Divorce FAQ's

Can A Wife Change Her Name?

Upon request of a spouse, the court can (and usually will) order a former name (usually her maiden name) restored. The wife may also choose a different name. The spouse must put the request in the Complaint for Divorce or in the Answer to the Complaint for Divorce. Changing the name at the time of the entry of the final Divorce Judgment is the most economical way to do so. It is not the only way. A separate name change proceeding can be started at any time.

Can I Get My Marriage Annulled?

An annulment may be either religious or legal. Religious annulments are governed by religious rules and procedures that are separate and distinct from the legal process. Consult with your priest, pastor, shaman, or guru. A legal annulment is a declaration that your marriage was defective at the time the marriage took place. The circumstances that will justify an annulment are narrowly defined by most state divorce laws. An annulment may be granted where a legal defect existed at the time of a marriage. The clearest criteria would be when one of the parties was already married when the second marriage took place

Can We Divide The Property A Different Way Than The Court?

Yes, you can agree to any solution you decide is appropriate. A state court’s powers to do “equity” defines only what judges can do—not what you can do. It is your life.

Do I Need A Legal Separation?

This is a question heard in many initial consultations. In some states, the term “legal separation” describes a type of “limited divorce.” It is an alternative to an absolute divorce, not a prerequisite for filing a divorce. Nothing needs to be signed before a spouse can separate in many states.

Does The Judge Consider What Our Children Want?

The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” The judge is not required to follow the child’s wishes. It may be difficult to determine the child’s true wishes if the child has been coached by one or both of the parents. Most often, children don’t want to cause hurt to either parent. The court mediator or other counselor may meet with the child to help convey the child’s real desires.

How Do I Enforce A Custody Or Visitation Order?

The courts will enforce their own Orders if asked to do so. You can file a “contempt” proceeding. In extreme situations, most law enforcement agencies will assist in enforcing an existing Court Order. Absent a specific Order, they will be reluctant to become involved. If your spouse refuses to comply with an Order, consultation with your attorney is advisable

How Do I File For Protection From Domestic Violence?

Go to the Internet and search “Domestic Violence” in your state. It will give you specific guidance regarding where and how to file a petition for protection from domestic violence. If you were compelled to call your local police department, they will typically give you this advice. If not, ask them. The Domestic Violence Protection Order Forms are usually available on the Domestic Violence and/or Court web sites or can be obtained in each Clerk’s office. Some courthouses have on-site programs designed to assist victims in safety plans and filing for protection.

How Do We Divide The Property?

Property may be classified as “real”, “personal”, “tangible”, “intangible”, or in any number of other categories (“inchoate”). Basically, anything having a value is “property” in a divorce case. Any “property”, which accumulates or is acquired during a marriage, is “marital” property. Property owned prior to the marriage, property acquired by inheritance or gift from a third party, and anything directly traceable to the foregoing, are usually “nonmarital” property. State divorce courts may or may not be able to transfer ownership of property titled in the name of one spouse to the other spouse. (Spouses are free to do so, however, in an Agreement.) You need to consult your own jurisdiction in this regard. If a state divorce Court cannot transfer title, they must decide how to allocate marital wealth between the divorcing spouses. That will require them to determine, and you to prove:

  • What “property” has accumulated during the marriage.
  • The value of the marital property.
  • How the marital property is allocated between the parties, by title, and decide whether the distribution is “equitable”. If not, the Court will be asked to remedy any inequity by requiring one spouse to pay the other a sum of money.
In making this “equitable adjustment”, most Courts will consider:
  • The contributions, monetary and non-monetary, of each party to the well-being of the family
  • The value of all property interests of each party
  • The economic circumstances of each party at the time the award is made
  • The circumstances that contributed to the estrange¬ment of the parties
  • The duration of the marriage
  • The age of each party
  • The physical and mental condition of each party
  • When specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pen¬sion, retirement, profit sharing, or deferred compensation plan
  • Any award of alimony
  • Any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.

How Long Does It Take To Get A Divorce?

