FREQUENTLY ASKED QUESTIONS
What is the legal divorce process like?
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (such as when there is no significant property involved and the couple has no children) most divorces are far more difficult and can take many different courses. The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who assists in the preparation of a complaint, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.
- The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
- The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
- If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
- Either or both parties can appeal the judge's decision to a higher court.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
What kinds of assets are divided in a divorce?
The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties' lawyers can help. Through the legal process known as discovery, the parties' attorneys exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party's financial situation. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
What happens to the property that each spouse owned before the marriage?
In most states, whether they follow a community-property or equitable-distribution scheme, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse's separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.
In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.
Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home's maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property.
What terms should be included in a separation agreement?
A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple's children. A formal separation agreement can help ensure that all family members' needs will be met.
An attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party's best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client's needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:
- The spouses' right to live separately;
- Custody of the children;e.
- A visitation schedule, or a provision for reasonable visitation;.
- Child support;
- Alimony or spousal support;
- The children's expenses, including medical, dental, educational, and recreational;
- Property and debt division;
- Insurance, including medical, dental, and life; and
- Income taxes.