Divorce often begins as an
emotionally charged dispute between
two people. If encouraged and
unchecked, the dispute can grow into
a raging battle involving lawyers,
judges, court-appointed
professionals and, most
distressingly, the parties'
children. Often times, more energy
and money is wasted in the fight,
and little is left for the parties
to help them restart their lives.
DISCLAIMER:
This site and any information
contained herein are intended for
informational purposes only and
should not be construed as legal
advice. Seek competent legal counsel
for advice on any legal matter.
An uncontested divorce is one in
which both parties agree to the
divorce and the terms of the
settlement without going to trial.
This does not mean there are no
arguments or disputes between the
spouses. It simply means the spouses
reach an agreement without going to
court and having a judge resolve
contested issues.
Uncontested
divorces move much faster through
the court system and are therefore
less expensive. In addition,
bypassing the lengthy litigation and
trial process tends to reduce
hostility and allows the former
spouses to move on with their lives
more quickly.
2. How long
does it take for a divorce to be
final?
On average, there is a zero to six
month waiting period after the
initial divorce petition is filed
and served on the other spouse. A
judge may make a final ruling, or
judgment, on the divorce prior to
that date. This order will be
effective immediately. However, the
marriage is not finally dissolved,
and the spouses may not re-marry
until after the waiting period.
During the period between the
judge's order and the expiration of
the waiting period, any action taken
by either spouse is a separate act.
In short, these decisions will no
longer effect community property.
Of course, if a divorce cannot
be resolved agreeably and requires
litigation or a trial, it could take
longer than six months to finalize.
3. Will I
have to go to court at any time
during my divorce?
If the divorce is uncontested and a
marital settlement agreement is
filed, the spouses may not need to
go to court. In that case, all legal
documents can be filed with the
court, and the judgment can be sent
to you. However, the court may
request a formal or informal
hearing. At an informal hearing, the
judge may ask questions about
certain facts presented in the
papers. At a formal hearing, the
divorce case must be presented from
the beginning.
Disputes
regarding the division of property,
child custody, spousal support or
any other terms of the divorce do
not automatically require court
intervention. In many cases, they
can be resolved through arbitration,
mediation or third-party negotiation
(such as an attorney).
The parents must decide on the
custody of any minor children.
Custody is divided into physical
custody (where will the children
live) and legal custody (who will
make important decisions regarding
the children's health, education,
etc.). Both physical and legal
custody can be either joint or sole.
Even if one parent will have sole
physical custody, the other parent
still has visitation rights, if
requested. Adult children are not
part of the plan for divorce.
The filing fee is approximately
$100-$350 in most counties. If a
response is filed, add another
$100-$200. These fees are collected
by the government and are in
addition to any service or legal
fees. The filing fees are in
addition to the amount charged by
us.
Most state laws have guidelines to
determine child support payments.
The payment amount is based on each
parent's income and the amount of
time he or she spends with the
children. The guidelines also
provide for add-on amounts for the
following expenses:
- Child
care - Health care and health
insurance - Special educational
or other needs - Travel-related
visitation
Parents can
increase or decrease the guideline
amount if the following conditions
are met:
- Both parents
acknowledge they are fully informed
of their rights under state law and
the amount of
child support is mutually agreed on,
- Both parents declare the
agreed upon amount is in the
children's best interests and
will adequately meet
their needs, and - For welfare
recipients, the right to support has
not been assigned to the county, and
neither parent
has a public assistance application
pending.
Keep in mind that
the judges presiding over divorces
are the ultimate authority on child
support decisions. They can deviate
from the guidelines as they see fit.
7. What
happens to retirement funds and
401(k) plans in a divorce?
Accrued or vested retirement
benefits are community property.
This means they need to be divided
in a divorce. Retirement benefits
that fall under community property
include military pensions, veteran's
educational benefits, ERISA funds,
IRAs, Keoghs, Employee Stock Option
Plans (ESOPS), 401(k) and 403K
plans, etc. Certain retirement
benefits are not classified as
community property. They include:
- Railroad retirement benefits
- Social Security payments -
Compensation for military injuries
- Worker's compensation disability
awards
Regardless of the
length of the marriage, retirement
benefits should be discussed and
settled. For example, the petition,
marital settlement agreement and
judgment should all provide either
for the spouse's waiver of
retirement benefits or the division
of any such benefits. A spouse
should waive retirement benefits
only if that spouse's share is worth
very little.
