Divorce

Marriages are dissolved through divorce actions filed with the court. Additionally, the court sets the perimeters for the spouse’s future dealings with each other, especially where children are involved.

Because public policy favors continuation of marriage, a divorce cannot be obtained unless the parties are separated for a period of time. The time required varies from state to state but generally, a 6-month separation is required before a spouse can file for divorce. Another waiting period occurs after the divorce is filed and before it can be granted. Typically, a divorce can be granted no earlier than 90 days after filing the petition.

A divorce is a legal action. Like any lawsuit, it can be set for trial and heard by a jury. However, due to the expense of litigation, most divorces are handled without the need for a trial. Additionally, many states have laws requiring the spouses to mediate the issues on which they disagree before setting the case for trial.

Can I handle my own divorce?

Yes. However, if you and your spouse have children, large assets and others complicated matters to decide, you should have an attorney handle the divorce.

TIP: Do not attempt to represent yourself if your spouse has an attorney. Family law courts have their own peculiar rules and operating procedures that can overwhelm and confuse the non-attorney. Simple procedural errors, such as missing a filing deadline, can lead to tragic outcomes, such as losing custody of your children.

Where do I file a divorce petition?

The petition is filed in the state and county in which you or your spouse live. There are residency requirements that you must fulfill before you can file for divorce.

I filed for divorce but I cannot find my husband to have him served. Can I still get a divorce?

Yes. If the sheriff is unable to find your husband to serve him with the divorce papers, you can “serve” him with the pending lawsuit by putting a notification in the local newspaper.

TIP: Large urban counties typically rely on specialized newspapers that print notices, filings, registrations, etc. for those in the legal profession. It will be less expensive to publish a notice in this type of paper than the city newspaper.

My wife was served with divorce papers but has never answered the lawsuit. Can I obtain a divorce?

Yes. The court can grant the divorce through a default judgment. You will simply go to court and testify before the judge to the facts surrounding your divorce petition.

TIP: Courts set aside a day or part of a day each week to hear defaults. If you are handling your own divorce and you can obtain a default decree of divorce, find out from the court clerk when default hearings are set. You will able to appear at that time and prove up the divorce.

I’m handling my own divorce and need to “prove it up.” What do I do?

“Proving up” a divorce means testifying to the judge that all the legal requirements have been met, allowing her to grant the divorce. The requirements vary by state, and laws require testimony concerning many different facts and events. However, your testimony basically follows the allegations in your petition. You will need to testify as to:

  • your name, age, Social Security number and address;
  • your spouse’s name, age, social security number and address;
  • your place of residence and how long you have lived in the county and state;
  • the date of your marriage;
  • the date you and your spouse separated;
  • the date you filed the divorce petition; and
  • the fact that the marriage is insupportable or irreconcilable.

SIDEBAR: Do not go before the judge unless you are prepared to testify to all the necessary requirements. The judge will not grant the divorce if you leave out an important fact.

Requirements For Filing A Divorce

Any married person may file for divorce. However, all states have enacted residency requirements that prohibit temporary residents from filing for a divorce in their state.

Residency requirements make a “quickie” divorce impossible. The shortest residency requirement is in Nevada, which requires a 6-week stay, plus a witness who can testify to your residency before you are allowed to file for a divorce.

TIP: Where you file for divorce determines the location where the issues that exist now and that may arise in the future will be resolved. If you move to a state with a short residency requirement in order to obtain a divorce more quickly, you will have to travel to that state and appear in that court for all matters relating to the divorce. Additionally, that court may take jurisdiction over any children of the marriage and any changes to their status must be approved there.

Grounds For Obtaining A Divorce

In the past, a divorce was granted only if one of the parties could show some fault on the part of his or her spouse. For example, a husband that abused his wife was at fault for cruelty and the wife could obtain a divorce. In modern times, finding fault is no longer necessary and “no-fault divorces” are routinely granted. A no-fault divorce avoids the necessity of presenting sordid details of a couple’s private life to the public.

SIDEBAR: A no-fault divorce is not the same as an uncontested divorce. In an uncontested divorce the spouses are in agreement on all the issues – neither one is contesting or challenging the other’s point of view. On the other hand, no-fault divorces routinely include many contested issues, such as alimony payments and child custody.

