Legal Issues in Divorce

What is a divorce?

A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.

Under what grounds can a marriage be annulled or made void?

In order for a couple to annul a marriage, there must one of the following: bigamy; one of the parties was underage at the time of the marriage; fraud in the inducement of marriage such as not disclosing impotence; some type of familial relationship between the two parties; lack of legal capacity; or the marriage was established under the common law prior to 1922. Legal capacity can be divided into mental incompetence, senility, or even impotence. Refusal or inability to consummate the marriage can also be grounds for annulment.

What if my spouse won't agree to a divorce?

The simple answer is you can still obtain a divorce. Most divorces can be based on either fault (abandonment, adultery, etc.) or by living separate and apart for a specific length of time and neither requires the cooperation of both spouses. As long as you provide your spouse with sufficient notice of the court hearing and opportunity to attend they do not have to be present to obtain the divorce. If you cannot prove that you furnished your spouse with legal process, the court will not allow you to proceed with putting on evidence related to divorce grounds, custody, spousal support, property division or child support. If you do provide sufficient legal process, the court can decide all of your divorce issues, even in the absence of your spouse. He or she will have forfeited the right to present evidence. Once the judge sorts out all of these issues, the court will enter a final divorce order without the consent, participation or signature of your spouse.

How do I choose the right lawyer for my unique situation?

It is important for people thinking about going through a divorce to talk with an experienced and knowledgeable family law attorney in your state of residence to discuss all of your options. Take advantage of the confidential initial consultation many attorneys offer. See if there is a level of comfort between you and your lawyer. No matter how experienced and well-recommended a lawyer is, if you feel uncomfortable with that person during your first meeting or two, you may never achieve an ideal lawyer-client relationship. Look for someone with experience dealing with similar situations as the one you are dealing with.

I don't want to get divorced. Can I stop or at least delay it until my spouse comes to his senses?

A spouse can certainly delay a divorce but it is rare to be able to stop the divorce altogether. A spouse can delay the divorce by dragging their feet and making it difficult on the opposing party. A spouse can refuse to accept service of divorce papers, refuse to sign off on a divorce decree and not be cooperative. A spouse can also claim the marriage is savable and not irretrievably broken. In some instances, the assistance of professional marriage or individual counselors can help a couple to repair a troubled marriage. In some instances, the court may be convinced that the marriage is not irretrievably broken and that there is a reasonable likelihood that it can be saved. This would ordinarily only be in cases where the parties are engaging in marital relations and acting as husband wife. However, this is a rare fact pattern that does not take place often. Thus, in most instances, a party can only delay the divorce, but cannot stop it.

I'm just starting my divorce. What pitfalls should I watch out for in the process?

Always read and respond to legal papers within designated deadlines otherwise judgment can be entered against you. Make sure there is open communication between your attorney and yourself and always respond to your attorney's calls and emails. Do not make drastic changes to shared bank accounts, credit cards, insurance plans, or pension plans. Do not use your children as pawns or to deliver messages between you and your spouse. Always take time to read through documents carefully and completely as it is easy to skip over important sections mistakenly.

I think my spouse is cheating on me. Should I hire a private detective to gather evidence in case we divorce?

The use of private investigators can be key in helping to bring forward admissible evidence and witness testimony that can help obtain a positive outcome in the divorce process. Private investigators are trained to help discover the truth and can be immensely valuable. Make sure you locate an investigator who is experienced, reputable and can assist you in your case. If you employ an investigator who does not have a rapport and working relationship with your attorney, you may end up losing valuable time and money. Worse case, it can also result in irrelevant evidence or inadmissible being obtained. Sometimes the cost of the investigator may outweigh the value they would bring to the case. If a state does not allow for fault based divorces, or does not allow marital misconduct to be considered in dividing property and debt and spousal maintenance/alimony as is the case in Illinois, any evidence obtained in regards to marital misconduct or fault might not be valuable and could outweigh the cost of obtaining the information.

How soon will I be divorced? How can I shorten the process?

