give a lot of weight to any agreements that parents reach regarding child custody. If parents can work together to achieve a fair and proper custody arrangement, the judge will likely adopt it into a court order. Working together is the best opportunity for parents to control what happens to their families after a separation or divorce.
If you can't reach an agreement on your parenting arrangements, a judge will decide for you, based on the evidence—including the results of any independent investigations the court has ordered (more on that below).
As a general rule, state custody laws place the highest priority in these decisions on the "best interests of the child." Most states require judges to consider a list of specific circumstances in the case when they're deciding what would be the child's best interests. Those factors vary from state to state, but they typically include:
The relative importance of some of these factors may vary depending on the child's age. For instance, some judges will favor awarding physical custody of a young child to the parent who's been the primary caregiver. With an older child, the best interests evaluation might lean in favor of the parent who can foster continuity in education, neighborhood life, religious life, and peer relationships. In states that allow consideration of children's custody preferences, judges are also more likely to listen to what older children want.
In tough child custody cases—such as those where one parent is claiming that the other is “unfit”—judges might order a child custody evaluation. Parents can request a custody evaluation even when a judge doesn’t. A child custody evaluator can provide information and recommendations that will help the judge decide what’s in the child’s best interests.
In nearly every state, maintaining stability for the child is one of the main priorities when judges are deciding custody matters. This strong preference for the status quo can make it difficult for parents to modify existing custody orders. But judges do understand that changing family circumstances might require updating the current orders.
Before a judge will consider modifying custody or visitation, the parent who's requesting a change usually must demonstrate that there's been a substantial change in circumstances. If the judge agrees to review the case, the parent will also have to show that the existing order no longer serves the child's best interests. when deciding whether to order a modification, the judge will consider the same factors and best-interests standards (discussed above).
No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:
In some states, like New Mexico, the law presumes that joint custody is in the child's best interests during initial custody proceedings, unless a parent can show that wouldn't be the case. (N.M. Stat. § 40-4-9.1 (2023).)
In the past, judges typically awarded the custody of children—especiallly young children—to the mother. Today, however, state laws require that custody decisions be based on what's best for the childre. A parent's gender isn't one of the factors that are considered. In fact, the laws in several states explicitly prohibit judges from awarding custody based only on a parent's gender.
If you are a father and want to ask the court for physical custody, don't let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you might be on equal footing when it comes to who is better situated to have physical custody. In fact, if you have more flexible hours than the mother, you might have an advantage. In any event, the judge will look at what's best for the children. So if you think you should have primary custody and can persuade the judge that would be in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way toward eliminating any lingering prejudice against you as a father.
Also, the reality is that most divorcing parents eventually agree on their custody arrangements, rather than having a judge decide for them. And judges usually approve these parenting agreements unless they're clearly not in the children's best interests. Some fathers simply agree that the mother should have primary physical custody for whatever reasons. But here again, fathers shouldn't simply give up on their desire to have the kids live with them, at least for a good chunk of time, just because they don't think they'll win in court.
It might. If you simply move out and leave the children behind, a judge could interpret your move as a signal that the other parent is better suited to have permanent physical custody. Also, when the children stay in the family home, continue in the same school, and participate in their usual activities after a parent moves out, a judge might believe that a change in custody would be an unnecessary disruption in the children's routines.
If you must leave the family home and can't take the children with you, it would be best to have a written agreement with the other parent stating that the arrangement is temporary and won't affect permanent custody.
But that might not always be possible, such as when you've had to flee domestic violence. In that case, you should try to take the children with you and, as quickly as possible, file a motion (a formal written request) in family court for temporary custody and child support orders. If you don't do that, the other parent could claim that you've taken the children wrongfully. You could face criminal charges or at least an order from the court to return the children immediately (more below on custody enforcement).
In most states, judges may typically consider a parent's sexual orientation in custody decisions only if it harms the child. Even in those states that include parents' "moral fitness" among the factors that go into the best-interests analysis, the courts (or the laws themselves) usually require judges to focus on whether a parent's behavior had a direct negative impact on the child.
However, LGBTQ parents who are in a custody dispute with a heterosexual ex may still experience discrimination from judges who can’t set aside their own prejudices. Judges typically have a lot of leeway when making custody decisions, and some of them might might conceal their bias by citing issues other than a parent's sexual orientation to deny custody or appropriate visitation. Other judges might find that children would be harmed by living with a parent and that parent's new same-sex partner, because of the perceived social stigma of living in an LGBTQ household.
California law has addressed the potential for judicial discrimination by explicitly prohibiting judges from considering the sex, gender identity, gender expression, or sexual orientation of a parent when deciding what custody arrangements would be in the child's best interests. (Cal. Fam. Code § 3040(c) (2023).) But this type of broad antidiscrimination provision isn't typical across the country.
If you're involved in a custody case and are concerned about sexual orientation or sexual identity bias, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights.
Same-sex couples who are divorcing face different child custody issues. Even when they've agreed to raise a child together, the nonbiological parents might face hurdles in getting custody or visitation rights. State laws have traditionally presumed that when a child was conceived or born during a marriage, the mother's husband is the father. Many states still use gendered language in these laws, but the courts in a number of those states have held that the parenthood presumption applies to the wife of a mother who had a child during the marriage using assisted reproduction. (The situation is murkier for married men who had a child through surrogacy.)
It shouldn't be. In 1984, the U.S. Supreme Court ruled that it's unconstitutional for a judge to consider race when a noncustodial parent petitions for a change of custody. In that case, a white couple divorced, and the judge awarded custody of the couple's son to the mother. She remarried an Black man and moved to a predominantly African American neighborhood. The father filed a request to modify custody based on the changed circumstances from the marriage and the move. A Florida court granted the father's request, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision. (Palmore v. Sidoti, 466 U.S. 429 (1984).)
When a judge awards physical custody to one parent and "reasonable" visitation to the other, the parent with physical custody generally has the power to decide when and how much visitation is reasonable. In other words, unless the parents have a specific calendar or schedule, a noncustodial parent's visitation is often affected by the relationship between the parents.
Unfortunately, this type of order often means that the noncustodial parent has to fight for time with the child. To avoid this problem, many courts instead require parents to work out a fairly detailed parenting plan that includes a schedule for when each parent will have the child. When the parents can't agree, the judge will create a schedule for them to follow.
Many states or courts provide standard parenting schedules that provide for visitation with the noncustodial parent alternating weekends, school breaks, and holidays that occur during the school year, as well as significant visitation in the summer. However, it's a growing trend in some states for the default parenting plans to allow both parents to have close to equal time with their children.
Parents don’t always follow custody orders. Violations can range from being habitually late for scheduled pick-ups to withholding visitation—or even taking the children out of the state or the country to keep them from the other parent. If you believe your ex is guilty of a crime like parental kidnapping, you should report it to law enforcement. Otherwise, you’ll have to go back to the family court to ask a judge to enforce your custody orders. The judge may simply require you to go to mediation or order your ex to comply with the orders. Then, if the problems continue, the judge might hold your ex in contempt of court, which could lead to a fine.
Keep in mind that you won’t be able to get a judge to enforce your custody arrangement unless you already have a formal custody order, issued as part of a divorce or a legal separation proceeding (in states where that’s available). If you and your spouse are separated and haven’t started legal proceedings, you’ll have no recourse if your spouse doesn’t abide by an informal agreement about taking care of the children.
In child custody mediation, a trained, neutral professional (called a mediator) meets with parents to help them reach an agreement about custody and visitation. The mediator does not make decisions for the parties. Instead, the mediator facilitates negotiations and might suggest solutions. Mediation is confidential—what the parties say in mediation can’t be used in court.
Courts in many states will require parents to participate in mediation of any custody disputes. Even when it's not required, mediation is usually a better option than litigation (fighting it out in court) for resolving custody and visitation disputes. That’s because:
Experts who've studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer less. And studies have shown that parents are more likely to be satisfied with their custody arrangements when they've reached them through an agreement rather than having a judge decide for them.
Unmarried parents may file a request for custody in family court. But before a judge will issue any custody orders, you'll probably need to get a court order establishing the child's paternity, unless both parents signed and submitted a voluntary paternity declaration shortly after the child was born. Your state's or tribe's child support enforcement agency will usually provide free assistance with establishing paternity.
(Learn more about state laws on establishing paternity and how to file and prepare for a child custody case.)
Custody orders often include provisions that prohibit a parent from taking a child out of the state or country without the other parent's consent or a court order. Traveling to another state might be a normal part of a child's life, especially for vacations or family visits. But traveling out of the country can have serious consequences that you should consider, particularly if your child's other parent has family or other close contacts in that other country. If your ex decided to stay abroad with your child, you would need to pursue legal action under international child custody law. That would probably be expensive and take a long time—and it would only be possible if the other country is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. If you're considering letting your ex take your child out of the country, you should speak with a family law attorney about the risks and any possible measures you could take to prevent them.
]]>Unlike many other states, Hawaii doesn't require you to have lived for a certain period of time in the state before you can get a divorce there. Instead you simply must live (in what you consider your permanent home) on the island covered by the family circuit court where you file for divorce. (Haw. Rev. Stat. § 580-1 (2022).)
Hawaii is a "no-fault" divorce state—meaning that the courts don’t require one spouse to prove that the other’s bad acts were the cause of the divorce. No-fault divorces reach resolution faster than fault-based divorces because the spouses don’t have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you do not have to have your spouse’s consent to end the marriage.
A Hawaii court will grant a divorce when:
(Haw. Rev. Stat. Ann. § 580-41 (2022).)
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.
Uncontested divorces are generally faster and less expensive than contested divorces because there's no fighting in court. All the judge must do is review and approve the spouses’ marital settlement agreement and issue a divorce decree.
If you and your spouse agree on the terms of your divorce, the next step is to file the required paperwork in the appropriate Family Court. Each island in Hawaii has its own forms you’ll need to use to start your divorce—be sure to get the right forms for the island on which you will be filing. The State Judiciary also maintains a list of self-help resources for people representing themselves in Hawaii courts. Alternatively, you could use an online divorce service or hire a lawyer to help you prepare and file your divorce paperwork.
Like most legal proceedings, you must pay court filing fees to begin your divorce. As of 2022, Hawaii's combined filing fees for divorce without children are $215. If you have minor children, you'll also need to pay a parent education surcharge of $50, bringing the total filing fees to $265. If you can’t afford to pay, you can file the form Ex Parte Motion and Affidavit to Waive Filing Fees Under Hawai’i Revised Statutes Section 607-5(b). If the court grants your request to waive fees, you will not have to pay any court costs for your divorce.
Once you file the paperwork, you will need to provide copies of all the documents to (“serve”) your spouse and submit proof of service to the court. You can ask a friend or family member to deliver the paperwork or hire a process server to do it for you. (Haw. Rev. Stat. § 580-3 (2022).) The court will not put your case on the court's schedule until you've completed this step.
After receiving the divorce papers, your spouse will file a “response” or “answer” to the complaint. Depending on the court’s rules, the answer might include a statement that the non-filing spouse agrees with the statements in the complaint and that the divorce is uncontested.
Uncontested divorces in Hawaii usually take about two months to finalize after you’ve completed all your paperwork.
If you have unresolved issues in your divorce, you'll need to file a complaint for divorce with your local court, along with the other required documents. Many of the documents you’ll need for a contested divorce are the same as those required for an uncontested divorce, but pay close attention to the complaint—some Hawaii courts have different complaint forms for uncontested and contested divorces.
Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the court.
It can take up to a year and a half (or more, depending on the circumstances) to finalize a contested divorce in Hawaii.
Unlike some states, Hawaii doesn't have a "waiting period" between when you file your divorce complaint and when the court can start processing it. Instead, a Hawaii court can begin processing your case as soon as the time has passed for your spouse to file an answer or response (usually 21 days).
Hawaii courts handle most uncontested divorces “by affidavit.” This means that if all your forms are complete and you’ve followed all the necessary steps, the judge will issue your divorce decree without requiring a hearing. If the judge has any questions or concerns, you and your spouse might have to attend a hearing or submit more documents.
If you’ve filed a contested divorce, the court will set a time for an initial hearing to discuss your case. The court will also schedule hearings on any motions (requests) you or your spouse file, along with any other issues that need to be resolved. For example, you might have to attend hearings on property and debt division, child custody and child support, and spousal support.
Here are the issues you can expect a judge to address in a contested divorce:
Hawaii is an equitable division state, which means the court will divide marital property fairly—but not necessarily equally. Courts in equitable division states consider both spouses to be equal owners of any property either spouse acquired during the marriage. Instead of a 50/50 split, Hawaii courts will attempt to divide property so that the spouses will be on equal financial footing after the divorce. (Haw. Rev. Stat. § 580-47 (2022).) The court will also determine whether either spouse is entitled to separate property.
Like all states, Hawaii courts begin with a presumption that a child should have frequent and continuing contact with both parents after a divorce. If possible, Hawaii judges will try to arrange for joint custody, but will evaluate what’s in the best interests of the child to determine the exact nature of custody and visitation. (Haw. Rev. Stat. § 571-46 (2022).)
Hawaii requires both parents to support their children after divorce. Hawaii courts use the state’s child support guidelines to evaluate how much support a parent must pay. The amount of child support depends primarily on each parent's income and resources, the child’s needs, the number of children to be supported, and how much time each parent spends with the children. Additionally, a judge might "impute" income to parents who can earn more than they are currently making. (Haw. Rev. Stat. § 576D-7 (2022).)
One of Hawaii’s goals is to ensure that neither spouse faces poverty because of a divorce. If one spouse needs financial support and the other can provide it, the judge might order spousal support ("alimony"). There is no specific formula for judges to use to calculate spousal support. Instead, Hawaii judges consider various factors when deciding the amount, frequency, and duration of support. (Haw. Rev. Stat. § 580-47 (2022).)
Hawaii judges reach decisions about these issues by holding hearings. If the spouses are able to reach an agreement about one or more of the issues while the case is pending, the judge will usually review the agreement and incorporate it into the court’s final decision.
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
Divorcing spouses can choose to mediate on their own with a private mediator. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Generally, Hawaii courts encourage but do not require divorcing spouses to attempt mediation. It is possible that a judge court require mediation in a specific case, though. The Hawaii State Judiciary maintains an excellent mediation resource page on its website.
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
There are two forms of divorce decrees in Hawaii: a Divorce Decree With Minor and/or Dependent Child(ren) and a Divorce Decree Without Minor and/or Dependent Child(ren).
A Hawaii divorce is final when the judge signs and the court enters a divorce decree. The date that the divorce decree is signed and entered is known as the “effective date” of your divorce—the day you become officially divorced.
Divorce decrees in Hawaii include detailed information about
You’ll receive an official copy of your divorce decree after it’s signed by the judge and entered as an order. If you need an additional copy of your Hawaii divorce decree, you can contact the legal documents branch of the court that decided your divorce.
]]>Alimony is basically defined as one spouse’s payment to the other—under a court order or the couple’s agreement—after divorce or while a divorce case is proceeding. States use different terms for alimony, such as spousal support and maintenance, but they usually mean essentially the same thing. And state laws on alimony determine how it works and how judges decide when to award spousal support, how much, and for how long (more on all that below).
When you’re thinking about alimony, it might help to know a couple of things it is not:
There are basically three types of alimony (although a few states have additional variations):
While many states use the term “permanent” spousal support for any alimony that’s ordered as part of the final divorce judgment, those payments very rarely last for the rest of the recipient’s life. True permanent alimony is usually reserved for situations like lengthy marriages where one spouse stayed out of the job market for many years and—because of age, disability, or other circumstances—isn’t likely ever to gain financial independence. Even then, the support payments will end when the supported spouse remarries.
Even rehabilitative alimony typically only goes to former spouses who missed out on educational or career opportunities because they devoted a significant amount of time to raising children and taking care of the home. For example, judges will seldom award alimony in cases where the marriage lasted just a year or two. In fact, some state laws allow alimony awards only when the couple has been married for a certain amount of time.
State laws set out the rules for judges to consider when they’re deciding whether to award alimony in any case, as well as the amount and duration of the payments. These rules are sometimes different for temporary support during the divorce and for post-divorce alimony.
When judges are deciding whether to order alimony payments after divorce, they generally must start out by deciding whether one spouse needs support and whether the other spouse has the ability to pay that support. Most states spell out a number of factors judges should consider when making that decision. Typically, these are the same considerations that go into decisions about the amount of alimony (as discussed below).
But that's not always the case. In some states, you must meet separate requirements to qualify for alimony before the judge decides how much to award. In Texas, for instance, the law presumes that spousal maintenance isn't appropriate outside of certain limited circumstances. Even in long-term marriages, Texans requesting maintenance must show they’ve seriously tried to earn enough or develop the necessary job skills to provide for their “minimum reasonable needs.”
Once judges have decided that some amount of alimony is appropriate in a particular case, they must decide how much support to award. Almost all states spell out a number of factors judges should consider when making these decisions, such as:
Also, some states allow (or even require) judges to consider a history of domestic violence or abuse or other misconduct (such as adultery) on the part of one or both spouses when they’re deciding whether to order alimony. But one factor that’s generally not under consideration: which spouse filed for divorce. You may request spousal support when you file for divorce. And if your spouse was the one who started the divorce process, you may ask for alimony (usually by filing a “counter” complaint or petition).
Remember, not all of these considerations apply in every state. And in just a few states, like New York, courts must use a formula to calculate post-divorce maintenance. But judges still have leeway (or “discretion,” in legalese) to order more or less maintenance if they find that the guideline amount would be unfair or inappropriate based on various considerations.
If you’re asking for support, the judge will look closely at your current income or—if you aren’t currently working or aren’t earning enough to live on—your ability to earn. If you’ve been out of the workforce or underemployed for a long time, the judge is more likely to award support for as long as it will take you to become independent. However, you might have to prove you’re doing what you can to get to that point, such as taking classes or other training. Sometimes, a judge will order that an expert called a "vocational evaluator" study your abilities and qualifications, compare them with potential employers, and estimate how much income you could earn.