Additionally, a spouse who pleads grounds for divorce that place the fault on the other party, such as adultery, is generally in no better position because of the infidelity. At one time, a wife, for example, may have received a larger share of property when the divorce was granted if she proved her husband had been unfaithful. Currently, however, grounds for divorce based on the fault of one of the spouses do not affect the outcome to a great degree.

Incompatibility

When a couple can no longer live together because of their differences, laws in most states permit a divorce to be granted based on incompatibility, insupportablity or irreconcilable differences. Divorces granted on these grounds are known as no-fault divorces. No specific event needs to occur or be shown in order to prove the couple’s incompatibility. The filing spouse simply has to allege that there is a discord or conflict of personalities that has destroyed the marital relationship and that prevents any reasonable expectation of reconciliation. The laws in most states specifically provide that fault need not be proved.

SIDEBAR: Laws may utilize terms such as “general indignities” instead of “incompatibility.” In these cases, the parties are required to show a series of events and occurrences that humiliated one of the spouses. Arkansas, for instance, requires a showing of habitual, continuous and permanent hate, alienation, and estrangement on the part of one spouse that makes life for the other spouse intolerable.

It is not necessary that both the husband and wife feel that the marriage has become intolerable. For instance, if the wife testifies that she believes there is no chance of reconciliation, then the divorce may be granted, even where the husband has a different opinion.

TIP: When a divorce is “proved up” in court, the petitioner only has to testify that the legal or statutory reason for a divorce exists. For example, the wife will testify to the judge that “a discord and conflict of personalities between her and her husband exist, which renders the marriage impossible and insupportable” or whatever the definition of no-fault divorce is in her state. No additional details concerning problems in the marriage are required.

My husband and I are still living together. Can I get a no-fault divorce?

Yes. The fact that your marriage is intolerable is not necessarily disproved because you and your husband are cohabitating. The court will look at other facts to which you can testify to show incompatibility. For instance, if your husband is consistently drunk, then the marriage may be intolerable because you are living with him and have no where else to go. (Note that a physical separation may be required under state law before the divorce is granted.)

I do not have any facts to show that my husband and I are no longer compatible – I just know that our marriage is over. Can I get a no-fault divorce?

Yes. It is not necessary to recite a list of events or occurrences that make your marriage intolerable. You only need to testify that there is no chance of reconciliation and that the marriage is over in your mind.

SIDEBAR: In legal terms, when a marriage is “over,” there has been an “irretrievable breakdown of the marriage.”

My husband is going to testify that he believes we have a chance of reconciling. Will the judge refuse to grant a divorce even though I will testify that I believe reconciliation is impossible?

No. It is not necessary that both of you believe the marriage is over. Your testimony is sufficient to permit the judge to grant a divorce.

I filed for a no-fault divorce. However, my wife is alleging adultery and cruelty. Can the judge grant a no-fault divorce?

Yes. The court does not have to grant the divorce based on fault simply because that is your wife’s testimony. You can still obtain a divorce based on the breakdown of the marriage alone.

Cruelty

Cruelty by one spouse toward the other spouse is a ground for divorce. The cruelty can be emotional or physical, but there must be proof that the actions were extreme and inhumane. Although in general the cruel behavior must be continuous and habitual, a single act can be the basis for a cruelty allegation in a divorce suit.

Is physical violence toward a spouse considered to be “cruelty” for the purposes of obtaining a divorce?

Yes. Anytime you are in bodily danger and believe that you are unsafe, your spouse is engaging in cruel treatment.

My wife is constantly drunk and is impossible to deal with on a daily basis. Can I prove cruelty as grounds for divorce?

Yes. Habitual and excessive drinking is generally viewed as cruel behavior by the courts.

My husband recorded my phone conversations. Does this rise to the level of cruelty?

No. Recording your conversations is not inhumane treatment.

Am I being subjected to cruelty because my husband constantly calls me rude names?

No. Rudeness alone does not rise to the level of cruel and inhumane treatment. However, verbal abuse is different from rudeness and does rise to the level of cruelty. If your mental well-being is so affected by the verbal abuse that you can no longer live in the house with your spouse, then cruelty exists.

My wife has gambled away our life savings. Can I get a divorce based on cruelty?

No. You are not in physical danger; she has not verbally abused you or acted inhumanely. The fact that she has caused you worry and anxiety is not enough to obtain a divorce on cruelty grounds alone.