The length of a divorce can vary significantly. It can be shorter, depending on the parties' cooperation. It can be longer, if emotions run high and pockets run deep. Although a very long, expensive, drawn-out divorce is almost never necessary, it can and will happen if one or both parties are unreasonable. Every case is different and the length of the case will be largely determined by the complexity of the case and whether or not you and the other party can reach an agreement. In family law, settlement is complex because there are usually a multitude of issues that have to be resolved for your case to settle. In a divorce with kids, for example, there needs to be an agreement on property and debt division for all marital assets, child custody, child support, maintenance and attorney's fees. Other issues can also come into play from exchange locations and times, dependency exemptions for children, holiday schedules, college education and a host of other issues. For a case to end without a trial, the parties have to enter a comprehensive agreement on the vast array of issues that comprise a family law case. If the parties can enter a comprehensive agreement, cases can conclude fairly quickly. On the other hand, if the parties disagree on one or more issues, you have to wait on a trial date which can takes months and, in some instances, significantly longer.

I need to discuss certain aspects of my case. Can I call my spouse's lawyer if mine is out of town?

No. It is important that you do not have communications with your spouse's attorney. Your spouse's attorney is not permitted to speak with you directly if you are represented by counsel and your attorney may not speak with your spouse if he or she is also represented.

If you live in a common-law marriage, are you entitled to the same support and property division as if you were legally married?

Only a handful of states recognize common law marriage: Alabama, Colorado, District of Columbia, Iowa, Kansas, New Hampshire, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. Each of these states has specific requirements which must be met in order for a common law marriage to be valid. A common law marriage comes about when a man and woman who are free to marry agree to live together as husband and wife without the formal ceremony. To be common law married, both spouses must have intended to be husband and wife. If you are in a legally-recognized common law marriage and you wish to end the relationship, you must obtain a regular divorce and you will need to have the court decide on things like child support and custody, spousal support, and property division just as the court would in a regular divorce.

Can I make my spouse leave the marital home before our divorce is finalized?

The laws in each state can vary. However, if one party has been physically or mentally abusive towards the other or has placed the other in fear of immediate serious bodily injury, the abused party may file for an order of protection that may exclude the abuser from the marital home. Another potential option is through a Petition for Exclusive Possession. Most state courts can award one or both of the parties the right to reside in the marital residence. The court will need to be convinced that there is an abusive or dangerous situation that exists if both parties remain in the marital home before excluding one of the parties. It should be noted that even if the request is granted, the removal of one party from the home will in no way affect that party's rights as it relates to the home's value when assets are distributed.

On what basis can a divorce be granted? Does fault make a difference in determining the outcome?

No-fault divorces are available in all 50 states and the District of Columbia. "No-fault" means that neither party has to allege and prove wrong doing by the other spouse in order to obtain a divorce. In most jurisdictions a no-fault divorce is based on a breakdown of the marriage. Depending on the jurisdiction the listed reasons for a breakdown can include the terms irreconcilable differences, incompatibility, irretrievable breakdown, or in-supportability. In some jurisdictions however, a couple will have to formally separate for a specified amount of time prescribed by state law before a no-fault divorce can be filed.

At-fault divorces require that one or both parties prove that the other party is responsible for the divorce. There are several commonly accepted reasons for at-fault divorces including; adultery, abandonment, mental illness or incompetency, bigamy, criminal conviction, alcohol or drug abuse, cruelty or abuse, or impotence. Some jurisdictions still have at-fault divorce state laws while some only allow for no-fault divorces.

Is it true that going to court is the only way to ensure you'll get your fair share?

No, there are alternative ways to ensure you get your fair share. A mediated divorce is when both parties agree to mediation meetings with a professional mediator who acts as a neutral third party to allow the couples to try and resolve the major disputes in a divorce proceeding. The two parties meet with a mediator who does not represent either of them. It is not uncommon for parties to have several meetings with a mediator in order to completely resolve all of the conflicts surrounding dissolution of marriage.