There are two
options for dividing retirement
benefits: (1) the present-day
valuation buy-out, and (2) division
into two accounts. In the former,
the spouse without the retirement
benefits takes the present-day value
of his or her interest in the
retirement benefit and trades it for
something else of equal value, such
as cash or other assets. Stock
options and pension plans where a
person must work for a certain
number of years may be worth more
than you think.
When dividing
a retirement account, you want to
make sure you don't lose any tax
advantages. A Qualified Domestic
Relations Order (QDRO) will be
required to transfer a share of
retirement funds from the spouse
participating in the retirement plan
to the other spouse. Please contact
the retirement plan administrator or
a qualified attorney for more
information regarding QDROs.
Spousal support, as it is now
commonly called, used to be known as
"alimony." Spousal support is not
mandatory in most states but can be
ordered by a judge under certain
circumstances.
If a spouse
will face hardships without
financial support, spousal support
should be considered. The deciding
factor for spousal support is the
need to maintain the spouse at his
or her customary standard of living.
In other words, the law recognizes a
husband or wife should not be forced
to live at a level below that
enjoyed during the marriage.
However, other factors also need to
be considered. For example, spousal
support should most likely not be
considered if:
- The marriage
was for a short duration (less than
two or three years), and, - Both
spouses are employed and
self-sufficient. - This does not
mean the parties cannot agree on
spousal support.
There is no
firm dollar figure used to calculate
spousal support. The amount should
be decided by both parties.
9. What is a
marital settlement agreement in a
divorce?
A marital settlement agreement
spells out the terms of the divorce
and the relationship between the two
spouses after the divorce. These
agreements usually cover property
division, child custody, child
plans, debt division, spousal
support and any other relevant
issues related to the divorce.
While it is not required, filing
a marital settlement agreement does
have advantages:
- Lays out
all of the agreements in writing,
eliminating ambiguities. - The
spouses may not have to go to court.
The judge might honor the written
agreement
if it's written
correctly and covers all material
aspects of the divorce. - Proves
to the court that major issues were
thought out, and the case will move
more quickly though the
system.
Marital settlement
agreements can be entered into at
any time before the final judgment.
They are typically filed with the
final judgment.
10. What
happens if we reconcile and want to
cancel the divorce?
You and your spouse can dismiss the
divorce after the papers have been
filed. Simply request a dismissal
form from the county clerk anytime
before a judgment has been entered.
If no response has been filed, the
petitioner alone can file the
dismissal form. If a response has
been filed, both spouses must sign
the dismissal form.
Divorce can be an earth-shattering
event for children, creating
feelings of loss, confusion, fear,
anger, and resentment. Several
recent psychological studies
indicate that children can
experience these effects for years,
and it can affect how children, once
grown, approach their own marriages
and childrearing.
In addition
to the psychological effects,
divorce can have economic effects on
children. Children often suffer a
change after a divorce, sometimes
financially, almost always
emotionally.
Divorce is
common in the United States. A
quoted statistic is that "almost
half of all marriages end in
divorce." That leaves a lot of
children enduring the effects of
divorce.
Child custody laws
throughout the United States seek to
provide some sense of order to the
disruption of divorce and separation
in efforts to smooth over this
transition from a unified, nuclear
family to a two-household family,
with the spouses/parents living
separate and apart.
One
parent, generally termed the
"custodial parent," will receive
custody of the child(ren) from the
court. The child(ren) will live for
the most part with this custodial
parent and visit with the
"noncustodial parent" for short
periods of time (hours or days). One
exception to this rule is the "joint
physical custody" arrangement.
Under joint physical custody,
the time is divided more evenly or
equitably (not always the same
thing, so ask your attorney what may
happen in your particular case). The
child(ren) will spend significant
amounts of time with each parent,
often weeks at a time. Obviously,
should the parents live in different
states or towns - or sometimes even
just school districts - a joint
physical custody arrangement can be
quite complicated for both the
children and the parents.
No. Only about 1 to 2% of all
custody disputes end in trial.
Obviously, it is best if a mediated
arrangement can be reached between
the parents. Studies indicate that
those custody disputes that go
through mediation and reach a
mutually agreeable arrangement can
do much to lessen the trauma
suffered by the child(ren) and have
a greater chance of long term
success. Judges, for the most part,
welcome a mediated arrangement.
Judges realize that no one knows a
family better than the parents, so
they would prefer the parents to
continue to make all the decisions
for the family and the child(ren).
