What happens when you file for divorce or legal separation?
- The only significant difference between a divorce and a legal separation is that a divorce is final and a legal separation can only last for twelve (12) months, unless it is converted into a divorce. Otherwise, you would not notice a difference.
- The first step is something called a “temporary hearing.” The issues at a temporary hearing (whether for divorce or just separation) will mimic many of the final issues in a divorce, e.g., custody and child support (if there are children), alimony, division of property, who lives in and pays for the marital residence, division of debts, cars, . . ., etc. However, none of this is permanent, thus, issues like retirement are not addressed and the main idea is to maintain the “status quo” and prevent the marital assets (and debts) from being depleted.
What are the main issues which come up in a divorce action?
In a divorce action with children, the case is divided up into two (2) phases. First, a judge ALWAYS decides custody matters BEFORE the other issues are considered; financial issues, including: child support; alimony (if any); who gets which car; who gets the house; and, “equitable” division of retirement, other assets, and debts, . . ., etc.., which MAY be decided by a jury, if either side insists on a jury trial.
Can one parent leave and take a child away from the other parent in a divorce?
This is very unlikely to happen. Judges usually award the parents joint legal custody, even if one parent will have more time with a child as the “primary physical custodian.” Only in instances of extreme abuse and/or pathetically poor parenting skills might this happen
What are the legal issues when “custody” of the minor child(ren) decided?
Whether it is a divorce action or just a straight custody one, the main issue is the same, i.e., what is in the “best interests” of the minor child(ren)? If there has NOT been a prior LEGAL determination of custody, the biological parents start out with equal rights and on an equal legal footing – neither the mother nor the father starts out with an advantage, or disadvantage, with respect to custody decisions, despite what people may generally believe. This is even true in legitimation cases, where a biological father sues to establish his rights to a child born out-of-wedlock. Hence, mothers need to be careful not to assume that they will ALWAYS win custody battles and fathers need not be discouraged that they will USUALLY lose custody battles. The final decision always comes down to which parent might be the best “caretaker” and what is best for the child(ren).
What happens at a temporary custody hearing?
- The temporary custody hearing can be (but does not have to be) a separate hearing from the temporary hearing concerning property and alimony. The judge at a temporary hearing decides temporary custody and child support issues. Typically, the temporary hearing is the foundation for a final custody order although, depending on the time of year when the temporary custody hearing is held, the judge may or may not address summer and holiday visitation.
- At a temporary hearing, a judge hears from the parties, up to one additional witness per party, and an unlimited number of affidavits. The latter are often viewed with some skepticism, as the witnesses are not available for cross-examination. Still, affidavits that describe specific facts or incidents and/or affidavits from an unbiased witness (doctor, teacher, police officer), can be very useful.
How is the property and debts going to be divided?
- Property, both assets and debts, is either designated as “non-marital” property or “marital” property. “Property” can either be an asset (like a house) or a debt (like the mortgage on the house).
- As opposed to child support, there is no “formula” for the division of marital property. The division of marital property is based on the fair market value at the time of the divorce and is done based on what a judge or jury determines is “fair” or equitable. But, there is no “formula,” letting a judge or jury decide how to divide the assets and debts is very risky – that is why most of the time, the parties settle without going to court. Sometimes, as with a house, one party may get possession and ownership of the house, but the other party gets paid some money for giving up his/her right to possession and ownership.
What about retirement money?
Other than a home, retirement (if any exists) is the next biggest asset in most marriages. Retirement can be considered a “marital” asset, depending on the length of the marriage and when the retirement benefits were built up. There are special rules on how to transfer retirement money, and not every case involves such a transfer.
Can I be made to take on all of the marital debts?
- “Non-marital” property is an asset or debt acquired before a marriage and is not included in the division of property, except in very unique circumstances. Inheritances, stocks, family gifts or heirlooms, wedding presents, and trust accounts, are typical examples of this type of property. Since non-marital property is not subject to equitable division between the parties, the non-marital property goes back to that spouse who originally owned it, without any compensation to the other spouse.
- Marital” property is an asset or debt that is acquired during the marriage. The fact that an asset or debt is in one spouse’s name does not been that the asset belongs exclusively to that spouse. Thus, if you live in a home, acquired during the marriage, but the home is in your spouse’s name only, your home is still going to be classified as “marital” property. Of course, generally speaking, an asset or debt like a car/truck or credit card that is only in your name generally will go you (good or bad) in the divorce.