Of course, unless you’re really rich, you probably know that it’s nearly impossible to maintain separate households at the same standard of living that you and your ex enjoyed while married and living together. That’s especially true now that more and more divorced parents share custody of their children and have to keep bedrooms for the kids in both of their homes.
So both former spouses will probably have to make adjustments after divorce. That means that if you’re the one who’s being ordered to pay support, the judge might decide that you could be earning more than you’re making now. For instance, if you’re only working part-time, you might be required to look for a full-time job.
Beyond the circumstances that automatically terminate alimony payments (discussed below), some states have separate rules for deciding how long alimony should last. For instance, a state's law might set a time limit on maintenance payments, or it might provide a general guideline—such as half the length of a marriage or no longer than the marriage lasted. But those guidelines may vary depending on whether it was a short or long-term marriage (with 10 years as the typical measure of a long-term marriage).
Otherwise, judges generally consider the same factors when deciding how long alimony should last as they do when deciding on the amount of support. However, they might not set an absolute cut-off date when they make the original maintenance order. Especially when a marriage has lasted a long time and the alimony recipient will need some time to become self-supporting, judges may reserve jurisdiction over the issue—meaning that they retain the legal authority to extend, change or stop maintenance payments in the future.
Spouses often need some kind of maintenance payments to help them cover their living expenses while a divorce case is proceeding. Often, the rules for awarding temporary alimony are different than for so-called permanent support. That’s partly because while a couple is still married, state laws require spouses to support each other.
To simplify the process of deciding the amount of temporary alimony, some states and local courts use a formula or guideline.
Usually, alimony payments are periodic, with a certain amount typically paid every month. Sometimes, a judge will order a spouse to pay a lump sum to the other spouse for maintenance, either in cash or in a property transfer (separate from the regular process of dividing the couple’s marital property).
Lump-sum alimony awards can’t be undone. But you may usually ask the court to change or end periodic alimony payments, unless the original court order (or agreement) specifically said that they are “nonmodifiable.” However, you’ll have to convince the judge that modifying or ending maintenance is justified because you or your spouse has had a significant change in circumstances, like a paying spouse’s retirement or a supported spouse’s new high-paying job.
Some circumstances automatically end periodic alimony, such as when the supported spouse remarries or either spouse dies. Depending on the law in your state, some other circumstances—like when the supported spouse has started living with a partner—may either end alimony or justify reducing the payments when they significantly affect the recipient’s need for support.
When you’re seeking spousal support, you’ll generally request it in your initial paperwork when you file for divorce (or respond to your spouse’s petition). If you can’t agree with your spouse on the issue at some point in the process, you’ll need to file a formal motion (request) asking a court to make a decision for you. The court will schedule a hearing where both sides will be able to present their positions and evidence. After considering the arguments and evidence, the judge will issue an order.
If there wasn’t a request for alimony during the divorce, and it wasn’t addressed in the final divorce judgment, neither spouse may go back later and ask the court for spousal support.
If your ex isn’t paying court-ordered spousal support, you may go back to court to ask the judge to enforce the alimony orders. The same is true when you and your ex had an agreement on the issue that was made part of the final divorce judgment or another court order. Typically, you’ll file a “show cause” action (motion), and the court will set a hearing to determine why your ex isn’t following the order and what the judge should do to enforce it.
Family law courts have various tools at their disposal to enforce alimony payments, and a deadbeat spouse could face fines and penalties for failing to follow an alimony order. A judge may also order a spouse to pay alimony retroactively to make up for any missed payments.
]]>A divorce decree doesn’t just serve as proof of the end of your marriage. It also contains the terms of your divorce regarding issues such as child custody and visitation, child support, spousal support (alimony), and division of marital property and debt. Because a divorce decree is a court order, both ex-spouses are bound by its terms, and both can enforce it.
Additionally, if you’ve opted to revert to a former name, you can usually do that as part of your divorce. When a judge grants your request to go back to your former name, the divorce decree will include the court’s order regarding the name change, and can be used as proof that you’ve legally changed your name.
There’s no standard form for a divorce decree (although some states, such as California and New York, have fill-in-the-blank forms you can tailor), but most include:
Many decrees also include specific orders about:
The decree will be signed by both spouses and their attorneys (if any), as well as the judge. In many courts, the court clerk will stamp the final document with an official court seal.
Your divorce decree is valid once a judge signs it. When the divorce is finished, it’s a good idea to head over to the family court clerk’s office to get a certified copy which has the court’s seal affixed to it. (Many places require a certified copy as proof of divorce.)
If you didn’t get a certified copy of your divorce decree at the end of the divorce, you usually can request one from the court clerk's office in the county where the divorce took place. Some courts allow you to request a certified copy online, while others require you to submit a request in writing. Nearly all courts will charge a fee for a copy of your decree.
In some states, you can get a copy of your divorce decree from the office that keeps track of vital records (such as the health department or office of vital records). However, most vital records offices provide only copies of divorce certificates—not divorce decrees.
A divorce certificate is another document that you can use to show proof of your divorce. It’s a bare-bones document that normally includes only the:
Because a divorce certificate is issued by the state, you can use it in most situations where you need to provide proof of divorce but don’t want to reveal the details of the divorce that are often included in a divorce decree.
The procedures for obtaining a copy of a divorce certificate vary by state. In most states, you can get (for a fee) a copy from the office that keeps track of vital records in your state (such as the health department or office of vital records).
Some states restrict access to divorce decrees or certificates to the spouses and their attorneys. If that’s the case where you live, you will probably have to submit a form of government-issued identification (such as a driver's license or a passport) to obtain a copy.
]]>In every state, the law requires spouses who file for divorce to provide a copy of all the documents they file in court to the other spouse. Each state has its own requirements about when and how documents must be delivered. The act of delivering the papers in the manner required by law is called “service of process” or “service.”
By requiring service of process, courts ensure that both spouses know about the divorce case and have a chance to respond to and participate in the proceedings.
In most courts, the documents you file to begin the divorce case are the summons and complaint (also called the divorce “petition”). The complaint is the document where you ask the court to grant your divorce, divide your marital property and debt, decide child custody and visitation, and determine spousal support. The summons notifies the non-filing spouse of which court will be deciding the case and how to respond to the complaint.
When you file the divorce petition, the clerk will keep a copy and provide you with an official stamped copy to serve on your spouse. It is your responsibility to serve the documents on your spouse in the manner required by state law.
The requirement to serve your spouse doesn’t end after you’ve served a copy of the divorce petition—you must continue to serve your spouse with a copy of everything you file in court. For example, if the court schedules a hearing, you will have to serve a copy of the notice of hearing—the document which states the time, date, and place of the hearing—on your spouse.
In some courts, after you’ve successfully served your spouse with the petition, you might not have to personally serve your spouse: Many courts allow later-filed documents to be served by mail (depending on your court’s rules, though, you might have to have someone not involved with the case mail the documents). Your court might even have a procedure where the parties can agree to electronic service. Check with the clerk to find out what the procedures for service are in your court.
Every state allows several possible methods for serving your spouse. The one rule that all of them have in common, though, is that you can’t serve your spouse yourself. Instead, you’ll have to find a “process server” to do it for you. A process server is someone who is not involved in the divorce and who is at least 18 years old must deliver the documents.
Possible process servers include:
Ideally, the process server will hand-deliver the documents and your spouse will willingly sign a form acknowledging receipt. This form might be called an “acknowledgement of service” or a “waiver and acceptance of service.” Sometimes, the statement acknowledging service is on the summons itself. Your spouse’s signature is your proof that your spouse has been served—you’ll submit this proof to the court (be sure to make a copy for yourself before your deliver it to the court).
If your spouse isn’t willing to acknowledge service, your process server will need to complete a form swearing that your spouse was served. This form might be called a “return of service” or “proof of service.” The proof of service should include the process server’s name, the date and time of service, the name of the court documents delivered, and a statement swearing that the contents of the proof of service are true. The proof of service should be signed by the process server. Your process server should hand deliver or mail a copy of the proof of service to the court clerk, and you can ask your process server to send you a copy, too.
Some states allow process servers to serve documents by certified mail with a return receipt requested. Certified, return-receipt-requested mail means that the postal service will deliver the documents to your spouse and require your spouse to sign for the delivery. Once your spouse signs, the post office will mail you a copy of the signed return receipt. (If you think your spouse won’t sign it, it’s best to stick with personal delivery.)
You’ll submit a copy of the signed return receipt to the court along with a copy of a completed proof of service form.
The filing spouse must do everything possible to find and serve the other spouse. However, if you can’t locate your spouse or your spouse is purposely hiding or avoiding service, you can ask the court for permission to serve your spouse another way. The court refers to this as “service by alternative means” or “substituted service.”
You can request an alternative form of service by filing a motion and affidavit of attempted service with the court. The motion and affidavit will explain what efforts you’ve made to serve your spouse.
If your motion demonstrates that you’ve made your best efforts to serve your spouse, the judge will sign an order allowing you to use alternative means for service. The order will contain the judge’s specific instructions on how to serve your spouse. You must follow the instructions closely.
The most common method of alternate service is by publication. You’ll need to follow your court’s service by publication rules, but in most courts you’ll have to place notice of the divorce in a newspaper that you could reasonably expect your spouse to see. The court’s order will specify how long the notice must remain in the newspaper. You’ll be responsible for placing and paying for the ad, but you usually can ask the court to order your spouse to reimburse you later. If you can’t afford to place an ad, ask the court what other options you might have—the court might allow you to instead post the notice at the courthouse where you filed for divorce.
With the number of print newspapers dwindling across the country, it’s become more common for courts to allow other forms of substituted service. Some forms of service that courts have allowed include:
No matter what form of service you use, you must follow exactly the rules of service and any court orders regarding service. If you fail to properly serve your spouse, the court might dismiss your case, leaving you no option but to start the process all over again.
]]>Hiring a mediator to guide you and your spouse in mediation is often less expensive and less combative than hiring a lawyer to take your divorce to court. But cost isn’t the only consideration when deciding how to divorce. Here’s some information to help you evaluate whether working with a mediator instead of a lawyer is right for your divorce.
As a first step in weighing your options, it’s helpful to understand the differences between arguing (“litigating”) your case in court and trying to resolve it through mediation.
Traditionally, couples head to court to end their marriage: One of the spouses files a formal petition (request) asking the court to terminate the marriage and decide issues such as property division and child support and custody. When a couple can’t agree on how to resolve these issues, the divorce is “contested.”
If spouses are unable to reach a resolution, their case will go to trial. At trial, both spouses present their side of the story and produce evidence in support of their positions. After considering the case, the judge issues a divorce decree—a binding and enforceable court order—that details the judge’s decisions about the unresolved matters in the divorce. It can take years and thousands of dollars to resolve a contested divorce.
On average, going through a trial in a contested divorce will cost each spouse tens of thousands of dollars. The cost increases when you hire experts or when the parties file a lot of motions (written requests for the judge to rule on a specific matter).
Divorce mediation is a potential alternative to litigation. In mediation, couples meet with a mutually agreed-upon neutral mediator to discuss and resolve the issues in their divorce without court involvement. A mediator does not make orders about the case; rather, the mediator guides the discussion and assists the couple in reaching an agreement. Once the spouses have worked things out, most mediators help them write up a marital settlement agreement to sign and present to the judge.
Although mediation isn’t free, it costs significantly less than going through a contested divorce. The average cost of divorce mediation (both in-person and online) is $3,000-$8,000. The price of mediation varies depending on the market rate where you live and whether you need to bring in experts to help sort out complex matters, such as division of a family business. For most divorcing couples, though, mediation is a far less expensive option than battling it out in court.
A successful mediation doesn’t automatically end your marriage: If your mediation is successful, you will need to have a court finalize your divorce. If you mediate before filing a divorce petition, you will need to file a divorce petition that either references the settlement agreement or includes the terms of the agreement. If you mediate after you’ve filed a divorce petition, you can submit the settlement agreement to the court and ask the court clerk to schedule a final hearing.
A judge will review your settlement agreement to confirm that it meets your state’s divorce requirements and resolves all necessary issues. The judge might issue a divorce decree without your having to appear in person, or the judge might require the spouses to attend an in-person hearing to verify on the record (the official court file) that you both agree to the settlement terms. After reviewing the settlement agreement and all other documents filed with the court, the judge will issue the final divorce decree.
Litigating a divorce is complicated, so most spouses involved in a contested divorce will hire a lawyer to help them navigate the court system and present their best case at trial. On the other hand, many people who mediate their divorce represent themselves in mediation—in fact, your mediator might not allow attorneys to attend the mediation, in an effort to foster cooperation. Even if your mediator doesn’t allow lawyers, though, you are free to consult with one outside the mediation.
Many mediators prepare and file with the court the paperwork necessary to complete the divorce. If the mediator you work with assists with wrapping up the divorce, you might be able to navigate the entire process without a lawyer.
It's important to remember, though, that a mediator can’t tell you if you're making a bad deal in your divorce. So, while you might save money by not hiring a lawyer to attend mediation with you, many divorcing spouses choose to consult with an attorney to ensure they aren't giving up valuable rights or taking on extra responsibilities in the settlement agreement.
Although mediation is an excellent option for many divorcing couples, it won’t work for every divorce. Mediation isn’t a good idea if:
Finally, if your spouse has hired an attorney (no matter whether you’re litigating or mediating your divorce), it’s a good idea to at least consult with one yourself. If cost is a concern, consider seeking assistance at a local legal aid office—you might qualify for low-cost or pro bono (free) representation. Also, if you’re litigating your divorce, you might be able to request that the court order your spouse to pay your legal costs and fees—many courts require spouses with more financial resources to cover the other spouse’s divorce-related expenses.
]]>The purpose of mediation is to help parties work together to reach a solution rather than hiring lawyers to fight for them. If you and your spouse or co-parent decide to avoid court by mediating, you can save a lot of time and money—and start a constructive dialogue that might help you have a better relationship in the future.
Finding and hiring the right mediator for your case is key to getting the most out of your mediation.
Mediation isn’t just for divorce cases: You can use professional mediation services to resolve ongoing child custody, visitation, property division, or other family law disputes. In most cases, it’s never too late to mediate—you can mediate your dispute at any time.
If you think that mediation might work for your dispute, you’ll have to get your spouse or co-parent on board. Fortunately, you’ll have to agree on only two items: which mediator to hire and how to split the costs of mediation.
One of the easiest ways to find a mediator is to ask your family or friends for referrals. Unlike anonymous reviews posted online, gathering recommendations from your inner circle generally means you can trust the advice. Also consider asking for recommendations from:
Mediators have many different backgrounds: They can be psychologists, attorneys, social workers, and MFTs (marriage and family therapists), or they can simply be trained in mediation. Although many states require mediators to obtain and maintain professional certification before advertising their services, not all do.
Do your research on potential mediators by looking for:
A good mediator will understand and prioritize the issues you need to resolve, provide possible solutions, and prepare the final agreement for the parties to present to court if needed.
You can contact potential mediators in various ways, including telephone, e-mail, or through the mediator’s website intake form. Many mediators provide a free initial consult to help determine if working together will be a good fit.
Once you understand what you might be looking for, you’re ready to start interviewing potential mediators. Even if you decide to work with an online mediation service, you can still ask these questions.
All of these questions are appropriate for either in-person or online mediators. If you’re planning to do online mediation, consider asking the mediator about the general process and whether you’ll need any specialized technology to participate (usually you won’t).
When a mediation is voluntary (not court-ordered), both parties to the dispute must agree to hire the mediator. Once you decide to work with a particular mediator, you might be asked to sign a mediation agreement. Every mediator’s policies will differ, but most mediation agreements include the following:
Some mediators will require payment up-front, but others will wait to collect payment until after your mediation sessions are over.
Depending on the mediator’s policies, you might provide information and documents electronically, via email or mediation software. In some circumstances, the mediator will schedule a follow-up phone call later to go over more specifics of your case. Most mediators will provide you with specific information about how to plan for and what to bring to mediation. Contact the mediator’s office with any questions you have regarding payment, policies, or preparing for your mediation session.
]]>Of course, the mediation itself could cost, even if it saves you money in the long run. How much you’ll end up paying depends on several factors, including:
Cost of Private Divorce Mediation
Several factors affect how much you’ll pay a private mediator or mediation service, but the total bill is typically between $3,000 and $8,000 (usually divided with your spouse).
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Most divorcing couples turn to private mediators or mediation services when they’re looking to resolve some or all of the practical and legal issues in their divorce (more on that below). It would be almost meaningless to pinpoint an average cost for private mediation, because the amount you might pay depends on your unique circumstances, as well as the mediator’s rate and professional background. That’s why it makes more sense to look at the range of typical total costs for private divorce mediation: between $3,000 and $8,000. Because divorcing couples usually split that bill, each would typically pay about $1,500 to $4,000.
If that seems like a lot of money, it’s worth pointing out that the cost of divorce is usually much higher when you have to go to divorce court. Also, the amount you pay for mediation will depend on the mediator’s rate of compensation and how long it will take to reach an agreement with your spouse.
Private mediators or mediation services quote their fees in one of two basic ways:
Different elements go into the hourly rate, especially the following:
While you can generally save money by using a mediator who's not a lawyer, the difference in hourly rates shouldn't be the only deciding factor. Attorney-mediators might be more effective in certain cases where a lawyer is best situated to explain the legal options to the couples and troubleshoot potential agreements for unexpected legal consequences. But mediators with training in counseling can be better at helping couples find creative solutions and communicate more effectively, while mediators with financial expertise (like certified divorce financial analysts) might be the best choice for couples with complex assets.