When parents do end up going to
trial over custody, often times the
court’s decision is not necessarily
favorable for one parent over the
other. The judge will grant an order
that attempts to please both sides.
Rarely does one parent feel as
though he or she is victorious.
13. What is
the typical judicial attitude
towards custody?
Not, surprisingly, it is women who
are most in favor by percentage.
Perhaps this is due to the
recognition of the value of maternal
instinct. For whatever reason, it
has been the precedence set in the
past and traditionally many judges
find it difficult to change their
ways. However, with the changing of
socio-economic structure of
contemporary society, fathers are
beginning to have a more significant
parenting role. More and more the
court is granting fathers custodial
rights or increased visitation
rights. The decision of custody is
not gender bias, so either parent
has an equal chance of being the
custodial parent as the other. Many
fathers will argue otherwise, but
state laws are put in place to
protect their parenting rights.
14. What is
the most important factor in
deciding child custody?
The most important factor considered
by the judge in deciding child
custody can vary from state to
state, or even from judge to judge,
but, given that the child custody
proceeding and decision will try to
lessen the disruption of the child’s
life and that the best interests of
the child standard generally seeks
to allow the child to become a
well-adjusted member of society, the
parent-child relationship is often
the most important factor.
15. Why is
the parent-child relationship factor
so important?
The judge will seek to maintain
stability and continuity in the
child(ren)’s life. To achieve this,
the judge must decide, who can
communicate with the child(ren). The
judge has to consider which parent
can meet the emotional and physical
needs of the child through the
divorce and post divorce. Keep in
mind that, the child(ren) may have
already become attached to one
parent more than the other, and the
judge will typically not want to
attempt to hinder this relationship.
The court does believe that each
child should have the right, and it
is in his or her best interest to
grow up with the parenting influence
of both the mother and the father,
so do not be mislead that by
choosing one parent as the primary
custodial parent does not
automatically insinuate that the
other parent is not as capable or as
important to the child(ren) (of
course this does not hold true for
unique circumstances that involve,
domestic abuse, alcoholism, and drug
use). .
16. Should
I be awarded custody, since my
ex-husband spanks our child(ren)?
Corporal punishment, alone, will
most likely not be enough to deny
custody or visitation. However, you
should be aware that judges and
custody evaluations generally do not
like or favor corporal punishment,
of any sort.
17. Should
I be awarded custody, since my
ex-husband is molesting our child(ren)?
A child molester will not, under any
circumstances, win custody of a
child. The molester will also not be
granted visitation rights and will
most likely have his or her parental
rights terminated, in addition to
being prosecuted for the molestation
or abuse.
If the child
molester is not the parent but,
rather, the new partner of the
parent, the outcome will be the
same. The courts will do its best to
protect the child, and the parent
guilty or guilty by association will
lose all custody rights.
Due
to the impact of a claim of abuse,
neglect, or molestation, it has
often been referred to as the
"nuclear bomb" of child custody
cases. It is a devastating
accusation that almost always
injures the accuser as well as the
accused. Charges of child abuse are
often made in the heat of a
separation and divorce trial, in
anger, revenge and or the fear of
losing the child(ren). While the
incident of false charges is
probably quite small, they can cloud
the issue for all other, legitimate
claims. Compounding this is the
difficulty of proving abuse,
especially with very small children.
If the allegations of abuse are
proven false, the accuser can lose
custody of the children
instantaneously. Some states provide
very stiff penalties for making
false accusations of abuse.
That said, if you suspect abuse,
neglect, or molestation, do not
hesitate to tell your lawyer. Your
child(ren) should be examined by a
physician and also should be
interviewed by a sexual abuse
counselor or someone else with
experience in these matters. It is
not recommended to accuse your
spouse or ex-spouse until you have
spoken with a lawyer. As we have
mentioned before, allegations of
this type are very touchy and can
prove to be detrimental to your case
if they are false.
18. My soon
to be ex-wife is a lesbian. Should I
be awarded custody?
Similarly, at one time this alone
would have been enough to
automatically deny custody and
visitation. In many states, a
homosexual relationship or
orientation is still enough to deny
a parent custody, but the trend in
other states is to ignore the sexual
orientation of a parent unless there
is a demonstrated adverse effect on
the child(ren) and the child(ren)‘s
welfare. If a child is made
uncomfortable by the new
relationship, beyond the normal
discomfort present in a divorce or
separation, a court may scrutinize
the parent’s sexual orientation at
which point may become a very
influential factor.
