Volume

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DIVORCE EVERYTHING YOU NEED TO KNOW

BUT WERE AFRAID TO ASK

Avvo, Inc.

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A V V O . C O M P R E S E N T S

DIVORCE E V E R Y T H I N G Y O U N E E D T O K N O W

B U T W E R E A F R A I D T O A S K

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Table of Contents

OVERVIEW ..................................................................... 6

THE TOP FIVE SIGNS YOUR MARRIAGE IS IN TROUBLE .......................... 7

BASICS ........................................................................... 9

NO-FAULT DIVORCE ................................................................................. 10

UNCONTESTED DIVORCE VS. CONTESTED DIVORCE ............................ 12

SIMPLE DIVORCE / SUMMARY DIVORCE BASICS ................................... 14

COLLABORATIVE DIVORCE ...................................................................... 16

DIVORCE MEDIATION............................................................................... 18

CHOOSING A LAWYER ................................................ 21

HOW TO HIRE A DIVORCE LAWYER ......................................................... 22

HOW TO PREPARE FOR (AND GET THE MOST OUT OF) YOUR FIRST

MEETING WITH A DIVORCE LAWYER ...................................................... 27

DOCUMENTS TO GATHER FOR YOUR ATTORNEY IN A DIVORCE ......... 31

BUDGETING AND ORGANIZING RECORDS DURING A DIVORCE.......... 33

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COSTS .......................................................................... 38

HOW MUCH WILL MY DIVORCE COST & HOW DO I SAVE MONEY ON

IT? ………………………………………………………………………………………………39

FIVE TIPS THAT WILL HELP SAVE MONEY ON YOUR DIVORCE ............. 43

HOW TO PREPARE YOUR FINANCES IN THE TIME OF DIVORCE ........... 47

DIVORCE AND TAXES ................................................................................ 52

PROCESS ...................................................................... 55

PROPERTY DIVISION .................................................. 67

COMMUNITY PROPERTY DIVISION VS. EQUITABLE PROPERTY DIVISION

IN DIVORCE ............................................................................................... 68

WHAT IS NON-MARITAL PROPERTY? ...................................................... 71

DIVORCE PROPERTY SETTLEMENT: TIPS FOR PROPERTY DIVISION ..... 75

DIVIDING PROPERTY IN A DIVORCE: WHO GETS THE FAMILY HOME? 78

DIVIDING RETIREMENT PLANS IN DIVORCE .......................................... 80

DIVIDING A BUSINESS IN A DIVORCE ..................................................... 84

DIVORCE DEBT AND CREDIT ISSUES ....................................................... 87

UNDERSTANDING BANKRUPTCY AND DIVORCE ................................... 91

HIDDEN ASSETS AND DIVORCE ............................................................... 93

PAYING ALIMONY (SPOUSAL SUPPORT) ................................................ 98

ALIMONY PENDENTE LITE ....................................................................... 99

REHABILITATIVE ALIMONY .................................................................... 101

FACTORS AFFECTING SPOUSAL SUPPORT (ALIMONY) AWARDS ....... 104

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ALIMONY (SPOUSAL SUPPORT) MODIFICATION ................................ 107

ALIMONY (SPOUSAL SUPPORT) TERMINATION .................................. 109

CHILDREN AND DIVORCE ......................................... 113

HOW TO TELL YOUR CHILDREN YOU’RE DIVORCING ........................ 114

WAYS TO HELP YOUR CHILDREN GET THROUGH A DIVORCE ........... 117

PARENTING PLANS ................................................................................ 123

HOW DO I CALCULATE CHILD SUPPORT? ........................................... 125

FAMILY LAW - RELOCATION WITH CHILDREN ..................................... 128

AFTER DIVORCE ........................................................ 132

ENFORCING YOUR DIVORCE DECREE .................................................. 133

APPEALING YOUR DIVORCE DECREE ................................................... 136

PARENTING CONSULTANTS POST-DIVORCE ....................................... 138

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Overview

Whether you're just starting the divorce process or you're in

the midst of a custody battle with your ex-spouse, we have

you covered. Here you'll find everything you need to know

about divorce, property division, alimony, and choosing a

divorce lawyer.

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The Top Five Signs Your Marriage is in Trouble Written by: Nathan Templeton Anderson, Litigation Lawyer

1. You Dream of a Life Without Your Spouse

It is not uncommon for us all to wonder “what if”

during our day-to-day lives, but when you start

thinking about how your life would be better without

your spouse, you’ve definitely got a sign that your

marriage is in trouble.

2. You Keep Things to Yourself

I’m surprised at how often clients come in and tell me

that they simply quit communicating their needs and

concerns to their spouse. When your marriage has

reached a point to where it's not worth it to “bother”

your spouse with your concerns and needs, this is

another sign the marriage is in trouble. Open

communication is a key to any successful relationship,

and holding things back from your spouse is quite

unhealthy to the marriage.

3. You're the Only One Working on the Marriage

If you feel that your spouse is not putting the same

amount of effort into the marriage, then feelings of

resentment and anger can really kick in. Anger

sometimes fuels people to make rash decisions;

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however, feeling a lack of reciprocal effort is a definite

sign the marriage is on rocky grounds.

4. Your Marriage Lacks Intimacy

Sex is an important part of any healthy marriage. If

one spouse seems uninterested in sexual intimacy

with the other, this is a sign the marriage is in trouble.

Even more so, if one spouse is withholding sex as a

form of “revenge,” then this too indicates a storm is

brewing.

5. The Bad Outweighs the Good

This one ties in closely with all the other signs. If you

feel there is more trouble in paradise, then there are

some issues that need to be confronted.

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Basics

The kind of divorce you want and how well you and your

spouse can agree on issues will affect the choice to hire an

attorney, and what type of services you need from them.

Learn more about the different types of divorce and

determine which one is right for your circumstances.

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No-Fault Divorce No-fault divorce is the most common type of divorce case,

and is available in all states except New York. A no-fault

divorce is one where the spouse seeking a divorce doesn't

have to prove the other spouse did something wrong, but

instead gives a reason recognized by their state, such as

irreconcilable differences.

Getting a no-fault divorce

If you are seeking a divorce, a no-fault divorce may save you

money as you do not have to sue your spouse and prove that

he or she caused the marriage to break up due to an issue

such as adultery or spousal abuse. However, some states

require the couple to live apart for a period of time before a

no-fault divorce can be granted.

If the couple agrees on how to divide their assets and

on alimony, child support, and custody issues, they may

save money by representing themselves, or by using a family

mediator to hammer out the details of their divorce. If there

is disagreement about these issues, you will want to get a

divorce lawyer to represent you in court.

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No-fault vs. fault divorce

In some states, you can still pursue a fault divorce, where the

spouse seeking the divorce must prove that his or her spouse

is at fault for breaking up the marriage. Typical grounds for a

fault divorce are cruelty, adultery, desertion, imprisonment

for a period of time, and inability to have sex if that wasn't

known before the marriage.

While no-fault divorce is far more common and easier to

obtain, some people choose a fault divorce. They may not

want to wait through their state's required separation

period. In some states, they may receive more of the assets

or more alimony by proving fault.

If you choose a no-fault divorce, your spouse cannot stop

the divorce. In a fault divorce, however, the spouse could

prevent the divorce by proving the charge against them is

untrue. The person accused of the fault could also stop the

divorce by proving that his or her spouse in some way

condoned or provoked the activities that put the spouse at

fault. An experienced divorce attorney can help you

determine which type of divorce is right for you.

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Where to file for divorce

Ideally, you will want to file for divorce in the state where

you live. All states require that you reside in the state before

filing for divorce there, though the length of residency

required varies from state to state. Divorce proceedings may

drag on for some time, so you will save on travel and lost

work time if the divorce court is near you. If you suspect

your spouse may file for divorce in another state, you may

want to take the lead and file in your home state.

Uncontested Divorce vs. Contested Divorce When people think of divorce, many usually envision a nasty

battle in court over every last stick of property—even the

ugly wedding china no one really wants. However, what they

may not know is that approximately 90% of divorces are

uncontested. What this means is that the parties involved are

able to settle their differences without even going to trial.

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Uncontested divorces

In an uncontested divorce, the spouses reach mutual

agreement on relevant issues like alimony, child custody,

child support, and asset division. The court doesn’t get

involved because the two parties manage to settle all their

issues without litigation. Because of this, uncontested

divorces usually save significant time and money compared

to contested divorces.

Contested divorces

By contrast, two spouses go through a contested divorce

process when they’re unable to reach an agreement on

issues even after trying alternatives like mediation. When

this happens, the divorce case then goes before the court

where the judge (or jury) makes the final call on each issue.

Whereas having an attorney isn’t always necessary for an

uncontested divorce, getting an attorney for a contested

divorce is probably a prudent measure. This is because the

issues involved are usually complex and may involve

navigation of technical legal procedures. In general,

contested divorces tend to be much more stressful, take

much longer to complete, and also cost more due to attorney

fees.

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Simple Divorce / Summary Divorce Basics If you want a divorce and you and your spouse have no

children and no property together, then you may want to

consider getting a simple divorce (aka summary divorce,

summary dissolution). A simple divorce is the cheapest type

of divorce and also the quickest to complete.

Requirements of a summary divorce

Each state’s laws may have slightly varying requirements for

a married couple’s eligibility for a summary divorce, but they

usually include some version of the following conditions:

No children

A short marriage (typically 5 years or shorter)

Little or no property/debts owned together

Total value of marital property is less than a certain

amount (usually about $35,000)

Each spouse’s total separate property value is less

than a certain amount (usually same ceiling as marital

property)

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Benefits of a simple divorce

Benefits of a simple divorce compared to a traditional

divorce:

Much cheaper. The costs usually only encompass the

filing fee, and minimal attorney fees if you hired

representation.

Few or no court appearances. In some states a court

doesn’t require you to make an appearance at all,

whereas courts in other states may have you show up

just once or twice.

Extremely quick. Since couples filing for a simple

divorce have no children and very little to no

property, a big portion of what usually takes up most

of the time in normal divorces is cut out. In some

states a simple divorce can be completely concluded

in about one month if all the paperwork is filed on

time.

Check with your specific state's laws to find out more if

you're interested in seeing whether you can get a

simple/summary divorce. If a simple divorce isn't

appropriate for your situation, then you may want to check

out information on uncontested divorce or contested

divorce.

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Collaborative Divorce Collaborative divorce occurs when spouses and their lawyers

commit to negotiating a settlement agreement without going

to trial. This increasingly popular approach brings each

spouse and their specially trained collaborative lawyers

together in face-to-face meetings to work out their issues.

Often, a collaborative divorce is simpler, quicker to achieve,

cheaper, and less acrimonious than a traditional

divorce trial.

How collaborative divorce works

Each spouse hires his or her own lawyer experienced in

collaborative law. In a series of four-way meetings, the

lawyers facilitate communication between the husband and

wife regarding child custody, property distribution, alimony,

and other issues. Each party identifies its goals and

priorities and listens to the other's point of view.

Documents that clarify issues are disclosed to ensure

complete transparency. The spouses and their lawyers work

as a team to solve problems and brainstorm solutions until

they reach a mutually beneficial settlement agreement. This

agreement is put in writing and presented to a family court

judge for signature and inclusion in the final divorce decree.

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If the husband and wife fail to reach a settlement and the case

goes to court, the collaborative lawyers are legally bound to

withdraw from the case. Each spouse will need to hire new

lawyers for litigation.

Collaborative divorce versus divorce mediation

The critical difference between collaborative divorce

and divorce mediation is that a mediator can't provide legal

advice. A mediator helps spouses identify issues, examine

options, and reach resolution without advocating for either

side. If either spouse needs advice in regard to a particular

issue, they must turn to a lawyer.

However, both mediation and a collaborative approach help

reduce the emotional strain of divorce and keep decision-

making in the divorcing couple's control. They create

conditions where a couple can continue to have a civil

relationship. This is especially important when divorcing

couples have children and plan to share custody.

When to get a collaborative divorce

A collaborative divorce is a good option if both you and your

spouse are committed to working together. If one party

refuses to share important information, or is unwilling to be

open and flexible, a collaborative divorce won't work.

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Furthermore, if there is a history of abuse, serious mental

illness, or financial misconduct, a collaborative divorce isn't

an option.

Divorce Mediation In some states, divorce mediation is an alternative to going

to trial to decide the issues of a divorce. In others, divorce

mediation is required before a divorce trial can begin. In

divorce mediation, a mediator meets with a husband and

wife and acts as an impartial third party to facilitate an

agreement. Often, mediation is a quick, less costly way to

resolve disputes and reach a mutually beneficial outcome.

How divorce mediation works

In divorce mediation, couples choose a mediator (or the

court appoints one) to discuss their cases. The mediator is

often a lawyer or retired judge, but is not required to

be. Over a single or several formal sessions, the mediator

meets with the husband and wife separately or, at times,

separately with the husband and wife and their lawyers. The

mediator helps each party clearly define their issues and

priorities and freely express their emotions and points of

view. Each party presents documentation that clarifies and

substantiates his or her issues. The mediator then

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encourages both parties to identify common goals,

brainstorm options and accept compromise.

