Nolo's Essential Guide to Divorce
Emily Doskow, Attorney
June 2012, 4th Edition
The most practical -- and legal -- divorce guide ever published
Like most people who are going through a separation or divorce,
you're probably wondering "What's next?" Turn to
Nolo's Essential Guide to Divorce for clear answers that
can help make your divorce simpler and reduce your expenses. You'll even learn how to complete the divorce with minimal help from an attorney.
With compassion and understanding, Nolo's Essential Guide to Divorce will explain what you should expect through each stage of divorce. This thorough guide will help you:
- understand the divorce process
- learn about different types of divorce, including mediated, collaborative, and contested
- identify and divide property and assets fairly
- work with mediators or lawyers
- avoid expensive and painful court battles
- establish child custody and visitation
- handle child support issues, including how support is paid and enforced
- draft a marital settlement agreement
- deal with divorce emergencies
- address post-divorce issues
- negotiate and settle spousal support
On every page, this book stresses the importance of minimizing conflict, explains complex legal problems concisely, and provides advice on how to protect your interests -- with your dignity and sanity intact. Plus, easy-to-use charts make it simple to find the divorce laws in your state.
This edition includes new information on bankruptcy and foreclosure, and explains how both can affect divorce. While plenty of books out there claim to cover this topic, only Nolo consistently delivers clear legal expertise and invaluable insights. Trust Nolo's Essential Guide to Divorce to help you at every step.
“Anyone faced with divorce needs to run, not walk, to Nolo’s Essential Guide to Divorce...”-Bookwatch
“In this well organized and easy to read book, readers can find succinct, practical answers to all the tough questions about divorce.”- Attorney Katherine E. Stoner, Author of Divorce Without Court
“...the author can save you hundreds if not thousands of dollars in legal fees.”-Hillary Hyde, MSW, www.gooddivorcebooks.com
- Grounds for Divorce
- Financial Inventory
- Net Worth Summary
- Monthly Income
- Daily Expenses
- Monthly Budget
Emily Doskow is a practicing attorney and mediator who has worked with families in the Bay Area since 1989. She is the author of Nolo's Essential Guide to Divorce, the co-author of Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions and The Sharing Solution: How to Save Money, Simplify Your Life & Build Community, and the editor of many Nolo titles, including Divorce Without Court: A Guide to Mediation and Collaborative Divorce and the bestselling Neighbor Law: Fences, Trees Boundaries & Noise. She specializes in family law, including adoption, parentage issues, domestic partnership formation and dissolution, and divorce. She is a graduate of the Boalt Hall School of Law at the University of California at Berkeley.
Emily blogs on the ever-changing laws that affect gays and lesbians at Queer Justice: Nolo's LGBT Law Blog. She also blogs on marriage, adoption, parenting, divorce, child custody and child support at Nolo's Divorce, Custody & Family Law Blog, and on practical tips for sharing everything from lawnmowers and land to time and information at The Sharing Solution.
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1. Getting Oriented
- Taking the High Road
- Separation or Divorce?
- Family Court
- Kinds of Divorces
- Property, Custody, and Support
- Getting Help From Experts
2. First Steps After You Decide to Divorce
- Breaking the News
- Where Will Everyone Live?
- Gathering Financial Information
- Managing Your Family’s Money
- Getting Legal and Other Professional Help Early
- Taking Care of Yourself
3. When You Can Agree: Uncontested Divorce
- Basics of the Uncontested Divorce
- Summary Dissolution for Short-Term Marriages
- Default Divorce
- Preparing and Filing Legal Papers
- How the Other Spouse Can Respond
- Negotiating a Settlement and Preparing a Marital Settlement Agreement
- Finalizing Your Uncontested Divorce
4. Working It Out: Divorce Mediation
- Why Divorce Mediation Works
- What Does Mediation Cost?
- Is Mediation Right for You?
- Suggesting Mediation to Your Spouse
- Choosing a Mediator
- Choosing and Working With a Lawyer
- The Mediation Process
- How to Make Your Mediation a Success
- After the Mediation, the Paperwork
- If Mediation Doesn’t Work
5. When You Can’t Agree: Contested Divorce and Trial
- Finding the Right Lawyer
- Paying the Lawyer
- Is Fault a Factor?
- Getting Started
- Gathering Information for Trial: Disclosures, Discovery, and Digging Up Dirt
- Settle, Settle, Settle!