A judge
may not state that the parent’s
homosexuality is the sole factor for
the denial of custody but, rather,
may phrase it in terms of the "best
interests of the child" standard.
Some judges believe that exposing a
child to a homosexual relationship
is in itself harmful because they
believe that homosexuals are
inherently immoral, or that they
tend to be more sexually promiscuous
than heterosexuals, or that a child
will be influenced to become a
homosexual. The judge may state that
they are worried that placing a
child with a homosexual parent would
expose that child to prejudice from
the community at large because of
the stigma still supposedly attached
to homosexuality. Certain judges
apparently believe that a child in
the custody of a homosexual parent
would be ripe for ridicule on the
playground.
If you are the
parent in the homosexual
relationship, you should be prepared
to demonstrate and reinforce that
you are a fine, upstanding citizen
in all respects. .
Joint legal custody may have some
advantages over sole legal custody.
This arrangement encourages the
children to remain involved with
both parents, which will hopefully
establish a healthy relationship
with each parent. Joint legal
custody may lessen the trauma of
separation that children suffer from
during and after divorce. Joint
physical custody, while not the
same, is at least an attempt to
preserve the intact nuclear family
that was present before the divorce.
Joint legal custody allows the
non-custodial parent to have input
on important decisions regarding the
children. The goal is for a
custodial parent to have a better
relationship with the non-custodial
parent which will enable each of
them to rely on one another as the
children grow up.
20. My
ex-wife is interfering with my
visitation. What can I do?
If your ex-spouse is willfully
interfering with the terms of the
visitation agreement, you can try to
get your ex-spouse held in contempt
of court. You will need a court
order.
You may also seek to
have the visitation schedule changed
or modified by the court if there is
continuing interference. Judges try
to avoid this, so be prepared to
provide a good reason with proof for
a modification.
Be aware, in
extreme cases of interference with
visitation, custody may be changed
by the court.
Grounds are the legal reasons for
requesting a divorce. When a person
initiates a divorce by filing a
complaint, he or she has to state
the reason for requesting that
divorce. The reason or reasons are
the grounds.
Each state’s
statutory law defines the legal
circumstances within its
jurisdiction that are grounds for
divorce. Within each jurisdiction,
grounds have precise legal
definitions. When the facts meet the
statutory criteria for ending a
marriage under a given state’s
divorce laws, the aggrieved spouse
is said to have grounds for action.
He or she becomes the plaintiff or
petitioner, who is the party
initiating the action. The party who
replies is the defendant or
respondent.
Yes. Even in the world of liberal
divorce, a couple must have a reason
to end a marriage. That reason may
be that the marriage is
irretrievably broken down, or that
the two spouses now have
irreconcilable differences, but
there has to be a reason. Even
spouses who married common law must
have grounds to end the marriage. No
one can legally end a marriage just
by walking away.
Each
state has different procedures and
rules as to what are sound grounds.
A lawyer guides his or her client
through the particularities of the
state’s statutory divorce law -- for
example, not only the applicability
of grounds, but also residency
requirements, which vary from state
to state.
While
contemporary divorce law makes it
easier to move a divorce through the
courts, the parties -- the spouses
-- have to have a reason for a
divorce and have to present that
reason to a judge. In short, grounds
are the legal reasons to end the
marriage.
23. What
about no-fault divorce? Why do
couples still need grounds?
Some people confuse grounds with
fault. Under no-fault, Rufus and
Rhonda have grounds for divorce when
they agree that they can no longer
make their marriage work, yet
neither Rufus nor Rhonda is at fault
for this breakdown.
Ground
for a divorce only refers to the
reason for the divorce; fault refers
to the fact that someone -- either
Rufus or Rhonda or both -- did
something wrong.
Back in the
bad old days, one of the alienated
spouses who wanted to part ways had
to accuse the other of doing
something wrong in order to get a
divorce. That often made divorce
court into a liar’s club and also
demonstrated how skillfully
otherwise law-abiding citizens could
be at perjury, particularly when
they were coached by lawyers who got
rich doing it. That "something
wrong" was often an affair, but it
could also have been something else
-- cruelty, abuse, abandonment.
In short, no longer do spouses
have to accuse spouses of an
egregious wrong; instead they must
state that the marriage has suffered
an irretrievable breakdown. This,
however, still counts as a
reason.This is the ground for
divorce, but no one is at fault.