The husband and wife evaluate their options and decide

upon workable solutions. The process concludes with a

written mediation agreement, sometimes called a

Memorandum of Understanding, which outlines all the

details that the mediation has covered.

It's important to note that a mediator tries to guide couples

to reach an acceptable settlement. He or she does not give

legal advice or make decisions for the couple. Both the

husband and wife should have their lawyers review the

mediation agreement before signing it. Once it's signed, the

court uses the mediation agreement to create the final

divorce settlement.

Benefits of divorce mediation

With divorce mediation, the husband and wife have control

of the major decisions that affect their post-marriage life.

Litigation, on the other hand, leaves the decisions up to the

court. In states that do not require divorce mediation, many

couples still choose it in order to bypass the uncertainty and

costs that come with litigation.

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Divorce mediation doesn't simply decide who gets what. It

takes into account the unique issues that underlie the

couple's conflicts. The process is intended to resolve

differences and create a situation where a relationship can

continue. This is especially important where divorcing

couples have children and plan to share custody. In fact,

many state courts mandate mediation in child custody

disputes.

When to seek divorce mediation

If your state does not already require divorce mediation, it

may be a wise choice if you and your spouse seek joint child

custody, or agree about parenting issues, and plan on a fair

distribution of property. Divorce mediation creates a less

adversarial environment for your children and helps you and

your spouse put together a co-parenting plan based on

mutual interests.

Divorce mediation is also recommended after a divorce has

dragged on for some time, to reduce additional costs and

delays.

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Choosing a Lawyer

If you've decided that you need a divorce lawyer, you may

want to check out these tips. Find out how to choose a good

divorce attorney, get the most of your consultation, and

what documents to prepare for meeting with your lawyer.

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How to Hire a Divorce Lawyer

Written by: Marshall William Waller, Divorce / Separation Lawyer

I’m Thinking about a Divorce: What Do I Do Now?

Developing a plan of action for handling your divorce is not

all that hard to do. Sit down with a pad of paper and list the

issues that you feel you will be dealing with during the

divorce. The major issues are: child custody, child support,

spousal support (alimony) and property division. Do you and

your soon-to-be ex-spouse agree on any of these issues?

The more you agree upon the less there is to fight about, and

the less there is to fight about, the less costly the process

will be, both financially and emotionally. On the issues where

you have agreement, write down in simple and clear terms

exactly what you and your spouse agree on. Don’t leave

anything out; if you wonder whether or not a detail is

important, it is.

Should I Hire an Attorney Or Should I Go it Alone?

If you are financially able to afford an attorney, you will

almost always be better served by hiring a professional to

represent your interests than by trying to do it yourself. This

has nothing to do with your ability to learn the information

and procedures needed to present your case. Indeed, many

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attorneys who find they getting a divorce do not represent

themselves, not even the divorce attorneys.

I Don’t Know Anything about Attorneys. What Kind of

Attorney Should I Hire?

Most people spend more time buying a new car than they do

picking out an attorney to represent them in one of the most

emotionally trying and difficult times of their lives. You

should first gather up all the information and personal

referrals you can from friends, family, co-workers and other

people who went through the same thing that you are about

to go through and who were happy with their attorney.

Next, research and review the qualifications of attorneys in

your area on the Internet. Then, go out and interview

lawyers. Make sure the attorney practices in the area of

Family Law. Be aware that some lawyers these days advertise

themselves as being the “best lawyer” or “super lawyers,” but

these self-aggrandizing titles have the potential of creating

an unjustified expectation about results the lawyer can

achieve.

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Should I Go to War with My Ex-Spouse?

A divorce should not be a war. The quickest way to burn

through your savings, your children’s college funds, all of

your assets, and everything that you have worked so hard for

throughout your life, is to go to war with your spouse. It is

such an easy thing to do; many good and decent people are

drawn into that without even realizing what is happening. It

is said that criminal lawyers see bad people at their best and

family lawyers see good people at their worst. Don’t be one

of the good people who end up behaving “at your worst.”

Nobody will win, except the attorneys.

What Is a Certified Family Law Specialist?

Not every family law attorney is a Certified Family Law

Specialist, and depending on the complexity of your case,

you may not always need a specialist. Certification requires

extensive education and experience in the field of family law.

In California, to become certified as a Family Law Specialist

by the Board of Certification of the state Bar of California, a

lawyer must pass a second specialized bar examination in the

subject area. They must demonstrate that they have a certain

level of experience handling a sufficient number of family law

cases with varying degrees of complexity.

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It normally takes years of family law practice for an attorney

to acquire the experience of the various types of family law

cases required by the Board of legal specialization. Theuy

must also undergo a positive peer review process and

maintain a minimum number of hours of continuing

education in the family law field.

What Can I Expect at the First Meeting with the Lawyer?

This initial consultation gives you both the opportunity to

screen and evaluate one another. You need to have a sense

of trust and confidence in the attorney.

Don’t be afraid to ask questions: Where did you go to school?

How long have you been practicing this kind of law? Do you

know my spouse? Do you know my spouse’s attorney? How

many of these cases (like yours) have you handled? Do you

have any specialties or specializations? What percentage of

your practice is devoted to family law? How many family law

cases have you taken to trial? How many have you won? (As a

point of personal observation, be wary of the attorney who

says he or she has never lost a case. That usually means they

are not taking very many of them to trial). Have you ever

been sued for malpractice and, if so, why? Has anyone ever

filed a complaint against you with the state bar?

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What Should I Expect Regarding Fees?

This initial consultation gives you both the opportunity to

screen and evaluate one another. You need to have a sense

of trust and confidence in the attorney.

Don’t be afraid to ask questions: Where did you go to school?

How long have you been practicing this kind of law? Do you

know my spouse? Do you know my spouse’s attorney? How

many of these cases (like yours) have you handled? Do you

have any specialties or specializations? What percentage of

your practice is devoted to family law? How many family law

cases have you taken to trial? How many have you won? (As a

point of personal observation, be wary of the attorney who

says he or she has never lost a case. That usually means they

are not taking very many of them to trial). Have you ever

been sued for malpractice and, if so, why? Has anyone ever

filed a complaint against you with the state bar?

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How to Prepare for (and Get the Most Out of) Your First Meeting with a Divorce Lawyer Written by: Monica H Donaldson Stewart, Divorce / Separation Lawyer

Prepare a list of questions in advance.

Before your appointment, prepare a list of questions

regarding your situation. The most frequently asked

questions we encounter are 1) How long will this take; and 2)

How much will this cost. Do not be afraid to ask any

questions, even if you think they are silly or minor. Be

prepared that the attorney may not be able to answer all of

your questions immediately. Many of the answers will

depend on the information you provide. You may not like all

of the answers you receive. If you get the sense that an

attorney is only telling you what you want to hear, it is

probably not the right attorney for you.

Take some time to review your finances before your

appointment.

If you have been the spouse to maintain the household

finances, make sure you have a general idea of your marital

assets (e.g. house, cars, bank accounts, retirement accounts,

stocks/bonds, etc.) and marital debts (e.g. credit cards,

personal loans, lines of credit, mortgage(s), etc.). If you have

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not had access to this information, your attorney can request

that the other spouse provide the information. Try to gather

details regarding both party's incomes (e.g. copies of

paystubs, prior years tax returns, etc.).

Finally, be prepared to discuss a budget of what your

combined household expenses have been vs. what you

anticipate your expenses will be after separation. Do not

hold back information - an attorney cannot effectively

represent you without full, accurate information.

Arrive a few minutes before your appointment is scheduled

Usually, attorneys will expect you to complete intake

paperwork prior to the start of your appointment. If you can

request this paperwork in advance, you can save some time.

Otherwise, arrive early and make sure you have basic

information such as both parties' full names, contact

information, employment and income information, dates of

birth and social security numbers. Further, if you have

children, you will need their names, dates of birth, and

addresses for the past 5 years.

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Bring any paperwork that has been filed

If you have already been served with paperwork, bring it with

you so your attorney can review it and provide you with

specific information rather than having to speculate based

on what the papers "might" say. Further, if you have been

served, make your appointment as soon as possible. There

may be deadlines for responding to the paperwork and if you

fail to meet the deadline, your rights may be affected.

Ask your attorney to discuss a budget for your case

Unless you are quoted a fixed/flat fee (unusual in divorce

cases), it is impossible at the first meeting for an attorney to

definitively say how much the case will cost. Every case is

different, and there is no way to predict how complicated a

case might become. Nevertheless, there are certain steps

that will occur in any divorce action, and your attorney

should be able to give you a sense of how much time should

be involved in each of these steps. If you have limited

resources, be sure to make this clear to your attorney so you

can have the "money" conversation before it becomes an

issue down the road.

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If you don't get a good feeling, this is not the lawyer for you.

You must feel comfortable with the person you choose to

represent/advise you. Your attorney will know everything

about your life and will be counseling you on how to conduct

yourself during the course of your case and beyond. No

matter how highly recommended someone comes, if you

don't think it is a good "fit," move on to someone else.

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Documents to Gather for Your Attorney in a Divorce

Written by: Alan Scott Funk, Divorce / Separation Lawyer

Here is a list of the main source documents used in a divorce:

1. Real property records.

o Local address

o Legal description

o Copy of the most recent real estate assessor's

statement

o Information as to any outstanding mortgage,

deed of trust or real estate contract

o Exact name(s) in which title is held

o Estimated value of property

2. Bank records

o All bank accounts of either party or businesses

owned by either party

3. Tax returns and supporting documents both personal

and business

4. Pay stubs, W2, K1, 1099

5. Balance sheets and profit / loss statements for self-

employed, or parties with ownership interest in a

business

6. Contracts showing right to income in the future

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7. Investment account records with sufficient

information to assess tax consequences of sale of

stock after award. If tracing is an issue, continuous

records without a gap are necessary

8. Promissory notes, including those showing obligation

and those showing right to income

9. Purchase / sale agreements - car

10. Statements for retirement benefits, and copy of

Defined benefits plan, or other documents describing

rights

11. Shareholders agreements, and other corporate

documents for closely held businesses

12. Lists, loan applications, or other documents showing

assets owned by either party

13. Present and prior Wills

14. Trust instruments with party either grantor, trustee

or beneficiary

15. Gift tax returns (all)

16. Credit card statements

17. Real and personal property tax bills

18. Deeds to property

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Tips for Budgeting and Organizing Records During a Divorce Written by: Constance Pifer Brunt, Divorce / Separation Lawyer

Divorce can be a very stressful and confusing time. Being

organized and gathering the information needed to make

educated decisions is critical. This transition can also be

financially challenging, requiring preparation for the

necessary budget adjustments.

Gather Important Records

When contemplating or beginning a divorce process, one of

your most important tasks is to gather the records and

documents that will help develop a complete picture of your

family’s financial situation. In order for you to make solid

long-term decisions about the distribution of assets, the

payment of debts and management of the family’s cash flow,

it is critical to have comprehensive, accurate and current

information.

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What Records Will I Need?

Although each family’s situation is unique, here are some of

the more common records that should be accumulated:

Income tax returns for the past 3 years

Most recent paystubs

Employment contracts

Statements of employment benefits

Current statements for all retirement plans and IRAs

Copies of all stocks, bonds, savings bonds, CDs,

options, employee stock ownership plans, etc.

Current statements for all bank or credit union

accounts, investment accounts and mutual funds

Life insurance policy declaration pages & current

statements of value

Deeds to all real estate

Current statements for all debts

Vehicle titles and registration documents

Homeowners and auto insurance policy declaration

sheets

Current financial statements, tax returns, partnership

or shareholder agreements for businesses

Any prenuptial agreements

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What About Personal Papers?

In addition to financial documents, you should locate and

secure in a safe place these important personal papers:

Birth certificates for the entire family

Social security cards for everyone

Marriage license or certificate

Military paperwork

Passports

Wills, trusts and other estate planning documents

that have been created

Get Your Budget in Order

Separating or divorcing families almost always experience

significant financial strain as they restructure into two

separate households. Lifestyles of intact families are usually

premised on a single household, often with two incomes. The

addition of extra expenses for a second residence can

uncomfortably stretch the family’s resources.

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How Can I Prepare For The Financial Transition?

Here are some ways to prepare for this transitional period:

Develop a budget, listing all expenses. Reviewing

credit card statements and check registers for the last

year can help in this task.

Cut non-essential spending by identifying expenses

that can be reduced, eliminated or postponed.

Examples might include dining out, clothing

purchases, gym fees, and entertainment expenses.

Try to pay cash for any purchases, reducing credit

card use.

Identify your fixed, necessary expenses such as rent

or mortgage payments, car payments, utilities, food,

medical insurance and expenses, etc.

Review all outstanding debt to see if some can be

eliminated or minimized by transferring balances to

lower interest-rate credit cards or loans.