Most mediation services (and some individual private mediators) charge a flat rate for mediating a divorce. Flat-rate mediation packages typically cost $4,000 to $5,500. Usually, there will be a limit on the hours or sessions included in the flat fee, with an extra charge if you need more time. Some mediation services will offer a flat rate for unlimited hours, but they'll generally evaluate your case before quoting you the fee.
Obviously, a flat-rate package takes the uncertainty out of estimating the cost of divorce mediation. But there are situations when paying by the hour or session can save you money. For instance, some couples are able to agree on their own about most of the issues in their divorce but need help from a mediator with just one or two sticking points. In that case, the mediation process will probably go more quickly, and it should cost less to pay the mediator per hour or session than a one-size-fits-all flat rate.
Unless you’re using a mediation service that charges a flat fee, how can you know ahead of time what the total bill will be? Mediators who charge by the hour might give you an estimate based on the complexity of your case. For example, divorce mediation usually takes longer when:
The number and complexity of these issues could also affect the type of mediator who would be best suited to work with you (as discussed above).
Finally, other personal circumstances—especially the level of conflict or cooperation in your relationship—could impact how long it might take to mediate a settlement—or even whether mediation will work for you at all.
Whenever you and your spouse haven’t been able to agree on a parenting plan for your minor children, the courts in most states will require you to mediate those issues. In some states, judges may order you to mediate other divorce issues. And some states allow couples to request court-based mediation (even when a judge hasn’t ordered it) after they’ve filed for divorce.
Depending on your state, court-sponsored mediation programs usually offer services at no cost, low cost, or on a sliding scale based on your income. Most of these programs provide mediation only for custody and visitation issues, and they generally limit the number of hours allowed.
Even if a judge has ordered you to mediation, you can always choose to use a private mediator or mediation service rather than the one provided through the court system. As long as you can afford it, this might be a more efficient way to resolve all of the issues in your divorce at once, particularly when some of those issues are interconnected (such as when the parent who is seeking primary physical custody of children also wants to stay in the couple’s house with the kids).
If the issues you need to mediate aren’t covered by court-sponsored mediation where you live, and you can’t afford private mediation, you might be able to find low-cost community mediation in your area (through the National Association for Community Mediation or another nonprofit organization). When you’re exploring this option, be sure to ask about the volunteer mediators’ qualifications and training in divorce issues.
In addition to the fee for the mediator or mediation service, you will have to pay court fees to file your divorce papers. These fees range from about $100 to $400, depending on where you live. In addition, you might have to pay fees to serve papers on your spouse and to file other documents with the court.
Depending on your situation, you might have additional expenses, such as:
Court-ordered mediation is a mandatory mediation session ordered by a judge in a divorce proceeding. If a judge orders mediation in your case, and you don't attend, you may face penalties, like contempt of court.
The court will assign a date for your court-ordered mediation, which means neither spouse has control over the schedule. Typically, judges reserve court-sponsored mediation for couples dealing with child custody disputes (but may also help couples resolve pending property or financial issues.) At the end of court-ordered mediation, the court-selected mediator will provide a written report to the judge to explain the case's progress.
Private mediation involves hiring a mediator who charges by the hour or requires a retainer. Private mediators are typically experienced family law attorneys that are also trained in divorce mediation. Both spouses must agree to participate in mediation and agree on the mediator who will facilitate the sessions.
Costs vary depending on the private mediator that the couple selects. Some mediators require an hourly fee, and others charge per session. Couples who participate in private mediation will have the opportunity to discuss child custody, visitation, support, and property division issues, and anything presented in the session will remain confidential and can't be used by either spouse in court if you can't reach an agreement.
One of the best ways to protect your legal rights is to hire a consulting attorney to guide you through mediation. This family law attorney can meet with you and:
The consulting lawyer will help you understand your agreement's details and inform you if the final contract is in your best interest.
Sometimes, but not often, your consulting attorney may attend all of the mediation sessions with you. This will cost more, so you should consider whether you really need your attorney at each session.
Couples can also protect their legal rights by doing independent research before attending the mediation session. Although helpful information is abundant online, it's always best to use caution when trusting the internet. If you still have questions after completing your research, consider meeting with an attorney to get accurate answers to your questions.
The cost of divorce mediation depends on a variety of factors. Court-ordered mediation is typically low-cost or free to couples. If your community offers a low-cost or sliding-scale mediation organization, the costs will depend on your financial restrictions and other qualifying factors. Some community-sponsored mediation agencies may ask certified attorney mediators to conduct the session for free and only ask the couple to pay a small fee to cover administrative expenses.
Private mediation costs depend on the mediator. Some require the couple to pay a flat-fee up front, and others charge an hourly rate that you agree upon before the sessions begin. It's important to discuss the costs before you choose a mediator, including whether one party will be responsible or if both will split the costs equally.
Mediation is much less time-consuming than going to trial for your divorce. Some couples work through all divorce-related issues in just one session, while others may meet multiple times before reaching a complete agreement. The amount of time you spend in mediation depends on how well you communicate, the number of issues you need to resolve, and the complexity of your case.
It's no surprise that from start to finish, divorce takes a long time. In most cases, mediation will help streamline the process in a way that will significantly reduce the time it takes to finalize your case. Many states have a mandatory waiting period before the judge can finalize a divorce. During the waiting period, many couples find it beneficial (and some courts require it) to participate in mediation to discuss how to settle the case.
If you're not willing to mediate or negotiate, you're going to wait for the entire mandatory period before the judge even looks at your situation. For example, in Michigan, couples with children must wait a minimum of six months before a judge can act on the divorce. (Mich. Comp. Laws § 552.9f.) But if couples mediate their divorce and can reach an agreement during that time, a judge can approve their dissolution in as little as six months.
One of the best resources for finding a good mediator is to ask your family and friends for a personal referral. If you can't get a personal referral, you can reach out to your local bar association, community mediation agency, or the court for a referral. If you've consulted with a local divorce lawyer, you can ask that attorney for recommendations. During your initial consultation with each mediator, always make sure you take time to discuss the mediator's experience, certification, and costs before deciding to move forward.
No. Most states require mediators to attend extensive training before taking on any cases. Mediators learn how to balance the spouses' power, especially if there's a history of dominance in the marriage.
A qualified and experienced mediator should pay close attention to the spouses and will use techniques to address and remedy any imbalances. In most situations, if the mediator calls attention to dominant behavior and the spouse continues, the mediator will end the mediation session.
It's important to understand that even the best mediators can be unaware of dominant behavior if it goes on outside the meeting. For example, if your spouse is sending you threatening messages regarding the mediation session, the mediator can't stop it unless you let the mediator know about it.
If there's a history of domestic violence in your marriage, mediation may not be the best choice for your divorce case. In mediation, the abuser may have a tendency to intimidate the victim into agreeing to things that aren't in the victim's best interest. In these case, it's best for the victim to hire an attorney.
Divorce is a time-consuming and expensive process even without attorneys. Once you start incurring legal fees from a qualified attorney, you can expect your divorce costs to rise significantly.
Mediation is a program that most courts utilize to alleviate a standard divorce's time and financial constraints by cutting out the need for a trial or court intervention.
Regardless of the route you take, divorce requires both spouses to gather relevant financial, medical, and other information so the couple can create an informed and proper final divorce agreement. After you submit your documents, couples can attend a few mediation sessions or give up most of the control and ask the court to decide for them, which will add a significant amount of time and expense to your divorce.
Contrary to popular belief, most attorneys support mediation. Attorneys understand that the average couple doesn't have the money to support a contested divorce, so they encourage clients to attend mediation with an open mind and in good faith.
Even if you decide to pursue mediation, you may still want to have a consulting attorney guide you through the process behind the scenes. In this role, your attorney is not representing you in your court filings or your entire divorce case, so his or her name will not appear on your filings.
Instead, a mediation consulting attorney's primary function is to inform clients of their rights and responsibilities during the divorce process, to coach them through the negotiation process, draft or review any proposed settlement agreement to make sure it meets their needs, and prepare the necessary paperwork to obtain court approval of the final agreement. While most states prohibit attorneys from charging a flat-fee for divorce, many will charge a reasonable hourly rate for services. If the attorney requires a retainer up-front (advanced payment), the client will receive a refund of any unused funds at the end of the case.
No. Unlike a judge or arbitrator, mediators hold no power when it comes to making a final decision on your case. Mediators are trained to understand how to facilitate the conversation and offer suggestions when the couple reaches a roadblock.
An experienced mediator will understand and be up to date on the divorce laws of your state. While mediators can't give legal advice, they can provide couples with information about the divorce laws in their state (for example how property division will work in each case) and also tell the the couples what they can expect if they take a specific issue to court.
Being informed and knowing how judges typically handle specific issues can help encourage one or both spouses to negotiate a fully-informed settlement. Most divorcing spouses prefer to have some control over their divorce agreement rather than leave it up to a judge. Still, if the couple can't agree, the mediator must end the session without an agreement, and the couple must ask the court to handle any unresolved issues.
]]>Divorce mediation is a process that allows divorcing couples to meet with a specially-trained, neutral third-party to discuss and resolve common divorce-related issues. Mediation is typically less stressful and less expensive than a divorce trial, and it usually proceeds much faster. Because you and your spouse have the final say over your divorce matters, mediation also allows couples to maintain the power and control in their divorce, as opposed to asking a judge to decide.
Mediation gives you and your spouse the opportunity to build your communication skills, even in situations where a lack of communication was the cause for the relationship’s demise. With the help of a trained professional, even the most communication-challenged couples can succeed in mediation.
There’s no doubt that divorce becomes more complicated when it involves children. Parents seeking a divorce will need to select a mediator who is trained to handle the various issues that come with divorce, like child custody, visitation, and child support.
Your mediator should be trained in conflict resolution and have extensive knowledge of your state’s divorce laws. Additionally, your mediator should be willing to work with you and your spouse to facilitate a meaningful conversation about the issues at hand, which can help eliminate the finger-pointing and other drama that usually accompanies divorce. Typically, mediators will keep you on track and may make suggestions to help you resolve any lingering issues. However, your mediator can’t make decisions for you, force either spouse to accept a term, or insist that either spouse sign a contract.
The mediation process starts once you and your spouse agree to use this method of alternative dispute resolution and choose your mediator. In most states, mediation is voluntary, so if either spouse disagrees and wants to follow the traditional divorce route, a court won’t force your spouse to engage in mediation. That said, there are some states where the court requires couples to demonstrate a good faith effort in mediation before scheduling additional court hearings.
Mediation will only work if both spouses are open to negotiating the terms of the divorce. Typically, you’ll set up an initial meeting between the spouses and the mediator. During the first meeting, each spouse will have the opportunity to explain expectations for the most common divorce-related issues, including:
This initial discussion will help the mediator gain an idea of how far apart you are and what areas need the most work.
Aside from statutory limitations of divorce, mediation doesn’t have a time limit. You can continue to mediate and work on your divorce judgment for as long as you, your spouse, and the mediator would like. Naturally, the longer it takes and the more meetings you have, the more expensive it becomes. You can decide to meet once per week, monthly, or at any other time. Most couples can resolve mediation with a few sessions, which typically costs thousands of dollars less than litigating your case in court.
Once you agree on all the outstanding issues, the mediator will draft a divorce settlement agreement for both spouses (and their attorneys) to review, sign, and present to the judge.
For some couples, working with your spouse and a mediator might be just what you need to obtain a divorce with as little conflict as possible. But, mediation will only work if you and your spouse are on the same page. You are more likely to have a successful mediation if all or most of the following statements are true.
You and Your Spouse Agree to Divorce
Despite what we see on television—or what we often hear from friends or family—not all divorces are contentious. In some cases, the decision to divorce is mutual. If you and your spouse agree that the marriage is over, you can file a petition for divorce together or, one spouse can file with the other’s knowledge. When you’re both on the same page, it’s often easier to negotiate and work together to find a resolution for any unresolved divorce issues in mediation.
There’s No History of Domestic Violence
With divorce mediation comes the need for frequent meetings involving both spouses, the mediator, and possibly attorneys. If you and your spouse have a history of domestic abuse, most mediators won’t take your case because it’s difficult to keep both spouses on track, and it’s challenging for the mediator to determine if the victim agrees to the settlement because of fear or intimidation from the abuser. In states that require mediation, if you can demonstrate a history of physical violence, the court will excuse you from the mandatory sessions.
Both Spouses Are Forthcoming About Finances
One of the most complicated parts of any divorce is the finances. Both spouses must be willing to provide the other (and the mediator) with sensitive information, including documentation relating to bank accounts, retirement, pensions, stocks, and all other assets and debts. In most marriages, it's common for one spouse to be more familiar with the family assets and liabilities than the other. If you don't have all the relevant financial information, you’ll need to investigate and understand your marital estate before you agree to a proposed property settlement.
You Agree on Custody Terms
Next to finances, child custody and visitation can be the most challenging aspect of divorce. Most parents can set aside their differences for the children’s sake, but sometimes even the best intentions are met with complications.
Divorce mediation is an excellent way to work with your co-parent to decide who should care for the children on a day-to-day basis, who should be responsible for paying child support, and the type and frequency of visitation with the non-custodial parent.
There’s no question that parents know what’s best for their children, and the most effective way to ensure that your judgment of divorce protects your children’s best interest is to negotiate the terms for custody with your spouse. If you discuss custody and reach a roadblock, your mediator may be able to offer advice or suggestions on how to resolve the issues without asking the court for help.
If you and your spouse disagree on custody, especially if there are allegations of abuse or neglect, you’ll need court intervention. The court will try to determine what arrangement is in your child's best interests by using your state’s custody process before the judge makes a final decision.
]]>There are two types of traditional divorce: no-fault and fault. A no-fault divorce means that a spouse asks the court to end a marriage without blaming either spouse for the breakup. All 50 states allow couples to utilize the no-fault divorce process (and several states only allow no-fault divorce.) Instead of listing a specific incident of marital misconduct, the filing spouse only needs to use the state's legal grounds for no-fault divorce as the reason for the divorce request. Every state has its own requirements, but generally, the options are:
In some states, you can request a divorce based on a separation for a certain period of time. While a divorce based on separation is not what most attorneys refer to as the classic "no-fault" divorce, it also allows the spouses to file for divorce without pointing fingers or claiming that one spouse caused the split.
The goal of a no-fault divorce is to allow a spouse who no longer wants to be married to get a divorce. In the past, only spouses who could prove specific misconduct was able to leave a marriage. Today, courts won't require you to stay married if you don't want to. Even if one of the spouses disagrees with the divorce, if you can demonstrate that you meet the state's no-fault requirements, the judge will grant your divorce.
A fault divorce requires the filing spouse to allege that the other spouse caused the divorce by engaging in specific conduct. Only a few states still allow spouses to choose the fault-based divorce process. Because one spouse must prove that the other spouse's misconduct caused the marriage to fail, fault divorces are more expensive and time-consuming than no-fault divorces.
Some couples choose the fault divorce process because it may allow them to get around the state's mandatory waiting period for divorce. Others choose this process because proving certain misconduct may affect the judge's final decision on custody, property division, and/or alimony (depending on the laws in the state you reside.)
While these vary from state to state, some of the most common fault grounds for divorce are:
Proving your fault divorce case isn't always a walk in the park, especially if your spouse raises a defense to the allegations. Although it's rare, a spouse may prevent a fault divorce by proving any of the following defenses:
It's against public policy for courts to force you to stay married, so if you fail to prove your fault claim, the judge will usually proceed with the no-fault divorce process. Some judges may require you to pay your spouse's legal fees if you use the fault process frivolously.
An uncontested divorce means that both spouses agree to the divorce's legal grounds and all the divorce-related terms in it. An uncontested divorce requires both spouses to draft and sign a legally binding settlement agreement which tells the court the couple's plan for the following:
The uncontested divorce process varies in each state. Some state have specific procedures that allow you to fast track an uncontested divorce if you meet all the requirements.
Most courts require the couple to file the documents and wait for the state's mandatory waiting period to expire before the judge can finalize the divorce. An uncontested divorce is one of the fastest ways to finalize a divorce because there's no need for a divorce trial.
With divorce mediation, the couple meets with a neutral third-party who helps them resolve their divorce-related issues. Divorce mediators are usually family law attorney lawyers and are trained in the latest mediation techniques and requirements through the state. In some states, couples must attend mediation before the court will acts on the divorce case. In others, mediation is an alternative to a divorce trial but is only available to spouses who agree to use the process. Mediation is confidential, so neither spouse can use evidence from the meeting later during a trial.
The first step in mediation is to hire a mediator. You can ask your lawyer for recommendations, or you can call the local mediator network where you live for suggestions. If your state requires mediation, and a judge orders you to meet with a court-appointed mediator, you may not be able to choose the mediator, but the cost is usually low or free. For private mediation, the fee depends on the individual mediator. It's common for spouses to split the cost, but you should discuss payment before you agree to attend.
During your mediation sessions, the mediator will usually meet with both spouses (sometimes together and sometimes separately) to discuss the unresolved issues relating to the divorce. The mediator's goal is to facilitate a conversation between the spouses to reach an agreement and avoid going to court. If mediation is successful, the mediator will draft a settlement agreement for the spouses and lawyers to sign. Once you sign, you can present it to the judge and finalize your divorce.
If you don't agree (or only agree on some issues), you'll need to ask the judge to resolve the remaining issues for you. Unlike arbitration, a mediator does not have the power to decide the issues in divorce cases. So, if you don't like the terms in the proposed agreement, don't sign and head to court. Mediation only works if both spouses go into the meeting with good faith and effort to reach an agreement. Even if you only agree on some of the issues, it will save you time in court later.
Co-mediation is very similar to traditional mediation, except it involves multiple mediators, usually two, who can work together to resolve the couple's differences. Some co-mediations include a private mediator and a mental health expert on the team, and others may be two trained mediators. The idea behind co-mediation is that "two heads are better than one," and hopefully, those two experienced mediators can help the couple avoid a drawn-out divorce trial.