Yes, 33 states still have fault
grounds for divorce. They are
Alabama, Alaska, Arkansas,
Connecticut, Delaware, Georgia,
Idaho, Illinois, Kansas, Louisiana,
Maine, Maryland, Massachusetts,
Mississippi, Missouri, New
Hampshire, New Jersey, New Mexico,
New York, North Carolina, North
Dakota, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South
Carolina, South Dakota, Tennessee,
Texas, Utah, Vermont, Virginia and
West Virginia. Seventeen states --
Arizona, California, Colorado,
Florida, Hawaii, Indiana, Iowa,
Kentucky, Michigan, Minnesota,
Montana, Nebraska, Nevada, Oregon,
Washington, Wisconsin and Wyoming --
and the District of Columbia permit
only no-fault.
However, every
state offers no-fault as an option.
States which have fault divorce
decided to leave it in place and
enact no-fault as yet another
option.
In the old days
someone who wanted out of a marriage
had to prove the other spouse at
fault for causing the marriage to
fail. Thus, the idea of fault
implied a moral responsibility for
failure. Or, even when both of them
were equally responsible and each
wanted to escape a failed marriage,
someone had to "take the fall," that
is, be at fault.
To this end,
fault jurisdictions offer some or
all of nine fault grounds, with the
first -- adultery -- being the most
common because it was seen as most
reprehensible. As mentioned, the
exact shade of meaning varies with
the jurisdiction, as do specific
circumstances of the fault. Adultery
means sexual contact with someone
other than the spouse, and this
includes homosexual contact. This
sometimes led to a third party being
named as a co-respondent or
co-defendant in the action, who
could elect to join a civil action
against the plaintiff’s allegations
in the divorce complaint.
Other fault grounds include deviant
sexual conduct, a kind of catchall
into which some jurisdictions
include homosexual adultery; extreme
cruelty or cruel and inhuman
treatment, which can be "as
innocuous and benign as a pattern of
conduct resulting in repeated
annoyance or just about anything
that makes it unreasonable or
unhealthy for the parties to
continue to cohabit as spouses";
habitual drunkenness, usually for
more than one year; mental illness,
usually with institutionalization
for a year or more; sexual
desertion, which means carnal
abandonment; drug addiction, which
means nonmedical use of narcotics;
and nonsupport.
Fault grounds
in various jurisdictions may involve
durations of episodes and require
enumeration and qualification of
intensity.
When Rufus and
Rhonda ended their marriage with
fault grounds in the bad old days,
punishment for a moral failing
identified the villain, particularly
when one of them waved the red flag
of adultery. Punishment implied
guilt, and someone had to pay for
it.
Today, even in those
states that still have fault
grounds, fault is not used as
punishment.
25. Is
adultery one of the oldest grounds
for divorce?
Probably, yes. Traditionally
adultery was the classic grounds for
divorce. Adultery was considered the
worst possible violation of marriage
vows and proof of a marital
breakdown. And because adultery does
not just happen by accident, at
least one of the two spouses had to
be responsible for it.
Adultery was considered a grave
moral failing worthy of harsh
condemnation, which society
reinforced with punitive financial
punishment. And sometimes when a
third party was named -- a
co-respondent, who often was a
paramour -- the whole town savored
all the details of fallen people who
had strayed from the straight and
narrow. The just punishment of a
roving husband and the vindication
of a righteous wife made the divorce
into a morality play. Sometimes,
when the spouses were socially
prominent, the details made for
great gossip.
Cruelty, both mental and physical,
is a traditional fault. Often the
cruelty was mental, which is a
catchall term that often meant that
one spouse verbally and
psychologically abused the other.
In some jurisdictions, cruelty
is called extreme cruelty or cruel
and inhuman treatment, which can be
"as innocuous and benign as a
pattern of conduct resulting in
repeated annoyance or just about
anything that makes it unreasonable
or unhealthy for the parties to
continue to cohabit as spouses." In
many jurisdictions, court
interpretations of the meaning of
this legal phrase have been so
diluted that it functions as
"irreconcilable differences" in
no-fault states.
In general,
cruelty doesn’t mean just being
mean, nasty or disagreeable to one
another, but rather that unnecessary
physical or emotional pain is being
gratuitously inflicted by one spouse
upon the other. Thus, Bessy Smith’s
classic blues song "Mean to Me," a
lamentation of the sorrows of a
loving women trapped in a bad
relationship with a nasty man,
probably would not be grounds for
divorce, then and now.