Try to accumulate a cash reserve. This can be a

lifeline if you lose your job or have difficulty receiving

support payments. It will also help you fund the cost

of divorce proceedings and prepare for a secure

financial future.

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Summary

Separation and divorce can be a scary time emotionally. It

can also be a very financially challenging lifestyle change.

Preparation and thoughtful budgeting can ease the

transition. It is also important to seek legal advice as early as

possible to avoid costly mistakes and to help you to plan

most effectively for this huge change in your life.

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Costs

To most people, divorce can be painful not just emotionally,

but also financially. Below you'll find a wealth of information

on how to manage your divorce costs. Discover great tips

such as how to keep your legal fees from breaking the bank

and how to get your finances in order at the time of divorce.

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How Much Will My Divorce Cost AND How Do I Save Money On It? Written by: David Alexander Browde, Divorce / Separation Lawyer

How Do the Charges Work in a Divorce Case?

Lawyers in divorce cases work for an hourly rate, usually

billed in tenths of an hour. That's because most states do not

allow any other form of compensation - contingent fees in

divorce cases are usually prohibited by state law. Atop your

lawyer's fee will be fees charged by the Court - these vary by

state but usually are less than $500 even in the most bitterly

contested divorce cases. In New York there is an Index Fee

(currently $210) at the start of the case, and several other

fees along the way, including separate fees for the Request

for Judicial Intervention ($95), the Note of Issue ($30) and

any motions along the way ($45 each). Think of these fees as

tolls taken by the State Court system as your case travels

through the courthouse. In a truly uncontested divorce the

Court fees may total as much as the fees you pay your

attorney. In a contested case the legal fees will be the largest

factor in the cost.

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How Expensive Should My Lawyer Be?

Lawyers charge fees based on their experience and upon

what they think the market will bear. Depending on where

you live, lawyers who work on divorce cases usually charge

hourly fees that range anywhere between $150 and $1100 -

no kidding, there are top level divorce attorneys who can and

do charge well above one thousand dollars an hour. Your

next question will likely be "Can you tell how good an

attorney is by the amount they charge?" The answer is what

you'd expect: no. In choosing an attorney you should look

not just at the hourly rate but at how efficiently they work,

what their reputation is and, most importantly, whether you

can communicate effectively with the lawyer. Does the

attorney understand your situation? Has he or she dealt with

these issues before? Do the solutions and tactics being

proposed make sense? Are they likely to be cost effective?

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What Drives the Cost of the Divorce?

What drives divorce costs dramatically higher is one thing

and one thing only: disagreement between the parties. If the

husband and wife can agree on the key issues, such as

grounds, custody, child support and property division, all

that remains is drafting of documents. But when there are

battles, negotiations, debates - all those things take time.

And as noted above, the lawyers are charging by the tenth of

an hour. So, if both sides are represented by attorneys (and

they should be!) a debate over who gets to keep the painting

in the living room or Aunt Sally's wedding present can

quickly become far more expensive than the painting or

buying a new toaster oven. That's not to say that key issues

and disagreements shouldn't be fought out - either in

negotiation or litigation - but simply a word to the wise. It

often makes sense to settle economic issues rather than

litigate them.

Why Can't My Lawyer Tell Me Now How Much it's Going

to Cost?

A good question, with a simple answer. Your lawyer can't

predict what the other side is going to do. If there's reason

prevailing, issues can be resolved inexpensively. However, if

emotions are running high (and, understandably, they often

are in divorce cases) then there can be bumps in the road to

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your divorce. Each of those bumps can cause delays and

increase costs, as issues come up that have to be resolved,

delaying resolution of the case and adding to the legal fees.

What Can I Do to Keep My Divorce Costs Down?

This could become a guide all by itself, but the primary

points to remember are:

1. Be organized. Your lawyer will need documents and

information in order to negotiate and prepare your

divorce. If you have that information available, you

can save time and money.

2. Try to control your emotions. Divorce is a difficult

thing for many people, but try to see this aspect as a

business deal. You've already dealt with the

emotionally difficult issue of breaking up. Now you're

just dividing the dishes.

3. Be reasonable. Litigating issues is expensive. If you

can reach an agreement, do so. Save the fights for the

really important things.

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4. Communicate honestly with your lawyer. Ask

questions when you have them. But make sure you've

given accurate answers to the lawyer's questions, in

order to avoid expense and delays when the other

side comes up with something that surprises your

attorney.

Five Tips that Will Help Save Money on Your Divorce

Written by: David Alexander Browde, Divorce / Separation Lawyer

Divorce is almost always a painful experience. But you can

limit the pain to your finances if you remember one basic

principle: your lawyer is working on an hourly basis. That

means that to save money you will want to minimize the

number of hours the lawyer spends working on your case.

Your mileage may vary, and some of the suggestions in this

guide may not be appropriate for your case. But for most,

these guidelines will steer you away from the pitfalls that can

result in extra expense on the way to escaping a failed

marriage.

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1. Be organized

Organize your personal information in advance. Have the

statistical information ready: full names of adults and

children, social security numbers, dates and places of birth,

date and place of marriage, whether it was a civil or religious

ceremony. If you have all this information in advance, your

lawyer will be able to plug it in to the multiple places the

statistical stuff is needed as you move towards your divorce.

Get your tax returns and other financial information ready. If

child support or spousal support is at issue you'll need up to

three years of tax returns as well as your most recent check

stubs to show current income.

2. Control your emotions

Divorce is a difficult thing for many people, but tries to see

this aspect as a business deal. Sure, you'll have to deal with

the emotionally difficult issue of breaking up. But try to deal

with the legal aspect as just dividing the dishes. Think of this

as #2-A: be reasonable.

Litigating is expensive, so you should always try to resolve as

much as you can with your spouse before bringing in the

lawyers. If you can resolve issues like custody, visitation and

holiday schedules, property distribution or grounds for a

divorce, you're cutting down on the time it will take to finish

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the negotiations the lawyers will be doing. Remember, when

the lawyers are negotiating, the clock is ticking – at least

double time. The lawyers can help you get past issues on

which you disagree, but if you're arguing over little things,

the cost of the argument will be more than the cost of

replacing whatever wedding present you think you should

have.

3. Unless you need instant answers, e-mail your attorney

with questions rather than asking them on the phone

That way you'll get a complete answer that you'll be able to

absorb at your own pace, rather than trying to take notes on

a conversation and perhaps having to repeat things that you

don't understand when they're spoken rather than written.

Don't let your lawyer get caught by surprise. That means

don't be embarrassed, tell your lawyer the unvarnished truth

about everything you're asked. The attorney won't be judging

you, but you and the attorney will be the losers if the other

side contradicts something your attorney has put forth as a

fact.

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4. Try to limit the amount of hand holding you need

Of course divorce is an painful process, an emotional

rollercoaster. You'll need to talk to your lawyer about any

number of important issues. Ask questions whenever you

have them, and don't be shy about making suggestions if you

have them. But if you can get your emotional support from

friends rather than your attorney, you can save significant

amounts of money.

5. Above all, remember, you can be penny wise and

pound foolish

Saving money on legal fees isn't a good idea if the result is a

bad outcome. But if you can use some of these suggestions

you'll find that your legal costs are lowered substantially over

the course of a contested divorce.

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How to Prepare Your Finances in the Time of Divorce

Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Close Joint Accounts

If a divorce is imminent, you should immediately contact

joint-credit-card companies in writing to freeze or cancel

your joint accounts. You do not want to be responsible for

your spouses' new credit card charges, particularly when

those charges may include attorney's fees. This protects

your credit. It is important to remember that, although a

creditor may freeze a joint account, the outstanding balance

must be paid off before the account can be closed.

You may also wish to close your joint bank accounts. If any

proceeds are removed, keep a carefully accounting where

the money is placed or how the proceeds are spent. You will

undoubtedly be asked for that accounting as part of the

divorce process. You can save yourself time and money by

keeping accurate records.

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Establish Your Own Credit

Make sure your name is listed on all household accounts and

investments. Establish at least one credit card in your own

name. This will help to create an individual credit history.

When you are on your own, you will have a better chance

qualifying for loans, mortgages and credit cards. These are all

important considerations after a divorce.

Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a

divorce. Instead, they are considered the asset of either the

husband or the wife and generally awarded to that person in

a divorce proceeding. Categories of non-marital assets

include: property you inherit; proceeds from personal injury

awards (eg. Worker's compensation or accident proceeds);

items owned prior to marriage; and gifts to one party rather

than the family.

If non-marital assets are commingled with assets purchased

or improved during the marriage, it may not be possible to

claim the asset as yours in the event of divorce. However,

some "tracing" of non-marital assets may be possible. For

example, if a non-marital asset is sold during the marriage

and the proceeds from the sale are used to purchase another

asset, it may be possible to "trace" a non-marital interest in

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the new asset. For example, if a car owned before a marriage

is sold during the marriage and the proceeds are used to buy

a new car.

Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial

holdings such as bank accounts, IRA's, 401K, land purchases,

and stocks. This includes assets in your spouse's name as

well. You may wish to maintain copies of these records at

your place of employment or in a safety deposit box in your

name. Records have a way of disappearing after a divorce has

been started.

Time Your Divorce

The timing of your divorce may carry with it a significant

financial impact. For example, in a single income family, the

non-working spouse may not have earned enough money to

qualify for Social Security at the age of retirement. However,

if spouses are married at least 10 years and don't re-marry,

the non-earning spouse may qualify for Social Security

benefits based on the ex-spouse's earnings when both reach

the age of 62.

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Video Tape Assets

You should photograph of videotape the contents of your

home including any garages, sheds or out buildings, to

record the assets and fixtures contained in each. In any

divorce, it is possible that one party may be required to

relocate from the family residence. Once you relocate, it may

be difficult to recall all of the assets and furnishings that are

contained in the house. If you forget them, there is a good

chance that they won't be factored into the values that each

party receives in the property settlement.

Don't Leave the Marital Residence

In a custody case, leaving the marital residence may impair

your ability to successfully seek custody of the children or an

award of the real estate after the divorce. By relocating, you

create a sort of status quo that courts are often reluctant to

disturb.

Freeze or Cancel Joint Credit Cards

If a divorce is imminent, you should immediately contact

joint-credit-card companies in writing to freeze or cancel

your joint accounts. You do not want to be responsible for

your spouses' new credit card charges, particularly when

those charges may include attorney's fees. This protects

your credit. It is important to remember that, although a

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creditor may freeze a joint account, the outstanding balance

must be paid off before the account can be closed.

Collect Information Related to Children

In any case that involves children, custody disputes are a

distinct possibility. As a result, documents relating to your

children may be critical to support your contention

regarding medical issues, care during the marriage, or who

was the parent providing their primary care.

Some items you may wish to obtain or retain include: Family

photographs including those depicting family vacations or

the children's extracurricular activities; Social Security,

Student Body, and State ID cards; Medical records and

prescription information including the names and addresses

of any treating physicians or counselors for the children or

the parties; Report cards and school records.

Hire an Experienced Divorce Lawyer

It may be very important to hire a good lawyer early in your

divorce planning process. An experienced attorney can help

you avoid mistakes that could later cost you in your divorce

proceeding. By choosing an attorney early in the process,

there is less of a chance that you will be caught off guard and

wind up playing catch up on the issues. There are many

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lawyers to choose from so it is important that you ask

important questions in order to choose one that is

knowledgeable and right for you. Ask about their experience

in family practice and specifically divorce. Ask the attorney

to explain the legal issues as well as the legal process in your

particular county.

Divorce And Taxes Written by: Mary G. Commander, Divorce / Separation Lawyer

Transfers Between Spouses

Under the general rule, transfers of property between

spouses and former spouses is not a taxable event if it is

"incident to the divorce". If the transfer is NOT made

pursuant to a written separation/divorce agreement or

decree OR the transfer takes place more than 6 years after

the end of the marriage, there is a rebuttable presumption

that it was not related to the cessation of the marriage. The

burden then would shift to the taxpayer.

Spousal Support (Alimony)

Under 26 U.S.C. Section 71, spousal support is taxable income

to the payee, and a deduction to the payor. Certain

requirements must be met: It must not be designated as or in

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reality be "child support"; it must be received by or or behalf

of the payee; it must end on the payee's death and it must be

payable under an existing agreement or order. The parties

cannot file a joint tax return, and they cannot be members of

the same household.

House Payments

Especially in temporary orders, one party may be required to

make payments on the former marital residence while it is

occupied by the other party. If the payor spouse is the sole

owner of the house and is solely liable on the mortgage that

he is paying, then he cannot deduct the payment as spousal

support. If both parties own the house and are liable on the

mortgage, one-half will be treated as spousal support. If the

payee owns the house the mortgage payments are spousal

support.

Attorney's Fees

Attorney's fees that are incurred to obtain or defend spousal

support are deductible. If a party is required to pay the other

party's attorney's fees as "spousal support", these fees are

deductible. It may be necessary to segregate out which

amount of an attorney's bill relates to spousal support for tax

purposes.