It depends. Every divorce is different. The length of the divorce process depends on the issues involved. Divorces that include marital property, custody, and child support take longer than cases without these issues. The court’s dockets are not consistent. Like any business, they can become busy; and it can slow down the process. A case reaches its quickest conclusion if the parties reach an agreement on all issues, either on their own or with the help of a mediator. If you cannot agree upon a settlement and must litigate the case, it will take longer. Also, the longer the trial, the longer you will have to wait for a trial date. Courts can process many one-day trials. It usually takes about 90 to 120 days from the time a Complaint for Divorce is filed and served upon your spouse for you to be able to obtain a decree dissolving your marriage, if it is uncontested. If you and your spouse cannot resolve the issues involved in your divorce, the process will take longer. Sometimes spouses cannot be located. If so, making personal service of the summons and petition may prolong the period. In some instances you may have to wait as much as six weeks for the summons to be published in a newspaper. You and your spouse will have until the final hearing date to arrive at a settlement, and if you have not been able to work out a settlement by that date, then a judge will make the decisions for you.

How Long Must I Be Legally Separated Before I Can File For Divorce?

In some states you need to sign and file papers in order to be “legally separated.” In others that is not a requirement. In order to establish that you are separated for the purposes of obtaining a divorce, you must:

  • Not reside under the same roof with your spouse
  • Not engage in sexual intercourse with your spouse for the entire period of the separation through the date the divorce is granted.
The length of time you must be separated in order to file for divorce depends on the grounds for divorce and the jurisdiction where you reside

How Much Alimony Will Be Paid? For How Long?

Alimony may be granted to either spouse. Contrary to child support, there are normally no “tables” or “guidelines”. It is a matter left to the discretion of the Judge who ultimately tries a case, and the attitudes of judges can vary as widely as those of yourself and your spouse. Some of the factors a Court will consider in making a decision about alimony are:

  • The financial resources of both parties
  • Their need and ability to pay
  • The duration of marriage
  • Their work experience
  • Their educational level and need for retraining
  • Their ages
  • Their standard of living during the marriage
  • Their health (both physical and emotional)
  • The nature and extent of property, both marital and nonmarital
  • The ability of the spouse from whom alimony is requested to meet his/her own needs
Once again, this is not universally true, and some states have formulas based upon the respective incomes of the parties and the duration of their marriage. Alimony is most often “rehabilitative alimony”, i.e., an amount of alimony and the period of time required to enable a financially dependent spouse to become financially self-sustaining over “equitable” or “lifetime” alimony. In marriages of short duration, the likelihood of, and the amount of, alimony is likely to be less than in a longer marriage. Most courts have the option to award “lifetime” or “indefinite” alimony if, even after a financially dependent spouse is “rehabilitated,” there is an unconscionable disparity in the lifestyles of the spouses. If one spouse has grounds for requesting alimony, it is wise for that spouse to confer with an attorney. Alimony is taxable to the recipient and deductible by the payer.

How Much Child Support Will I Or My Spouse Pay?

Child support is determined according to the Child Support Guidelines of each state. Child support payments are made until age 18 or when a child graduates from high school, whichever is later. Child support may extend beyond those parameters for dependent or disabled children having special needs that prevent them from being self-supporting. The “basic” child support calculation is adjusted to compensate for extraordinary medical expenses, work-related day care expenses, and certain educational expenses. Most states do not permit one parent to prevent the other parent from having access to the children because child support has not been paid. Nor can a parent stop paying child support because he or she has been prevented from seeing the children. There are some states however, that condition visitation upon timely payment of child support, although many states abide by this principle

If The Custody Plan We Work Out Doesn’t Work, Can It Be Changed?

Yes, if circumstances change, you can request a court to change the parenting arrangement. All matters relating to the care of the children are subject to modification if circumstances warrant it

Is Alimony Modifiable?

Parties can agree to make alimony “non-modifiable.” Absent such an agreement, the amount of alimony is modifiable only if there has been a change in circumstances since the prior alimony award. Alimony is based upon financial need. If the recipient’s needs have not changed, but the payor’s income has increased, there will be no basis to modify the alimony in most situations.

Is Child Support “Modifiable”?

Child support is always modifiable if there has been a change in circumstances since the prior child support order entered in your case.

May I date?

Unless it adversely affects the children, most courts are not concerned with your private life after you separate. However, a relationship with someone other than your spouse before you are divorced may anger your spouse and impede settlement. It can also prevent you from getting a divorce until you have been separated for two consecutive years.