Collaborative divorces occur when both parties agree to work collaboratively to resolve any issues in the marriage dissolution through joint sessions with their attorneys and other third parties in order to come up with a marital settlement agreement that is not only beneficial for both parties but keeps in mind what is in the best interest of the family unit. The attorneys for both sides as well as both spouses must agree to the collaborative divorce process. The first step in the process is to have both parties and their attorneys sign a "no court" agreement. The spouses and attorneys then participate in "four-way" meetings to negotiate all remaining issues in the divorce. As part of the negotiation process, outside collaborative professionals may be utilized when recommended by the attorneys, including financial neutrals, divorce coaches and child custody specialists. Ultimately, if an agreement can be reached, the collaborative divorce attorneys can complete the case uncontested in court.

Arbitrated divorces are when both parties agree to arbitrate the remaining issues in their divorce proceedings. This type of divorce has the parties meet with a neutral arbitrator, usually an attorney, who hears the issues in a divorce proceeding and resolves all outstanding issues between the parties. Arbitration is usually binding and cannot be appealed by either party. Arbitration acts as one way to avoid the lengthy process of going to court while still having a neutral third party decide on the issues.

Parties can participate in alternative dispute resolution prior to filing. This allows both sides to ascertain the strengths and weaknesses of their positions. Especially in the context of dissolution where child custody and support are at issue, alternative dispute resolutions may help the parties' to avoid increased animosity that sometimes results in court proceedings. Participating in mediation or arbitration may result in the parties forgoing proceedings in a formal court setting altogether. The financial costs to the parties may also be reduced if they are able to reach a settlement. Overall, the parties to the alternative dispute resolution have more control over the pace and nature of their issues than they might be afforded in the court system. Collaborative Family Law is a growing way to provide alternative dispute resolution to parties. Collaborative Family Law provides a diverse group of independent professionals, including attorneys, financial advisors, and mental health professionals, who can help work together to try and resolve a case. Co-parenting professionals can also be on hand to deal with the emotional and practical aspects of custody and shared parenting.

My spouse and I are about to divorce and I'm concerned that the divorce process is going to disrupt my business. What can I do to protect myself from interference from her and her lawyer?

Often, the largest asset in a case where one spouse owns a business is the business itself, and often the biggest assets of that business are not liquid. Marital property and debt is to be divided in accordance with the law in your particular state. However, in a general sense, in dissolution of marriage action, assets and debts have to be divided in a just manner or as set forth by the laws in your state. In order to achieve a just division, it is vital to have a business properly valuated to achieve that end.

Some of the potential ways to protect your business in a divorce include: keeping the business as separate property in your name only and not using marital funds at all in the business; referencing the business in a prenuptial or postnuptial agreement; or using a partnership, Shareholder, LLC, limited partnerships or domestic asset protection trusts.

I want to change my name back to my maiden name. How do I do this?

In most states, you can request that the judge handling your divorce make a formal order restoring your former or birth name. If your divorce decree contains such an order, that's all the paperwork you'll need. You'll want to get certified copies of the order as proof of the name change -- check with the court clerk for details. Once you have this official documentation, you can use it to have your name changed on your identification and personal records. Even if your divorce papers don't show your name change, you may still be able to resume your former name without much fuss, especially if you still have some proof of that name, such as a birth certificate or old passport. In most states, you can simply begin using your former name consistently, and request that it be changed on all your personal records.

Is it possible to change a court order or judgment?

Yes, you can generally file a motion to modify regarding child custody, child support and/or spousal maintenance/alimony. By filing the motion you are asking the court to change something in the order or judgment. You must generally be able to show there has been a 'substantial change in circumstances' since the entry of that judgment of order. Courts differ on what they consider a substantial change. However, below are a number of examples that could be considered substantial changes leading to a change in the previous order:

  • Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order.
  • Change in lifestyle. A parent can obtain a change in a custody or visitation order if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins leaving a young child unsupervised or fails to get the child appropriate medical treatment, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or only under the watch of a court appointed supervisor).
  • The Child's desires. Older more mature children can have some input in deciding with which parent he or she will live with primarily. However, although that child's wishes can be considered, the child does not have a right to ultimately "choose" which parent to live with. It is also ill advised to encourage a child to request a change in custody as oftentimes the court will view this as placing undue pressure on the child. This behavior will reflect badly on the parent pressuring/encouraging the child and could affect that parent's custody and visitation rights.
  • Deviation from custody schedule. In some cases, the parties may have deviated from the custody order to such an extent and for a long enough time that a modification may become possible to simply make legitimate what the parties have been doing. For example, if one party received sole custody, but the parties have been in reality exercising fifty-fifty custody for a long enough period of time, a court may entertain a modification to formalize what the parties have been doing.