- The Pretrial Conference
- Anatomy of a Divorce Trial
- After the Trial
6. Custody Decisions and Parenting
- Physical and Legal Custody
- The High Road: Agreeing With Your Spouse on a Parenting Plan
- Helping Your Kids Cope With Divorce
- Making Shared Parenting Work
- Trying to Get Along With Your Ex
- When It Comes to Divorce, Grownups Are Kids, Too
7. Custody Disputes
- The Low Road: Fighting It Out in Court
- How Courts Handle Custody Disputes
- If the Custodial Spouse Interferes With Visitation
- If One Parent Wants to Move Away
- Drug and Alcohol Abuse
8. Child Support
- Who Pays Support?
- Temporary Support While the Divorce Is Pending
- Working It Out Yourselves
- How Courts Decide Support Amounts
- Estimating Child Support in Your Family
- How Support Is Paid Each Month
- If You’re the Recipient: Enforcing Child Support Orders
- If You’re the Paying Spouse
- How Long Support Lasts
- If Circumstances Change
- Taxes and Your Children
- Health Insurance
9. Yours, Mine, and Ours: Basics of Marital Property
- Taking Inventory
- What Property Gets Divided
- Identifying Community Property
- Getting Financial Information
- Is Your Spouse Hiding Assets?
10. Yours, Mine, and Uncle Sam’s: Dividing Property
- You’re in Control
- How Judges Divide Property
- What to Do With the House
- Dividing Your Other Assets
- What to Do With a Family Business
- Dividing Debt
- Tax Consequences of How You Divide Property
- Retirement Benefits
- Money Now and Later
11. Spousal Support and Health Insurance
- Types of Spousal Support and How Long They Last
- How Courts Set the Amount of Support
- Negotiating Support With Your Spouse
- Planning for Possible Disability or Death of the Supporting Spouse
- Changing the Amount of Spousal Support Later
- Tax Planning When You Pay or Receive Support
- Keeping Health Insurance in Force
12. Military Divorce: Special Issues
- Beginning a Divorce
- The Servicemembers Civil Relief Act
- Custody and Visitation
- Support for Children and Spouses
- Dividing Property
- Pensions, Insurance, and Other Benefits
- Tax Issues
- Domestic Violence and Other Abuse
- Postdivorce Follow-Up
13. Getting It in Writing: Preparing Your Marital Settlement Agreement
- What It Is, What It Does
- Creating the Agreement
- Doing the Math
- Consulting a Lawyer
- Completing the Paperwork
14. Critical Care: When Things Really Go Wrong
- Domestic Violence
- Child Abuse
15. After the Divorce
- You’re Not Done Yet: Ten Postdivorce Tasks You Can’t Ignore
- The Kid Connection
- Modifying Spousal Support
- Your Right to Social Security
- Dating and New Relationships
- Hope Springs Eternal: Remarriage
- Getting Help and Helping Yourself
16. Getting Help, Finding Information, and Looking Stuff Up
- More Great Books
- Getting Divorce Information and Forms
- Help With Negotiations
- Financial Advice
- Document Preparation Services
- Legal Advice
- Other Ways to Look Things Up
- Grounds for Divorce
- Financial Inventory
- Net Worth Summary
- Monthly Income
- Daily Expenses
- Monthly Budget
Taking the High Road................................................................... 4
Separation or Divorce?................................................................. 5
Trial Separation............................................................................ 6
Permanent Separation ................................................................ 7
Legal Separation.......................................................................... 9
Family Court................................................................................. 12
Kinds of Divorces........................................................................ 12
Summary Divorce..................................................................... 14
Uncontested Divorce................................................................. 14
Default Divorce.......................................................................... 15
Fault and No-Fault Divorce....................................................... 16
Mediated Divorce...................................................................... 17
Collaborative Divorce................................................................ 18
Contested Divorce..................................................................... 20
Divorce for Same-Sex Couples................................................ 22
Property, Custody, and Support............................................... 23
Divvying Up Property................................................................ 23
What Happens to the Children?................................................. 24
Spousal and Child Support........................................................ 25
Getting Help From Experts........................................................ 25
Whether you’re thinking about getting a divorce or have already begun the process, you undoubtedly have a lot of questions. Will you have to hire a lawyer and go to court? What will happen to your house? Who will get custody of the children? How will you make ends meet?
On top of all these practical concerns, the end of a marriage is an intensely emotional time. No matter who makes the decision, both spouses are likely to experience enormous grief over the loss of a relationship that started out full of love and hope. You probably feel disoriented and possibly somewhat lost. You need to take care of yourself, and one way to do that is by learning about the legal and practical issues you’re likely to face.