Adultery

An individual who has engaged in sexual relations with a person other than their husband or wife has committed adultery. Laws allow the court to grant a divorce based on a single act of adultery by either the husband or wife – and nothing more. For instance, a wife can obtain a divorce based on her husband’s one-time infidelity without showing that any other problems or issues exist in the marriage.

I think my wife is cheating. Do I need actual proof of adultery to obtain a divorce on that basis?

Yes. You must show the court either direct or circumstantial evidence of her infidelity. A feeling or belief is not enough proof.

My husband is involved in a homosexual relationship. Has he committed adultery?

Maybe not. Although, for purposes of divorce, laws typically do not limit adultery to sex outside marriage between only a man and a woman, some courts have ruled that a homosexual relationship is not adulterous.

SIDEBAR: A New Hampshire court reasoned that adultery requires sexual intercourse, which it found to mean sexual relations between a man and woman.

My wife and I were separated when she had an affair with her boss. Can I allege adultery in my divorce petition?

Yes. The fact that you and your wife were separated does not change the legal definition of adultery: sex with another person outside of marriage. Since you were still married when she had her affair, you can allege adultery in your petition.

Abandonment

Laws allow a spouse to obtain a divorce when their husband or wife has deserted or abandoned them for a period of time. Time periods vary according the state in which the petitioner resides, but generally range from 1-2 years.

Abandonment, as a ground for divorce, requires that the petitioner show that:

  • the abandoning spouse left without consent;
  • the abandoning spouse left without any justifiable reason; and,
  • the petitioner does not know where the abandoning spouse is living.
    • the length of the marriage;
    • the couple’s standard of living;
    • the lack of employment or sufficient income;
    • physical or mental disability; and
    • the age and health of the spouse.
    • use vulgar, obscene or profane language when communicating with each other;
    • threaten unlawful actions;
    • place repeated telephone calls with the intention of annoying or alarming the other spouse;
    • cause, either by intent or recklessness, a child of the marriage to be physically harmed;
    • conceal or hide property belonging the spouses;
    • damage either person’s property; or
    • falsify or destroy records or other documents.
    • the family home;
    • real estate purchased during the marriage;
    • vehicles;
    • tools and equipment; and
    • bank accounts, certificates of deposits, stocks, bonds and IRAs.
    • property received through gift or inheritance;
    • property owned before the marriage (which was not commingled);
    • property that is partitioned by written agreement; and
    • bank accounts, certificates of deposits, stocks, bonds and IRAs owned before marriage and kept separate.
    • a description of the property;
    • the date the debt was created;
    • the amount of the debt;
    • the name of the person or company that is owed the debt;
    • the date the debt is due; and
    • the amount of monthly payments required, if any.
    • the disparity in earning capacities or incomes;
    • the spouses’ abilities and education;
    • the spouses’ relative financial conditions (debts owed and future expenses);
    • the difference in spouse’s ages;
    • the value of separate property;
    • the type of property being divided;
    • the fault of one spouse in causing the divorce; and
    • the waste by one spouse of money or property.
    • the length of your marriage;
    • your education and earning capacity;
    • the age difference between you and your spouse, if any;
    • your financial prospects or business opportunity available in the future;
    • your health;
    • the fault in causing breakdown of the marriage;
    • your contributions as a homemaker; and
    • your contributions to the other spouse’s education, training or increased earning power.
    • be trained in mediation;
    • have experience in divorce mediation (at least 10 prior mediations); and
    • a working knowledge of family law in your state.
    • whether the parties are entitled, i.e., met the legal requirements, to a divorce;
    • to whom the divorce is awarded;
    • the custody and visitation of minor children;
    • the identification of separate property;
    • the value of marital property;
    • an equitable division of marital property;
    • an award of child support;
    • an award of spousal support (amount and duration); and
    • an award of attorney’s fees.
    • your name and address;
    • the date of your marriage;
    • the names and ages of your children; and
    • the facts supporting or grounds for a divorce.
  • My wife has refused to sleep with me, eat meals with me or talk to me for over a year. Do her actions “constitute abandonment”?

    Yes, your wife’s actions amount to constructive abandonment. In other words, she may have been physically present in the home, but in all other ways she abandoned the marriage.

    During an argument, I told my husband to leave. He has been gone for over a year. Can I get a divorce based on abandonment?