Co-mediation isn't as common as using a single mediator, and courts don't usually order couples to attend. However, if you have serious communication issues with your spouse, co-mediation may be a beneficial path for you to take. While the cost may be more than traditional mediation, it will still be less than a trial.
A note on domestic violence
If there's a history of domestic violence in your marriage, mediation and co-mediation may not be a good option. In most states, courts will not order a spouse to attend mediation with an abuser. If you choose to attend mediation, you should ask the mediator to keep you and your lawyer in a separate room from your spouse and request the mediator's plan to maintain control and safety during the session.
Collaborative divorce is another way to complete your divorce and it's best suited to couples who are willing to work together to resolve their issues without the court's help. Typically, the process begins with each spouse hiring an attorney who is specially trained in collaborative divorce. The attorneys and spouses will agree that the attorneys will withdraw from the case if the couple can't settle their issues, and the couple will have to start over from scratch. The idea behind collaborative divorce is that no one (spouses or attorneys) will benefit from going to trial, which motivates your to resolve your case together.
After each spouse meets with their attorney, the group will get together during a "four-way meeting" to discuss the case. Your attorneys may ask you to hire other professionals, such as financial or child custody experts, to bring in during the process. Your attorneys may also utilize mediation or co-mediation to help resolve your conflicts.
Collaborative divorce isn't for everyone, and you should only consider it if you're willing to give up the use of all court procedures, including divorce discovery, and negotiate all the terms of your divorce. Once you agree, your attorneys will present your final settlement agreement to the judge to finalize your divorce. As with any other alternative to a divorce trial, you can still ask the court for help deciding the unresolved issues if you don't agree.
Divorce arbitration isn't available in all states, but if you live in a state that allows it, and you can't reach a divorce settlement with your spouse, this option may be a better alternative than a divorce trial. Both spouses must agree to the arbitration process and select an arbitrator—usually an attorney or retired judge—to decide all unresolved issues.
Arbitration is not the same as mediation, where the mediator can only make suggestions and guide you and your spouse to an agreement. Because an arbitrator makes decisions, this process is more like a court proceeding.
Both sides will present their cases to the arbitrator in a less formal setting than a courtroom; usually a conference room or private office. Just like a judge, the arbitrator will evaluate all the evidence, rule on the case, and issue a binding order that both spouses must follow.
Arbitration is usually faster and less expensive (though not free) than a divorce trial, but more expensive than mediation or an uncontested divorce.
The first step in starting a divorce case is for one spouse to file the divorce petition (the required legal paperwork) with the court. The filing spouse must deliver (serve) copies of the petition and a summons to the responding spouse.
Once the spouse is served, the clock begins ticking on your divorce waiting period. During the waiting period, the recipient spouse must respond by submitting an answer to the divorce petition and either admitting or denying the petition's allegations to the court and asking for whatever remedies are appropriate (such as custody, alimony, property).
If the recipient fails to respond during the allotted time frame (usually 21-28 days), the filing spouse can request a default divorce from the court. If you fail to answer the petition, you lose your chance to tell your side of the story to the judge.
A default divorce means that the court will grant the divorce and all of the remedies the filing spouse requested. As with any divorce, if there are minor children involved, the court will ensure that any custody or support arrangement meets the state's standards and protects the child's best interests before creating a final divorce judgment.
The court can not issue a default divorce until the state's mandatory divorce waiting period expires. However, a default divorce is usually much quicker than going through the traditional divorce process.
Available in some states, the summary divorce process is one that's available to couples who:
The summary divorce process usually requires the couples to give up the right to spousal support after the divorce. In general, the summary divorce process is a simplified version of uncontested divorce and requires less paperwork, time in court, and money. After filing the petition for summary divorce, the couple should prepare a settlement agreement for the court. Once the judge reviews and signs it, your divorce is final.
Some states permit couples with children or property to use the summary divorce process, but its availability and rules vary by state.
A contested divorce is the type of divorce that everyone tries to avoid. The contested divorce process is there for anyone who disagrees with a spouse on any divorce-related issue. An uncontested divorce becomes contested the moment either spouse disagrees with any term of their proposed settlement agreement. When this happens, the spouses will have to ask a court to decide the issues for them.
Contested divorces are usually the most expensive path. Although the filing fees are the same for contested and uncontested divorces, the legal fees will stack up as soon as you hire an attorney.
In general, both spouses will need to hire independent attorneys. The attorneys will conduct divorce discovery—which is where each side formally requests documents or other evidence from the other—and will present that evidence during the divorce trial. Contested divorces often require spouses to testify in front of the judge, involve friends or family as witnesses, and require independent experts to resolve lingering issues.
Contested divorces can take years to resolve, and in the end, the judge will have the final say on any issue where the couple disagrees. If you can avoid fighting in a contested divorce, you will save time and money, and you'll likely save what's left of your relationship with your soon-to-be ex spouse (which is essential when you have minor children.)
In 2015, the United States Supreme Court issued a historic ruling legalizing same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644.) Before this ruling, same-sex couples married in other countries or states where it was legal found it difficult to get a divorce. For example, if a couple married in California in 2013 wanted to divorce, the law required the couple to divorce in a state that recognized the marriage. Some states had stringent residency requirements, making it nearly impossible for the couple to end their legal marriage.
Since 2015, same-sex couples who marry in the United States (or in another country) can divorce in any state, as long as they meet that state's divorce requirements, including the residency requirement and waiting periods. Today, there is no difference between the legal process for same-sex divorce and opposite-sex divorce.
For some couples, divorce isn't a path that either spouse wants to follow, even when the relationship is over. Fortunately, most states offer married couples several options for taking time apart, either temporarily or permanently, or the option to erase the marriage altogether.
If you and your spouse are experiencing marital problems, but you're not ready to file for divorce, you can separate temporarily. A trial separation is when the couple chooses to live apart to attend couples' counseling, evaluate the relationship, learn how to live on one income, and/or as a trial run for divorce.
Courts aren't involved with trial separations. However, if the trial separation is going to last more than a month, then at the beginning of your time apart you and your spouse would benefit from putting your separation terms in writing. Common terms include:
If you reach the end of your trial separation and you are still not ready to reconcile or divorce, and you live in a state that recognizes it, you can file for a legal separation. Legal separation is available to couples who wish to end their relationship without legally terminating their marriage. Legal separation is most common among religious groups whose religion prohibits divorce. It's also beneficial to families where the spouses need to stay married to provide either spouse with health or other insurance benefits, tax deductions, or another benefit that would terminate upon a divorce.
A legal separation is similar to divorce in that the couple or the judge will decide divorce issues, like property division, child custody, child support, and alimony. However, in the end, you're still legally married. Couples can end a legal separation at any time (check your state laws) and either ask the court to terminate the separation or file for divorce.
Legal separation is not available in every state, so if you're interested in this, but unsure if the law allows it, check with an experienced family law attorney in your area.
An annulment is a court process that declares a marriage invalid. An annulled marriage means that, in the eyes of the law, your marriage never existed. Annulments can be civil or religious but states only recognize civil annulments that go through the court process.
The first step in an annulment is to file a petition with your local court. You will need to list the specific reason for your request. While each state's legal grounds vary, the most common include:
Once you file your case, the judge will examine the evidence and determine if you meet your state's annulment requirements. If you have minor children, the court will address child custody and child support during the process. Although an annulment effectively erases the marriage, it will not delegitimize any children you had when you were married. Additionally, if you file for an annulment, you waive your right to spousal support.
First and foremost, you can talk with your spouse to determine if there's a chance you can save your marriage. Some couples benefit from counseling, whether individual or together. If you're not ready to file for divorce, but you need a break, you and your spouse can try a trial separation, where you voluntarily live apart from each other for a short time.
Couples can choose to live separate and apart without court intervention at any time during their marriage. If you know your separation is not temporary, and you want to continue living separate and apart for the foreseeable future, you should enter into a separation agreement, where you and your spouse agree (in writing) on how you will handle child custody, child support, alimony (if any), property division, and all other financial issues. You may also want to file for a permanent legal separation if your state offers that.
It depends. If you and your spouse are on the same page regarding all the terms of your divorce, you can draft an agreement to give to a court. If the court determines that the agreement meets your state requirements and is fair to both spouses, the judge will incorporate it into a final divorce judgment and issue a divorce decree terminating your marriage.
Although you don't need an attorney to divorce in the United States, it's always best to consult with an experienced family law attorney before you sign any legal documents for your divorce. An attorney will review any proposed settlement agreements and will ensure that the contracts protect your needs. The court will not require you to hire an attorney, but (in most situations) it will also not protect you if you voluntarily sign an agreement that ends up being unfair to you.
Unless you hire an attorney, the only fees required in a divorce are the filing fees to the court. If you can't afford to pay, you can request a fee waiver from your court clerk. Once you complete the form and submit it to the judge, the judge will either approve or deny your request.
Alternatively, if you need a lawyer to defend your rights in a divorce and the court determines that your spouse can pay, the judge may require your spouse to pay your legal fees. The court can also direct you and your spouse to split court costs (filing fees) and legal fees in any way it deems fair.
]]>The question of how a parent’s criminal record can affect custody comes up fairly often. The full impact of a criminal history will depend, to some degree, on a particular state’s laws. But on a more generic level, the answer typically lies in good old common sense.
You should be aware that there are two types of custody; “legal custody” and “physical custody.”
“Legal custody” refers to a parent’s right to participate in the decision-making process regarding a child’s upbringing and welfare on subjects such as education, religion, and non-emergency medical issues. Whether a child will attend a public or private school is a common example. “Physical custody” refers to where the child is going to live.
Legal custody and physical custody can be further broken down into “joint custody” and “sole custody.”
With “joint legal custody,” both parents share in making decisions regarding the significant aspects of a child’s life. “Sole legal custody” means only one parent gets to make those decisions.
In cases of “joint physical custody,” the child resides with both parents for certain periods of time. If a parent has “sole physical custody,” the child resides exclusively with that parent. The other parent will ordinarily have visitation rights (also known as “parenting time”) with the child, again on an agreed upon or court-ordered schedule.
Custody cases can be quite complex, emotionally taxing, and expensive (think attorneys’ fees).
That depends. When it comes to custody and visitation, judges have a mandate to prioritize the best interests of the child. And it’s pretty much a universally accepted theory that children are best served by having both parents in their lives. So, to the degree possible, judges strive to make that happen. That holds true even if a parent is a convicted felon.
But the term “convicted felon” covers a multitude of felonies, so the real issue is the nature of the crime committed, including when the crime occurred. And this is where common sense comes into play.
A judge is more apt to allow criminal offenders to play a role in their children’s lives if the crime committed doesn’t evidence behavior that would endanger the child. For example, a theft that happened 10 years ago, with no subsequent offenses by the parent, probably isn’t going to have a significant impact on a custody case. But a history of assault, especially if there are recent incidents, undoubtedly would.
So if the question is can a convicted felon get joint custody, as a general rule the lower the degree of the crime, and the further back it occurred, the more likely it is that the offending parent will be able to have joint custody. In fact, depending on the other parent’s history and parenting skills, it’s possible for the offending parent to obtain sole legal and/or physical custody. Just remember, it’s the specific facts of each case that will guide the judge’s decision, with an eye toward the child’s best interests.
Note that there are some felonies that are virtually certain to result in a court denying any form of custody to the offending parent. Usually, a state’s laws will address this issue. Examples of these types of crimes are: domestic violence against the other parent or the child; sexual assault against the other parent or the child; and, any other forms of child abuse.
As a rule, misdemeanors aren’t as serious as felonies. So, presumably, a misdemeanor will have less of an impact on custody.
But state penal codes determine whether an offense is a felony or misdemeanor, and a judge may find that certain kinds of misdemeanors are troubling enough to warrant denying a parent certain custody rights. For example, some states list sexual misconduct as a misdemeanor. The offense may not be particularly egregious in comparison to other sex-related transgressions, but its nature might give a judge pause.
If you’re involved in a custody dispute that you can’t resolve on your own, you’ll have to file a custody complaint with the court. Almost invariably, court rules call for the parents to attend mandatory mediation in an effort to resolve the matter with the assistance of a trained custody mediator.
The mediator won’t make a decision in your case, but rather will try to guide you and the other parent toward amicably settling your differences. You can certainly bring up a criminal history, and provide the mediator with any proof you’ve accumulated, such as police reports and other criminal records you’ve managed to obtain. Having knowledge of these past events may help the mediator in conducting the mediation session.
If mediation doesn’t work, the mediator will report back to the court. In all likelihood, the judge will then order a custody investigation, where an investigator (often a psychologist or social worker) will look at each parent’s history, current employment, and living conditions, and will interview family members and others who are significantly involved in the parents’ and children’s lives. Determining past crimes will undoubtedly be part of the investigation.
Often, the custody investigator’s recommendations to the court will prompt the parents to settle the dispute. But in those cases where it doesn’t, the court will schedule the matter for trial. In a trial, a parent can bring up the other parent’s criminal history.
Under most states’ rules of evidence, proof of a criminal conviction can be used to “impeach the credibility” of the offending parent, meaning it can cast doubt on that parent’s truthfulness.
And, depending on the nature of the criminal history, the parent opposing a custody request will likely make the argument to the court that awarding custody to the felon (particularly physical custody) could possibly endanger the child’s welfare. This argument hits at the heart of the judge’s obligation to protect children.
If your custody dispute has to go to trial, it's advisable that you retain an attorney to represent you. Trying to master courtroom procedures and rules of evidence on your own can be a daunting task.
An expungement refers to the sealing of an arrest or conviction record. Expunged records aren’t available for public scrutiny. But as to whether expunged criminal records can be used in a custody case, you’d have to check your state’s court rules (or consult with a local family law attorney) to determine what, if any, access a judge might have to them.
To this point, we’ve talked primarily about custody. But a parent’s criminal past can also affect visitation. As mentioned above, courts try to preserve contact between parent and child. But if a parent’s history leads a court to believe that the parent shouldn’t be left alone with the child, it can order supervised visitation. This means that the parent can see the child only in the presence of a third party.
If the risk to the child is minimal, that third party could possibly be a friend or family member. But if there’s a greater chance of harm, a judge is more apt to order that visitation take place in a state-approved facility, with trained personnel on hand.
]]>The law is clear that every parent must financially support their children, regardless of each parent's involvement in the child's life. Most states use a calculator to determine which parent will pay child support and the monthly amount. Typically, the court will evaluate each parent's income, overnights with the child, daycare or medical costs, and other qualified expenses.
Noncustodial parents usually pay the custodial parent child support to help with day-to-day living costs, extracurricular activities, groceries, and other necessities. It's important to remember that noncustodial parents may not dictate what the custodial parent does with the payments each month.
To qualify as child support for tax purposes, your judgment of divorce or custody order must designate the funds as "child support." You might wonder, "why does it matter how we designate support if it's not tax-deductible?"
Suppose your order lumps your child support payments with alimony and calls it "family support" or designates it as spousal support. In that case, your spouse must claim the payments as income for tax purposes, and the payor will get a tax deduction for any amount paid if you finalized your divorce before January 1, 2019. However, divorces finalized after December 31, 2018, will apply the new tax law, and neither spouse may report spousal support as a deduction or income.
Another common question is which parent gets to claim the child as a dependent for the tax year. As you know, children come with many expenses, but you may also qualify for the child tax credit during tax time, which could result in a refund.
Generally, for a parent to claim the child as a dependent, the child must be under 17 at the end of the tax year, have lived with you for the last six months of the tax year, and you must provide at least 50% of the child's financial support. If you're still married and living together, claiming the child for tax purposes is usually clear-cut.
However, if you're divorced, only one parent can claim the child as a dependent. The Internal Revenue Service (IRS) will cross-reference the child's social security number before it processes either parents' tax return. If both parents claim the child, the parent who files last will usually need to resubmit the tax form without the dependent exemption.
As noted above, for either parent to claim the child as a dependent, the child must live with you for the last six months of the tax year. For obvious reasons, noncustodial parents may find it difficult to claim the deduction, particularly when the child primarily lives with a custodial parent.
Typically, your court order will specify whether one or both parents will take the credit. In cases where both parents provide equal support, the standard is to have one parent claim the child in odd years and the other in even years. However, for a non-custodial parent to take the deduction, the custodial parent must sign a release form with the IRS, and the non-custodial parent must attach it to the tax refund. The IRS uses form 8332, titled Release/ Revocation of Release of Claim to Exemption for Child by Custodial Parent, and you can find it on the IRS's website.
If you finalized your support or custody order before 2008 (but after 1985), and your agreement states that the noncustodial parent can claim the exemption and the custodial parent will not, the noncustodial parent doesn't need to send in form 8332.
If you and your partner were never married, or if you lived in the same home for the last six months of the tax year, the test for determining which parent can claim the child is to identify the parent who provided more than 50% of the child's support for the tax year. This test also applies if you don't have a written document with the direction on which parent can take the credit.
Yes. Parents who pay for childcare, healthcare, and college costs may deduct these expenses on their tax returns. Childcare, medical, and educational costs throughout the United States are high, and the prices continue to rise.
The IRS deductions are only available to families that meet a certain financial threshold, and the credit won't cover all of your expenses. Still, qualifying families may see a little relief at the end of the year.
No. Parents who receive child support do not have to report the money as income for tax purposes to the IRS. Child support also does not count as income if you're applying for the Earned Income Credit through the IRS. You should only report the earnings from your employment on your tax forms.
No. Paying parents can't report child support payments as tax deductions for tax purposes. You should report your income to the IRS normally, without deducting what you paid for child support. Parents may be able to recoup some funds by claiming the child or child-related expenses on their taxes.