May I spend money on my lover?

Yes, you can. However, a court may consider your having done so as the “dissipation” of marital property. The court can “add it back” to the “marital pot” before making a monetary award. Again, doing so may anger your spouse even if you are separated. That anger can impede settlement negotiations and complicate any trial.

Nothing Is Happening In My Case. What Can I Do?

Talk to your lawyer. You are entitled to know the status of your case. There may be a very good reason for a pause or delay. For example, appraisals may not yet be completed.

Should I Be Represented By A Lawyer?

There is no categorical answer to this question. Generally, you are well advised to at least consult with a knowledgeable lawyer before you start your divorce and before you finalize your decision. If there are unresolved disputes which will require negotiations and/or trials or hearings, be cautious about representing yourself. It is a complicated system with written and unwritten rules that will be foreign to you. Typically, it is not the “law” that defines a case’s “complexity.” It is the emotion brought to the table or to the trial, which is the greatest source of complication. It could almost be categorically said that a divorcing party in a dispute will have an enormously difficult time filtering strong emotions out of the decision-making process. The phrase “A lawyer who represents himself has a fool for a client” also reflects this same reality. Negotiating with your spouse may not be wise in some situations. If not, having a third party surrogate act on your behalf may correct an imbalance in the level of knowledge or correct a historical pattern of emotional dominance of one spouse over the other, which cannot be corrected, and may be intensified, during this phase of the divorce.

Should I Be The First To File?

Filing a complaint for divorce triggers a sequence of deadlines that are to be met by both parties. One reason for filing a Complaint is to prod a reluctant spouse into action. If the deadlines are not met, there can be a number of different consequences, including a Default Judgment (Judgment entered in favor of the filing party and against the non-responding party). If you are trying to move forward as quickly as the law will allow, filing first puts you in better control of the pace of the divorce proceedings. If the divorce can be started in more than one jurisdiction because the parties live or work in different jurisdictions, the first to file can control the place where the case will be heard. It is the first filing of a Complaint, not the first service of a Complaint, which gives priority. There are a number of reasons for wanting to pick the court that will hear your case, including the reputations of the attorneys and the attitudes of the judges toward the important issues in your case. Also, in any trial, the Plaintiff is the first to present their case. Some lawyers prefer to go to trial as the moving party. Filing first will accomplish that purpose. Otherwise, filing first will not give a tactical advantage to anyone.

What About The Pension?

A pension, retirement plan, 401(k), Individual Retirement Account, and other “deferred compensation” arrangements, to the extent their value has accumulated during a marriage, are marital property. For many types of retirement plans, a Qualified Domestic Relations Order is required to accomplish a transfer of ownership between divorcing spouses. This area of domestic relations law is extremely complex and specialized. Seek consultation.

What Are The Chances My Case Can Be Settled?

The majority of divorce cases that are filed are settled. Whether or not your case will settle is something that is impossible to predict. Many factors affect the likelihood of settlement. The attitudes of the parties, their willingness to accept compromise solutions, the attitudes and habits of the two lawyers, the financial resources of the parties, the type of issues involved, and the emotional endurance of the parties are just some of those factors. If you want your case settled, pay close attention to the type of working relationship your lawyer has with your spouse’s lawyer. If the two lawyers have a history of acrimony, there may be personality or other past events that generate acrimony and make settlement more difficult

What Are The Residency Requirements?

To file a divorce in any state, you must normally be a resident. A state can grant divorces only to its own citizens. A period of residency in each state is a prerequisite to establishing residency. The periods vary dramatically. The typical indicia of residency include having a driver’s license, owning property, registering to vote, and having a mailing address

What Are “Grounds” For Divorce?

“Grounds” is the term used to describe the facts and circumstances that permit a court to grant a divorce. Some states have “no fault” grounds, i.e., “irreconcilable differences”, other states have a mixture of “fault” and “no-fault” grounds for divorce. Here are some examples as defined in one state:

  • Mutual and voluntary separation A physical separation that is (a) mutual and voluntary on the part of each spouse, (b) was done by each with the intention of ending the marriage, (c) has continued without cohabitation for twelve consecutive months; and (d) has no hope or expectation that the parties will reconcile.
  • Two Year Separation Twenty-four consecutive months of separation, regardless of the circumstances, and where there is no hope or expectation that the parties will reconcile.
  • Adultery Having voluntary sexual intercourse with a person other than your spouse while you are married.
  • Desertion An unjustified ending of cohabitation with an intent to end the marriage.
  • Cruelty and excessively vicious conduct Conduct of any kind that a court is willing to characterize as sufficiently egregious that a party ought to be able to terminate their marriage. One example would be domestic violence.
  • Incarceration for 12 consecutive months
  • Insanity If a person is incurably insane or has been confined to an institution for the required period of years, that person’s spouse typically has grounds for Divorce in most states.