I know that my spouse gets income that he doesn't report; how do I get my share of that?

Probably the best tool for tracking down cash and other hidden assets are tax returns. This is because even a spouse who is attempting to hide assets or income through their business was probably not considering such action seven, five, or even three years ago. The first line of 1040 can be important because it provides a social security number which can be used for other searches. The W-2's for the spouse as an employee can also be important. How does the past compare to the present? Bank Statements and Credit Cards can also prove to be equally valuable. There are several key things to look for in this regard. Do deposits match invoicing or account receivable? Are wages to relatives or close friends comparable to others performing similar tasks? This can be common where there is an anticipation of the funds being gifted back later. Do known expenses not being paid out of any account signify cash transactions? Were abnormal bonuses paid out? Stock options? Do you know of personal use of company assets or perks? What is the value? Are there any transfers or deposits from unknown accounts? Do check registers or cancelled checks show previously unknown accounts? Are regular customers now late with payments delaying income? Has there been a sudden increase in liabilities or loans? An expert's cash flow analysis may uncover the answers to many of these questions. Hiring a forensic accountant or private investigator can also help to uncover hidden assets. You can also try to talk to other witnesses who may have an idea of where hidden income is coming from, such as business partners.

My spouse has stock options at his work; are those considered an asset to be divided during our divorce?

This can be a very tricky and fact specific situation. In some states, if the stock options/restricted stock have not vested as of the date of separation, they are not considered marital property. In other states they are, but their current value will depend on numerous factors including how far in the future they vest. Stock options give an employee the right to buy company stock at a set price, at a future date. The idea is that this set price will be considerably lower than the future trading price, so that the employee can then sell their cheaply-bought stock at great profit. It can be a good idea to hire a forensic accountant to help identify the stock options and value them correctly.

My ex-wife and our two kids have moved in with her boyfriend. Do I still have to pay alimony and child support?

The fact that your ex-wife and children have moved in with her boyfriend does not generally change your obligation to pay alimony and child support, unless your child support and alimony are modified by a new court order. If the child's needs change, or if a parent's financial situation changes, the amount of child support may need to be modified. In such cases, the existing child support order may be amended either by a mutual agreement between the two parties or by a court order. If the spouse who is receiving maintenance payments remarries, then maintenance will terminate. In certain circumstances, cohabitation may result in termination of maintenance as well, but you would need to consult with an attorney about the specifics. Every state is different.

In Missouri, to modify alimony payments it must be shown there are changed circumstances so substantial and continuing as to make the terms of the original award unreasonable. The court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed. In Missouri, a cohabitation relationship is one where the couple shares bank accounts, credit cards, lists one another as beneficiaries on life insurance policies, jointly titles property, and takes other actions tantamount to marriage.

My spouse left many years ago, and I have no idea where in the world he is today - or even if he's still alive. How can I get a divorce if I can't find him?

Courts require some sort of service or legal notification to the non-filing spouse that a divorce action has been filed, giving that person an opportunity to be heard in court. In this instance, notice to your spouse can often be satisfied through "Service by Publication". To get the court to accept this form of service, you'll have to prove that you have made a diligent effort to locate your spouse. Once you've exhausted all of your efforts and received approval of the court, you can publish an ad in notifying your missing spouse of the divorce proceedings in process. Most courts have a recommended paper typically used by the court or a requirement as to the size of the paper's circulation. Assuming there is no response within a given timeframe, the divorce would then be granted as a default judgment. The court would grant you a divorce and decide all of the terms of the divorce in the manner which you have requested.


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