If you fall behind on your child support payments, the IRS can redirect your federal tax refund to the state agency that handles your support case and send it to the custodial parent.
If you're going through a divorce or custody case and have child support or tax questions, you should speak to an experienced family law attorney in your area.
]]>All 50 states and D.C. currently have some type of "grandparent visitation" statute through which grandparents—and sometimes others (foster parents and stepparents, for example)—can ask a court to grant them the legal right to maintain their relationships with beloved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.
Approximately 20 states have "restrictive" visitation statutes, meaning that generally, only grandparents can get a court order for visitation—and only if the child's parents are divorcing or if one or both parents have died. In a restrictive state, even divorced parents who agree about preventing grandparent visitation have the right to keep the grandparents away.
However, like Washington, many states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation serves the child's best interest. Others allow caretaking adults besides grandparents to petition for visitation. Still, these states usually require that the caretaker have a history of living in the home with the child for a certain period of time in order to be able to file the request.
Parents have challenged restrictive and permissive visitation statutes arguing that the laws infringe on parents' rights to raise their children as they see fit.
In 2000, the United States Supreme Court (USSC) tackled grandparent visitation rights' critical question. In a Washington State case, a lower court struck down a permissive grandparent visitation statute, and the case moved to the Supreme Court.
The court agreed that parents have a fundamental right to make decisions about raising their children. But it did not agree that the permissive visitation statute was unconstitutional or that allowing a nonparent to petition for visitation rights would amount to an assault on the family unit's integrity. In other words, grandparents can ask the court for visitation or custody, but a parent's rights will almost always take precedence.
The court also ruled that lower courts must presume that it's in a child's best interest when a parent refuses a grandparent's request for visitation, and the grandparent must prove otherwise. (Troxel v. Granville, 530 U.S. 57.)
Many states have visitation laws similar to Washington's. These states don't see grandparent or caretaker visitation as a severe restriction on a parent's rights to control their children's upbringing. Instead, the courts classify visitation as only a slight burden on that right.
So, if a grandparent files for visitation, the grandparent only needs to provide the court with a rational reason for the request. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason. Since Troxel, most challenges to state laws regarding grandparent visitation have failed, with courts finding the statutes constitutional.
Many states have amended their grandparent visitation laws to be consistent with Troxel's ruling that the starting presumption should be in the parents' favor, and judges in these states will undoubtedly be more careful to take parents' wishes into account when resolving disputes.
Parents often want to hold on to as much time with their children as possible, even if that means denying a grandparent time with the child. If a parent denies your request for visitation with a grandchild, don't run to court. Talk with the parent (or parents) to see if you can agree on a visitation schedule. If a conversation isn't possible or you can't agree, you might want to consider requesting a mediation session with the child's parents.
Some state courts won't consider a petition for visitation until the parties have attended mediation together. Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with. The goal of mediation is not for the mediator to force an agreement but to facilitate an open conversation between the parents and grandparents.
If you've tried talking to your grandchild's parent or mediation has failed, and you're still not getting anywhere, you can file a petition for visitation with your local court.
Grandparents, caretakers, or parents involved in a struggle about visitation can find out more information on their state's current law by researching their state statutes or contacting a family law attorney.
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The procedures and requirements for transferring custody will depend on your individual situation and factors such as whether you'll be transferring custody to the other parent or to a family member or friend, whether there's an existing custody order, and whether the other parent agrees to the change.
Usually, parents sign over custody of a child to a family member or friend by establishing a guardianship. Although each state’s laws are different, legal guardianship typically includes both legal and physical custody—meaning the child lives with the guardian, and the guardian has the legal authority to make decisions about the child’s upbringing. But a legal guardianship doesn’t terminate the natural parent’s parental rights.
If you’re in a tough spot in your life right now, creating a guardianship for your child might be a good option. As one court recognized, “guardianship gives parents the opportunity to temporarily relieve themselves of the burdens involved in raising a child, thereby enabling parents to take those steps necessary to better their situation so they can resume custody of their child in the future.” (In re Jordan M., 820 N.W.2d 654, 660 (Neb. App. 2012).)
Guardianships can be temporary or long-term, and they (usually) can be revoked. Also, if it’s appropriate under the circumstances, most courts will allow parents to visit with their children when they’re living with guardians.
It’s not uncommon for parents to ask a trusted family member to take care of their child, without going through a formal guardianship procedure. For example, many grandparents raise their grandchildren without a court order or even a written agreement. It’s less common—but not unheard of—for a parent to informally transfer custody to someone other than a relative.
Informal guardianships can be risky, particularly if they last longer than a few weeks or months. Without a court order, the guardian usually won’t have legal rights regarding the child. This means they might not be able to take important steps such as providing the child with health insurance, securing medical care for the child, or giving permission to enroll in school or participate in school events.
Still, there might be alternatives to legal guardianship in certain states that address some of these risks. For example:
If you want to get an official court order giving legal custody of your child to a relative or friend, you’ll need to follow the procedures and rules in your state for creating a legal guardianship—and those rules often vary a lot from state to state.
In some states, probate courts handle guardianships, while in others a juvenile or family court might oversee the matter. Typically, the proposed guardian (or a parent) will start the process by filing guardianship papers in the appropriate court and “serving” a copy of the papers to both parents and anyone else who must receive notice of the proceeding (often grandparents and certain other relatives).
At the guardianship hearing, a judge will review all the information in the case, including any reports and recommendations from a court investigator (if that’s part of the process in your state). The judge will also hear from the proposed guardian and anyone else who’s there—especially the parents and any other interested people who want to attend and share their thoughts about the guardianship.
If both parents have agreed to appointing a legal guardian for their children, the process will go more smoothly (and quickly).
States might require additional steps and safeguards when a parent refuses to consent, such as requiring a full investigation. As a general rule, however, the guardianship may still go forward over a parent’s objection if, after reviewing all of the evidence, the judge finds that staying or returning to a parent’s custody would be harmful to the child.
Also, if the judge finds that a parent has abandoned the child, that parent’s consent typically won’t be required for the guardianship.
Other relatives—and anyone who has received notice of the guardianship proceeding—will also have a chance to object and to appear at the hearing to explain why they don’t believe it’s a good idea. Ultimately, the judge will decide whether allowing the guardianship would be in the child’s best interests.
In most states, both relatives and non-relatives can be appointed as guardians. Although some courts might have a preference for the guardian to be a family member, this preference is easily overcome if it’s clear that it’s better for the child to be placed with someone other than a relative.
Guardianships are usually open-ended, although a court’s order might provide that the guardianship will end after a certain date or after something happens. Regardless, either parent (or the guardian) may go back to the court and ask to have the guardianship terminated. Usually, a judge will grant that request if the guardianship no longer is necessary or serves the child’s best interests.
You don’t technically don’t need a lawyer to set up a guardianship for a child, and you can often find information about the process on your state courts’ website or your local court’s website (look for self-help or resources pages). Alternatively, search online for terms like “legal guardian for child or minor,” and read the results that are specific to your state.
You should know, though, that it can be difficult to navigate the complicated guardianship process without the help of a lawyer. If you don’t follow all of your state’s requirements, you could run into delays and problems—including having your request denied because of a technicality. Many parents ultimately hire a local attorney who’s experienced in guardianships to help them navigate the complicated process.
If you’ve divorced or are legally separated from your child’s other parent—or you’re an unmarried parent who was granted custody of your child in a court case—you’ll have a court order detailing the current custody arrangements. When the child is living with you under that order, but you want to transfer custody to the other parent, you’ll need to get a new court order. That’s true whether you’ve had sole physical custody (meaning the child lives only with you), or you have joint physical custody but want to give full custody to the other parent.
What if you don’t have a custody order? Maybe you and your spouse are going through a trial separation, or you’re an unmarried parent who never had a paternity or custody case. If that’s true, you generally don’t need to take legal steps to transfer custody from one parent to the other. If you plan to live apart for a while, however, it’s always a good idea at least to have a written separation agreement that spells out your custody arrangements. And if you decide together to change those arrangements, you can amend the agreement.
Most of the time, when a custodial parent wants to transfer custody to the noncustodial parent, the two of them have agreed to the move. But it would be a big mistake to simply make the change without getting a modification from the court. You could run into problems if one of you has a change of heart. Also, parents often have to show court documents proving they have legal custody rights before they can do things like enroll the kids in school.
First, you need to put your agreement about the custody change in writing. Although you don’t usually need a lawyer to get a custody modification with an agreement, it’s a good idea (if possible) to have a family law attorney review your agreement to make sure you understand the legal and practical implications.
Then, after both of you sign the document in front of a notary, you’ll need to submit the agreement along with your modification request.
Check with the court clerk’s office to learn how to file your request and agreement. The courts for many states and counties also have online forms and instructions for filing custody modification requests.
Most custody battles involve parents who are each fighting to keep the kids or to have more parenting time than they’ve been allotted. But what if you’ve made the painful decision that it would be better for your child to live with the other parent—and that parent refuses to agree to the change? In that unlikely situation, you’ll need to file a motion (a formal written request) in court to modify the existing order. In your motion, you’ll outline what the new proposed custody arrangement would look like.
As part of the process, the child’s other parent will have the opportunity to respond to your motion. Unless you work out a compromise at some point in the legal process, a judge will hold a hearing, consider the evidence presented by both sides, and decide what would be best for the child.
State laws on child custody have different criteria judges must use when they’re making a decision on whether to grant a modification request. Typically, however, you’ll need to prove that there’s been a significant change in circumstances since the existing order was issued, and that the proposed changes is in the child’s best interests. A significant change in circumstances is something more than a minor adjustment in your life or the child’s schedule.
Note that if a judge has issued a temporary custody order while your divorce case is in progress, you’ll still have to request a change in that order (even if it was based on your agreement) to transfer custody. The requirements for changing temporary orders are usually less strict, however.
The procedures and requirements for a contested custody modification can be difficult to navigate without a lawyer’s help. If at all possible, you should speak with an experienced family law attorney who can evaluate your case and help you gather and present the kind of evidence you’ll need to support your request.
Transferring custody by appointing a guardian or modifying a custody order isn’t necessarily permanent. You may always go back to court to ask a judge to end the guardianship or modify custody again.
A permanent option is to petition a court for termination of parental rights. But voluntarily signing over all of your parental rights is a drastic move, and most courts won’t allow it except as a prelude to the child’s adoption, either by a stepparent or other adoptive parents. Because termination of parental rights removes all of a parent’s rights and responsibilities regarding the child, judges won’t take this step if they suspect that the request is motivated by temporary hardship or a self-serving reason. You can't simply turn over your kid to the state just because you want to avoid paying child support or are having trouble controlling the child.
Courts may also terminate parental rights in cases involving severe child abuse or neglect—or certain other situations when someone is unfit to continue being a parent. But judges won’t take that step until it’s clear there’s no hope that the situation will improve.
In all 50 states, the law requires parents to support their child financially. Anytime a court issues a custody order, there must also be an order for child support. Usually, the noncustodial parent pays child support to the custodial parent (who’s assumed to provide direct support by paying for food, clothing, and other expenses). So if you've agreed to modify custody by changing where the child will primarily live, your agreement must also address child support, including which parent will pay and how much. Some states require you to complete and sign a form showing the new calculation under the child support guidelines.
Even though some states allow changes in child support to be retroactive to the date when you file a modification request, it’s best to continue paying the current court-ordered support until the court adopts the new order. You don’t want to get stuck owing support if the judge doesn’t grant your request. If you’ve created a guardianship for your child, be aware that most states’ laws don’t require guardians to use their personal funds to pay for the child’s expenses. Depending on state law, the guardianship order might require both parents to pay child support to the guardian for the benefit of the child.
Parents who fall behind on child support begin accruing "arrearages," and your payment status then becomes "in arrears," which may trigger a court investigation. Regardless of the reason, if you're not paying court-ordered child support, you'll probably get a notice in the mail asking you to appear in front of the judge to explain why you're not paying.
Sometimes you can bypass a conversation with the judge by calling your caseworker to explain the situation and to plan on how you'll pay what's past-due. Some courts require parents to pay arrearages in full, but others allow parents to make installment payments on the arrearages in addition to the court-ordered payments.
If the arrearages are significant, you could lose your driver's and other professional licenses, and the state could garnish your tax refund, or you could go to jail.
The Child Support Enforcement Act of 1984 requires district or state's attorneys to help custodial parents collect child support from non-paying parents. Sometimes, the district attorney will issue a letter to the noncustodial parent requesting a hearing to arrange a payment schedule. If your ex-spouse ignores the hearing request, it could result in a jail sentence.
If you aren't receiving child support, you can request assistance from your local child support enforcement agency, which may do any of the following to collect past-due support:
As a last resort, the court that issued the child support order can hold your ex in contempt, which requires that parent to attend a court hearing and provide a reasonable explanation for non-payment. If the judge isn't satisfied with the reasoning, or if the parent refuses to attend, the court may impose a jail term. Judges may hesitate to use contempt power because it's generally better to keep the parent out of jail so that parents can continue earning income and paying support.
The UIFSA allows the custodial parent to bring an enforcement action in either the state where the child support order originated or the state where the noncustodial parent lives. If you're having trouble getting your court-ordered child support payments, contact a family law attorney to begin the process of enforcement through your local court.
Failing to pay child support is a state and federal crime with no state boundaries, so if you're considering ignoring your child support order, you may want to reconsider. The penalties for non-payment of child support vary in each state but generally include license restrictions, fines, and jail or prison.
The best first step is to determine your ex-husband's home address. If you need assistance finding your ex, you can hire a private investigator. You can also contact your local Office of Child Support Services (also known as Department of Child Support Services) and request assistance using the agency's parent locator service. Fortunately, state child support agencies have access to parents' new hire data, unemployment insurance, criminal records, and driving records. Once you find your ex-husband, you can begin the process of enforcing your current child support order.
All 50 states have adopted the Uniform Interstate Family Support Act (UIFSA), which helps custodial parents establish, modify, and enforce child support orders across state lines. The Act makes it difficult for a child support payor to ignore a state's order just because that parent moved to a new location—all states must enforce a child support order, regardless of where the court order originated.
If you know where your ex-spouse is employed, you can ask the court to send a child support garnishment request to the employer. The UIFSA requires employers to honor the garnishment request, regardless of the state that issued the garnishment.
Most states don't allow you to modify child support retroactively. If the child support payor becomes unemployed or otherwise unable to meet a child support obligation, that payor can request a child support modification with the court. However, if the judge grants your request and reduces your support amount, it will only change your future child support obligation. If a noncustodial parent's income decreases or stops, that parent needs to apply for a child support modification immediately to avoid arrearages.
For information related to resources, unemployment, and child support during the COVID-19 crisis, click here.
No. Bankruptcy laws prohibit courts from discharging any child support arrearages in a parent's bankruptcy proceeding. The only way to eliminate child support arrearages is for the parent to pay the debt in full.
Probably not. Child support is not retroactive. Parents need to file for child support as soon as they separate and need assistance. Courts do not grant retroactive support beyond the date one parent filed a motion for child support.
Not unless you and your spouse have separated. Courts won't intervene in a family's lifestyle unless the children are being abused or neglected. If you're married and need additional support from your spouse, you may want to consider therapy to discuss your needs. If you decide to separate and live apart, you can request temporary child support from the court.
]]>These questions are related to the two main types of custody: physical custody and legal custody. Within each of those categories, there are two basic ways of breaking down custody arrangements: sole custody and joint (or shared) custody. To mix things up even more, some states use terms like "parenting plans" when referring to the arrangements for physical custody or both physical and legal custody.
Regardless of the type of child custody, it's an overriding principle that judges must focus primarily on the children's best interests. But states have their own rules about what goes into deciding which custody arrangements would be in a child's best interests.
Legal custody is the right of parents to make decisions about their children's upbringing, including:
When you have sole legal custody of your children, you have the right to make all child-related decisions without consulting the other parent. But if you want sole legal custody, you'll have to convince the judge that it would be in your kids' best interests. That might be the case when, for example:
(Learn how domestic violence affects child custody.)
When divorced parents have joint legal custody, they share the authority to make important decisions about their children's lives—just as they did when they were married. In most states, joint legal custody is the preference or default after a divorce.
As a practical matter, when one parent is the children's primary caregiver, that parent will often make many of the day-to-day decisions, such as authorizing emergency medical treatment or making routine doctor's appointments. If you and your spouse are working out a parenting agreement before or during the divorce process, you can include details about how you'll communicate and include each other in these decisions, as well as how you'll deal with future disagreements. For example, you might include a provision that if you and your spouse disagree about medical treatment, you'll follow the advice of the child's doctor.
Unfortunately, joint legal custody can sometimes lead to bitter post-divorce battles when parents have strong disagreements about issues like whether their children should receive vaccinations or play football. If you share joint legal custody but exclude your ex from the decision-making progress—or make unilateral decisions over your ex's objections—your ex could take you back to court and ask the judge to enforce the custody orders.
In addition to the stress and animosity that these legal fights can cause, they'll probably be expensive if you've had to hire a lawyer. And in the worst-case scenario, the judge might decide to award sole legal custody to your ex and to change your physical custody arrangements.
Physical custody refers to the right of parents to live with and take care of their children on a daily basis. As with all custody decisions, judges must consider which physical custody or parenting arrangement would be in the children's best interests.
If you have sole legal custody, your children will live with you full time. Sole physical custody used to be the norm after divorce. Traditionally, children lived with their mothers, while the fathers had visitation. That's no longer the case, but judges will still typically award physical custody to one parent (the "custodial parent") when it would be best for the children—such as when the other parent:
When awarding sole physical custody, judges will usually allow the noncustodial parent a certain amount of visitation time. Even if the noncustodial parent might pose a danger to the kids, the judge may allow visitation with conditions like requiring supervised visitation or drug tests.