What Can I Do To Lower The Cost Of My Divorce?

The least expensive divorce is one in which the parties agree on how to divide property and how to care for their children after divorce. Consider mediation as an alternative, and whether it can work in your situation. Most circuit courts now have a panel of mediators who can assist parties in settling their disputes. Most mediation programs require payment of a fee for services, but low-income parties may ask the court for a waiver or reduction of these fees. The family support services coordinator in each circuit court has information on these mediation resources

What Forms Do I Need To Do My Own Divorce?

Forms must comply with the formalities required in state or local rules. If you intend to represent yourself, check with the bar association in your area. They can usually direct you to the appropriate forms to be used. Many bar associations offer pro bono assistance programs. Alternatively, call the clerk’s office in the jurisdiction where your case would be heard and ask the same question. You will save yourself time if you use pre-approved forms. Forms will be free, or they will have a nominal cost.

What Happens If We Don’t Agree On Custody Or Visitation?

If you and your spouse cannot agree on issues relating to your children when you separate, whatever arrangement is actually put in place will be one that someone may later argue should be continued to preserve continuity in the child’s life. If one spouse is dissatisfied, he or she is almost forced to take legal action or the “continuity” and “stability” arguments will gain more force with the passage of time. There are several early steps that can be taken to work out the custody issues on a temporary basis. The two of you can consult a qualified mental health professional and/or mediate a temporary solution. If that is not possible, and one of you files for a legal proceeding, typically you will be required by the Court to meet with a “court mediator.” The court mediator encourages and assists parents in working out a parenting plan agreeable to each. If the parents cannot reach an agreement, the mediator does not make recommendations. The parties then move to a hearing on temporary custody. Again, depending on the state jurisdiction and depending upon the nature of the dispute, either party may request and/or the Court may order a custody evaluation. Either party may request and/or the Court may order an attorney to represent the children. Either or both parents can be charged all or part of the cost of a custody evaluation or the fees charged by the appointed attorney.

What Happens To Our Children When We Separate?

You determine what happens. The best solution for the children is for the parents to agree on who will take care of them. If you and the other parent agree on a written parenting arrangement, it brings more peace of mind to an inherently anxious and disconcerting time for everyone involved, including yourself and your children.

What If I Don’t Have Enough Money To Pay For Legal Advice?

Call the bar association in the jurisdiction that will hear your divorce case. See if they have a pro bono project for family law cases. Many jurisdictions do. These programs provide free guidance to litigants without funds to hire a lawyer. Check the Internet and yellow pages for lawyers that give free consultations. A consultation is a quick way to get guidance to the questions you should be prepared to ask. In general, educate yourself by using the Internet and your local library to find and read materials available on the topic of divorce and separation.

What Is A Parenting Plan?

“Parenting Plan” is just what it implies. “Parenting Plans” can range from situations where one parent exercises virtual control over all issues involving the children (typically called “sole custody”) to situations where the parents are still serving as co-parents despite the divorce. The particular parenting arrangements that work best for you, your spouse, and your children must be carefully worked out. No two plans are going to be the same. Under one plan, only one parent may have final authority over the children. The other parent can advise, but may have no legal right to make decisions regarding the children’s upbringing. That Parenting Plan would give broad control of the children’s lives to only one parent. Examples of areas where that parent’s decision-making authority might be exercised are health care, education, and religion. By contrast, the other parent’s authority may be limited to other areas specified in the decree. Recently, more people are turning to joint or shared parenting as a substitute for the old notions of “sole custody.” Shared parenting means that parents continue to have responsibility for making decisions regarding the children. Joint parenting may also imply that each parent will have a significant amount of time with the children. The most common form of shared parenting is one by which the children reside primarily with one parent while the other parent retains liberal access rights and legal authority to share joint responsibility for all major decisions regarding the well-being of the children. Parents can agree to share time with the children equally, for example, 4 days with one parent, then 4 days with the other on an alternating basis. The periods could be weekly or monthly. In rare instances, parents have even established a home for the children where the parents live on an alternating basis. Shared parenting is no easy task. To work, parents must be willing to focus their attention on the children’s needs;