Cruel
and inhuman treatment may mean
either physical or mental cruelty to
the degree "that makes it unsafe or
improper for the parties to reside
together as man and wife." Often
there is a time limit for this
conduct, often within five years
before filing for divorce,
Cruel and human treatment means more
than incompatibility.
Incompatibility is not getting along
and function as partners. Cruel and
inhuman treatment involved
"physical, emotional and financial
abuse," including physical attacks,
such as beatings; gambling away
money; unexplained absences from the
home; dating someone else and/or
abusing the children.
Divorce is common in the United
States. An often-quoted statistic is
that "almost half of all marriages
end in divorce." That leaves a lot
of children enduring the effects of
divorce.
Divorce can be an
earth-shattering event for children,
creating feelings of loss,
confusion, fear, anger, and
resentment. Several recent
psychological studies indicate that
children can experience these
effects for years. These emotions
affect how children, once grown,
approach their own marriages and
child rearing.
In addition to
the psychological effects, divorce
can have economic effects on
children. Children often suffer a
severe decline in their standard of
living after a divorce.
Child
support laws throughout the United
States seek to provide some
stability to the standard of living
for children and to prevent or
mitigate this decline. Child support
laws also seek to provide some sense
of order after the disruption of
divorce and to smooth over the
transition from a unified, nuclear
family to a two household family,
with the spouses/parents living
separate and apart.
The law
requires parents to support their
children. It doesn’t matter if the
parents are married, or if they are
living together. The responsibility
of child support is that of the
parents as individuals or as a unit.
Indeed, it doesn’t matter if the
parents have not had no continued
contact after the conception of the
child. All parents are legally
responsible for child support.
Courts are very concerned with
providing for children’s needs, and
one of the most basic needs is
economic support. It is in the
interests of the state and the court
to make sure that children do not
slip into poverty, and that they
have the ability to grow up to
become happy, productive members of
society.
The goal of the
state support guidelines and the
court system is to ensure that each
child’s standard of living is
persevered, as much as possible, to
that which would have occurred had
the divorce or separation not
occurred.
The term "child support" covers
all the economic necessities of life
required by a child. These
necessities include, but are not
limited to, food, clothing, shelter,
education, medical care, and other
day-to-day expenses.
One of
the main issues that parents have
problems agreeing upon when it comes
to child support is what would be
covered under the court order
support obligation. It is hard to
convince anyone, especially the
court, that food, clothing, shelter,
education, and medical care are not
necessities, but the day-to-day
expenses leave somewhat of an open
interpretation.
The child support guidelines of
your state set out the method of
calculating child support. Some
states are rather simplistic,
considering net income and applying
a percentage, while others consider
many other factors such as
overnights with each parent, medical
expenses, prior child support,
alimony, retirement contributions,
FICA, federal, state and local
taxes, etc.
31. Why
does only the father have to pay
child support?
This is not true; every state
requires both parents to provide
child support. This is often
referred to as "the equality of
duty." It may seem as though that
the father is solely responsible for
child support, since he often is the
non-custodial parent. The mother is
often the custodial parent, and her
"child support" typically manifests
itself in other ways: providing a
home for the child, and providing
for day-to-day expenses that are not
manifested in a physical object like
a check. Her support is given
directly to the children.
If
the father is the custodial parent,
the mother will be assigned a court
order to pay child support to the
father. This is becoming more common
as more fathers become custodial or
joint custodial parents.
32. If I
have more visitation time, will it
reduce my child support obligation?
All states take into account the
amount of visitation time when
calculating child support. This is
based on the understanding that the
child is being supported directly
when the noncustodial parent is with
the child. In some states a sliding
scale of time versus money is used
by the court, while in other states
an increase in visitation time can
be a valid reason for a judge to
deviate from the guidelines and
decrease the child support award on
a case by case basis.
Some
states have a certain number of
overnights that will effect the
support obligation. For example; if
the noncustodial parent has 128
overnights per year , he or she will
have a significant lower support
obligation had it only been 127
overnights per year. When
negotiating and calculating child
support the number of overnights is
a very influential variable.
It certainly can, particularly
when one spouse attempts to avoid
obligations created in a property
settlement agreement by filing for
bankruptcy. Since the costs and
expenditures in a divorce can be
quite large, a person often needs to
be familiar with bankruptcy law and
tax law, to negotiate the terms and
conditions of property distribution,
spousal and child support.