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Tax Refunds

Nothing is held hostage so often in divorce cases as the

income tax refund check. Generally speaking, just because

the parties file a joint return does not mean that they are

entitled to share equally in the refund amount. Instead, this

is determined by the income earned by each as if they filed

separate returns.

Dependents

The custodial parent is the one who can claim the child(ren)

as a dependent. This can be given to the other party by

execution of IRS Form 8332. If both parents claim the child,

you WILL be audited.

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Process

Most divorces tend to follow similar procedures. Check out

the Legal Guides below to learn what to expect in the

divorce process from beginning to end, both inside and

outside the courtroom.

Just keep in mind that there may be some variation in the

process across different states. This is because the divorce

process is dictated by the laws of the state in which you file

for divorce.

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The Complete Divorce Process Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Cases vary state to state

The length of your case may depend on the state and county

that your case is filed in. It often depends on how crowded

the court docket may be and often may take a year or more

for your case to get to trial.

Jurisdiction

Before a divorce is filed, you must determine where the

matter will be heard. Different states have different rules for

bestowing jurisdiction. In many states, a party must have

lived in that state for 180 days prior to filing. If there are two

possible jurisdictions, it may benefit the party filing to serve

the Divorce documents first to choose jurisdiction in their

state. That is the primary benefit of serving and filing first.

There is little benefit to serving and filing first other than to

prepare in advance and to choose the jurisdiction.

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Summons

A divorce case is usually commenced by serving on the other

party a Summons and Petition for Divorce or Legal

Separation. In some states, a divorce is also called a

Dissolution of Marriage. Service in most states must be

complete by actually personally serving the other party or a

person who resides in their home who is considered to be of

suitable age and maturity.

In most states, a party may not serve their own divorce

papers. The Summons is a generally document announcing

that a divorce or legal separation action is being

commenced. In some states, that document also indicates

that from that point forward neither party may dispose of

marital assets, change insurance coverage or modify any

other significant holdings except for the necessities of life.

Petition

The Petition has two parts. The first part is a statement of

facts which sets out basic facts such as the identities of the

parties, whether they have children and what assets they

may hold. The second part of the Petition seeks relief such as

an award of custody, spousal maintenance or child support

and a division of assets and debts. The Petition is often

tailored to seek the maximum relief. It is a positioning paper

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that will often seek as much relief as the proponent could

possibly seek.

Answer and Counter-petition

The opposing party has thirty (30) days in most states to

submit an answer to the petition. The Answer is very simply

the opposing party’s statement of facts and their request for

relief. Often the service of an Answer is waived. This is often

done to save the parties the cost of an additional filing fee

should the matter be settled. However, if a waiver or

extension is not granted by the opposing party and an

answer is not filed within thirty (30) Days, the original party

may seek a default. A default means that the original moving

party may request the relief requested in their petition

without opposition. Late answers are often accepted since

Courts prefer determining cases on their merits rather than

by default.

Temporary Hearings

A temporary hearing may also be called a “Pendente lite

hearing”. Such hearings may be scheduled by either party by

filing a Motion supported by an affidavit.

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Temporary/Pendente lite hearings are designed to resolve

issues while the divorce is pending such as who will have

temporary custody; temporary support and/or maintenance;

where the parties are going to reside pending the resolution

of the case; protection from harassment and domestic

violence; injunctions against financial improprieties; use of

assets. In most states, temporary hearings should not affect

the final outcome. However, from a practical perspective,

temporary hearings can be very important since Courts

often favor a policy of maintaining the status quo. Temporary

orders may be changed if there is a substantial change in

circumstance during the pendency of the divorce to make

the change in the temporary order necessary.

Mediation

Many courts require the parties to attempt to mediate their

disputes before the matter is submitted to the Court. One

exception to this rule may be where domestic abuse has

occurred. Mediation may occur between the parties of with

attorneys present. Mediation means that the parties visit

with a qualified neutral who will attempt to get them to

resolve their differences. In mediation, the neutral is not an

advocate and still not provide legal advice. Most discussions

that occur in mediation are not admissible in Court under

the public policy consideration that favors a free exchange of

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information between the parties to help them resolve their

differences.

Co-parenting Classes

Many states have adopted a policy that requires parents to

attend co-parenting classes where children are involved. The

goal is to teach parents how to minimize the impact of

children involve in a divorce. In most cases, the parents need

not attend together. Some states also require that children

of a certain age attend a class to teach them the skills to deal

with divorcing parents. This is not embraced in all states and

is primarily found in Northern states.

Advance Case Review

Many states have a hearing that is called an advance case

review or early case resolution meeting or Case Management

Conference. In such a hearing, the parties meet with the

Judge assigned to the case or a referee to discuss the issues,

or what discovery may be necessary. This is the parties first

chance to resolve the case or portion of the case.

Discovery

Discovery refers to the "investigation" phase of the case. It is

primarily dedicated to identifying the contested issues, a

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determination of assets, income and debt of the parties. This

exchange of information can be conducted informally with

eth parties agreeing to freely exchange the information or

formally, through the submission of formal documents that

require answers under oath.

Interrogatories

Interrogatories refer to a form of discovery where written

questions are submitted to the opposing party to a lawsuit.

These questions must be answered in writing under oath or

under penalty of perjury within a specified time (usually 30

days). Objections may be made to questions that are

overbroad or unlikely to lead to admissible evidence. Most

states limit the number of interrogatories that may be asked

without the court's permission to keep the questions from

being a means of oppression rather than a source of

information.

Document Requests

A request for production is another part of the discovery

process. Either party may send a request to an opposing

party or witness for relevant documents related to the

proceeding. You may wish to review our list of Documents

that may be relevant to your case. Generally, documents

requests require that the party served provide any and all

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documents requested that they have in their possession

within a specified period of time (usually 30 days). If you do

not possess the documents requested, you do not have to

acquire them if it is not easy to do so. The opposing counsel

may acquire those documents through other remedies such

as subpoena or by having a party sign a Release of

Information.

Releases of Information

The opposing party may send a release of information to the

other party seeking to acquire documents from a third party

that is relevant to the case. Examples of documents that may

be requested include bank statements, medical records,

financial records, work schedules and income information.

Requests for Admissions

Either party may submit to the other a Request for

Admission seeking admissions on certain facts relevant to

the proceeding. Much like interrogatories and document

requests, the responses must be returned within a specified

period of time and must be made under oath (notarized).

Depositions

A deposition can be a more expensive form of discovery. It

allows a party to subpoena and depose any individuals who

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may have information relevant to the case. This includes

parties and non-parties alike. In a deposition, the party being

deposed appears at the attorney’s office or a neutral location

to answer questions put by the other side's attorney

regarding the facts of the case. Depositions are under oath

with a court reporter present so that everything that is said

is recorded. A deposition is scheduled to pin a witness down

to certain facts and to discover all possible documents and

witnesses related to a case.

Failures to provide discovery

The penalties related to a failure to respond to discovery or

to appear at a deposition may be severe. The opposing party

may file a motion to compel discovery and/or seek sanctions

related to that failure. Severe sanctions may include

establishing facts related to a case. That means that the

Court disallows an opposing party from presenting an

evidence or testimony at trial to contest an issue where

discovery was not provided. Default is the most severe

sanction where the Court allows a party to proceed as if the

entire case or any individual issue is uncontested. The Court

may also award attorney’s fees to the party that submitted

the unanswered discovery. If you require additional time to

respond to discovery, you should request the same in writing

including a specific time line when it can be completed.

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Experts

Experts are often employed to determine certain facts.

Those experts may be jointly agreed upon by the parties,

which can save on the cost of having individual experts

testify at trial. However, where that is not possible, each side

may hire an expert to contest an issue and require their

testimony at trial.

Common experts include: custody evaluators; financial

planners to determine future economic circumstances;

business evaluators to value businesses; real estate

appraisers to value real estate; personal property appraiser

to value furnishings and other assets (generally an

auctioneer experience d in home goods); vocational

evaluator to determine earning capacity; psychologists to

testify to mental health issues.

Settlement

A divorce or legal separation case may be resolved at any

time the parties come to an agreement on the issues. In such

cases, the parties would sign a Marital Settlement Agreement

or some other form of stipulation resolving their issues. This

can occur right up to the point of trial.

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Trial

If you are unable to settle your case with your spouse, it will

go to trial. Some states have a trial by jury. Other states have

a trial by judge. At trial you each tell your story to the judge.

It is told through your testimony, the testimony of other

witnesses, and documents called exhibits. st trial, the moving

party (usually called the petitioner or plaintiff) presents their

case first. The call their witnesses who are subject to cross-

examination by the opposing party. When the plaintiff or

petitioner rests their case, the Respondent or Defendant

presents their own case with witnesses and evidence, each

subject to cross examination by the opposing party.

Appeals

After a divorce, either party has a right to an appeal if they

disagree with e Judge’s ruling. The time lines for appeal are

severely limited. As a result, you should consult with a lawyer

in your state regarding those time lines.

Modification

Whether the issues in your divorce are settled by you and

your spouse or are decided by a judge, some things in your

judgment can be modified (changed) by a judge after a

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hearing. Usually, child support, alimony, child custody, and

child visitation can be modified, but only if one of you can

show that there has been a change in circumstances.

Enforcement

If you or your spouse disobeys an order that the court makes

in your divorce judgment, you may file a Motion to compel

compliance. Such motions are generally for contempt and

require the service of an Order to Show Cause and a Motion.

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Property Division

Depending on how contentious your divorce is, the process

of dividing all of your marriage assets can be anywhere from

relatively painless to extremely complicated. Thankfully,

most divorcing couples are able to reach an agreement on

their own without resorting to legal warfare. Here you can

learn the basics of how property, other assets, and debts are

divided in a divorce.

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Community Property Division vs. Equitable Property Division in Divorce The issue of how to divide property comes up in most

divorces, which is why it’s important to know if you live in a

community property state or an equitable property state.

The way your state handles property division depends on

which of these property systems apply. The exceptions to

this happen when there was a prenuptial agreement, or if the

parties to the divorce draft an agreement that divides the

property according to those specific terms.

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Equitable property

Most states are equitable property states (or separate

property states). Under the equitable system, a court divides

marital property according to what it considers to be

equitable, or just, to both parties. This is why an equitable

division isn’t necessarily always a 50-50 split. In some of the

rarer circumstances, one spouse can end up with almost all

of the assets if this is what the court deems as fair.

In equitable property states spouses are generally awarded

property in proportion to how much they contributed to the

marriage. Often, the spouse who earned more will receive

the larger portion of the property and assets because they

contributed more financially to the union.

However, a court often balances things out by taking other

factors into consideration as well. Some of examples of these

factors include the length of the marriage, the earning

potential of each spouse, the standard of living established

during the marriage, the value of a stay-at-home spouse who

took care of the children, etc.

The court evaluates the financial ability of each spouse when

considering marital debt and liability distribution.

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Community property

Community property law only applies to these nine states:

California, Arizona, Idaho, Nevada, Louisiana, New Mexico,

Wisconsin, Washington, and Texas. (Puerto Rico also falls

into this category.)

In a community property state, a court looks at all assets that

were acquired during marriage and then divides them

equally between the spouses during divorce. All assets are

divided equally regardless of who owns title to them. For

example, both spouses are considered to own all money

equally even if one spouse doesn’t work. The only time when

marital assets aren’t split equally is if a prenuptial agreement

was in place.

In addition, community property laws also apply to all joint

debts and liabilities because these count as marital property.

This means that all debts and liabilities are equally divided

between both spouses.

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What is Non-Marital Property? Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

In a divorce, some assets may be considered non-marital

and, as a result, are not divided in a divorce proceeding.

What is the marital estate?

In a divorce, the parties divide up what is called the "Marital

Estate." The marital estate includes any assets or debts that

the parties own at the time of the divorce. Each spouse is

deemed to have an equal interest in marital assets or debts.

This is true no matter how property is titled or held and no

matter which spouse's job paid for the asset or which party

incurred the debt. That means the marital estate includes a

401K account or credit card debt that is in your spouse’s

name alone.

In fact, marital property is inclusive and encompasses 401K

plans, stock plans, stock options, real estate, frequent flier

entitlements, bank account proceeds, couches, chairs, cars,

utility debts, credit card debts and any other form of asset or

liability.

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What are categories of non-marital assets?

Some states have classifications of property that are

exceptions from the marital estate that is divided. These

assets are often called non-marital assets. Any non-marital

assets that you possess remain yours and any non-marital

assets of your spouse remain his/her assets. Among states

that take this approach, some listed non-marital

classifications include:

Premarital. Any asset acquired before the marriage (if

the asset was encumbered by a loan that was paid off

during the marriage, it may only have a partial non-

marital value).

Prenuptial Exclusions. An asset excluded by a valid

prenuptial agreement;

Personal Injury Proceeds. Personal injury

settlements are generally considered personal to the

injured party and are non-marital in nature. Some

states also include Social Security benefits, Worker's

Compensation and Disability in this category;

Inheritance. Any proceeds or assets from an

inheritance;

Gifts. Any asset acquired as a gift to one, but not both.