  • Accept having frequent contact with each other and a shared expectation of frequent readjustments and changes;
  • Be able to put set aside their own conflicts out of a shared concern for their children;
  • Sincerely want active involvement in their children’s lives, not just the “appearance” of
  • involvement;
  • Live in reasonable proximity of each other, particularly if a public school district is involved. The geographic proximity has more flexibility if the children attend a private school to which they are transported;
  • Have some flexibility in their personal schedules. Without flexibility, shared parenting can become difficult;
  • Have reasonably similar aspirations and goals for the children;
  • Have reasonably similar attitudes toward child-rearing; and
  • Have adequate financial resources. Providing “shared” or “equal” housing arrangements can be more expensive.

Where Can I Obtain Forms And More Information On Divorce?

Most court clerk’s offices have copies of fill-in-the-blank forms for divorce, custody, child support, and name-change cases. For assistance with these forms or more information on divorce, consult with the court clerk and they will advise you on how to proceed. More and more courts have family support services coordinators who can provide further information on pro se (self-represented) programs, pro bono (reduced or no fee) attorneys, mediation programs, co-parenting education classes, and other referrals. Assistance in completing the form(s) is also available through the Legal Forms Helplines.

Where Do I File for Divorce?

Typically, you may file for divorce in the state where the grounds for divorce occurred, or, if at least one spouse has lived in a state for one year prior to the filing of divorce, you may sue in that state. The Divorce Complaint must be filed in a court having jurisdiction over the divorce, where the plaintiff (the party filing for divorce) lives or where the defendant (the other party) lives, works, or owns a business. These rules vary from state to state, and you need to check your own jurisdiction and its statutes and/or rules.

Where Do I Start?

Right here at Divorce-Express.com. Educate yourself fully and then consult with a lawyer early in your thinking process. No lawyer can (or should) predict outcomes in your situation, but a lawyer can give you a sense of the “range of the possible,” point out problem areas, suggest steps you might take to raise money for legal fees and interim expenses, advise you about debt protection, and, where appropriate, recommend other professionals with whom you may want to consult (accountants, mental health professionals, marital counselors, or detectives). To focus your own thinking, to begin your own practical preparations, and to make such a consultation efficient, here are some suggestions:

  • Organize your important personal and financial information;
  • List all of the assets and liabilities you know about in as much detail as they are known;
  • Review your current expenses and prepare a list of those expenses, along with a second list of what expenses you might anticipate if there is divorce;
  • Make copies of all of your financial documents, including three years of tax returns, monthly bank statements, and canceled checks; and
  • Download and copy any financial information on the family computer.
Share your financial concerns with trusted others who are willing to listen, but remember that their own divorce experiences are just that—theirs, not yours. Start to think about what to expect, never forgetting that “rights and entitlements” are fictions, and that the “range of the possible” is the source of realistic expectations in everyone’s divorce. If your goals are not realistic, you are likely to become angry, frustrated, and disappointed at the legal system and/or your lawyer, when the real culprit is your own set of expectations—something only you can control. Pay attention to your attitude, and remember that your best revenge against your spouse rests in your own personal happiness. If your definition of “success” is defined by what you want your spouse to do, or what you want your spouse to feel, you are giving power to someone who does not necessarily have your best interests at heart.

Who Can Start A Divorce?

Either party who claims to have grounds for divorce may file for divorce. No divorce will be granted unless the grounds for divorce are proven by appropriate testimony.

Why Did My Spouse Ask For So Much In The Petition When I Thought We Agreed On Some Of Those Things?

Before knowing what the issues will be and what might happen under the law and the facts of the case, no one wants to take the chance of asking for too little. So people tend to ask for more than they really expect. Like when you read in the newspaper that someone has filed a “$10 million lawsuit”, what is demanded in the petition or complaint usually has little real meaning

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