While bankruptcy does not intersect
divorce as often as tax law does, a
spouse undertaking a divorce,
particularly one where the marital
estate is large, must be aware of
both.
Under certain conditions, a
spouse who files for bankruptcy
after a divorce may be relieved of
obligations he or she incurs under
the terms and conditions of a
property settlement. While child
support and alimony are not
dischargeable in bankruptcy,
property settlements may be modified
and reduced, although not generally
to the extent once possible.
Grim as it may be to contemplate,
some couples find that financial
ruin also accompanies the collapse
of a marriage, either before or
after the divorce. High living often
contributes to the marital failure.
In addition, the collapse of the
housing market now increases the
woes and worries associated with the
sale of the marital home as part of
a divorce settlement. The
predicament of a divorcing couple
whose marital home stands empty and
unsold month after month is not an
easy one.
That said,
bankruptcy is a fact of modern life,
and many divorcing couples find
relief from bad decisions and bad
luck in bankruptcy court.
35. How
does bankruptcy affect a child
support obligation?
A former spouse must stay up to
date on support payments, both child
and spousal, while he or she is
Chapter 7 bankruptcy. Support
obligations are not eliminated or
reduced through bankruptcy.
If an ex-husband files for Chapter 7
bankruptcy, and if he owes children
back child support or back alimony,
his spouse can still collect it. In
a Chapter 7 bankruptcy, the victim
spouse can garnish her ex-spouse’s
wages, and she can be put first in
line for the distribution of any
property that a former spouse is
not, by law, allowed to keep. The
automatic stay provision does not
stop litigation against an
individual to establish, modify or
collect child support or spousal
support.
While Chapter 7
bankruptcy will serve to eliminate
most debts, or almost all debts, it
will not remove an obligation to pay
support, whether it is child support
or spousal support.
Yes. The husband and the wife are
free to negotiate a property
settlement and create a "Marital
Settlement Agreement." If they do,
the judge will usually approve the
agreement after a short hearing. In
some states, a hearing may not even
be necessary, as long as there is no
further dispute. The judge will look
at the property that is presented in
an itemized format in the "Marital
Settlement Agreement" and make sure
that it is relatively fair and
equitable. The judge will still be
conscious to look out for the
interest of both parties before
granting the wishes stated in the
agreement.
If the husband and
the wife cannot agree on a division
of property, the judge will hold a
trial to resolve any disputes and
decide any contested issues.
It is always recommended to
reconcile out of court. Obviously,
the more property to divide the more
difficult the process becomes. It is
very common for intense negotiation
to occur before you and your spouse
will reach a property settlement. A
settlement can be reached by talking
it out on your own, working with
attorneys, and/or working with a
family mediator. If you do decide to
leave it up to the court, you are
introducing the element of surprise.
37. What
should we do with all of our joint
accounts?
In dealing with the joint
accounts, there are a few logical
options available to you and your
spouse. The first would be to ask
your banking institution to "freeze"
the accounts in question and not
allow monies in or out of these
accounts without authorization by
both parties. The second would be to
empty all joint accounts into one,
frozen account to be dealt with in
the same manner as the first option.
You may opt for an "Escrow" account.
(An officer of the bank is assigned
to monitor this account and to
handle transactions authorized by
written instructions.) Lastly, one
spouse can take out half the money
in a given account and deposit it
into their own, new individual
account, thus leaving the joint
account as the other’s individual
account. By not addressing this
issue, you will give your spouse the
opportunity and means to liquidate a
specific account without your
knowledge. While in the event of
this, the court will probably
provide for reimbursement, the
actual receipt of such could be
months or years in coming, leaving
you to deal with the consequences in
the immediate future.
In the opinion of a court of law,
it is one thing to put assets into
safekeeping or use them for
necessities of life, it is quite
another to hide them and not admit
they exist as we have just
addressed. The taking of monies from
a joint bank account for transfer to
an individual account, for example,
is acceptable so long as the
existence of such an account is
admitted. In this manner, the judge
will still be able to include them
in a fair and equitable distribution
of marital assets.
Conversely, if you claim you lost
monies from a joint bank account at
a casino in Atlantic City, the judge
might very well conclude (perhaps
incorrectly) that you are not
telling the truth and are attempting
to hide assets. In this case, there
is a very good chance that the judge
will award YOU the "missing" assets
and assign an equal amount of assets
to your spouse in the final
distribution. If you are able to
substantiate that certain assets
were spent for a legitimate purpose,
such as probable and reasonable
living expenses, then there will be
no penalty to pay, unless there was
a specific restraining order issued
by the court restricting such
expenditures.