    No. He not only left with your consent, he left at your request. Under these circumstances, you cannot allege abandonment.

    If my spouse left because of my inability to stop drinking, can I allege abandonment in my divorce petition?

    No. Desertion or abandonment requires a spouse to leave without any reason or justification. Since you have a drinking problem, you spouse can argue that he had no other choice but to leave, or that his leaving was justified.

    My wife moved out, and I’m glad she’s gone. Can I use abandonment as grounds for divorce?

    No. Courts typically grant divorces on abandonment grounds when the spouse who is “abandoned” wants the husband or wife to return. In your case, you have no desire for your wife’s return.

    My husband went to work overseas against my wishes. Can I divorce him because he abandoned me?

    No. Your husband had a good reason for leaving – work. Since he had a justifiable reason for being away, he has not abandoned you.

    Living Apart

    Spouses who have not lived together for several years may obtain a divorce. Laws require a separation as long as 7 years in some states, if used as a ground for divorce. Couples who have gone their separate ways and have not seen each other for many years are able to obtain a divorce in this way without any other allegations.

    Neglect of marital duties

    Laws permit a spouse to divorce his wife or her husband for gross neglect or dereliction of marital duties. Spouses have certain obligations to one another under the law. Failing to perform those obligations, or neglecting a duty, is a ground for divorce.

    Marital duties include fidelity toward one another, engaging in sexual relations and participating in the care and raising of children. For example, a husband will be granted a divorce on these grounds where his wife abused credit cards, took out a second mortgage on the house to pay them off, and refused to cook or clean, because, taken as a whole, the wife was grossly neglectful.

    My husband has filled our house with so much junk, newspapers and other items that it is practically unlivable. Is he neglecting a marital duty?

    No. The duty to keep a home clean is minimal. Bad housekeeping is not gross neglect of a marital duty.

    SIDEBAR: The home’s condition, due to neglected housekeeping, must be “flagrant, heinous, odious, atrocious, shameful or despicable,” for a finding of gross neglect.

    TIP: Filling the home you share with your spouse with dozens of cats, for example, is a gross neglect of a marital duty, because the house would meet the atrocious and odious standard.

    Confinement in mental facility

    A husband or wife whose spouse has been confined to a mental hospital or facility can petition for divorce. Laws typically require some amount of time to pass before the divorce petition can be filed. Additionally, the mentally ill spouse must be diagnosed with a condition from which there is little chance of improvement.

    TIP: An attorney ad litem must be appointed by the court to represent the mentally ill spouse in a divorce proceeding.

    Although my wife has been living in the state mental hospital for several years, she sometimes returns home to visit. Can I get a divorce based on her confinement in the mental hospital?

    Yes. Your wife’s home visits do not change the fact that she has been committed to a mental hospital. Unless she has been finally discharged, your wife is confined because of her mental illness and you can seek a divorce on these grounds.

    My husband has severe bipolar disorder and has been in and out of mental hospitals. Is this grounds for divorce?

    No. Mental illness alone is not a basis for divorce. Your husband must have a prolonged confinement in a mental hospital in order for you to get a divorce.

    TIP: Where one spouse’s mental illness is not a ground for divorce, other grounds, such as incompatibility, can be alleged.

    Conviction of felony or incarceration

    Laws in some states permit divorce where one of the spouses has been convicted of a felony crime, or has been imprisoned for a period of time. For instance, the wife of a corporate CEO convicted of a white-collar felony crime may obtain a divorce based on her husband’s conviction.

    My wife is on trial for felony theft. Can I get a divorce because she committed a felony?

    No. A criminal charge alone is not enough. Your wife must be convicted or imprisoned before you can obtain a divorce on these grounds.

    TIP: A guilty plea is the same as a conviction.

    Temporary Orders

    Temporary, or interim orders, are put in place to fix the rights and obligations of the divorcing couple before their divorce is finalized. Divorce petitions typically contain requests for certain judicial orders to preserve the spouse’s property and protect the parties. Additionally, the payment of the bills, maintenance payments to a spouse and establishment of child visitation are all matters handled through temporary orders.

    Temporary orders provide a measure of stability for one or both of the spouses. For instance, a stay-at-home mother without an income could not continue to live in the house with the children unless the husband continued to pay the mortgage. The court’s orders requiring that the mortgage payments be made allow the wife and children to stay in the home without further anxiety or disruption.