Over the two or three decades, the trend has been to favor joint or shared physical custody—allowing children to spend significant amounts of time with both of their parents. Judges (and legislatures) have been swayed by consistent research findings that children fare better after divorce under shared parenting arrangements. However, joint physical custody works best if parents live relatively close to each other, as it lessens the stress on the children and allows them to maintain a somewhat normal routine.
Shared physical custody doesn't necessarily mean a 50-50 split. Often, children will live primarily with one parent but spend overnights with the other parent—typically on weekends and during school vacations. With this type of arrangement, the parent with primary physical custody is still referred to as the custodial parent, while the other is the noncustodial parent.
In cases where shared physical custody is closer to 50-50, children might spend four nights a week with one parent and three nights with the other, or they might even alternate weeks, months, or longer periods between their parents. To make things easier on their children, some parents use a joint custody arrangement—commonly called "bird's nest custody" or "birdnesting"—that lets the kids stay in the family home while the parents take turns moving in and out.
When parents share joint custody, they usually work out a parenting plan or schedule that fits the children's needs as well as the parents' work schedules and housing arrangements. If the parents can't agree on a schedule on their own, judges will often order them to participate in custody mediation. In fact, some states require mediation in all cases where there are custody disputes. If mediation doesn't work, a judge will have to impose an arrangement.
In addition to detailing when children spend time at each parent's home, parenting plans may often include other details such as:
Some state laws or court rules spell out exactly what must go into the parenting plans.
Among the advantages of joint physical custody, it ensures that children have continuing contact and involvement with both parents. And, as we've mentioned, research has shown that can have a positive impact on children's adjustment after divorce. Joint physical physical custody also allows parents to share the work of parenting, alleviating the burdens of being a single parent.
Of course, there are disadvantages to shared physical custody, including:
These disadvantages may change depending on the children's ages. For instance, older children are often more concerned about staying close to their friends. So they might be less likely to want to spend time with a parent who lives across town, much less in another state.
Also, if one parent wants or needs to move away, that could upend the shared custody arrangement and lead to a nasty custody battle.
The amount of child support is largely based on the parents' respective incomes. However, under state rules for calculating child support, the percentage of time a child spends with each parent may factor into the calculation of support amounts or determine which parent pays support.
]]>Alabama
Alaska
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Louisiana
Maine
Maryland
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Michigan
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New Mexico
New York
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Ohio
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On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread. Johns Hopkins University created a COVID-19 map that tracks the number of cases worldwide. On March 20 there were 254,000 total cases and 14,250 in the U.S.. As of April 3—just two weeks later—confirmed cases exploded to over 1,080,000 worldwide and 266,671 in the U.S..
The COVID-19 outbreak has affected every aspect of American life—from school, work, and travel to how we buy groceries and toiletries. Medical experts agree that social distancing is one way we can help slow the spread of this virus.
All across the country, local and state governments are shutting down schools and businesses and asking the public to stay home. On March 19, California Governor Gavin Newsom issued a statewide shelter-in-place order —the first and the most restrictive of its kind. Under this order, 40 million Californians must stay home, except for when they leave to meet essential needs.
Today, most states have issued similar orders—316 million people in at least 42 states, 9 cities, the District of Columbia and Puerto Rico are being urged or ordered to stay home.
Within a family unit, creating an effective social distancing plan can be as simple as adopting rules for parents and children to follow within their home. But for divorced or separated parents, staying healthy when children are going back and forth between two households can be challenging.
The social distancing and shelter-in-place (SIP) rules don't directly affect custody orders, so you should continue following your current custody arrangement unless you and your ex agree to an alternative plan or a judge changes your order.
Courts are making it clear that denying visitation during this time won't be tolerated and may result in contempt of court and sanctions.
But some parents might have valid concerns which could justify a temporary change to custody, such as:
According to medical experts, COVID-19 is highly contagious and can cause severe respiratory complications, especially in people with asthma. And despite signs that children are fending off the virus well, experts caution that children with underlying chronic health conditions should still be considered high-risk for developing complications from COVID-19. “Infants and children who are immunocompromised/suppressed or have other cardiac, metabolic, or respiratory problems are also at higher risk of complications from COVID-19, just as they would be from other infections.”
If your child has asthma, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.
If you believe that sending your child to your ex's home could pose a risk to your child's health, you can ask your ex to agree to a temporary change to custody, and propose alternatives such as:
But what happens when parents can’t agree? If you can't resolve these issues on your own, you should contact a local family law attorney or mediator for advice—most family law attorneys are still working and available for consultations by phone or via virtual meeting services, like Zoom. You can also check your local or state court websites, as they are beginning to issue guidance on custody issues.
If your child's health is truly at risk, you may want to ask a judge to intervene. You or your attorney may be able to obtain an emergency temporary child custody order from your local family court.
There are no universal rules for family law courts to follow across the country, so custody disputes in the time of COVID-19 are uncharted territory for divorced or separated parents and family law attorneys.
Some family law courts have explicitly stated that families should continue following custody schedules, even if they're under a shelter-in-place order—these courts won't modify custody except in extreme cases. For example, the San Francisco Superior Court Unified Family Court issued a Notice of Emergency Family Court Operations, which states: "ex parte requests to change child custody or visitation orders will not be granted absent a very strong factual showing of imminent danger or severe detriment to the child." In other words, you must show a high risk to your child.
If, for example, one parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent has been exposed to someone with confirmed COVID-19, a judge may find that it’s in the child’s best interests to modify visits for a short period of time and schedule make-up visits for a later date.
Other courts are at the opposite end of the spectrum. According to the state district court in Davidson County, Tennessee the “primary residential parent” should take custody of the child within four hours of a shelter-in-place order and retain sole custody until the shelter-in-place order is lifted.
Most federal and state courthouses have temporarily closed for nonessential cases in order to slow the spread of COVID-19. Check with your attorney or local court website to see if your courthouse remains open for emergency family law requests. As COVID-19 continues to spread and courts simultaneously try to serve the public, notices and policies will be revised frequently.
Updated April 16, 2020
]]>Under the federal Treasury Offset Program, state child support enforcement agencies share information with the Treasury Department regarding parents that are behind on child support. With this information, the agency can intercept (take) federal tax returns and other payments to offset overdue child support.
If your state child support enforcement office has reported your overdue child support to the Treasury Department, the IRS will take your tax refund to cover the arrears (often called a tax refund seizure). The IRS will then give the money to the appropriate child support agency.
This same rule applies to coronavirus stimulus payments.
In March, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES act), which is a $2 trillion stimulus package to provide financial relief to businesses and individuals dealing with the COVID-19 economic fallout.
Under this package, American households will receive stimulus checks based on annual income: up to $1,200 per person, $2,400 for couples, and $500 per child under 17. You can see how much you’ll receive using Nolo’s online stimulus calculator.
However, if you’re on the Treasury Offset list for unpaid child support, your stimulus check will be reduced by the amount you owe. It's unclear if you'll receive a notice in advance—to find out if your name is on the Treasury Offset list, call the toll-free IRS number at 1-800-304-3107.
Other past due debts to the government, like back taxes or overdue student loans will not trigger an automatic offset.
The Financial Management Service division of Treasury Department will send you a notice of a proposed tax refund seizure before it happens. Take this opportunity to address the proposed tax refund offset to decide on a course of action—you might be able to minimize the effect of the seizure on your finances.
The best way to avoid receiving a notice of an IRS Tax Refund Seizure is to pay child support on time. If you've lost your job or or are having trouble making your payments on time, you must take action. Contact your local child support agency for help or go back to court to see if you can modify child support based on your current income.
Ignoring your child support obligation or failing to make payments on time can subject you to contempt of court proceeding, fines, and other sanctions, like a tax refund seizure.
If you receive an IRS notice of tax refund seizure to cover child support arrears, here are some options:
If married, file an “Injured Spouse Allocation” form. If you're married to someone who owes child support—and you're not responsible for the debt—you can file an “Injured Spouse Allocation” form with the IRS. If you submit this properly, the IRS may allow you to keep your portion of the tax refund.
The IRS typically calculates this amount based on how much money your employer withheld from your wages for taxes the previous year. File this form with your return or immediately after receiving a notice of seizure.
File Chapter 13 bankruptcy. The bankruptcy code does not allow you to erase your child support arrears but it does allow you to restructure that arrearage and pay it down over a three to five year period. The bankruptcy court considers child support arrears a priority debt that gets paid before any other debt. (Learn more about paying child support in a Chapter 13 bankruptcy.)
If you want the IRS to seize the refund of the person who owes you child support, it will do so automatically if the state child support enforcement office collects payments from your child's other parent.
However, if the child support enforcement office doesn't collect child support funds on your child's behalf, then you need to petition the court to request it be collected this way. That way, if your child's other parent falls behind on payments, the child support enforcement office will automatically report it to the Treasury Office to begin the process of intercepting tax refunds.
]]>The COVID-19 pandemic continues to spread across the U.S.. Most states have issued shelter-in-place or stay home orders to help flatten the curve of this virus. Roughly 316 million Americans have been urged to stay home, except to meet essential needs, like buying food and medicine. States have also ordered nonessential businesses to shut down for a period of time.
For many small businesses, these temporary closures have already caused devastating financial losses, and millions of Americans are now out of work. MSNBC reports that over 16 million Americans filed unemployment claims in the last three weeks.
Divorced or separated parents may be especially worried about providing financial support to their children through this pandemic. How can unemployed parents pay child support? Where can you turn for help while courts are closed?
Continue reading for information on how to get financial assistance and resolve child support issues during the COVID-19 outbreak.
In March, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES act), which is a $2 trillion stimulus package to provide financial relief to businesses and individuals dealing with the COVID-19 economic fallout. Americans will receive stimulus checks based on annual income: up to $1,200 per person, $2,400 for couples, and $500 per child under 17. You can see how much you’ll receive using Nolo’s online stimulus calculator.
If you received your 2018 or 2019 tax return via direct deposit, then you’ll get your stimulus payment the same way. If not, you should receive a paper check. Check the IRS website for more information.
It’s unclear if the stimulus payment should be counted as income available for support, since it’s a one-time benefit and probably won’t increase your income enough to affect your child support payment. States have their own guidelines about what counts as income for child support. If you have questions about this, contact a local attorney for advice.
Parents that are behind on child support may not get a stimulus payment. Under the Treasury Offset Program, state child support agencies report parents who fail to pay child support to the Treasury Department so it can take federal tax returns and other payments to offset the overdue support.
If you’re on the Treasury Offset list for unpaid child support, your coronavirus stimulus payment will be intercepted and reduced by the amount you owe. To find out if you're on the Treasury Offset list, contact the IRS at 1-800-304-3107.
In March President Trump signed the Families First Coronavirus Response Act (FFCRA), which requires certain public employers and employers with less than 500 employees to provide up to 80 hours of paid sick leave to any full-time employee who:
Check the U.S. Department of Labor website for more information.
Many states are also providing residents with COVID-19 related relief. Search for details on your state’s government website.
New York and California—two of the hardest hit states—have created COVID-19 hub portals. From the New York State home page you can find links to information on COVID-19 testing, financial assistance, rent/mortgage relief, and paid sick leave. California’s COVID-19 page contains similar information.
If you’ve been financially affected by COVID-19 in California, New York, and many other states, you may be eligible for state unemployment insurance (UI) or paid family leave. Use the U.S. Department of Labor's interactive map to find your state's labor department and links to unemployment applications.
Usually when you resign from a job, you can't apply for unemployment benefits, but some states are making exceptions for parents of children who attend schools that are closed due to COVID-19.
In California, if your child’s school is closed, and you have to miss work to take care of your child(ren), you may qualify for UI benefits. Eligibility considerations include if you have no other child care options and can’t continue working your normal hours remotely. Use the state’s calculator to see what your UI benefit might be.
California issued a moratorium on residential evictions for tenants who can’t pay rent because of COVID-19 related hardships. New York has implemented a 90-day moratorium on evictions for residential and commercial tenants.
Many states have passed similar laws—Nolo is tracking COVID-19 related tenant protections by state.
Citigroup, JP Morgan Chase, US Bank, Wells Fargo and nearly 200 state-chartered banks, credit unions, and servicers are providing relief for California homeowners/consumers who can’t pay their mortgages and other bills as a result of the financial impact of COVID-19.
Contact your lender to see if you qualify for relief in your state. You may be eligible for:
Nolo.com's COVID-19 hub page has up-to-date information about paid sick leave, medical leave, unemployment insurance, family leave, bankruptcy, and more, including:
If you’ve suffered financial losses due to COVID-19, see if you qualify for financial assistance. If you receive benefits and/or you can defer your rent or mortgage payments for three months, you might be able to pay child support.
If you qualify for UI benefits, let the unemployment office know about your child support order—they may deduct the child support payments from your unemployment wages. And if you’re able to work safely and/or remotely, you can search online for a new job.
If you simply can’t afford child support don’t just stop making payments, because you’ll start to accrue arrears and could be subject to contempt of court, jail time, and other enforcement actions.
You must pay until a judge changes your child support order. There are two ways to do this—you can ask your ex and/or a court to modify child support, or you can contact a local child support agency for help.
Start by asking your child’s other parent to agree to modify child support. You can ask a judge to turn your agreement into an new order. Because of COVID-19, family courts are temporarily closed except for emergency matters, like restraining orders. Check your local court website for information on how to modify child support during these closures.
If you can’t agree, you’ll need to file a motion to modify child support with your local court. In some counties, you can still file motions by leaving them in an outdoor drop box. Your court might schedule a telephonic hearing. If not, you’ll have to wait until your court reopens to have your request heard.
You should be prepared to show that you’ve been looking for work. Print your emails to potential employers and copies of any applications you’ve sent. You’ll also have to submit information about your income, expenses, assets, and debts so a judge can recalculate child support.
Although each state has its own guidelines for calculating and modifying child support, courts generally consider each parent’s income and time spent with the child. Judges will review tax returns or recent paystubs to find income. But in many states, courts may count other items as income, including:
If you need immediate assistance, contact your local child support agency. The U.S. Office of Child Support Enforcement provides links to local offices in all 50 states and D.C..
Although these offices are closed, they may be available to take calls and more. For example, California Child Support Services created an online case service platform, called “customer connect,” so parents can contact a case worker.
If you can’t pay child support due to the physical or financial effects of COVID-19, your local California agency can help you:
“With the onset of the COVID-19 pandemic, California Child Support Services realizes the impact this is likely to have on case participants. We know that for some of you, the need for financial support for your children will continue or increase. Paying parents may be experiencing the financial hardship of lost wages and worrying about the penalties for missed payments. . . please reach out to your caseworker – California Child Support Services continues to work hard to ensure business moves forward even if local offices are closed."
]]>My wife just informed me that she's in love with someone else and wants a divorce. She already has a lawyer for herself. I've been getting names of possible attorneys from friends, but my friends often say things like, "This one will make sure your wife won't get a penny." Of course I'm angry, but I'm not sure I want this to turn into a heated battle. What qualities would you advise I look for in a divorce attorney?
A good attorney can change the course of your divorce. It can be the difference between feeling like you have an advocate to protect you, or feeling like you’re fighting a battle alone. Divorce is hard, but an experienced divorce lawyer can take on some of that burden and help you achieve your goals. Find out more about what to look for when choosing a divorce attorney.
When you’re getting a divorce, you’ll need an attorney who is experienced in family law matters. A old college friend who now practices medical malpractice law isn't likely to be the best choice to handle your divorce. Different areas of the law have different rules and requirements. Attorneys in each practice area have different skill sets. Divorce can be a complex process and it’s essential to have an attorney who knows the nuances of family law and is familiar with your local court's rules and judges.
The short answer is “no.” The professional rules of conduct governing lawyers prohibit attorneys from representing both spouses in a divorce. This would create a conflict of interest for the attorney, since your interests, rights, and needs in a divorce are adverse to your spouse’s. A single attorney can’t ethically give good legal advice to two people in adverse positions.
While some couples choose to use a single attorney to draw up divorce paperwork, that attorney legally only represents one of the spouses. If your spouse has hired an attorney to prepare paperwork or a settlement agreement, it’s important that you seek advice about your rights from a your own attorney before signing anything.
You should interview any prospective attorney just as you would someone who was applying to work for you. You need to like your attorney. It’s also important that you have confidence in your lawyer’s abilities and respond well to communication style. Some lawyers pride themselves on an aggressive demeanor, while others highlight their ability to collaborate and settle most divorces without a drawn-out courtroom battle.
Your needs, your personality, and your spouse’s demeanor in the divorce will also affect the type of attorney best suited to your case. For example, if you and your spouse want to compromise and settle your divorce economically and quickly, you may want to avoid a “bulldog” type of attorney, meaning one that never gives in. Additionally, certain attorneys have collaborative law certifications and will commit to helping resolve your case rather than racking up legal fees.
If you’re unsure where to begin your search, you can start by reviewing Nolo’s Lawyer Directory. Nolo’s online directory allows you to look for attorneys by practice area and provides a detailed profile with each attorney’s experience, philosophy, and expertise. Your local state bar is another resource for finding an attorney trained to handle divorces.
]]>When couples separate, important issues are often resolved (at least temporarily) in a short hearing before a judge. Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.
Let's say a couple is divorcing: the husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge. Once the request is properly made, a hearing will be scheduled within days or weeks and a judge will issue his or her decision, either at the hearing or shortly thereafter.
Spouses can ask a court to temporarily:
Temporary orders are usually valid until the court holds another hearing or the spouses arrive at their own settlement through negotiation or mediation.
When one divorcing spouse moves out of the house, you have two options: reach an agreement about how you'll share expenses and about child custody and support, or go to court and ask a judge to decide. If you and your spouse are able to agree, you can write up a temporary agreement and go on to try to resolve the rest of the issues in your divorce. If you and your spouse can't agree, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.