39. I
received an inheritance before I got
married. Is it mine??
You should place the inheritance
into an account in solely your name
and keep the funds in that account
separate from all marital funds. If
you deposit any marital funds into
that account, you could change the
separate inheritance funds into
marital funds. This includes marital
funds that you might mistakenly
believe to be separate funds, such
as a paycheck.
For example:
the husband has a money market
account, which he has bought and
sold securities through for the past
ten years. Recently he marries and
after a few months the checking
account that he and his wife set up
began to accumulate quite a bit of
money. At this point the husband
decides to deposit some of that
money into his separate brokerage
account, rather than opening a new
one in both of their names. By doing
this he is potentially making all
the funds in the brokerage account
marital, not just that which was
saved and deposited during the
marriage.
In addition, if you
use any part of the inheritance to
pay a marital debt or expense, that
part has clearly become marital
property. In some states, if you
replace the paid-out funds with
other funds, the account becomes
marital property. In other states,
the mere act of paying a marital
expense with part of a separate fund
will turn the entire separate
property into marital property.
40. What
if my spouse is attempting to hide
property?
Often one spouse might attempt to
undervalue or disguise a martial
asset intentionally with the
specific thought in mind of life
after divorce. While suspicion and
proof of these kinds of activities
are two very different entities,
there are ways in which to protect
yourself. The most prominent
counter-measures would be not only
to start compiling detailed
financial records complete with
accurate asset assessments or
valuations from the moment the
decision to separate is made, but
also to hire a specialized
professional known as a forensic
accountant. A forensic accountant is
one who is an expert at tracing
properties, evaluating financial
reports, and assessing values for
businesses and investments. Should
things get really ugly, he or she is
also one who makes a very good
witness in a court of law.
Another way to eliminate any
potential problems would be to
familiarize yourself with some of
the most frequent tactics used in
such economic warfare. For example,
in anticipation of divorce and a
reluctance to share, a spouse may
persuade an employer to delay
delivery of a bonus, stock option,
retirement benefit, or pay raise
until after such time as a divorce
is final. In this way, such monies
would not be considered in the
formal division of the marital
assets. To prevent this, you may
wish to take the deposition of your
spouse’s direct boss or payroll
supervisor. However, should this
prove unsuccessful you may need to
enlist the services of a Forensic
Accountant.
Other methods
have been known to come in the form
of payments to nonexistent
employees, with the checks magically
becoming void after the Date of
Divorce. Sometimes monies are paid
from a business account to somebody
with close personal ties, such as a
father, brother, or uncle, for
services never actually performed.
Naturally, the monies are returned
after the divorce is final. Or,
custodial accounts appear in the
name of a child, under the child’s
Social Security Number, for money to
be parked until such time as the
coast is clear.
There could
be delays in signing any formal
business contracts, lucrative only
by coincidence, until after the time
is right. Although in some cases
there is nothing inherently illegal
about this, if the intent is to hold
down or lower the value of a
business, in the eyes of the court
this is considered asset hiding. The
help of a forensic accountant would
almost certainly be required here.
It is not unwise to document all
antiques, artwork, hobby equipment,
gun collections, or tools that are
quite often overlooked by the other
spouse. If possible, have a
professional appraiser establish a
value in writing. Pay a visit to the
office and notice if there are any
lush furnishings, paintings, or
collector-level carpets around. Pay
attention to the monthly billing
statements to see if the lifestyle
is exceeding the normal income.
Somebody may be stockpiling for the
future.
Other means would be
skimming cash off the top from a
business owned, "debt repayment" to
a friend for an alleged outstanding
obligation, or perhaps expenses paid
to a new girl or boyfriend for items
such as gifts, travel, rent, or
tuition for college or other
educational classes (that will never
be attended, with the monies
refundable upon student withdrawal
by a specific date). Another
prominent method would be cash kept
in the form of traveler’s checks,
although you may be able to discover
the existence of these by tracing
bank account transactions.
Again, you may wish to employ a
forensic accountant. While a
forensic accountant obviously does
not work for free, the money spent
in fees could prove to be well worth
it. In some cases, the old adage,
better safe than sorry, could be a
most prevailing and rewarding
concept.
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