This chapter gives you an overview of the divorce process and answers common questions. It also defines some important words and concepts you’ll need to understand as you wade into this unfamiliar territory. Once you have this information, your divorce should be easier, smoother, less frightening, and less costly.
Taking the High Road
As you go through your divorce, time after time you’ll be faced with the same kind of choice: give a little bit or stand firm on principle. Agree to send your kids for visitation early on a day your spouse is off work or hold to the visitation schedule as if any deviation would be fatal. Go with your spouse to a parent-teacher conference or insist on scheduling separate meetings. Offer an olive branch or fire off a scathing letter.
It may not seem true now, but the best thing you can do for yourself and your family is to take the high road as often as you can. That means trying to compromise. Consider the other person’s feelings. Do what’s best for your kids. Think about negotiating solutions that work for everyone, not just you. Whenever possible, don’t create or escalate conflict.
You don’t choose the high road just because it’s morally superior to pettiness and vindictiveness. Experienced divorce lawyers and family therapists will tell you that the angriest people end up hurting their own interests and dragging out the pain by their refusal to give an inch. No question, it is very difficult to make reasoned decisions when you’re in emotional turmoil. You may be very angry at your spouse; you may be deeply hurt by an affair or another betrayal; you probably feel that you can’t get away from the situation quickly enough. And if your spouse is abusive or otherwise impossible to work with, you may know from experience that efforts at compromise will probably be wasted. But in the vast majority of situations, a little compromise goes a long way—and if you do choose the high road, then when you look back on this time, you will feel good about the choices you made.
You’ll also feel good about having done right by your kids. The other thing that experts agree on is that although divorce is difficult and stressful for kids no matter what, the real harm to kids comes from being subjected to conflict between parents. The longer that lasts, and the more severe it is, the worse it is for your children. If you truly want to shield your children from the pain of divorce, recognize that the more you take the high road with your spouse, the better job you’ll do.
Help communicating with your spouse. Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone, Bruce Patton, and Sheila Heen (Penguin), has practical advice about how to prepare for difficult talks and communicate successfully about hard topics.
Separation or Divorce?
Separation simply means that you are living apart from your spouse. A separation is not a divorce. You’re still legally married until you get a judgment of divorce from a court. However, generally a separation does affect the financial responsibilities between you and your spouse before the divorce is final.
Look before you leave. In some states, moving away from your spouse can be grounds for a “fault” divorce, because if you initiated the separation and your spouse didn’t want it, your spouse can say that you abandoned the marriage. While the issue of fault is much less important than it used to be, in some states it can affect property division or support. See “Fault and No-Fault Divorce,” below.
There are three kinds of separation. In most states, only one (legal separation) changes your legal status—but all three of them have the potential to affect your legal rights.
Types of Separation
Living apart to decide whether to divorce. May or may not affect property rights, depending on length of separation and activities during separation.
Living apart with the intention to divorce. Property and income acquired, and debts incurred, after separation date belong to the spouse who acquires them.
Legal status different from being married and different from being divorced; includes distribution of property; spouses are not free to marry again.
If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership. (See “Property, Custody, and Support,” below.)
Take your time deciding …
I wish we had spent some time apart and thought about things for a while longer. I feel like we rushed into divorce even more than we rushed into marriage—once we started talking about it, it had a life of its own. Now we really miss each other. I don’t know whether we could have made it work but I would have liked to try counseling instead of just going in for the divorce.”
—Divorced military spouse
If you and your spouse are hoping to reconcile, it’s a good idea to write an informal agreement about some issues that will surely come up. For example, you will need to decide whether or not you will continue to share a joint bank account or credit cards and how you’ll budget your spending, which of you will stay in the family home, how expenses will be shared, and the like. If you have kids, you’ll need to decide how and when each of you will spend time with them. A sample separation agreement is shown below.
If you both decide there’s no going back, your trial separation turns into a permanent one. That’s discussed next.
When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses—if you don’t intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns.
Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce. For example, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you didn’t discuss divorce until the month had passed, and neither of you intended to divorce before then, the date of separation is somewhat questionable. If during that month your spouse received a big bonus at work, who it belongs to is also arguable.
If you move out of the house and don’t expect any long-term reconciliation with your spouse, there may be consequences to going out or spending the night together just for old times’ sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse’s financial actions during a period when you thought you were responsible only for yourself.