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Losing Non-Marital Status

It is possible for non-marital assets may have both a marital

and non-marital value. In some cases, non-marital assets

may lose their non-marital characteristic. This can occur in

several ways:

Commingling: If non-marital proceeds are co-

mingled with marital proceeds so that is becomes

difficult to identify the non-marital asset, the non-

marital characteristic may be lost. For example,

placing non-marital proceeds in a joint bank account

may not immediately eliminate a non-marital interest.

However, if marital proceeds are added to the bank

account or if proceeds from the account are paid out

for regular living expenses, it is more likely that the

non-marital value will diminish since it is impossible

to determine which proceeds came out first - the

marital proceeds or the non-marital proceeds.

Marital Improvements: Additionally, spending marital

money (any money earned by either party during the

marriage) to improve a non-marital asset may also

create a partial marital interest in an otherwise non-

marital asset. The increase in the value of the asset

attributable to the improvement is likely to be

considered marital.

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Appreciation: The Courts make a distinction between

"active" and "passive" appreciation. Passive

appreciation of a non-marital asset remains non-

marital. Passive appreciation occurs when an asset

increases in value without any action by the parties.

For example, if the value of real estate increases

without the parties improving the property, it is

considered passive. Active appreciation is a marital

asset. Active appreciation occurs when the value of an

asset increases because of an act by the either of the

parties during the marriage. Capital improvements to

real estate during a marriage may create a marital

interest since a capital improvement is likely to add to

the property’s value. Manipulating a stock account or

transferring a mutual fund from one account to

another resulting in an increase in value may also be

"active appreciation" which creates a marital interest

in an otherwise non-marital asset.

Tracing Non-Marital Value

Non-marital assets may often be "traced" into later acquired

assets giving the party with the original non-marital interest

a non-marital interest in the new asset. For example, if one

spouse owned a vehicle before marriage and that vehicle is

later traded in for a new vehicle during the marriage, that

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party may be able to trace a non-marital interest in the new

vehicle. Tracing is really the process of establishing a

sufficient paper trail to claim a non-marital interest in a

subsequently purchased asset.

Often, presenting a persuasive property case depends on

clear cut documentation, and expert testimony.

Divorce Property Settlement: Tips for Property Division Every divorce has unique factors, but nearly all divorces

involve many of the same issues, such as property division.

Although property is one of the biggest sources of

disagreement in divorces, the vast majority of divorcing

spouses are able to reach a compromise outside of court.

In general, you’re more likely to be satisfied with your

property division if you negotiate it yourself.

If you and your spouse can’t come to an agreement then a

judge will make the decisions for you. Remember that no one

knows better than you what your financial needs are and

how best to meet them, so it’s probably prudent to see if you

can work out an agreement yourself. Here are some common

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negotiation guidelines that can help you reach a property

settlement without litigation.

Preparing before negotiation

Review your state's property laws. Before you sit

down at the negotiating table, you may want to take a

look at your state’s property divorce laws. Knowing

what you’re lawfully entitled to will help you ensure

that the division is fair when negotiating the terms of

the agreement.

Define your financial needs. Next, consider your

financial needs, and define your overall goals for the

negotiation. Major components of your financial need

include: your income, earning capacity, age, health,

number of children, retirement plans, etc.

Know where you stand financially. It’s also important

to look at your asset-to-debt ratio. You may or may

not be legally liable for debt incurred during your

marriage, so it pays to be informed. If you are liable

for the debt, the creditor will still require you to pay

even after your divorce. Getting a complete picture of

your true financial situation through an inventory will

help you establish a good benchmark of what to

expect. Typically, the division of property includes

assets like your marital home, household items,

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vehicle(s), insurance, retirement plan(s), any

businesses, securities (stocks, mutual funds, bonds,

CDs, etc.), cash, and collections and other valuables.

Using a property checklist can help you take a

complete inventory of everything. Attorneys usually

have these checklists, so make sure to ask yours for

one.

The negotiations

Traditional negotiations. Traditional style

negotiations usually involve each spouse’s attorney.

Each side presents their respective interests until an

agreement is achieved. The negotiations may span

several meetings between both parties and their

lawyers. In difficult cases when the parties are unable

to agree, the lawyers may draft the terms and

negotiate on behalf of their clients.

Mediation. This process is a good choice because it is

non-adversarial, thereby allowing a husband and wife

to come to an agreement on their own through the

assistance of a neutral third party. Usually the third

party has experience with conflict resolution and can

help reduce hostilities significantly on both sides.

Collaborative divorce. Both parties sign an agreement

beforehand which commits them to reaching a

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settlement; if a settlement is not reached then the

lawyers withdraw from the subsequent litigation. The

parties may use experts or specialists to help them

reach mutual agreement on issues.

Other alternatives. If you and your spouse just can't

agree on how to split the property, then you may find

these other methods useful (like silent auctions,

taking turns from a list, etc.).

Dividing Property in a Divorce: Who gets the Family Home? Written by: Suzanne Griffiths, Divorce / Separation Lawyer

Always check your state's specific laws

How courts determine which party gets the family home

varies state to state. Remember to always check your state’s

specific laws. For example, a Colorado court may rule

differently on the matter than a court in another state. All of

the following scenarios are examples of how a Colorado

court could handle allocation of the family home.

Parent with primary care of children

When considering the division of property, courts consider

the economic circumstances of each spouse at the time the

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division of property is to become effective. The Court must

consider the desirability of awarding the family home or the

right to live therein for reasonable periods to the spouse

with whom any children reside the majority of the time.

Therefore the parent who has primary care of the children

has the advantage.

Financial feasibility

A court may also consider whether it is financially feasible

for the primary parent to maintain the home, refinance the

mortgage and pay the obligations related to the home.

No fault divorce vs. fault divorce states

Whether your state is one that grants divorces based on

fault, could possibly affect the court’s decision. For example,

Colorado is considered to be a “no fault” state. What this

means is that if one of the parties is having an affair or has

abused the other, the court cannot take that information

into account when allocating the assets. However, a court in

a state that allows divorces based on fault might possibly

assess the situation in a different way.

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Gift, inheritance, or owned prior to marriage

If the family home in a divorce was received by gift,

inheritance or was owned before the marriage then it will

generally be awarded to the spouse who received the gift or

inheritance or who owned the home prior to marriage.

Additional factors

Other factors that a court will consider in allocating the

family home include the contribution of each spouse to the

acquisition of the marital property, including the

contribution of a spouse as a homemaker.

Dividing Retirement Plans in Divorce Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Deferred compensation refers to pension plans, 401K plans,

IRAs and other retirement assets. Such plans are divisible as

part of a property settlement in divorce regardless of which

party is named on the plan. How they are divided depends on

the value and nature of the asset. Perhaps one of the worst

scenarios in a divorce is when retirement assets are

transferred to a former spouse but the original owner is

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liable for liable for the taxes, including penalties for early

withdrawal.

Types of Retirement Assets

There are three main kinds of deferred compensation plans.

1. Savings plans include retirement assets such as IRAs,

401(k) Plans, ESOPs, and Thrift Savings Plans.

2. A defined contribution plan is one in which the value

of the plan is determined in part by the amount of

contributions made into the plan. The money

contributed may be invested and grow.

3. With a defined benefit plan, an employee is provided

a monthly payment starting at retirement age and

ending at the end of his/her lifetime.

Dividing Savings Plans

Dividing Savings Plans: Savings plans such as an IRA are

considered "cash" plans since they may be liquidated before

retirement age. They are divisible as part of a divorce.

However, before any division may occur, a custodian of the

account must receive and review a certified copy of the

court order dividing the plan. Additionally, the spouse

receiving a portion of the plan must fill out documents

relating to the manner of payout.

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IRA proceeds may be cashed out and paid directly to the

receiving spouse or they may be "rolled" over into a new IRA

in the name of the receiving spouse. However, the tax

consequences related to cashing out the plan may reduce

the plan proceeds by more than thirty percent (30%) for

taxes and early withdrawal penalties.

Dividing Defined Contribution Plans

Valuing and Dividing Defined Contribution Plans. The

valuation of a defined contribution plan can be determined

by multiplying the account balance by the percentage of

vesting. This is a relatively simple way to value the plan and

determine marital value. Generally, such plans may be

divided currently with each party receiving one half of the

current vested value.

Dividing Defined Benefit Plans

Valuing and Dividing Defined Benefit Plans. With a Defined

Benefit Plan, generally the participant's benefits cannot be

liquidated prior to retirement age and the non-participant

spouse may receive a retirement plan in her name

representing her marital interest in the participant's plan.

This plan is generally subject to the same terms and

conditions of the original plan.

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Often, the Participant may choose a payment method from

several options. The chosen method will affect the amount or

timing of the payments to both the participant and any

receiving spouse. This may mean that retirement benefits

are received when the original participant decides to retire,

not when the recipient spouse retires.

A defined benefit plan may be divided in one of two ways:

1. Cashing Out/Present Value Calculation. First, a

recipient spouse may elect to receive money

effectively cashing out his/her interest in the plan. To

cash out, a present value of the plan proceeds must

be determine. "Present Value" is the current value of a

future benefit. In simple terms, a dollar that you

receive today is more valuable than a dollar you

receive next week since you may invest the dollar or

deposit the dollar and accrue interest. Therefore,

retirement benefits that are received at retirement

age would have a lower value if paid in a lump sum

currently. Often, a calculation or of present value

requires an actuary or accountant.

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2. Division of Future Benefit. Rather than using a

present-day cash value, a defined benefit plan may be

divided by dividing the future stream of income. This

is accomplished by drafting a Qualified Domestic

Relations Order (QDRO). This is a court order which

instructs a pension plan to pay an Alternate Payee (or

former spouse) a portion of retirement benefits

accrued by a Participant due to an equitable

distribution agreement in a divorce. With this

method, the court retains jurisdiction until the

benefits are paid.

Dividing a Business in a Divorce Property division in divorce can become fairly complex if one

or both of the spouses owns a business. The income

generated by a business is usually significant, so there’s often

some conflict over who gets the business, or how it will be

divided in the divorce settlement. Even if the business

belongs to only one spouse, chances are that the business

counts as marital property, which is why it’s still subject to a

divorce property settlement.

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Business valuations

One of the first and most important steps to take is to get a

business valuation. Even if your soon-to-be ex tells you that

they’ve been earning X amount from the business every year

and that the business is worth Y amount, don’t take their

word for it. Always keep in mind that they don’t necessarily

have your best interests at heart, so you should take basic

precautions to protect yourself. This includes getting an

independent appraisal, or engaging a joint appraiser with

your spouse.

Calculating the value of a business isn’t exactly a science,

which is why in most cases two different appraisers will

assess different values to a business. However, the Institute

of Business Appraisers (IBA) and the American Society of

Appraisers (ASA) have issued standards for valuing

businesses, which means that appraisers tend to follow a

similar general procedure. This helps ensure that even if two

different appraisers arrive at different values, the two value

amounts should be fairly close to each other.

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What actually happens to the business?

Here are some common scenarios for businesses after a

divorce:

One spouse buys the other one out. One spouse gets

the business, and makes payments over time to the

other to compensate financially.

The spouses separate different facets of the

business. Each spouse receives a part of the business

to operate how they want. For example, a couple with

2 different branches of a business may choose to

divide the business so that each gets one branch

office.

They keep working together. Sometimes couples are

able to remain business partners even after a divorce,

but this is fairly rare.

No matter the size of the business, it’s always a good idea to

engage an attorney who is experienced in complex property

issues to help you determine what’ll happen to the business

in your divorce.

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Divorce Debt and Credit Issues It is a common misconception that a court in a divorce can

relieve one party from the financial obligations incurred

during the marriage. Although the Court may require one

party to pay a joint debt, that ruling does not prevent a

creditor from pursuing either party for an unpaid debt. The

creditor is not a party to the divorce action. The Court has

no authority to modify the terms of the contract that was

executed with the creditor.

Even in cases where the parties have an amicable

relationship and reach an agreement on the issues, danger

lurks. Problems with joint debts are often the result of

mistakes and ignorance rather than an intent to harm the

other party. As a result, if you aren't careful to protect your

rights as part of your divorce and if you do not place

protections into a divorce agreement, your finances may be

adversely affected for years.

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Dangers

Even a debt that is current may affect your ability to

qualify for new credit since the outstanding debt will

appear on your credit report;

Unpaid joint debt may adversely affect your credit

rating and impair your ability to acquire new loans;

An unpaid joint debt may result in collection efforts

and costly court appearances; • An unpaid joint debt

may result in the entry of a Judgment against you;

An unpaid joint debt may result in garnishments or

liens.

How can I avoid these difficulties?

Pay Off Debt. Any joint debts should be paid off. This

is the most practical and bullet proof solution. If the

parties do not have the liquid resources to pay off

existing joint debts, they may wish to consider selling

other assets or tapping into other financial resources

to settle the debt. Obviously, this is the most effective

way to eliminate the debt and prevent future

collection issues.