To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available for free from the court or online. Some courts have self-help law centers for family law cases, with forms and instructions for people representing themselves, and sometimes even employees, such as staff attorneys, who can help you with your forms.
Here's what you'll probably need:
In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out more forms so that you can get your divorce started at the same time that you ask for temporary orders.
Your next step is to attend a court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days, but more often, it will be a few weeks.
The hearing may be held in a courtroom or just in the judge's office or "chambers." The judge may listen to a few minutes of testimony from you, your spouse and possibly other witnesses. Or the judge may only accept written evidence.
To support a request for temporary child support, you will probably need to produce copies of an income and expense budget -- or you may have had to fill out income and expense forms before you even filed the request -- and the judge will review them.
The judge will:
Often, this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. The order will stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.
However, if the judge finds more information is needed, or finds that your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held.
To learn more about temporary orders, get Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo).
]]>How much you pay in child support shouldn’t depend on what judge happens to hear your case. But not that long ago, that’s the way things were. In order to prevent that from happening, and to ensure a high degree of consistency in child support awards, states adopted child support guidelines. While the factors vary slightly from state to state, parental income is the major factor in determining a support amount. But there are other elements a court can also consider.
You may be wondering what all this has to do with your spending a few weeks at the beach with the kids. The answer is that one of the other elements the court looks at in determining support is the time you spend with the children. When you add that to the mix, the process of awarding child support becomes a balancing act.
The creators of the guidelines understood that parents paying child support would incur some additional expenses—like food and transportation—whenever the children were staying with them. Likewise, the parent with whom the children primarily reside wouldn’t have those expenses when the children weren’t there.
Considering that, you might be tempted to say that you shouldn’t have to pay child support while you have the kids. Well, not so fast. Remember that the other parent still has continuing expenses, such as the monthly rent or mortgage payments needed to keep a roof over the child’s head. And part of your child support payment goes toward those permanent monthly costs.
So what the courts normally do is take the anticipated number of overnight visits you’ll have with the children during the year, and plug that figure into a rather complicated formula. The resulting child support number should be one that takes into account your expenses for your overnights, while still providing the other parent with money to handle the permanent costs involved with raising the children.
Under those circumstances, your child support payments will likely remain consistent during the year, regardless of whether the children are with you or not. However, this doesn’t mean that exceptions can’t crop up.
Let’s say, for example, your parenting (visitation) plan calls for you to have the kids for two weeks during the summer. The court was aware of that when setting child support. But what if, for whatever reason, you end up taking them for six weeks? In that scenario, and depending on the laws in your state, you might be able to request that the court modify child support and reduce your payment for that additional period.
Flashing red warning: you can’t simply take it upon yourself to reduce or stop your child support payments. You must have the court’s permission. If you attempt to do it on your own or simply stop paying, you could end up being held in contempt of court, possibly resulting in a fine or even jail time.
What you need to do is file a motion (written request for relief) with the court to modify custody, in the hope of obtaining a written order permitting an abatement of support. Even if the other parent agrees to reduce support, you still need a court order, although obtaining it will probably be easier if both parents agree.
As a practical matter, parents who pay child support might not be able to stop payments on their own anyway. That’s because, more often than not, child support is automatically taken out of your paycheck, and your employer can’t stop deducting it without a court order.
If you pay support through your county probation department, and you stop sending the money, they won’t care what your reason is. All you’ll end up doing is racking up arrears. And at some point, the probation department is going to haul you into court.
Similarly, in the unlikely event you happen to be paying the other parent directly, missed payments could result in that parent filing a motion with the court to hold you in contempt. And, depending on the circumstances, the court might order you to pay the other parent’s legal fees incurred in bringing the motion.
Child support issues can be quite complicated. Consider consulting a knowledgeable family law attorney to learn about your rights and responsibilities.
]]>Even the most well-intentioned couples sling mud and feed into the turmoil that comes with divorce, but when you or your spouse starts bending the truth or embellishing the facts to make themselves look better to the judge, you could face serious consequences.
If you’ve ever watched a courtroom television show, you’ve likely seen the witness step up onto the witness stand, raise a hand, and swear or affirm to tell the truth. In any legal process, the moment you agree to tell the truth, the court considers you under oath, and if you lie, you may face serious consequences.
It’s important to understand that being “under oath” isn’t limited to live testimony in a courtroom. When you file for divorce, nearly every document that you submit has a “penalty of perjury” statement at the end. For example, in Michigan, when you sign your divorce petition before submitting it to the court, you agree that all the statements in the document are true to the “best of your knowledge and belief.” Once you sign your divorce petition, or any other financial or case-related documents, you’ve taken an oath to tell the truth.
“You don’t have to have a good memory if you tell the truth” is a simple, yet powerful, statement. If you tell your side of the story during your divorce trial and you do so with integrity and honesty, you don’t have to worry. However, it’s easy to fall into the trap of embellishing or misrepresenting the truth to get an advantage in your divorce. But, lying spouses often stand to lose more than they would gain if the lie were true. If you believe your spouse lied under oath, you’ll need to prove it before you can take any other action.
If your spouse lies during your divorce trial or in your case-related documents, and you can prove it, you can move forward in a few ways. First, you or your attorney can confront your spouse (or your spouse’s attorney) to let them know you can disprove the statement with evidence. If you would like to keep your divorce case civil, you can ask your spouse to correct the lie and continue with your divorce without informing the court. However, if your spouse refuses to disclose the error, you may need to notify the judge, which could result in severe consequences for your spouse.
Lying under oath, or, perjury, is a federal crime. Although the civil court has limited power to punish your spouse for perjury, the judge can forward the case to the prosecutor for criminal enforcement. Punishment for committing perjury could result in probation, fines, or a prison sentence up to 5 years. If your spouse’s deceit doesn’t warrant a criminal investigation, the judge in your divorce case could still find your spouse in contempt of court, which could result in fines or time in jail.
Although this may be your first experience with civil court, most judges have seen it all. So, if you suspect that your spouse is hiding assets, making false accusations, or misrepresenting your marital history, chances are that the judge will be able to pick up on the deception.
For example, some spouses will trade a higher paying job for minimum wage employment to avoid paying more child or spousal support. Although job-switching spouses try to outsmart the court by saying they were “laid off” or “didn’t have control over the job change,” most judges are perceptive enough to see the coincidence between a new position and a divorce filing. As a result, the judge will create the support award using your spouse’s previous income, rather than the new, lower income.
If you suspect your spouse is hiding or misrepresenting assets, hiring an attorney may be the best way to ensure that you get your share of the marital estate. Attorneys have a variety of tools to locate hidden or missing assets, like the right to subpoena records, participation in depositions, and requests for production of documents from your spouse.
It’s also important to understand that as a party to the divorce, your credibility could make or break your case. If the court discovers or believes that you are dishonest in your testimony or court-related documents, the judge’s impression of you may be enough to influence the result. After all, if you lie about how much money you have in a separate bank account, what else isn’t true?
If you learn about your spouse’s deception after the judge finalizes your divorce, you might be able to reopen your settlement agreement, but it’s going to be an uphill battle. If you can provide the court with concrete, actual evidence of the intentional misrepresentation, the judge may allow you to change your agreement.
Most judgments of divorce contain a provision that will enable either spouse to request the court to reopen the divorce if a spouse later discovers that the other deliberately lied or falsified court documents. In some judgments, deceitful spouses will lose their entire share of the marital estate if the court determines that the lies were intentional.
If you’re going through a divorce and are concerned that your spouse is hiding assets or misrepresenting the facts to get a more favorable divorce judgment, consider hiring an experienced family law attorney to represent you.
]]>When a marriage is irreparably broken, normally the couple’s ultimate goal is to resolve their outstanding differences as quickly and painlessly—both emotionally and financially—as possible. The most common issues couples will face during their divorce include:
All of your divorce-related issues must be resolved before you can complete the process. But how to reach that goal depends, in large part, on your particular circumstances.
If you want to legally end your marriage, at some point you’re going to have to involve the courts. But going directly to court to battle things out, without first attempting to resolve your marital issues directly with your spouse, can result in a long, stressful, and expensive divorce.
When divorcing spouses can't agree on all of their divorce-related issues, they will end up going through what is called a “contested” divorce process. To begin a contested divorce, one spouse must file a divorce "petition" (also called a "complaint") with the court.
There are several steps to this process. The longest phase is usually the divorce discovery period, which often takes from two to six months (sometimes more), depending on how complex the case is. During discovery, spouses must exchange all relevant financial documents (such as tax returns, bank accounts, and property valuations), correspondence (including emails), and any other information that may relate to any aspect of the divorce.
Depending on the nature of the contested issues, there may be other court proceedings involved, particularly if the couple has children or temporary support needs. These may include temporary custody and/or temporary support and alimony hearings. If the spouses can't agree on these issues along the way, a judge will have to decide any and all contested aspects of the case, after a divorce trial. A contested divorce typically takes a year or more to conclude.
Divorce mediation is a form of Alternative Dispute Resolution (ADR)—where both parties try to resolve their issues outside of court. You and your spouse must choose a qualified family law mediator. Unless you agree otherwise, you’ll share the mediator’s fee. This individual will meet with both of you over a period of time, to assist you in reaching a meeting of the minds on those issues you’re having trouble resolving.
If you’re able to resolve all of your divorce issues, the mediator will prepare a Property Settlement Agreement, also known as a Marital Settlement Agreement or Divorce Settlement Agreement, which will contain all of your agreed-upon terms. The mediator will usually encourage both you and your spouse to have your own attorneys review the agreement before you sign it.
You’ll still have to go to court to officially end the marriage, but in this scenario, the court will review your settlement agreement, and if approved, it will become part of the divorce judgment. It’s not unusual for an uncontested divorce to conclude within a month or so of the date you file the petition.
Collaborative divorce is another form of ADR that is a kind of hybrid between traditional divorce and mediation. But, like mediation, the collaborative process alone doesn’t actually end your marriage.
With collaborative divorce, you and your spouse must each have an attorney who's trained in the collaborative law method represent you throughout the process. Although laws vary from state to state, it’s standard procedure for the spouses to sign a Collaborative Law Participation Agreement, which dictates certain rules you must follow.
In collaborative divorce, the spouses and their attorneys hold a number of "4-way" sessions, to attempt to resolve outstanding issues. Typically, the couple will also bring in joint experts, such as joint financial planners or accountants, child and family therapists, and possibly appraisers.
The spouses must commit to a team approach, where everyone is working toward the stated goal of settling all issues outside of court and in a way that works bests for the family.
One of the biggest downsides to the collaborative approach is that if the settlement efforts fail, the collaborative attorneys will have to withdraw from the case and cannot represent the spouses in a contested court proceeding. If the spouses drop out of the collaborative divorce process and end up in court, they'll hire new attorneys, with a second round of legal fees (in addition to the collaborative divorce fees).
As with mediation, the end product of a successful collaborative divorce is a written settlement agreement, which will ultimately become part of a divorce judgment.
You might wonder why anyone would choose going to court without trying ADR first. In large part, the reason rests with the spouses.
To be successful, mediation and collaborative divorce both require a mutual, good faith effort to settle. If a spouse doesn’t have this mindset going in, the chances of success are low, and you may be wasting your time and money. You’ll often see this where one spouse is combative, intent on “punishing” the other, is seeking revenge, or refuses to negotiate, no matter how irrational or costly that position may be. If that’s the case, filing for a traditional court divorce may be your only choice.
There are also certain personality types that pretty much guarantee ADR will fail. Generally speaking, these personality types are characterized as:
People that fall into these categories are generally unwilling to compromise, no matter the cost to themselves or their families. And when there's a history of violence, a fair negotiation is often impossible. Abused spouses are often terrified of saying or doing something that might offend the abusive spouse, which will carry into all meetings between the two. That fear negates any hope of a level playing field. If you are in abusive situation, you may want to contact the National Domestic Violence Hotline at 800-799-SAFE (7233).
When looking for help, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.
In dealing with any of these personality types, it’s normally best to start with the traditional divorce process, where the proceedings take place in the structured environment of the courthouse and access to a judge’s intervention is readily available.
Choosing the best route to resolve your marital issues can be a complicated decision. Because no two cases are exactly the same, consider consulting with an experienced family law attorney in your area before making a decision.
]]>First, my ex-husband simply wouldn’t pay child support; so, the court garnished his wages. Then the payments stopped coming because he got his employer to claim that he’d been fired. The truth is, he only transferred divisions within the same company—he’s even been seen driving the company truck. I’ve filed suit, but it’s going to be a while before I get into court. In the meantime, can I do anything about his dodging the system?
All states have child support enforcement agencies (usually called the Office of Child Support Services or Department of Child Support Services). These agencies are dedicated to enforcing child support orders and going after parents that fail to pay. If your ex owes you more than $500 in child support, you can contact your local child support enforcement agency for help.
In addition to garnishing your ex-husband’s wages, the state may use more aggressive tactics to recover your support. They can arrange for the Internal Revenue Service to take money from your ex-husband’s tax refund in order to pay child support. The same is true if you're receiving welfare or other government benefits (Medicaid) and your ex-husband owes more than $150. Your best first step is to notify your state enforcement agency as soon as your ex-husband meets either threshold.
Does your ex-husband own property, like a residence? If so, you can contact the agency where the property is registered and request a lien on the property, meaning if he sells his home, you’ll be paid from the profits. In some states, you’ll be required to sue your ex-husband for the past-due support, but once you get a judgment from the court, you can request the lien.
In most states, an employer may be guilty of perjury if the company submits a knowingly false statement about an employee to the court. If you have witnesses or a photo of your ex-husband driving the company truck, it might strike enough fear in the human resources department that the representative will correct the “error” to avoid prosecution.
If your evidence isn’t enough to convince the company to do the right thing, you can subpoena employee records from your ex-husband’s employer. A subpoena is a legal request that requires a person to testify in court (subpoena ad testificandum), or a request for documents (subpoena duces tecum), and it’s not optional. If the company doesn’t comply with the subpoena, it may face civil or criminal penalties. You may be able to complete the subpoena request yourself. However, it’s much easier if you hire an attorney to prepare one for you. Along the same lines, you can subpoena your ex-husband’s bank records, pay stubs, and tax records.
If you’re unable to obtain records by subpoena, you can file a motion for contempt of court. Some courts call this a show cause motion, other’s a contempt hearing. Contempt means that you’ve violated a court order, which is serious business. Usually, the offender must appear in front of the judge to explain why he or she is breaking the court order. Judges typically have discretion when it comes to penalties for contempt, which means if your ex-husband is guilty, he may face fines or jail time.
Once the court becomes aware of your ex-husband’s deception, it will be more difficult for him to gain sympathy later. Although courts base child support on a state formula, if he wants to modify the court order after another job or income change, the court will probably be less inclined to grant his request for a modification.
The failure to pay child support is serious, and if your ex-husband refuses to pay the court-ordered amount of support, he will face significant penalties. Typically, the court will begin by asking your ex-husband to appear in front of the judge to explain why he’s behind in payments and ask him to provide a proposed solution. If he continues to ignore the obligation, the court may suspend your ex-husband’s driver’s license, or even a professional license, like a contractor or medical license. After the court exhausts its other penalties, your ex-husband may face a bench warrant or even time in jail (or prison.)
]]>Regardless of how you feel about each other, parents must communicate. After all, you’re going to be involved in each other’s lives for at least 18 years, and frankly, if you can’t bridge your communication gap, you’ve got a long way to go before you reach peace after the divorce. A parenting plan is a perfect way to negotiate the best arrangement for your family after your divorce. But, where do you start?
A parenting agreement (or parenting plan) is a written document that you and your ex-spouse create together to outline how you will handle the care of your children after your divorce. Creating an agreement helps both parents understand what the other expects of them and can alleviate conflict that often comes with separation.
Stability is essential for every child, and divorce has the power to upset even the most ridged schedule. A detailed parenting agreement can offset some of the negative effects of divorce by providing children with a predictable visitation schedule, thereby avoiding the constant question of “where will I be going today?”
You may have heard parenting plans also called custody agreements, co-parenting agreements, or a parenting time arrangement. No matter what you call it, you should consider creating one, even if your state doesn’t require it during the divorce.
Each state has its requirements for a parenting plan, and because every family is different, no parenting plan is the same. Most importantly, you must include details on how you will handle the following:
There’s no doubt that custody is one of the most contentious and hot-button issues in divorces with children. But, if you can set aside your emotions about each other and put the children first, custody shouldn’t be too difficult. It’s most important to determine who will have physical custody of the children, meaning where the child will live most of the time and who will provide day-to-day care. If you can’t decide who should have physical custody, the court will decide for you using your state’s best interest factors. Keep in mind, the judge doesn’t know you or your family as you do, so it’s always best if both parents can work together to formulate the best plan for the children.
Once you determine who will have physical custody, you’ll need to create a parenting time (or visitation) schedule for the non-custodial parent. In most cases, children will benefit from having a regular and continuous relationship with both parents, so if only the child lives primarily with one parent (the custodial parent), you must create a schedule that allows visitation between the child and the noncustodial parent.
Typically, the child will visit the noncustodial parent on weekends, extended vacations from school (like summer and spring break) and will split holidays between both parents. The children are used to seeing both parents on a regular basis, so it’s essential to create a schedule that will minimize the disruption to the children after divorce. Your visitation agreement should also clearly lay out which parent is responsible for transportation during parenting time.
In most states, the court will award both parents joint legal custody of the children. Legal custody will allow both parents to have an opinion on major decisions that impact your child’s life, including decisions about medical care, religious upbringing, and education. Your parenting agreement should explain whether legal custody is shared or sole (awarded to one parent) and what will happen in the event of a disagreement.
There’s no doubt that child support can be a touchy subject. That said, the law is clear that your children are entitled to financial support from both parents, regardless of custody. Your parenting agreement should include details on which parent will pay child support and how much. You can ask your attorney to determine your child support obligation by inputting your information (and your ex-spouse’s income) into your state’s child support formula.