Once you’re separated and have made basic agreements about your joint assets and debts, you don’t have to divorce right away. Some people stay married because of insurance—and inertia can be a factor, too.
Sample Separation Agreement
Cynthia and Howard Bean agree that we are going to live apart beginning on February 1, 20xx. We’re not ending our marriage and we aren’t contemplating divorce right now.
We will continue to share ownership of and access to our joint bank and credit card accounts, and we will both continue to deposit our paychecks into the joint checking account, which we will use to pay household expenses as usual. Cynthia will continue to pay the bills from our joint account.
Howard will live with his brother. Cynthia will stay in the house with the kids. Howard will come to the house to see the kids on the following schedule: every Tuesday, Thursday, and Friday, from 5:00 to 9:00 p.m., and all day every Sunday. He may see the kids more if we both agree. Cynthia can be present during the time that Howard is at the house, or not, at her option. Other than the scheduled visitation times, Howard won’t come to the house unless we agree in advance.
This agreement is valid until July 31, 20xx. After that we’ll decide to reconcile or to divorce, or will make a new agreement.
You’re still free to divorce even if you’re formally separated. While you and your spouse agree to it, it’s fine to maintain your separation without getting a divorce for as long as you want. But once one spouse wants out, it’s their right to proceed with a divorce. Recently a New York couple signed a separation agreement providing that the husband couldn’t seek a divorce without the wife’s written consent for five years from the date of the agreement. Two years later the husband did try to file for divorce and the wife asked the court to dismiss the case. The judge refused, saying that the law only required one year of separation and the agreement was against public policy. Your local court would probably come to the same conclusion, so don’t try binding your spouse to an agreement to stay married for a certain period of time.
In some (not all) states, you can get a legal separation by filing a request in family court. Being legally separated is a different legal status from being divorced or married—you’re no longer married, but you’re not divorced either, and you can’t remarry. But the court’s order granting the legal separation includes orders about property division, alimony, and child custody and support, just as a divorce would.
People choose legal separation instead of divorce because of religious beliefs, a desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would be lost with a divorce, or simple aversion to divorcing despite the desire to live separate lives. Some people live very happily in a state of legal separation for many years. (If you’re considering a legal separation instead of divorce so that you can keep insurance benefits, check the insurance plan before making the decision. Some consider a legal separation the same as a divorce for purposes of terminating health benefits.)
Like a divorce, an annulment ends a marriage. But unlike a divorce, when you get an annulment it’s as though you were never married, at least in some ways. Although you need to divide your property just like other divorcing couples, you are legally entitled to call yourself “single” after the annulment, rather than checking the box for “divorced” wherever that comes up.
Religion is the most common reason for choosing annulment over divorce. In particular, the Roman Catholic Church doesn’t sanction divorce or subsequent remarriage, but does allow someone whose first marriage was annulled to remarry in the church. But even if you get a religious annulment, in order to end your marital relationship in the eyes of the state you must obtain a civil annulment through the courts.
Although most annulments take place very soon after the wedding, some couples seek an annulment after they have been married for many years. In that case, the court considers all of the same issues as in a divorce, divides property, and makes decisions about support and custody. Children of a marriage that has been annulled are still legally considered “legitimate” children of the marriage.
In most places you can get a civil annulment for one of the following reasons:
Fraud or misrepresentation. One spouse lied about something that was important to the other in getting married, like the ability to have children.
No consummation of the marriage. One spouse is physically unable to have sexual intercourse, and the other spouse didn’t know it when they got married.
Incest, bigamy, or underage party. Either the spouses are related by blood so that their marriage is illegal under the laws of the state where they married, or one of them is married to someone else, or one of them is under the age of consent and didn’t receive a parent’s approval.
Unsound mind. One or both of the spouses was impaired by alcohol or drugs at the time of the wedding or didn’t have the mental capacity to understand what was happening.
Force. One of the parties was forced into getting married.
Common Law Marriage
Couples who act like they are married, hold themselves out to the world as married, and intend to be married are considered legally married. Typical indicators of a common law marriage are filing joint tax returns, referring to each other as “husband” and “wife,” and using the same last name. If you live in one of the states that allows common law marriage and you meet the criteria, then you are legally married and must get a divorce to end your marriage. If this issue concerns you, see an attorney who’s an expert in this area.