- “Joint” debt is where you and your spouse have debts in both of your names, such as credit card bills, a car/truck loan, or mortgage. This type of debt will have to be split, usually based on how assets are being split and/or the parties’ respective income.
Can you explain alimony?
- In some cases a judge may award alimony to a spouse. This may just be temporary pending the outcome of the trial or in the final divorce order. A judge or jury will award alimony depending on the circumstances of the marriage, such as (this is the “short” list): the length of the marriage; the respective earning capacities of the parties; a spouse’s needs; educational level; and the ability of a spouse to pay to alimony. Alimony even on a temporary basis, is not always awarded and, generally, only where there is a great disparity in income or earning potential.
- The purpose of alimony is to prevent the more dependent spouse from suffering a significant loss in his/her standard of living. Even what it is awarded, it is generally only for a relatively short period of time and for marriages of less than five (5) years, probably not awarded at all on a permanent basis. If there is a long term marriage, such as in excess of twenty (20) years, where children were raised and one of the spouses did not work to do so, the dependent spouse might very well expect, and receive, alimony payments for an equivalent length of time.
Ok, I have a grasp of what the future holds, now how can I expect my case to progress if I file a complaint or have had one filed against me?
After a complaint is filed, the other party will respond with an Answer, approximately thirty (30) days after the defendant is “served” with the complaint. The answer will determine which factors are being disputed and any counterclaims that are going to be at issue. If you have a truly, uncontested divorce (meaning the parties have agreed upon all terms), then you will be able to propose a joint settlement agreement for the court’s final approval. Otherwise, you will be going to court.
Going to Court ...
- TEMPORARY HEARING/RULE NISI HEARING-
This is your first actual court time in the process of your case. The Judge (there is NO right to a jury trial at a temporary hearing) can make temporary decisions pending either a resolution between the parties or a final order by the court. During this time the parties may enter into a temporary agreement or if the parties cannot agree, after hearing evidence, the Judge may issue a Temporary Order.
Following the temporary hearing, the Discovery period is designed so that both parties can obtain as much information to aid their case as possible. This includes answering general questions, providing financial documentation and other relevant information that may be requested by either party. Each side can ask written questions of the other side that have to be answered under oath. In most cases, but not all, we will send out written discovery questions to the other side.
Either side can also schedule depositions. These are opportunities for both parties’ attorney to questions all witnesses and parties under oath about what they might testify; this is a powerful device as the attorney can learn exactly what the witnesses will say, in advance of trial, and try to come up with a strategy that either takes advantage of the sworn testimony or to counteract it. If you can afford to have the attorney take depositions, and your case is going to be strongly contested, you should consider authorizing your attorney to do so. However, as useful as they are, taking depositions is rather expensive and you should authorize your attorney to take depositions only if it is absolutely necessary to do so and if you can afford to pay for them; many cases do to trial without depositions having been taken.
When the Discovery period is over (or even before), the case could go in many different directions (keep in mind that one party is always at liberty to offer a settlement at any point in the process). Mediation may be required before your case can go to trial. A Mediation is a meeting between the two parties with a mediator to attempt to resolve the case before trial. If the Court does not require a Mediation, the case is set for Trial based on the Court’s schedule – it can take as long as a year from the completion of the discovery, before your case would go to trial.
If the parties cannot agree, they may move forward with a jury trial or a bench trial (where only the Judge presides). Both parties must agree to waive their rights to a jury trial. Please keep in mind, that while a jury may determine the final outcome for a divorce, it cannot determine child custody and/or support issues which are left solely to the discretion of the court.
- Families in Transition Seminar
If there are any children involved in your litigation, both parties are required to complete a “Families in Transition Seminar,” before a final order will be signed by the Judge. If you don’t have the information on where to attend, please ask the staff.
What powers will I have in the settlement of this action?
Your power: If the parties can agree on all of the terms, then a settlement agreement can be issued and once reviewed by a Judge of competent jurisdiction, and a final divorce decree will be ordered. If the parties cannot agree, then the parties will turn to the court for disposition. It is important to be absolutely certain in any decisions made in a proposed settlement agreement, as it is legally binding.
This is your case. I will provide you with advice and consultation, but you have the power to make many important decisions about your case. Despite the power that you have, you will probably find that your result will be best, if you listen carefully to my advice and consultation.