    Can the judge enter a temporary order requiring my husband and me to attend counseling?

    Yes. A court can make any orders it believes are in the best interests of the parties.

    Temporary spousal support

    If a spouse qualifies, she may receive support payments from her husband until the divorce is finalized. Laws refer to these payments as “temporary alimony,” “temporary support” or “spousal maintenance.” In general, the spouse with the greater income makes some sort of monthly payment to the other spouse. The purpose of temporary support is to keep the parties at approximately the same financial level they were in before the divorce was filed until a divorce is granted.

    Eligibility for spousal support payments depends on:

    The court also weighs how much one spouse contributed to the other’s education or training. For example, a wife who worked while her husband went to medical school may get a larger support payment to compensate her for her past contributions. Additionally, women who have taken a hiatus from their careers to have and raise children may be due more support because their skills are not as marketable.

    I’ve always been a stay-at-home mom. Can I continue to stay at home and receive spousal support during our divorce?

    No. If you have the education or skills to find employment, you must go back to work and earn some income. Your husband is not under a duty to completely support you during the divorce.

    SIDEBAR: Laws do not favor spousal support, and unless the spouse requesting support can show that he has sought out employment or is acquiring the skills, through schooling or training, necessary to find a job, the court will not award full support.

    My wife has supported us while I’ve been working on getting a college degree. Do I have to stop going to school and get a job?

    No. Your degree substantially increases your ability to support yourself. You may be required to find part-time employment, but the court will probably order your wife to make some payments so you can continue your education.

    Can temporary support be extended after the divorce is granted?

    No. After the divorce is final, the spouse will either receive permanent spousal support (known as alimony) or the payments will be terminated completely.

    SIDEBAR: The laws in some states limit the duration of spousal support once the divorce is granted to a period of 2-3 years, unless the spouse has a physical disability.

    Temporary restraining orders

    Because divorce is acrimonious, laws have been enacted prohibiting or restraining divorcing spouses from taking certain actions during litigation. The parties may not:

    Most divorce petitions include a “laundry list” of prohibitions that eventually become part of the court’s temporary orders even where the spouses are cooperative.

    My wife keeps calling me in violation of the temporary restraining order. What can I do?

    You must notify your lawyer or the court. Your wife is violating the temporary orders and, by doing so, she is in contempt of court. The judge has the authority to place her in jail unless she stops making the calls.

    Temporary injunction

    An injunction is a judicial order prohibiting a specific action by one of the parties. During a divorce action, the injunction serves to preserve the couple’s property and keep one spouse from wasting or disposing of it. For example, the husband may be enjoined from withdrawing money from the spouse’s savings account.

    A protective order is a type of temporary injunction. It is used to restrain one spouse from committing or threatening to commit violent acts when there is a history of family violence.

    SIDEBAR: A protective order is available any time violence has occurred or is likely to occur. Filing for divorce is not necessary.

    TIP: A protective order can be obtained after a divorce is finalized.

    TIP: A protective order can direct that the spouse’s gun license be suspended.

    Inventory And Appraisement

    Parties to a divorce are generally required to file a sworn statement with the court listing and valuing their assets. The statement is called an “inventory and appraisement” or “financial statement.” The temporary orders issued by a court when a divorce petition is filed typically require the spouses to produce the inventory by a certain date and sets out the form of the inventory.

    Each spouse files his or her own inventory with the court, which is signed under oath. The value a spouse places on the property may be based on opinion or fair market value, if known. The spouse’s inventory also includes a list of any debts owed. It is not necessary that an independent appraiser be hired to value the property.

    TIP: If there is a dispute in the inventories as to the value of a piece of property, hire an appraiser to settle the dispute.

    The inventory is not binding on the court. In fact, the court is required to hear evidence that the property listed is valued correctly. Evidence of property value can be in the form of testimony, receipts, deeds, notes, tax appraisals and other documents.

    Marital Property

    In the inventory, the spouse must identify “marital property” (or “community property” in community property states), owned jointly by the couple. Marital property consists of both real estate and personal items, and generally includes:

    TIP: If any of the property is mortgaged, the amount of the mortgage must be included along with the value of the property.