The states that allow common law marriage are:
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/90)
District of Columbia
Georgia (if created before 1/1/97)
Pennsylvania (if created before 2004)
Idaho (if created before 1/1/96)
Every divorce case goes through some kind of court proceeding. Even if you and your spouse agree about how you will divide your property and handle custody, visitation, and support issues, a judge will still have to grant your divorce.
In most states, divorce cases—whether contested or not—are handled by a special court, called “family court,” “domestic relations court,” or “divorce court.” This doesn’t necessarily mean that there’s a separate building (though in some places there is), but just that certain judges deal only with family-related cases such as divorce, child custody and support, and sometimes, adoption.
Having a separate court for family cases means that the judges are knowledgeable about family law and have lots of experience with different family situations. The court clerks and assistants tend to be knowledgeable as well, which will be especially important if you are representing yourself.
Before you can use a state’s court system to get divorced, you must live in the state for a certain length of time. A few states have no specified requirement; some require only six weeks; some require a one-year residency, and many more use six months as the required period.
See Chapter 3 for a list of residency requirements.
Kinds of Divorces
There’s not just one way to divorce. The differences can be in the law, like fault or no-fault, or in the way you and your spouse approach it, like uncontested, contested, or default. This section describes the different kinds of divorce in general terms. All of the issues raised here are discussed in greater detail in later chapters.
No matter how you slice it, divorce is expensive and time-consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better for your bank account and for your chances of emerging from the divorce with a decent relationship with your ex.
Kinds of Divorce at a Glance
Spouses, who haven’t been married long and don’t have children or many assets or debts, file together
Relatively simple paperwork; lawyer usually not necessary; often only one filing fee
One spouse files for divorce, the other doesn’t respond
Relatively simple paperwork; lawyer may or may not be necessary
Trained, neutral mediator helps spouses work out settlement agreement without court fight
Less expensive than a contested divorce; can help spouses communicate
Each spouse hires lawyer, but agrees to settle out of court using negotiation and four-way meetings
Can take longer than mediation, but cheaper, nicer, and quicker than contested case
Spouses hire private judge to hear evidence and decide contested issues outside of court
Faster and slightly less expensive than trial; can be more civil than court trial and provides greater privacy; not allowed everywhere
Spouses hire lawyers and fight out issues at trial
Expensive, stressful for everyone (especially children), guaranteed to ruin chances of civil relationship in future
In many states, an expedited divorce procedure is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and you must file court papers jointly.
A summary (sometimes called simplified) divorce involves a lot less paperwork than other types of divorce—a few forms are often all it takes. You can probably get the forms you need from the local family court. For this reason, summary divorces are easy to do yourself, without the help of a lawyer. (There’s more about summary divorce in Chapter 3.)
The best choice, if you can make it happen, is an uncontested divorce. That’s one in which you and your spouse work together to agree on the terms of your divorce, and file court papers cooperatively to make the divorce happen.
There will be no formal trial, and you probably won’t have to ever appear in court. Instead, you file court forms and possibly a “marital settlement agreement” that details the agreements you’ve made about how you want to divide your property and debts, what your custody arrangements for your children will be, and whether support payments will change hands. Your settlement, and your final divorce, will have to be approved by a judge, which shouldn’t be any problem. The judge will usually approve a settlement agreement unless it’s clear that the terms are completely unfair to one person or were arranged when one person was under duress.
An uncontested divorce is the least expensive kind of divorce you can get. But even it will take a bite out of your wallet. You’ll have to figure out how to prepare and file the court papers, which probably involves buying books—you’ve already got this one, but you may want others. (Your court’s website may provide free help, too—it’s worth looking. Chapter 16 has a list of court websites for each state.)
You’ll probably be able to handle your uncontested divorce with little or no help from a lawyer, but you may want to ask a lawyer to look over your paperwork and, perhaps, to review your settlement agreement. Many couples use a counselor or a mediator to help them come to agreement on property and custody issues. And if you or your spouse has retirement benefits through work, you might need to hire an actuary to value them or a lawyer to prepare the special court order you’ll need to divide them.
Assuming you use professionals for these tasks, you should be able to get everything done for between $2,500 and $5,000, depending on where you live and how much lawyers and actuaries charge. (There’s more about this in Chapters 3 and 4.)
If you and your spouse both stay on top of all the tasks you need to take care of, you should be able to finalize your divorce as soon as the waiting period (every state has one) is over. So depending on your state’s requirements, you could be finishing your divorce within a few months, or you may have everything done and just be waiting around for the date when you can file the final papers.