Transfer Debt. Joint debts may be divided by

transferring the debt solely into the name of the party

responsible. This can often be accomplished by

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satisfying the debt with a credit card in that party’s

name. This may be more difficult with larger

obligations like a homestead mortgage.

Sell Assets. Sell any assets that are encumbered by a

joint security interest. This specifically includes real

estate. It is important to remember that transferring

the title of the asset into one person’s name does not

eliminate responsibility for the debt. If you take your

name off of title, whether the asset is a car or a house,

you are removing ownership but not loan

responsibility.

Refinance the Debt. Have one spouse refinance the

home in his/her own name. If one spouse is going to

keep the house, you should insist upon new financing.

The mortgage company will not simply remove one

party from the responsibility for the loan. As with any

new financing, the party seeking to refinance will be

required to qualify financially. Often, the financial

impact of the divorce may make qualifying difficult. In

such cases, it may be possible to find a relative willing

to co-sign on the new loan.

Include Protective Language. Clearly, the best way to

resolve joint debt issues is to eliminate the debt or the

joint nature of the debt. Sometimes, however, those

options are impractical. In such cases, you must be

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very careful to place protective language into the

divorce agreement or to specifically request

protective language from the Court at trial. This is a

last resort and an imperfect way to resolve joint debt

issues. Often, protective language allows recourse

against a party that fails to pay court ordered debts,

but does not prevent damage to other party’s credit.

The language used must be carefully crafted to

comply with state and federal law. Any omission may

result in language that is unenforceable and

ineffective.

Protective language may include:

Requiring the party obligated on the joint secured

debt to remain current and in the event that a

payment is not made in a timely matter, require that

the secured asset be placed immediately on the

market for sale;

Allowing the party that is not obligated to make

payment on any delinquent debt in order to protect

his/her credit rating and to seek reimbursement in

addition to interest and attorney’s fees from the other

party;

Establishing the allocation of joint debts as an integral

part of the financial settlement and support payments

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in the divorce proceeding which renders the debts

non-dischargeable in bankruptcy.

Understanding Bankruptcy and Divorce Written by: Richard George Fonfrias, Divorce / Separation Lawyer

Spouses often use bankruptcy differently

Some spouses use bankruptcy after a divorce has been

finalized as an offensive weapon to delay or prevent having

to refinance a mortgage. Other couples file bankruptcy

before a divorce to simplify the debts before they separate.

So how you use bankruptcy depends on your goals in the

divorce. Generally it’s wise to file a bankruptcy before

divorce so you know how the debts are going to be handled.

When one spouse files a bankruptcy after the divorce,

creditors usually come after the other spouse to satisfy

jointly incurred marital debts. This means that one spouse’s

bankruptcy filing could send the other spouse into

bankruptcy.

The bankruptcy includes everything

Your bankruptcy estate is everything you own and owe at

the time the bankruptcy is filed. When spouses file

bankruptcy, all property acquired during the marriage is

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included and potentially available to pay debts. Your

bankruptcy estate is everything you own at the time the

bankruptcy is filed. Once the bankruptcy is filed, the court

issues an immediate stay to stop creditors from collecting

debts. Your spouse will still have to pay child support or

alimony; however, they may not have to perform other tasks,

such as refinancing to remove one spouse from the

mortgage.

I am involved in a case now where the wife is under a court

order to refinance and remove her husband’s name from the

mortgage. For the last several years she has not complied

with the order. The wife filed a bankruptcy to restructure

her debts and the divorce court is powerless to force her to

complete the refinance.

Property settlements

Whether the bankruptcy court discharges a divorce property

settlement will depend on whether the debtor can show they

cannot pay the debt and still take care of themselves, their

dependents, and their business. Generally, property

settlements are not dischargeable in bankruptcy. Exempt

property is protected and not available to be sold to pay

debts. Each state where a bankruptcy is filed has its own

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exemptions. For example, in Illinois each filing spouse can

“exempt” $15,000.00 of home equity.

Protect Yourself

An effective way to protect yourself against your spouse

filing a bankruptcy is to take lien on property your spouse

gets in the property settlement. This makes you a secured

creditor. If later, they file a bankruptcy you can repossess the

property to pay the debt.

Hidden Assets and Divorce If you know you’re going to be getting a divorce soon, then

you may want to start tracking marital finances. Not only is

this necessary to your divorce, it’s also a prudent measure to

take so you can see if your spouse has any hidden assets

tucked away. Being attentive to the relevant financial details

can help ensure that your divorce settlement is fair to you.

Overview of hidden assets

A hidden asset is one that isn’t readily visible in normal

accounting records because all usual signs of ownership

have been concealed through complicated measures.

Diligence and thorough preparation go a long way towards

tracing assets which are deliberately disguised by a spouse.

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Information and involvement are critical for discovering

hidden assets.

Hidden assets are mostly liquid in nature; examples are bank

accounts, stocks, bonds, and mutual funds. The reason why

they’re usually liquid is because this type of asset can be

easily transferred into the name of a relative, friend, or

business entity. Sometimes the funds are transferred into

accounts in offshore banks where they cannot be touched

under the laws of the country of residence.

Hidden assets and divorce settlements

Hidden assets are especially important in divorce

settlements because one of the parties in a divorce may have

tried to hide certain assets. If a court doesn’t know about an

asset, it can’t force that person to share it with their spouse.

Since both spouses lawfully have claim to all marital property

for purposes of a divorce settlement, hiding assets is illegal.

Tracking down hidden assets

A good way to start the task of tracing hidden assets is to

establish a methodical plan to study all financial records. In

general, look for things that don’t add up. For example, if an

asset is initially present in documents but suddenly seems to

have disappeared then it’s possible that it was diverted into

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some other unknown account.

Here are more examples of good places to look. Old financial

statements may help identify suspicious transactions. ATM

activity can throw light on cash which may have been placed

in some hidden account. In particular, getting a credit report

on your spouse is a good idea because it may contain

information on financial accounts or credit unknown to you.

Some clues to find hidden assets:

Income that isn’t reflected on financial statements

and tax returns.

Cash kept as travelers checks: Locate by tracing bank

account deposits and withdrawals.

A custodial account set up in the name of a child.

Investment made in certificate "bearer" municipal

bonds or Series EE Savings Bonds: Since these are not

registered with the Income Tax Authorities, they do

not appear on account statements.

Artwork, antiques, gun collections, hobby equipment,

original paintings, expensive carpets and tools: Have

everything appraised, and don’t forget to check your

spouse’s work office for items.

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Debt repayment to a friend which actually was never

a debt.

Delayed disbursements of bonuses, stock options and

accounts receivables till after the divorce.

Expenses incurred towards gifts, travels, tuition fees

or rent of a friend.

Retirement accounts that were never disclosed.

Deliberate devaluation of property: Allowing rental

property to remain vacant or unrepaired so that

divorce allocation is done on the basis of the devalued

price.

Payment of excess income tax and subsequent filing

for the tax refund after the divorce.

If you are fairly sure that your spouse has hidden assets, then

it may be a good idea to engage an experienced attorney to

help you find them.

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Alimony

Many divorcing spouses have questions about alimony (a.k.a.

spousal support), usually regarding whether it has to be paid

and how much money it involves. What isn't so widely known

is that spousal support is becoming a thing of past because

men are no longer the usual sole breadwinners.

Learn about the basics such as the following: the types of

spousal support awarded, factors of spousal support,

enforcement, and termination of spousal support.

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Paying Alimony (Spousal Support) Alimony, also known as maintenance or spousal support,

refers to payments made by one spouse to the other after a

couple divorces. These payments are for living expenses

and/or child support. Payments usually end upon the death

of either spouse, or a date spelled out in a divorce decree or

settlement agreement. They may also end if the spouse

receiving alimony remarries or moves in with a new partner.

The amount of alimony you will pay depends on many

factors, including state law, which varies. An attorney in your

state who specializes in divorce should be able to give you an

estimate of how much alimony you are likely to pay.

In general, your alimony payments will be set depending on

a number of factors: your age and health, your income, your

spouse's income and other assets, the length of the marriage,

whether one spouse stayed home to raise children for a time,

who will have custody of the children (if applicable), and

what assets each spouse is keeping, among other factors.

What alimony can mean for your taxes

Alimony payments are tax deductible for the person making

the payments and are taxable income for the recipient. Be

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sure to consider the tax impact when calculating the true

cost of your alimony payments. To qualify as tax-deductible

alimony, the payments must be in cash and must be spelled

out in a written divorce agreement or decree. You can't file a

joint tax return or be living together and claim a tax

deduction for alimony.

Failure to pay alimony (alimony enforcement)

The consequences of failing to pay the alimony outlined in

your divorce vary from state to state. However, if you do not

pay alimony, your spouse can sue to get the payments. You

could be held in contempt of court (which is willful

disobedience of the court's rules or orders) or even jailed.

You also may have to pay your spouse's court and attorney

costs related to pursuing the alimony payments. For

instance, the IRS may deduct unpaid child support from any

tax refund or overpayment owed you and give the money to

your spouse instead, but won't take the same action for

unpaid alimony.

Alimony Pendente Lite Alimony pendente lite is alimony paid after a couple

separates until the divorce is final. It is designed to provide

support during the divorce process so each spouse can

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maintain his or her standard of living. Alimony pendente lite

is also referred to as temporary alimony or temporary

spousal support.

Facts about alimony pendente lite

When a couple separates, their financial situation changes. A

spouse may have basic expenses, such as a mortgage, that he

or she can't afford alone. Alimony pendente lite helps a

spouse cover expenses and maintain his or her former

lifestyle until the divorce is settled. The spouse with the

greater income may provide a monthly payment or pay the

necessary bills.

Alimony pendente lite may also be used to help pay the

dependent spouse's legal fees.

Pendente lite is Latin for "pending legislation." As the name

suggests, alimony pendente lite legally ends when a divorce

is final. However, alimony pendente lite often becomes the

alimony awarded in the divorce settlement.

How alimony pendente lite is determined

The amount of alimony pendete lite is determined by the

couple's current situation. A court looks at the needs of the

dependent spouse, the means of the supporting spouse, and

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the amount required for each spouse to continue living as

they had during the marriage. The amount awarded should

be enough so that each spouse can live equally comfortably

until the divorce is final.

If you seek alimony pendente lite

You and your spouse can come to a voluntary agreement

regarding alimony pendente lite. You may negotiate a set

monthly amount or divide up expenses. Your lawyer should

review your agreement before you sign to make sure the

conditions are fair. Once a judge signs the agreement, the

terms are binding.

If your spouse provides little or no support, the court can

order an alimony pendente lite award. You must file an

application for temporary alimony and provide

documentation of your income, expenses, and way of life.

Generally, the court reviews your information and makes a

decision within a few months of your initial application.

Rehabilitative Alimony Rehabilitative alimony is short-term alimony paid to a spouse

until he or she is self-supporting. The spouse can use the

payments to acquire new job skills and cover expenses until

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he or she finds employment. The amount and duration of

rehabilitative alimony varies according to the particular

circumstances of the marriage and by state.

Facts about rehabilitative alimony

Often during a marriage, one spouse has to leave the

workforce or pass up career opportunities in order to raise

children, manage a household or assume other family

responsibilities. If a marriage dissolves, the spouse may be at

a disadvantage when reentering the job market.

Rehabilitative alimony gives the spouse a chance to become

more marketable and regain the opportunities he or she

lost. It can pay for education, job training, or whatever it

takes to make the spouse more employable.

The court awards rehabilitative alimony for a fixed amount of

time, typically one to five years. The divorce settlement

usually lists its specific duration. When rehabilitative alimony

is due to end, the court may set a date to review the spouse's

current situation to see if an extension is required. Either

spouse may request to modify rehabilitative alimony if there

is a substantial change of circumstances.

Rehabilitative alimony is not intended to equalize the

financial situation between spouses. It is a way to help the

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dependent spouse become self-supporting in order to

maintain a reasonable standard of living.

How rehabilitative alimony is determined

Courts look at many factors when considering rehabilitative

alimony awards. Some of these are:

Length of the marriage

Age of dependent spouse

Earning capabilities of dependent spouse

Length of dependent spouse's absence from job

market

Time and expense necessary to educate and train

dependent spouse

If age, illness, disability or other factors prohibit the

dependent spouse from finding suitable employment, the

court may award permanent alimony.

If you seek rehabilitative alimony

Rehabilitative alimony should be part of your divorce

settlement. You may have to outline what you'll do to gain

financial independence in order for the court to consider an

award. This may include the steps you need to take, the

payments necessary to complete those steps and the length

of time you need to be self-supporting.

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Factors Affecting Spousal Support (Alimony) Awards Divorce is not only an emotionally painful experience, but

can also be financially devastating for a dependent spouse. A

spousal support (alimony) award can help ease a dependent

spouse’s transition out of the marriage.