    SIDEBAR: Benefits should be listed as marital property. A value must be placed on the benefit. Typical benefits include employment benefits (profit-sharing plans, retirement plans, pension plans) and union membership benefits (insurance, pensions, retirement benefits)

    Separate Property

    Not all property is necessarily marital or community property and spouses should include any and all property that they believe is separately owned.

    In a community property state, a spouse’s separate property is typically limited to:

    In non-community property states, separate property may also include items the spouse purchased with their own income.

    TIP: Separate property includes any claims for reimbursement one spouse has against the other. For instance, if the couple’s joint income was used to pay off the husband’s car loan (purchased before marriage), the wife should list a claim of reimbursement for a portion of the payments.

    Debts

    Spouses are required to list their debts in the inventory. Both the husband and wife, or only one of the spouses, can owe the debt. The debt is listed as either a marital debt or as a separate debt. In community property states, both spouses are liable for all debts incurred during marriage.

    The debt must be identified by setting out:

    TIP: Credit cards must be listed as well. The person or persons on the account must be identified, along with the total amount owed. It is also wise to include the amount of monthly payments and interest rate.

    TIP: Attorney’s fees owed or that will be owed as a result of the divorce litigation must be listed.

    Can I change the inventory once it is filed?

    Yes. In fact, you must correct the inventory if you have made a mistake or error.

    What happens if I forget to list a piece of property?

    You can file a new inventory with the court listing the property you forgot. The inventory is called the “Amended” or “Corrected Inventory and Appraisement.”

    TIP: Property that has been lost or destroyed should be included on the inventory. For instance, a valuable painting that was purchased by the husband and wife during the marriage but which was destroyed in a fire since the separation must be listed, along with a statement explaining its loss or destruction.

    My spouse did not list one of his stock portfolios on purpose. What do I do?

    Notify your attorney or the court. If your spouse is fraudulently concealing property, he is in contempt of the court’s temporary orders and could be jailed or fined.

    SIDEBAR: The inventory and appraisement is a type of discovery (a document that must be furnished in litigation), and failing to provide discovery can result in a monetary fine.

    Property Distribution

    Depending on how the parties work together, and the length of the marriage, the determination of which spouse gets what property can be extremely easy or difficult and acrimonious. Couples who have been married a short time and have not acquired much property together usually take what they brought to the marriage and go their separate ways. Even if a home was purchased, it can be sold and the proceeds divided or one spouse can pay the other for her half.

    On the other hand, couples in lengthy marriages have typically acquired a large amount of property and debt. One or both may have a vested interest in staying in the family home. Substantial employment and retirement benefits have usually accrued. The wife may have stopped working to raise the children and have no retirement benefits. Furniture, art and jewelry may have been purchased throughout the marriage. Gifts have been exchanged between the spouses; one or both may have received an inheritance.

    Standard of equitable division

    “Equitable” is a term often used in the law. It refers to a fair result when the law in question is applied. Laws concerning the division of property when a divorce occurs require an equitable, or fair, result.

    There is no set formula for the division of property when couples divorce. In order to achieve an equitable or fair result, the court divides the property among the spouses in a just and right manner. “Just and right” does not mean an equal division of property. Courts divide the spouses’ property according to the rights each spouse has in the property and considering the needs of any children born during the marriage. For instance, if the wife used her inheritance to purchase the family home, the court may determine she has a larger interest in it than the husband (it is not automatically her separate property since she contributed it to the marriage as the family home.)

    Factors in determining distribution

    If the couple can agree as to how their property should be divided, they enter into a marital settlement agreement or property settlement agreement, file it with the court and distribute the property according to the agreement. However, if there is a dispute, the judge decides what property each spouse receives when the divorce is finalized.

    Generally, property owned jointly by the couple is valued and divided equally. However, one spouse may be entitled to a larger share based on several factors the court considers, including:

    Based on these factors, the more dependent and less financially well-off spouse generally will receive a larger share of the property.

    Spouse’s fault in divorce

    One spouse’s fault in causing the divorce is usually irrelevant because divorces are typically granted on “no-fault” grounds. However, the court can find fault with one of the spouses and grant the divorce on that basis. In those instances (and even in no-fault divorces), the wrongful actions by one of the spouses may be a factor in determining that the innocent spouse is awarded a larger share of the property.

    SIDEBAR: Because the judge has broad discretion in dividing marital property, even where a no-fault divorce is granted, the fault of one spouse can be taken into consideration by the judge.