A legal document preparer can help you with your divorce paperwork. In many states, legal document preparers, paralegals, or legal typists (different names for the same job) can help you prepare court forms for a divorce. They cannot give you legal advice, but they can direct you to helpful resources and then make sure the forms are properly filled out so that your court process goes smoothly. There’s more about this in Chapter 16.
The court will grant a divorce by “default” if you file for divorce and your spouse doesn’t respond. The divorce is granted even though your spouse doesn’t participate in the court proceedings at all. A default divorce might happen, for example, if your spouse has left for parts unknown and can’t be found. (How to manage a default divorce is discussed in Chapter 3.)
Fault and No-Fault Divorce
In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Even when both people were equally eager to get out of the marriage and the divorce was uncontested, they had to decide which of them would take the legal blame, and decide which of the fault grounds they would use in asking the judge to grant the divorce. Adultery was the most popular choice, but abuse, abandonment, extreme cruelty (inflicting unnecessary emotional or physical suffering on the other spouse), and the physical inability to engage in sexual intercourse that wasn’t disclosed before marriage also made the list.
Now, every state offers the option of “no-fault” divorce—and in many states, no-fault is the only option. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship. In some states, however, in order to get a no-fault divorce you must also have lived apart for a specified period of time.
Covenant Marriage and Divorce
If you entered into a “covenant marriage” in Arizona, Arkansas, or Louisiana, you must request a divorce on fault grounds—you may not use no-fault divorce procedures. You’re required to engage in marital counseling before you can file for divorce, and the waiting period before your divorce is final may be longer than that for a noncovenant marriage. You’ll definitely need a lawyer’s help, especially if you and your spouse disagree about getting a divorce.
And carryovers of the old fault system do remain. In some states, you have a choice of using fault or no-fault grounds for divorce. Even if you choose no-fault, some of these states’ courts still use fault as a factor in dividing property and determining custody and support. This basically means that one spouse may accuse the other of misconduct and argue that it should affect support awards or the division of property.
It’s unlikely you would choose to file for divorce on any of the fault grounds if your divorce is uncontested. The only reasons you might choose a fault divorce are if you don’t want to wait out the separation period, or if you anticipate a major fight over property or support. However, if you do intend to argue that fault should factor into property division or support, make sure you use the right forms and check the right boxes when you file your initial court papers.
There’s a table in Chapter 5 that lists whether states are pure no-fault states, (where you can’t get a fault divorce), or allow fault divorce. It also shows the length of separation required before a no-fault divorce is granted. Chapters 9 through 11 contain more information about how fault affects property and support, and Chapter 5 addresses the issue of fault in a contested divorce.
In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you communicate with each other until you can come to an agreement.
Mediation is much less expensive than going to trial, but more important is the fact that mediation is a wonderful way to preserve and even improve your relationship with your spouse. Working with a mediator to make decisions that work for everyone is a powerful, and often very positive, process.
Mediators charge anywhere from $100 to $400 or more per hour, and if you have a lot of issues to resolve, the mediation could take as many as five or six sessions. Assuming each mediation session is two hours long, you’re talking between $1,600 and $3,600. And in a mediated divorce, just as in every other divorce, you may need the help of actuaries, appraisers, and other professionals to value your assets.
Many couples who are mediating also use “consulting attorneys” to coach each of them through the process and prepare or review the settlement agreement at the end. All in all, you might expect to pay between $2,000 and $6,000 for your share of a mediated divorce. This is far less expensive than a contested divorce that settles before trial, and much, much cheaper than a case that goes all the way to trial. (There’s a lot more about mediation in Chapter 4.)
Just about everyone agrees that battling lawyers escalate a divorcing couple’s troubles, to no one’s benefit. In response, a new process has developed, called “collaborative divorce.” It involves working with lawyers, but the lawyers play a different role from the stereotypical bulldog litigator.
You and your spouse each hire lawyers who are trained to work cooperatively and who agree to try to settle your case. Each of you has a lawyer who is on your side, but much of the work is done in cooperation. Each of you agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers to discuss settlement. You all agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll hire different attorneys to take your case to trial. The financial disincentive for this outcome should be obvious—you’d have to pay a second lawyer to get up to speed on your case and to do the trial work.
Often other professionals—usually an accountant, actuary, and a therapist—are involved in the process. All of the people assisting with your divorce stay in touch with each other and work together to help you come up with an appropriate resolution.