No, not necessarily. You can develop a parenting agreement with your spouse, and once you put the terms in writing, you can submit it to the court. Or, if you can’t resolve all the issues on your own, you can participate in mediation, which is where a neutral third-party will help you solve your conflicts in a confidential environment. If you aren’t sure that mediation is for you, and you can’t negotiate an agreement on your own, it would be best for each of you to hire an attorney.
Keep in mind, even if you and your spouse agree on all the terms in your agreement, it would be smart for each of you to have an attorney review it before you sign.
The first step to developing your parenting plan is to open the lines of communication between you and your ex-spouse. You’re not going to get anywhere if neither of you is willing to negotiate and sacrifice for your child’s benefit. Try to put yourself in your child’s shoes. Traveling between two homes isn’t ideal, nor is it easy for children, especially those who are school-aged. Before you decide how you’ll handle custody and visitation, think of the best way to ensure your children get what they need from both parents.
If you hire an attorney, you should be honest about what you want and what you’re willing to sacrifice for your children. Be sure to provide any documents, including pay stubs, tax returns, and work schedules to your attorney promptly.
If you participate in mediation, you should attend the session with an open mind, but more importantly, you should come prepared with your work and social schedule, your child’s schedule, and your ideal parenting plan arrangement. You’ll also need to provide any financial documents that the mediator requests.
Once you and your spouse agree on the terms of your parenting plan, you’ll need to present a signed copy to the court. Although most courts believe that parents know best, you’ll still need to get the judge’s signature for the agreement to become a valid, court order.
Parenting agreements are legally-binding documents once the judge signs it, which means if you violate any provision, you’ll be subject to court fines or other penalties. If your arrangement no longer works for you, or you need to change the terms, you’ll need to follow your state’s procedure for modifying a court order.
If you have questions about creating a parenting agreement, you should speak to a family law attorney in your area.
]]>In addition, business owners may try to hide assets in these ways:
It may be difficult to find these items or get the evidence you need to prove they exist. Formal discovery procedures through litigation may help. For instance, you could take the deposition (legal interview) of your spouse's boss or payroll supervisor and ask them questions about income and bonuses. They have to answer truthfully, or risk a charge of perjury. But, you may also need to hire a forensic accountant or a private investigator. (A forensic accountant is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.) Usually an attorney can refer you to these specialists. For more specific information about discovering hidden assets, see How to Find Hidden Assets in Divorce.
]]>As long as you follow the state’s marriage license rules, you can get married in any state—even if you don’t live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state’s residency requirements before you can file for divorce in its courts.
To divorce in Ohio, the plaintiff spouse (the spouse who files for divorce) must have been a resident of the state for at least six months immediately before filing the complaint. (Ohio Rev. Code § 3105.03 (2021).)
To obtain a dissolution of marriage (the difference between a “dissolution of marriage” and a “divorce” is discussed below), one of the spouses must have been a resident of the state for at least six months immediately before filing the complaint. (Ohio Rev. Code § 3105.62 (2021).)
The purpose of state residency requirements is to prevent one spouse from moving to another state to “shop” for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.
Ohio’s divorce procedures are unique: It is the only state that differentiates between “divorce” and “dissolution of marriage.” In all other states, a dissolution is the same as a divorce. In a nutshell, you must seek a divorce if you and your spouse don’t agree on all the issues—such as property division and child custody—in your divorce. You can seek a dissolution only when you and your spouse agree on all issues.
Ohio law lists 11 grounds (reasons) for divorce:
(Ohio Rev. Code § 3105.01 (2021).) When a spouse files for divorce based on one of the first nine grounds listed above, the divorce will be “fault-based.” This means that the filing spouse will have to present evidence to the judge that proves the other spouse committed the act.
When a spouse seeks a divorce because the couple has lived apart for a year or because the couple is incompatible, the divorce will be “no-fault.” This means that the court doesn’t require the filing spouse to prove that the other committed a bad act that caused the end of the marriage. However, if the non-filing spouse disagrees with the other’s claim that they are incompatible, the filing spouse will have to give another reason for the divorce.
You can claim in your petition that your marriage ended for one or more of these reasons, but you’ll need to prove only one of them. Claiming two or more grounds can be helpful in the event you’re unable to prove one of them.
Most people who file for divorce in Ohio will give incompatibility as the reason their marriage is ending. As long as the other spouse doesn’t disagree, it’s the simplest way to proceed: No-fault divorces often reach resolution faster than fault-based divorces because the spouses don’t have to argue about who was responsible for the end of the marriage.
Divorces in Ohio take at least four months to finalize, and some can take up to two years. To get details about how to file a divorce in Ohio, visit Ohio Legal Help’s website.
A “dissolution of marriage” in Ohio is a form of uncontested divorce. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. (A contested divorce, on the other hand, is one where the spouses can’t agree and must ask a court to decide the issues in their divorce.)
To get a dissolution of marriage in Ohio, both spouses must sign the petition, and must include with the petition a separation agreement for the court to incorporate into the final judgment. The separation agreement must address:
(Ohio Rev. Code § 3105.63 (2021).) The court will hold a hearing on the petition for dissolution, and both spouses must attend. Dissolutions are typically faster and less expensive than divorces because there is nothing for the spouses to argue about.
Ohio dissolutions of marriage are usually finalized within 30 to 90 days after filing the petition. (Ohio Rev. Code § 3105.64 (2021).)
For information about filing a Dissolution of Marriage in Ohio, visit Ohio Legal Help’s website.
Like most legal proceedings, you must pay court filing fees to begin a divorce or dissolution of marriage. Every county in Ohio has different filing fees; contact the clerk of the court where you will be filing for more information. As of 2021, the filing fee for divorce and dissolution in most counties is between $300 and $400. Also, the filing fee might be more in some courts when the couple has minor children.
If you can’t afford to pay the filing fees, you can ask the court to waive the fees. If your income is at or below 187.5% of the federal poverty limit, the court must waive your fees. If you don’t qualify for this mandatory waiver, you can still apply for a waiver—it will be up to the judge to decide whether to grant your request. (Ohio Rev. Code § 2323.311 (2021).) Use Form 20: Civil Fee Waiver Affidavit and Order to request a waiver.
Once you file the divorce paperwork, you will need to provide notice to your spouse of the divorce. (You will not have to send your spouse notice of a dissolution of marriage, because both spouses sign and file the petition.) In Ohio, you can ask the court to serve the paperwork when you file the petition. In most cases, you’ll have the option of having your spouse served by certified mail (return receipt requested) or by personal service by the sheriff. Most people choose certified mail because it is less expensive.
You’ll need to follow up with the clerk to confirm that your spouse was served successfully. If you’re not able to serve your spouse—perhaps because you don’t know where your spouse is or your spouse is evading service—you can request permission from the court to serve your spouse in another way. A common alternative method of service is “by publication”—usually this means that the court will allow you to publish notice of the divorce in a newspaper.
Unlike some states, Ohio doesn’t have a “waiting period” between when you file your divorce and when the court can start processing it. However, there is a 30-day waiting period in a dissolution of marriage—the court can’t grant the dissolution until at least 30 days has passed.
You’ll most likely have at least one hearing in court, no matter whether you’re pursuing a divorce or a dissolution. In a divorce, the judge might also schedule hearings on any motions (requests) you or your spouse file.
Here are some of the issues a judge will address in an Ohio divorce.
Ohio is an equitable division state, which means the court will divide marital property and debt fairly—but not necessarily equally.
First, the judge will determine whether property is marital or non-marital property. Judges presume that all property acquired by either spouse after the marriage is marital property, so it’s up to the spouses to prove that something is non-marital property.
Next, the judge will divide marital property “equitably” by evaluating:
(Ohio Rev. Code § 3105.171 (2021).) See Ohio Divorce: Dividing Property for more details.
Ohio judges can award “reasonable” spousal support to a spouse who requests it. Ohio judges have a lot of discretion on the form of, length of, and amount of any spousal support awards. When deciding whether spousal support is appropriate, Ohio judges will consider:
(Ohio Rev. Code § 3105.18 (2021).) See Understanding and Calculating Alimony in Ohio for more information.
Ohio laws and courts refer to child custody as “parental rights and responsibilities.” Like all states, Ohio courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. However, the judge will make a determination about custody based on what is in the child’s best interests. Ohio judges may take into account the child’s wishes when deciding custody.
The parent who lives most of the time with the child is the “residential parent.” If the parents share time equally (“shared parenting”), the court might designate one of the parents’ residences as the child’s home if necessary.
When parents don’t agree on the division of parental rights and responsibilities, the court may order them to attempt mediation. (Ohio Rev. Code § 3109.052 (2021).) Ohio judges also have the discretion to order parents to attend classes on parenting or obtain counseling before the court will issue an order allocating parental rights and responsibilities. (Ohio Rev. Code § 3109.053 (2021).)
For more details about child custody in Ohio, see Ohio Child Custody Laws and Ohio Parental Rights and Shared Parenting FAQs.
Ohio requires both parents to support their children after divorce. Ohio courts use the state’s child support guidelines to evaluate how much support a parent must pay. Child support payments are not affected by the parents’ behavior during marriage. If the judge believes that the amount of child support calculated under the state’s guidelines would be unjust or inappropriate, the judge may deviate from the state’s guidelines to protect the child’s best interests. When determining whether the amount dictated by the state’s guidelines is appropriate, the judge may consider a number of factors, such as:
(Ohio Rev. Code § 3119.23 (2021).) You can use the Ohio Department of Job and Family Service’s child support calculator to get an estimate of how much child support might be awarded in your case. For more details, see Child Support in Ohio.
Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.
In mediation, both spouses meet with a trained and neutral third party called a “mediator.” Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator won’t make any decisions in the case—rather, a mediator’s job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.
If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. Any remaining issues that you and your spouse can’t agree on will be decided by the court. Even if you’re able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.
Divorcing spouses can choose to mediate on their own with a private mediator. Some states’ laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as “court-ordered mediation.” Ohio judges have the discretion to refer a divorce case to mediation.
To finalize your divorce, the judge will sign a “Decree of Divorce.” (If you’ve filed for dissolution of marriage, you’ll receive a “Decree of Dissolution of Marriage.) The decree will include the details of your divorce, such as property division, child custody, and spousal support. Your divorce is final as of the date the judge signs the decree.
You will likely get a copy of your final divorce decree after it’s been entered into the court’s record. You can also request a certified (official) copy of the decree from the court clerk.
Also, if one or both of the spouses requested that their name be changed back to the name they had before marriage, the decree will serve as the order restoring the spouse’s former name.
My divorce was final in Washington. My ex lived in California at the time; now we both live in California. We are having custody, visitation and support issues. Do we follow California laws?
The children live with my ex. I have two other children who are not my ex's now in my care. How will the law work regarding child support for the two with my ex? Our divorce stated I was to pay $300 monthly, but I have not paid; for numerous reasons, my ex does not want the money at this time.
However, he is trying to strongarm me by not allowing me to have any say about our children. He has tried to put "rules" into place, stating if I do not follow them, he will revoke my parental rights at my expense through the courts. What do I do?
The Washington court is the only court that can modify your divorce decree. You'll either have to do this yourself or hire a Washington lawyer to file a motion for modification.
As for having your parental rights revoked, that is not easily accomplished anywhere. If the circumstances have changed since your divorce decree, and the judge finds that a custody or visitation change is in the best interests of the children, then the change will be made.
In terms of the child support, the court is likely to hold you liable for the full amount that you should have paid but did not -- called an arrearage -- and issue a judgment that requires you to pay the arrearage in installments, plus whatever your future obligation is, assuming that your ex still has custody.
A word to the wise. Nolo has a book that helps parents figure out how to parent jointly even after the divorce. It is called Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn't Last. The book does presume a willingness on the part of both parents to cooperate in the process or at least to attend a mediation session. Child custody and visitation disputes that are taken to court can harm the children in important ways, not to mention what it can do to one or both of the parents.
I have full custody of my 12-year old son. His father and I are divorced, and have had no contact for ten years. I have since remarried. Is it possible to change my son's name to my new husband's last name without having to obtain the consent of his absent father or prove abandonment? Stepparent adoption is more than we can afford.
Even if you change your son's name, it won't change his legal relationship to your current husband. If you want them to have a parent-child relationship, you should probably reconsider the possibility of stepparent adoption. It sounds like your current husband is actually parenting your son, and an adoption will shift legal parental rights and responsibilities to him, which will protect both your husband and your son. You can often do a stepparent adoption without the expense of a lawyer -- check your state court's website for do-it-yourself information.
Getting the absent father's consent to the adoption -- or proving it is not necessary -- should not be a problem in your case. If you can show the court that the father hasn't communicated with or supported your son for a year or more, the judge should conclude that he has abandoned your son. The judge will then remove the consent requirement.
If you really don't want to go through any court proceeding, you can try an informal name change, but you're unlikely to get very far. Many schools and other governmental agencies won't do a name change without some sort of a court order, and these days you're likely to have a hard time getting a name change accepted without one. You can talk to your child's school and see if they would be willing to accept a letter from you to change his name on their records, but don't be too shocked if they say "no."
I lost custody of my three children in 1997 because I was in jail for bad checks. Now I would like to regain custody of the children and can't afford a lawyer. What should I do?
As you are finding out the hardest way, regaining custody of children can be a lot more difficult than most people expect. Every state has a system both for removing and restoring children from a parent's custody.
As a general rule, the agency responsible for these decisions -- usually called Child Protective Services or some similar moniker -- has a legal duty to help reunite families such as yours. But the agency also has a duty to act in the best interests of the children. If staffers at the agency have become convinced that you don't have it in you to be a good parent, they may well expend very little effort trying to reunite you with your children. This leaves it up to you to force the agency to perform its job.
A lawyer could help you sort out what your rights are and how you might best get your kids back. If you can scrape together enough money for a consultation with a lawyer who specializes in this type of law, it would be well worth the scraping.
In addition, you should sit down with an agency representative and make sure you understand what behavior on your part would make it more likely that you'll get your kids back. Once you have that information, the hard part begins: walking the line laid down by people who you may feel are against you. But in the long run, helping the agency change its attitude toward you as a parent is your single best strategy. This of course means staying out of jail, being willing to attend parenting classes, reliably showing up on time for whatever visits you have and asking agency personnel for help when you need it.
I'm having difficulty finding out if the "lawful" status of a stepdaughter or stepson changes after a parent and stepparent's divorce is final and the stepdaughter or stepson is living on his or her own or with the natural parent. Can you help?
Legally, stepchildren have no legal connection with stepparents -- current or previous. Only if a stepparent adopts a stepchild does the relationship take on legal rights and responsibilities.
Of course, as is often true with the law, legal principles do not recognize an underlying human reality: If a stepparent plays an important role in a stepchild's life, the relationship they form is what counts, not what the law says about it.
I recently divorced my husband as I am a lesbian. We decided in our sons' best interest that he have custody of our children. I do have visitation rights of one night per week and every second weekend. Whilst my former husband and I are happy with the custody arrangement, my parents are opposed to my homosexuality and are threatening to challenge my visitation rights to my children. Do they have any grounds to do this?
There is a good chance that time will be your friend -- and that your parents will come around to believing that the only orientation that matters is a loving one.
Until then, the courts are on your side. At least most of them. At least partially. Generally, a court will abide by any custody arrangement amicably reached by both biological parents of the child. Of course, a judge can alter the agreement based on what he or she perceives as being in the best interest of a child.
Still, before denying or greatly restricting a parent's right to see his or her child, the court is supposed to find extreme behavior -- like child abuse, violence, repeated drunkenness, or sexual acts in front of the children. Since you now have limited visitation, a court is not likely to step in and further reduce a mother's right to see her children -- especially if both parents and kids are happy with the arrangement.
And while grandparents are gaining ground in being awarded visitation rights, that is usually in the cases where they have been cut out of the loop, not when they are trying to take away a parent's rights.
You might want to arm yourself with some literature while you monitor the evolving legal situation. The National Center for Lesbian Rights in San Francisco provides publications such as Lesbian Mother Litigation Manual, State by State Guide to Child Custody, and A Lesbian and Gay Parents' Legal Guide to Child Custody. Its Web address is www.nclrights.org; phone is 415-392-6257. You might also want to do some preemptive striking by contacting the National Gay and Lesbian Task Force at www.ngltf.org; phone 202-332-6483. The group provides attorney referrals.
An attorney is not likely to get involved until a lawsuit has actually been filed; however, letting your parents know that there are organizations and resources available to assist you may stop them from pursuing the matter.
My ex and I were divorced a few years back. In the divorce decree, we agreed that I would pay child support provided that our two sons were attending college full time (12 credits or more). For one and a half years my ex accepted child support payments. Then I found out that our sons were only attending college part time (6 credits). Also, both sons are working, and leasing apartments. I went to court and succeeded in stopping my child support obligation. But now I want the $36,000-plus that my ex fraudulently accepted returned to me. Can I sue my ex in civil court?
Family courts are getting rather reluctant to deal with money-based disputes arising out of allegedly fraudulent conduct.
However, a civil suit can always be brought for breach of contract (and possibly fraud) and the divorce agreement is considered a legal contract between you and your ex. A lawyer from your home state can tell you more. As a preliminary matter, make sure that you haven't reached the "statute of limitations" (expiration date) for bringing suit. (You can find the statute of limitations for your state in Chart: Statutes of Limitations in All 50 States.)
So it seems like civil court may be your most likely direction. But one warning before you take off: your divorce agreement may not be the only source of your obligation to pay child support. Some states mandate a certain level of support for minors or children attending school. If you were legally obliged to support the children under such laws, then your spouse might be able to subtract the amount of that required support from the support you're claiming was fraudulently paid. In other words, in going after the money, make sure you weren't obligated to pay all or a portion of it anyway.