    SIDEBAR: In community property states, the courts overwhelmingly find “fault” when highly disproportionate property divisions are ordered. Since all income earned and property acquired during the marriage belongs equally to both spouses, it is not typical to give one of the spouses little or no property unless his behavior was egregious.

    TIP: A finding of fault is not required to divide the property unequally.

    Does an equitable division of property mean that the judge will order a 50/50 split of our assets?

    No. To the contrary, a 50/50 split is never presumed. Under some fact patterns, an equitable division can be an award of all property to one spouse.

    Who determines the value of the property that is going to be divided?

    The judge makes the final determination of the property’s value. Evidence is presented that establishes what certain property may be worth and, based on this evidence, the court places a value on it.

    Who gets the keep the house in a divorce?

    The parent with custody of the children is generally entitled to keep the house. The court may order the spouse with the greater income to make all or a portion of the mortgage payments for a time. However, if the spouse living in the house cannot afford its upkeep and mortgage payments, the home will likely have to be sold at some point in the future.

    TIP: The spouse who wants the family home often “buys out” her ex-spouse’s interest in the house, rather than selling it and dividing the proceeds.

    Can I testify as to the value of my stamp collection?

    Yes. You are not required to hire an expert. Your testimony is evidence on which the judge can rely in determining the value of the stamp collection. However, your spouse, or an expert he or she hires, may dispute your testimony regarding the value of the collection.

    TIP: Do not assume that the court will agree with the value that you place on the property.

    Can the judge punish my husband for his cruelty by requiring him to donate all the money in his bank account to charity?

    No. The court may not punish your husband for his behavior. However, the judge may compensate you by awarding the cash in the account to you.

    During our marriage, my husband bought his mistress many expensive gifts and gave her large sums of cash. Will I get a larger share of our property?

    Most likely. The court will generally consider your husband’s spending on his mistress as a frivolous and unjustified use of marital assets. However, if the expenses were paid out of your husband’s separate property, they may not factor into the division of property.

    SIDEBAR: In a community property state, any income spent on extravagances, especially on another person, without the other spouse’s knowledge and consent is considered to be a waste of the community’s assets. The innocent spouse will get a larger portion of community property to compensate for the other spouse’s waste. If the expenses were paid out of the husband’s separate property, they may not factor into the division of property.

    I’m not happy with the way that the court divided our property during the divorce. Can I appeal the judge’s order?

    Yes – but you will probably be unsuccessful. The court has broad discretion in the way property is divided among the spouses. Unless the judge acted without any regard to the facts, a higher court will not overturn her order.

    SIDEBAR: The judge also has discretion in the monetary value she places on the property.

    TIP: You must offer any and all evidence you have to the judge in support of how you want the property divided. If you fail to present relevant facts in your favor, you cannot later complain that the property was divided unfairly. For instance, if you’ve been informed that your company is going to lay you off, testify to the situation.

    My attorney’s fees are enormous. Will the court consider the fees when making the property division?

    Yes. The judge can factor in your attorney’s fee and award you a larger portion of the property to offset your expenses.

    TIP: Attorney’s fees that have been increased due to any failure on your part to cooperate with the court or follow the judge’s order will likely not be considered.

    Since we separated, my husband received a $10,000 bonus from his employment. Will the bonus be considered when the court divides our property?

    Yes. Increases or decreases in income or to the value of property since you separated can be considered by the court.

    I lied to my wife about my prior divorces before we married. Will my lies affect the property division?

    Yes. Since the judge has broad discretion, she can factor in the misrepresentations you made to your wife before you married when she makes a property division. Depending on the judge, your lies may have a little, a lot, or nothing at all to do with the court’s final decision.

    SIDEBAR: Courts are not limited by the time frame in which certain events occurred. In other words, your actions before the marriage may be considered along with your behavior during the marriage.

    My wife lied to get me to marry her. Since there wouldn’t have been a marriage but for her lies, can she be awarded any property?

    Yes. Although the marriage might not have occurred except for her fraud, she is not legally barred from receiving a portion of the property. It will be up to the judge to decide what weight, if any, to give to the fact that your wife fraudulently induced you to marry her.

    TIP: Even where a marriage is annulled because of one spouse’s fraud, the judge is not required to award all the property to the innocent spouse.