A collaborative process can be much faster, and much less painful, than a contested divorce. It’s not for everyone, but it’s a good middle ground between face-to-face mediation and all-out litigation. It offers the protection and expertise of an attorney combined with an explicit commitment to resolving things without an expensive court fight.
The downside, of course, is the potential cost if the collaborative process doesn’t succeed. There’s a possibility that you or your spouse might agree to something just to avoid the extra cost of going to trial. Before you agree to a collaborative process, make sure that you are prepared—both emotionally and financially—to decide how much compromise is too much.
If you go for a collaborative divorce, expect to pay $5,000 to $10,000 for your share. Between scheduling all the necessary meetings, gathering information, and getting lawyers to prepare paperwork, your divorce may take a year or more. Of course, if you easily reach an agreement and everyone is very efficient, you may be able to finalize things as soon as the waiting period in your state is over.
Get more information. For more information about collaborative divorce, check out Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo), Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on With Your Life, by Pauline Tesler and Peggy Thompson (HarperCollins) or The Collaborative Way to Divorce, by Stuart Webb and Ron Gusky (Hudson Street Press).
In arbitration, you and your spouse agree that you’ll hire a private judge, called an arbitrator, to make the same decisions that a judge could make, and that you will honor the arbitrator’s decisions as if a judge had made them. Arbitration has some of the same advantages as mediation does, including speed, efficiency, privacy, cost-effectiveness, and informality.
Arbitration has been used for many years in other kinds of lawsuits, and it’s starting to gain favor among divorce lawyers as a good alternative to a court trial. The arbitrator is usually a lawyer or a retired judge, who you pay hourly. Your lawyer and your spouse’s lawyer know lots of arbitrators and will probably be able to agree on someone who’d be appropriate for your case.
Just as in a trial, each side prepares arguments and evidence and presents them to the arbitrator, and then the arbitrator makes decisions. However, the presentation of evidence is usually less formal than in a courtroom. You’re likely to be able to schedule a hearing with an arbitrator much more quickly than you would get a case to trial, so speed is a major advantage. It’s also private, unlike a trial, which is open to the public. (Your court records will still be public if you use arbitration, though.)
Cost is another upside to arbitration; although it’s still expensive, it won’t cost as much as a trial. That’s because it shouldn’t take quite as long for your lawyer to prepare for the hearing, and the arbitration itself may be shorter because the arbitrator won’t be as strict about evidence as a judge would be.
An arbitrator’s decision generally is binding, which means if you don’t like it, you can’t ask for a do-over and go to court for a second chance. You also can’t appeal the decision to a higher court, so you are stuck with whatever the arbitrator decides. Because of the inherent unpredictability of divorce cases, some people don’t like that idea—though some might appreciate the certainty that arbitration offers.
Arbitration isn’t available everywhere. A few states don’t allow arbitration in divorce cases. Check with your lawyer, if you have one, or with your local court clerk.
If you and your spouse argue so much over property or child custody that you can’t come to an agreement, and instead take these issues to the judge to decide, you have what’s called a contested divorce. The judge and court clerks will be the main players in your divorce case. (There are no juries in divorce trials, except in Texas and Georgia—and in Georgia, the jury can’t decide custody or visitation, only financial issues. In a minority of other states, you can ask for a jury trial in some circumstances, but this is very unusual.) Most divorce trials are not long, drawn-out affairs like trials you may have seen on television. Many take a day or two, or even just a morning.
The trial itself may be short, but the entire process is long and hard. It will take a huge emotional toll on you, your spouse, and certainly your kids, and also cost you in dollars and cents. A contested divorce, even one that ends in a settlement rather than a trial, can cost each spouse many tens of thousands of dollars. Assuming each side’s lawyer charges $250 per hour, and assuming an ordinary amount of information-gathering and pretrial court proceedings, an average divorce might run each of you $30,000—and that figure could easily go higher with a few added complexities.
Which brings us back to our initial advice: Take the high road whenever you can. The rewards aren’t only monetary, but choosing compromise will definitely improve your bottom line. And less stress about money makes it easier to work out other issues, now and later. It will also expedite things—a contested divorce, especially if you are fighting over custody, can take years to resolve.
Divorce: Typical Tabs
$30,000 or more
$5,000 to $10,000 per spouse
$2,000 to $6,000 per spouse
Divorce for Same-Sex Couples
There are now 15 states that provide for marriage or an equivalent relationship for same-sex couples.