Evolution of Alimony

Historically, marriage made a husband duty-bound to

support his wife, and that duty did not end even if the

marriage did. However, alimony was tied to the idea of

“fault.” If the divorce was due to the woman’s fault (adultery,

abandonment, etc.), then she did not receive alimony.

Today, all states, with the exception of New York, have

adopted no-fault divorce laws. About half the states do still

consider fault as part of spousal support determinations,

although Kentucky only considers fault on the part of the

person requesting spousal support. As a result, spousal

support awards are now based on other facts about the

marriage.

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Factors Courts Consider in Alimony

The US Supreme Court ruled in the 1970s that men are also

entitled to receive alimony, so today either spouse may ask

for support during a legal separation and after a divorce is

finalized. Temporary support granted during the separation

does not automatically continue after the divorce.

In today’s world, courts are moving away from awarding

spousal support, but state laws vary greatly. Some states

have strict rules, such as upper limits on amount and

duration, while others are more lenient and still allow

lifetime alimony.

When considering alimony, courts may take into account the

following factors:

Ability to pay: This is the courts biggest consideration

in setting an alimony award, and ability is calculated

based on net income.

Length of marriage: The longer you've been married,

the more you've theoretically put into the marriage,

and the greater the likelihood of the court awarding

alimony.

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Children: Children's welfare is of great importance to

the court, which may decide it's best for them that

the custodial parent not work full-time, especially if

they are young and daycare options limited. Slightly

more than half of states consider whether the person

requesting alimony is the custodial parent.

Standard of living during marriage: Most states try

to ensure that both spouses can maintain a similar

standard of living after divorce, if possible.

Ability to earn: Courts look at what both spouses

currently earn as well as their future earnings

potential. If one of you expects to earn significantly

more in the future, this could affect the size and/or

duration of alimony.

Ability to self-support: Courts consider the

petitioning spouse's marketable skills and ability to

work outside the home. If you can work but did not

do so during the marriage, you may receive

temporary alimony to ease the transition to self-

support. Being unwilling to work is not the same as

being unable, and the courts may deny or reduce

alimony if you refuse to find work.

Emotional/Educational Support: If one spouse

supported the other through schooling or other

difficulties, the courts may take this into

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consideration and award alimony as a kind of

compensation for this previous support.

Because state laws differ greatly, consulting an attorney is a

good idea so that your interests are protected adequately.

Alimony (Spousal Support) Modification Alimony (Spousal Support) Modification is a court-ordered

change in spousal support. It occurs most often if there is a

substantial change of circumstances in the supporting

spouse's ability to pay, or in the needs of the recipient.

Modification can increase or decrease the amount or length

of an alimony award. Regulations about alimony modification

vary from state to state.

Reasons for alimony modification

A variety of events may call for an alimony modification.

These include:

An increase or involuntary decrease in the supporting

spouse's income

An increase or decrease in the recipient's income

An increase in the cost of living

A disability that affects either spouse

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A financial emergency (for example, a large medical

bill) that affects either spouse

The recipient's loss of his or her home

The recipient's cohabitation with another person

The remarriage of the supporting spouse

A change in state laws

Alimony ends at the death of either spouse. In most states,

alimony may also end when the recipient remarries or

registers as a domestic partner unless terms for continuing

alimony are included in the divorce settlement.

The process of alimony modification

Either party can petition the court for alimony modification

at any time. In most states, if there was a modification in the

past, a new petition can't be filed for a set period of time.

To revise alimony orders, the court first must rule that there

has been a change in circumstances. The court looks at the

recipient's needs, the recipient's ability to provide for those

needs, and the supporting spouse's ability to maintain the

recipient's standard of living.

The party that petitions for modification bears the burden of

proof in court. That means the petitioner must fully disclose

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his or her financial situation, including tax records, before

the court examines the other spouse's financial situation.

If the parties reach an agreement, a judge can approve a

modification without going to trial. Both parties may need

legal counsel if the case goes to trial.

Other means of alimony modification

Former spouses may include a provision in their divorce

settlement that specifies when and how alimony can be

modified. They may attach a cost of living adjustment (COLA)

clause that increases alimony payments equal to the increase

in cost of living. A less common addition is an escalator

clause that increases alimony payments in accordance with

an increase in the supporting spouse's earnings.

Alimony can increase or decrease temporarily if either

former spouse becomes ill, loses his or her job, or

experiences other hardships. Payments revert back to the

original amount after a specific period of time.

Alimony (Spousal Support) Termination Alimony termination occurs either when a former spouse

dies or when the court orders alimony to end (as stated in

the divorce decree). In many states, alimony may also

terminate when the recipient remarries, enters a domestic

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partnership, or, in some cases, cohabitates with a new

partner.

Alimony termination with remarriage and cohabitation

When the recipient spouse remarries, he or she enters a new

marital partnership. Alimony terminates because the former

spouse shouldn't be expected to support this new

partnership. In rare cases, alimony may continue after

remarriage if agreed to in the divorce settlement. If the

recipient's new marriage ends, alimony from the first

marriage can't be reinstated.

If the supporting spouse remarries, though he or she still

pays alimony. However, the amount may be reduced if the

marriage produces a child.

The recipient's cohabitation with a new partner isn't

sufficient grounds for alimony termination- the relationship

must also provide an economic advantage. If the recipient

and his or her partner have a relationship similar to a

marriage and share a home, bank account, and household

expenses, the court may modify alimony. Generally, courts

won't terminate alimony in cases of cohabitation because

there is no financial obligation between the cohabitants if

they break up.

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Other factors that affect alimony termination

Alimony may terminate at the supporting spouse's

retirement if he or she retires at 65 or is forced to retire

early. The supporting spouse's retirement benefits may act

as income replacement for the recipient if divided

appropriately in the divorce settlement. If the supporting

spouse declares bankruptcy, he or she is still responsible for

alimony payments.

Alimony is usually seen as a temporary arrangement with an

end date agreed to in the divorce settlement. This alimony is

referred to as rehabilitative alimony, and is designed to

provide assistance until the recipient can be self-supporting.

A spouse may be awarded permanent alimony if age,

disability, or other factors prevent him or her from becoming

economically independent.

If you seek alimony termination

You can petition the court for alimony termination at any

time, but you must show a substantial change in

circumstances for your application to be considered. In

cases of cohabitation, you must show the new relationship is

fully supporting the recipient. This may be difficult to prove

if your former spouse disputes your claim.

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If there are terms in your divorce settlement outlining

conditions for alimony termination, the court may still want

proof of a recipient's financial independence before making a

decision.

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Children and Divorce

A divorce is not only difficult for you and your spouse, but is

also tough on your kids especially if they're still living at

home.

You'll have to reach a settlement with your spouse on issues

like custody, visitation rights, and child support. Below you'll

find some great guidance that can help you figure out how to

approach these matters.

You may also be interested in reading about child custody.

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How to Tell Your Children You’re Divorcing The best way to approach this painful conversation is to

remember that it's all about your kids. Tell them what is

happening and why. Let them know what changes to expect.

Reassure them of your unconditional love. Answer their

questions calmly. Show them that you and your spouse

remain united in working together as their parents. Your

quiet confidence will go a long way in easing their anxieties

about the future.

But, first of all, be absolutely sure your decision to divorce is

final.

Talk with your spouse first

A unified parental front will reassure your children.

Get together and plan what to say well before you

actually sit down with the kids. This kind of

preparation will help keep the conversation on track.

If you and your spouse are having difficulty

cooperating, consult a mediator for guidance.

Tell your kids together

As painful as it will be, this conversation can be an

important ‘preview' of the future. Having both you

and your spouse present and engaged in the

conversation shows your children that you're still

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going to be their parents. Remember that older

children will have deeper questions, so plan on

addressing them at another time.

Stay calm, don't blame

This is not the time or place to play the blame game.

Staying calm and confident eases some of your kids'

anxiety about the future. Seeing that you and your

spouse respect each other and talk with each other

will reassure them that they can talk with you and

rely on you.

Explain why this is happening

Specifics are not necessary or appropriate, but

oversimplified reasons may confuse them. Give good,

general reasons. Your children want to understand, so

make sure your message is simple, straightforward

and age appropriate.

Help them understand what to expect

Give your kids details about the changes ahead. They

will be concerned about where they are going to live

and with whom. You don't have to have all the

answers. Be truthful about what you know-and what

you don't know. Do not make promises you can't

keep.

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Give them details on the parent who is leaving

Kids afraid of "losing" the parent who is leaving need

reassurance that the relationship they depend on will

continue. Tell them where their parent is moving, and

when they will see each other.

Reassure them of things that won't change

Most reassurance you give your children will take

place in small, everyday ways. In this conversation,

make sure they know that they are no way at fault. Be

sensitive to their reactions, but be prepared to give

them time to adjust. Remind them of your

unconditional love for them. Remind them again and

again with hugs, smiles, affection and attention to

their lives.

Welcome questions

Your children will have questions-now, and in the

future. In fact, they will develop new concerns or

revisit aspects of the divorce often as they grow.

Answer as honestly as you can, even when you have

to say, "I don't know." Let your patience, courage and

love comfort and guide you all through this difficult

life transition to a hopeful future.

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Top 10 Ways to Help Your Children Get Through a Divorce Written by: Erik E. Cary, Divorce / Separation Lawyer

Divorce is stressful not only for adults, but children too. The

reactions you may receive from your child(ren) may differ

greatly depending on the child and circumstances

surrounding the breakup. Fortunately, parents can help their

kids during a divorce.

Get Along with Your Ex

Do not insult or talk bad about your (soon-to-be-ex) spouse

in front of, to, or around your children. This is harmful and

detrimental to your children. In extreme cases, it is

sometimes referred to as "Parental Alienation Syndrome

(PAS)."

You should encourage your spouse to be the best parent that

he or she can be, even if your spouse was not a particularly

good husband or wife. Children need both parents; driving a

wedge between your child and the other parent will do grave

damage to both or may backfire and cause the child to resent

you and defend the other parent. Sometimes the other

parent simply withdraws from the relationship altogether;

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only in the rarest of circumstances is this good for your

child. The majority of children charged with crimes in our

juvenile justice system do not have the active involvement of

both parents.

Avoid Involving the Children in the Dispute

Do not involve your children in legal discussions. The

financial and legal details of the divorce will only serve to

upset and distress your children. Children should not be

permitted to (over) hear your arguments and discussions

about legal, financial, or emotional issues relating to the

divorce.

Children should not be informed about what is going on in

court and generally should not be asked to make a decision

to choose one parent over the other. Your children should

not be encouraged to shuttle messages back and forth

between their parents; instead, you should communicate

directly, politely, and calmly with the other parent about any

parenting issues (even if your spouse is rude or unresponsive

with you). Never bring your children to Court without prior

Court approval.

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Be a Parent to Your Child

Do not dump your emotional baggage on your children. If

you are angry with your spouse, have resentment toward

your spouse, or are saddened by his or her actions, you

should not discuss these extreme emotions with your

children.

Your child is not your friend, buddy, and certainly not your

counselor or therapist. You are the parent and your children

expect you to be in control at all times. If you are out of

control, you cannot parent the way you should. Your

children need you to be engaged most of all during this

emotionally difficult time. If you need to discuss your

feelings, hire a counselor or speak with a close friend or

adult relative.

Reassure Your Children

Reassure your children that both parents love them; tell

them directly that the divorce is not their fault and that

everything will be okay. In most cases, you should attempt to

come up with a game plan (or "parenting plan") so that both

parents can be actively involved in your children’s activities.

Also, there are “parenting coordination classes” such as

“Putting Kids First,” that can be taken to help you work with

the other parent for the betterment of the children. Discuss

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any potential plans or agreements with your respective

attorneys, and seek their input, but do not sign anything

without talking to your lawyer first.

Keep the Routine the Same

Try to maintain the status quo during the divorce as much as

possible. The children have grown to expect such routines

from you, and you will cause unnecessary stress if you

decide to change all things that are familiar to them. If the

divorce does not require moving them out of their house,

changing schools, or moving to another city, it is not a good

time to make these or other changes. If your children have

friends they like to play with, family members that they want

to see, or adults involved in their lives (that you approved of

prior to the divorce), do not cut off those relationships

simply because they may be "more friendly" with (or related

to) your spouse.

Your children should be encouraged to contact these people

by telephone or email if they cannot visit in person. You

must be the bigger person about these matters. Take the

high road, rather than the low one that is so often traveled.

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Never Introduce New "Significant Others" During a Divorce

Never ever, ever introduce a new "significant other" into

your children's lives during or even shortly after the divorce.

This will confuse them, upset them, and will make them very

angry and resentful. Take this time to concentrate on the

children and building your relationship with them, rather

than a new love interest.

No Drugs, Alcohol, or Tobacco

Children should not be exposed to secondary smoke from

tobacco. Children should not be present during the use or

possession of illegal drugs. Parents must ensure that children

are not transported in a motor vehicle by any person under

the influence of alcohol or drugs. Your children deserve to be

safe and secure.