States With Same-Sex Marriage Laws*
District of Columbia
* Washington state and Maryland are both in marriage-equality limbo. The Washington legislature passed a law allowing same-sex marriage and the governor signed it in February, 2012. The law will take effect on June 7, 2012, unless—as is likely—opponents gather enough signatures to put the issue on the November ballot. In that case, marriage equality in Washington state will await the result of that vote. In the meantime, same-sex couples can still register as domestic partners. In Maryland, a marriage-equality law also passed in February 2012, and will take effect on January 1, 2013 unless a voter referendum interferes.
States With Marriage-Equivalent Relationships for Same-Sex Couples
In all of these states, same-sex couples must use the same forms and procedures as opposite-sex married couples to end their legal relationship. All the same rules about custody, property, and support apply. And some other states, including Maryland, recognize same-sex relationships from other states and will allow couples to divorce there.
Because the federal government does not recognize any kind of same-sex unions, divorcing can be more complicated for same-sex couples than for opposite-sex married folks. Tax issues are particularly challenging. If you and your partner are in agreement—or can reach agreement through mediation—about how to divide your property and share time with your kids, you may be able to use one of the do-it-yourself methods described in Chapter 3, but you should consult an experienced lawyer before going forward, to make sure you’re not missing anything.
To learn more, see Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow (Nolo).
Property, Custody, and Support
Every divorcing couple must consider how property and debts will be divided, and whether one spouse will pay spousal support to the other. If you have kids, you’ll also need to make decisions about child custody, visitation, and support. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide.
Divvying Up Property
“Marital property” is the collection of assets you and your spouse have gathered during your marriage, including money, real estate, investments, pension plans, and so on. Marital debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you.
Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce.
If you and your spouse can agree on how to divide your property, the court will simply approve your agreement. If you can’t agree, the court will divide things for you. A few states use “community property” rules, and divide marital property equally. The rest use a system of “equitable distribution,” to divide property in a way that the court thinks is fair, but that isn’t always equal. Chapters 9 and 10 explain how states divide property and discuss the decisions you’ll need to make about your assets and debts.
What Happens to the Children?
Divorce is stressful for everyone, but when you have children, the stakes are higher, and you are responsible for protecting these most vulnerable participants in the divorce process. There are three entire chapters about kids later in the book.
You and your spouse will need to decide whether you’ll share custody of your children equally, or whether one parent will be the primary custodial parent. “Custody” means both the right to have a child live with you (physical custody) and the right to make decisions about the child’s welfare and education (legal custody).
A parent who doesn’t have physical custody of the kids is usually given visitation rights. If one parent has both legal and physical custody and the other has fairly limited visitation, the primary custodial parent has “sole custody.” “Joint custody,” which is more common, means that both parents share physical custody, legal custody, or both.
Even if you and your spouse are never going to see eye to eye about money matters, you should try very hard to come to an agreement about child custody. A custody fight will harm your children more than any other kind of dispute that might come up in the divorce process. Do everything you can to avoid it.
At the beginning of your divorce process, you’ll need to come up with a temporary agreement about how you will share time with your kids. You should do that as quickly as you can, to ease your children’s insecurity. Whatever you decide, write it down and make sure you note that the arrangement is temporary, so that it’s clear you’re not agreeing to something for the long haul. It may take a while to figure out what long-term arrangement works best.
Chapter 13 contains a sample parenting agreement; you can take parts of it and use them to prepare a temporary agreement when you first split up. See Chapters 6 and 7 for more about custody, including how courts decide custody questions and how to prepare a time-sharing plan.
Spousal and Child Support
If you and your spouse have children, chances are that one of you will pay child support to the other. When the children spend more time with one parent than the other, or if one parent earns a lot more money, the court will award child support to make sure that the kids are always taken care of.
In some divorces, courts award spousal support, also called alimony or maintenance, to one party. A support award is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or care for kids. Chapter 8 addresses child support issues, and Chapter 11 has more about spousal support. Chapter 12 addresses child and spousal support for military spouses.
Getting Help From Experts
As you can see, there are a lot of decisions to make in a divorce. You and your spouse can make these decisions yourselves, rather than having a judge make them for you—and you should make every effort to do so. At such a painful time it’s difficult to just sit down with your spouse and figure out how you are going to remake your family structure, finances, and living situations. But that doesn’t mean you have to lose control of the decisions and slide into an expensive, acrimonious, and ugly divorce. You can get help. Chapter 16 has a lot more about how to go about getting the information and expert help you will need to complete your divorce. l