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Get Agreements with Your Ex Regarding Raising the Child

Parents should discuss, agree, and then mutually enforce

appropriate limitations concerning the use of cell phones,

computers, video games, television, and similar electronic

devices or modes of communication. You should include

what ratings are acceptable for television, movies, and video

games, as well as appropriate curfews or bedtimes.

Don't Criticize the Other Parent

Do not criticize the other parent. Do not permit, encourage,

or allow your children to criticize the other parent. The

other parent's failures in life (financial, psychological,

relational, physical or emotional limitations, or legal

problems) should not be discussed with the children, unless

it is first brought up by the child, and only then after a

discussion is had with the other parent about the nature and

extent of the disclosures to be made to the children.

Create a Space for Your Child

All children should have a place for their belongings in a

room separate from their parents, at each parents' location.

The children should be allowed to take a reasonable amount

of belongings with them to the other parent’s home and they

should always be permitted to return with those items that

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were originally in his or her possession, unless a prior

agreement is made with the other parent in advance. The

child must be permitted to have photographs,

correspondence, and personal items from both parents in

their personal space.

Parenting Plans Written by: Mary G. Commander, Divorce / Separation Lawyer

A parenting plan is a written document which sets forth the

parenting schedule of each parent with the minor children. It

also may include responsibilities and duties, as well as

prohibitions during the time that the child is in each parent's

care.

Parenting plans mandatory in some states

Some states have statutorily-created parenting plans that

must be filed with the court as a part of any custody case and

have preprinted schedules for use by the parties. These may

include certain requirements that become a part of

everyone's parenting plan.

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Other states leave it to the parties or the individual judges to

devise whatever visitation schedule they deem to be in best

interests of the children in a particular case. The American

Academy of Matrimonial Lawyers (AAML) has created a

Model Parenting Plan which can be used as a resource for

specific provisions.

Sample provisions in parenting plans

Anything that the parents want to include can be included.

The plan can be as general or as specific as necessary. The

more trouble the parents have communicating, the more

detailed the plan needs to be in order to avoid future

problems.

In general, the parenting plan will include:

Times/days for parenting time (Including Summers,

Holidays, Birthdays)

Who will be doing the driving for pick up and drop off

and where pick up and drop off will be

Make up days/time for missed time due to illness

Doctor/dentist appointments

School decisions; school notifications

Daycare, babysitting, right of first refusal

Payment of expenses

Prohibitions, such as no alcohol use

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Any special circumstances

Remedy in the event of disagreement, such as

mediation before filing in court

The goal with parenting plans is to fashion a plan that meets

the child's developmental, emotional and social needs and

facilitates the child's adjustment to the new living

arrangement.

How Do I Calculate Child Support? Written by: Anita Cowley Savage, Divorce / Separation Lawyer

Every state has child support guidelines that set forth the

presumptive amount due from one party to the other in a

divorce or suit affecting the parent-child relationship. Below

you will find an example calculation for Texas. While this

calculation is applied in most cases, a request to deviate from

the guidelines can be made in some circumstances.

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Calculate the paying party's net income.

The first thing to determine is the paying party's gross

income. Income includes money from:

Wages

Overtime work

Commissions

Tips

Bonuses

Rental income

Interest income

And the like

From the gross income, the Court will determine the net

income of the paying party by deducting social security

taxes, federal income taxes based on the tax rate for a single

person claiming one personal exemption and the standard

deduction, state income tax, union dues, and expenses for

the cost of health insurance for the child (if any).

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If a paying party's net resources are $7,500 per month or

less, the following child support will almost always apply:

For 1 child, the child support order will be 20% of the

paying party's net resources.

For 2 children, it is 25%.

For 3 children it is 30%.

For 4 children, it is 35%.

For 5 children or more, it is at least 40%, if not more.

Determine if there are special factors which might

suggest deviating from the guideline amounts.

There may be circumstances when it is in the best interests

of the children to deviate from the child support guidelines.

This may include:

Special or extraordinary educational

Health care or other expenses of the parties or child

The cost of travel if it is necessary to see the child

The financial resources available for the support of

the child

The ability of the parents to contribute to the support

of the child

And other such factors

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If those facts are present, a court may deviate from the child

support guidelines and enter a support order that is lower

than or higher than the amount recommended in the

guidelines as described above.

Family Law - Relocation with Children Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Our society has become increasingly mobile over the past

several decades. As a result, parents often seek to relocate

away from the other parent after custody has been

determined. Such relocations can wreak havoc on family

relationships.

Importance of Fighting Relocation

Since the laws vary broadly, it is extremely important for a

parent seeking to prevent relocation with children to know,

understand and follow the detailed rules to prevent that

relocation. If the custodial parent fails to follow the rules, it

can often result in a change in custody. State laws often spell

out requirements which may include:

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Notification and Objection

A parent seeking to relocate must generally notify the

other parent well in advance of a move. The timelines

for that notification are specified in many state laws.

Those same laws also provide specific instructions

regarding the information that must be included in

the notification. In states that require notification, the

other parent may also usually file an objection to the

relocation or file a Motion seeking to prevent the

relocation

Consent and Order

Yet other states require not only notification, but

consent of the other parent to allow the move. In the

event the both parents do not consent, often the

parent seeking to relocate most bring a motion

seeking permission of the court. This often would

include a request for a change in custody.

Factors Considered

Often state statutes spell out factors that a court must

consider when determining whether to allow children to

relocate away from one parent. Some factors courts consider

when making determinations to allow or disallow a move

include:

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1. The relative strength, nature, quality, extent of

involvement, and stability of the child's relationship

with each parent, siblings, and other significant

persons in the child's life.

2. Prior agreements in divorce decrees or orders of the

parties. Such agreements are often given great

deference.

3. Whether the relocation would substantially interfere

with the other parent's relationship with the child and

the extent of thar interference.

4. Whether the benefit of the relocation outweighs any

harm caused by the relocation.

5. The reasons of each person for seeking or opposing

the relocation and whether the request is made in

good faith or is intended to interfere with the other

parent's rights.

6. The age, developmental stage, and needs of the child.

7. The quality of life, resources, and opportunities

available to the child and to the relocating party in the

current and proposed geographic locations.

8. The availability of alternative arrangements to foster

and continue the child's relationship with and access

to the other parent.

9. The financial impact of the relocation as it relates to

parenting time including the cost of travel.

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Impact and Conclusion

One truism is that if the Court allows the relocation, it often

requires the party moving to pay more of the transportation

costs related to visitation. This cost issue should be raised in

any hearing as well as a request to change custody if the

parent responsible for the transportation contemptuously

fails to follow the court's orders. In the even the non-

custodial parent does not prevail, a finding in that regard

may change those fortunes if the moving parent fails to

follow through on their obligations.

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After Divorce

You've survived the hardship of divorce; now it's time to

move forward with your life. If you find that your ex-spouse

is not adhering to the divorce decree, you may have to deal

with related issues for quite a while after. Find guidance

below that covers the essentials on many of these issues and

can help you learn what to do in common scenarios such as

enforcing your divorce decree, appealing your divorce, or

resolving parenting disagreements.

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Enforcing Your Divorce Decree Once the court has delivered a judgment and the final

divorce decree has been signed, both parties are bound to

follow all conditions set out in that decree. If either party

later decides that any provision in the decree is

unacceptable, that person must petition the court for

modification. Simply ignoring the disagreeable conditions is

not an option, as it puts the violator in contempt of court.

Violations are often a result of feelings of anger or betrayal

on the part of the violator, and may be an attempt to control

or punish the ex-spouse. Common violations include:

Non-payment of child support

Non-compliance with visitation schedule: this can

involve the custodial parent refusing visitation to the

non-custodial parent, or the failure of the non-

custodial parent to return a child home on schedule

Non-payment of alimony

If your ex-spouse has violated any portion of your final

divorce decree, you may file a contempt of court motion,

either through your attorney or on your own. If you file

yourself, it is your responsibility to ensure that your ex-

spouse has been served with the motion and receives notice

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of the date and time of the hearing.

Even if you choose to handle the contempt action yourself,

you should at least consult with a lawyer to be sure you do it

right. In addition, you can find sample motions and the exact

filing procedures in your local court's family law guidelines

regarding divorce.

Filing the Contempt Motion

In your contempt of court motion, you must indicate exactly

what part of the divorce decree your ex violated and how.

Provide a complete account of the violation. It is up to you to

prove the violation, so make sure you have a strong case. Get

any supporting paperwork in order before going to court,

and subpoena any witnesses that can support your claims.

The court office can help you with subpoenas.

Try to keep your children out of the court proceedings. Not

only is it stressful for them to have to speak against one

parent in public, but courts do not like to ask them to do so.

The Court's Decision

After hearing all the evidence and arguments from both

sides, the judge will determine if your claim is sufficient to

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hold your ex in contempt of court. If the judgment is in your

favor, the judge will issue a written order detailing the

contempt order and how it can be resolved. Usually your ex

will then have an opportunity to fix the issue, either

immediately or within a specified time period. If your ex does

not comply, the judge may order jail time until the matter is

resolved.

Even if your ex does not comply within the specified time, it

may not result in jail time. For example, if a failure to pay

child support or alimony is due to job loss, the judge may feel

jail time is not warranted, especially if your ex is actively

looking for another job. After all, it is difficult to find work

from jail.

The goal of a contempt of court motion is not to punish or

humiliate your ex-spouse, no matter how much you may

want that. The goal is to ensure your ex makes right previous

violations of your divorce decree and also understands that

you will not tolerate any further violations.

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Appealing Your Divorce Decree Ideally, both parties in a divorce are satisfied with the terms

of their final divorce decree. Unfortunately, this is not always

the case, especially in a contentious divorce. When one party

believes that the judge's rulings were grossly unfair or

fraudulent, that person can file an appeal.

Legal error or misconduct

State laws regarding appeals differ, but most allow appeals

only where you can show misconduct or that the judge

erred on a point of law. You cannot appeal an issue that was

not raised in the original trial. An appeal can be lengthy and

expensive, so you are much better off making sure you

understand and agree with a divorce decree before you sign

it. If you find errors, especially dollar amounts, or wording

that could later be misinterpreted, insist that they be fixed

before signing.

If, however, you do decide to appeal, use a divorce lawyer

rather than doing it yourself. The procedure is long and

complicated, with many documents to file and multiple

recipients receiving multiple copies. A divorce attorney

familiar with appeals can make sure it’s done correctly.

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Appeal process

Most states give you a limited time after your divorce decree

is finalized to file a notice of appeal, generally about 30 to 45

days. The notice of appeal tells the court that you intend to

appeal the ruling. It describes the issues you want to appeal

and why you believe the original ruling was wrong. You will

usually also have to file the trial transcripts from your

original divorce proceedings, along with any evidence

entered into that trial. You may not enter any new evidence

and no new testimony is involved.

Once all documentation is in place, the appellate court,

usually consisting of three judges, reviews it all. If the

appellate court sides with you, it will order a reversal, which

overturns the trial ruling. It will also usually issue a remand,

ordering the trial court to revise the decree based on the

appellate courts orders.

There is no guarantee that the appellate court will find in

your favor, and in fact, it is unlikely. If it does not, it will

affirm the original divorce decree and you will then have to

abide by it.

Your best chance at a satisfactory divorce decree is to make

the most of your divorce trial. Make sure your attorney

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aggressively represents your best interests and presents all

pertinent evidence. Remember, unless the judge in that trial

makes a serious error in judgment or acts fraudulently, the

appellate court will most likely deny your appeal.

Parenting Consultants Post-Divorce Written by: Maury Devereau Beaulier, , Divorce / Separation Lawyer

All too often, disputes regarding custody and parenting time

do not end with the final divorce degree or paternity order.

When parenting disputes arise regarding legal custody

decisions, parenting time issues or even modifications, there

are options available to parties outside of the court room. In

addition to mediation, a court may order the appointment of

a parenting specialist such as a parenting consultant.

Parenting consultants

A parenting consultant is a neutral party whose role it is to

assist parents in divorce, paternity or legal separation

matters with their parenting issues. The parenting

consultant often fills the role of a child development

specialist who may be called on when disputes occur

between parents to mediate the disputed issue and to

provide insight into parenting decisions and their impact on

children.

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Expert opinion or advice provided

A parenting consultant may be agreed upon by both parents,

either as part of a legal case or after it has been concluded. It

is important to note that a parenting consultant cannot make

decisions for the parents or to resolve any disputes unless

otherwise empowered to do so by a court order.

Instead, a parenting consultant provides expert opinion or

advice and encourages the parents to resolve their own

disputes through dialogue and discussion. When parents are

unable or unwilling to agree, the parenting consultant may

make recommendations regarding solutions that would

benefit the children.

As a result, a parenting consultant may testify in any

subsequent court proceedings regarding the nature of the

parental discussions and provide to the court their opinion

on any disputed parenting issue. There is no confidentiality

between the parenting consultant and the parties under law.

140

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