    My wife and I, and our respective attorneys, have agreed to a property settlement dividing our property. Will the judge change it?

    Probably not. Although the court has the authority to change the agreement, the court does not have the time or any reason to upset an agreement between the parties. It is not the place of the judge to insert herself into issues that have already been resolved.

    TIP: A party that is not represented by an attorney should not expect the judge to review the agreement. Even if the agreement is one-sided in favor of the party with legal representation, a red flag won’t go up with the court.

    However, the judge will review, and may refuse to accept, settlement agreements if there are children and one of the parties does not have an attorney. The court’s view is that the children’s’ interest must be represented by an attorney before any issues concerning them are settled.

    My wife and I came to a marital settlement agreement but the judge is awarding her a larger share of the assets than we agreed on. Can the court change our agreement?

    Yes. Theoretically and legally, the judge can change your agreement in any way she believes will be fair to both parties. However, it is unusual for the court to change it. It is simply not practical for the court to refuse agreements when there are cases with disputed issues waiting to be heard.

    SIDEBAR: Generally, the court would need to find that the agreement is unconscionable to one of the spouses, i.e., completely unfair, before setting it aside and entering her own order dividing the assets.

    Does the amount of alimony I may be ordered to pay have any bearing on the property division?

    Yes. The amount of alimony is considered, together with the property division. In other words, you may get “credit” for the alimony you are paying and your spouse may be awarded a lesser portion of the property.

    Currently, my wife and I have approximately the same amount of income. However, she just received a major industry award. Will the award effect the property division?

    Yes. Since courts consider the potential for earnings or income and your wife’s award has a great impact on her future earnings, you may receive a larger share of the property.

    We don’t have any assets, just a lot of debt. How will the court divide our liabilities?

    Debts are divided the same way assets and property are allocated to the spouses – in an equitable manner. In this case, a spouse who is responsible for running up the credit cards bills to buy expensive but unneeded items may end up owing most of the debt, since an equal split would not be fair.

    Some of our property was overlooked and not included in the divorce decree. Who gets it now that the divorce is final?

    Both spouses are entitled to a half-interest in the property because it is owned jointly. Since the divorce is final, one or both of you must file a suit to partition or divide the property, so that it can be sold or distributed without impinging on the other spouse’s rights.

    Qualified Domestic Relations Order (QDRO)

    Retirement or pension benefits typically must be distributed to the employee only. However, a QDRO (pronounced “quadro”) is a special court order directing the retirement plan to distribute the benefits, or a portion of them, to someone other than the employee. Since retirement benefits that accrued during a marriage are often divided among the divorcing spouses, a QDRO is necessary. It is a separate order from the final divorce decree.

    The QDRO must meet certain federal requirements. The U.S. Department of Labor has more information about QDROs on their website at www.dol.gov/ebsa/faqs/faq_qdro3.html.

    TIP: Social Security benefits are automatically distributed to divorced spouses under different rules, and a QDRO is not necessary.

    TIP: QDROs are routine for retirement and pension plan administrators. Most plans have QDRO specialists. Contact their office for forms and information relating to the retirement plan from which you will be receiving benefits.

    SIDEBAR: Until the plan administrator approves the QDRO, the retirement benefits cannot be distributed to the employee’s former spouse. Under federal law, a divorce decree from the court that orders a division of retirement benefits is not authority for paying out the benefits to the ex-spouse.

    Award Of Alimony, Maintenance Or Spousal Support

    Alimony is an amount of money one spouse must pay to the other after a divorce to meet the needs of the more dependent spouse and permit that spouse to become self-supporting. It is now commonly referred to as “spousal support” or “maintenance” in divorce law. In some cases, courts also award alimony to maintain the status quo of the spouses and allow the less affluent spouse to continue a certain standard of living.

    Alimony, maintenance or spousal support payments are awarded as a substitute to the support regularly provided by one spouse to another during marriage. Spousal support may not be available if the marriage lasted less than 10 years.

    SIDEBAR: Laws in some states specifically prohibit an award of “alimony.”

    SIDEBAR: Alimony is not a lifetime pension for one of the spouses; its purpose is to ease the transition to the time the spouse can support him or herself in a reasonable manner.

    There are several different types of spousal support that can be ordered by the court.

    “Pendente lite alimony” is the temporary spousal support the court orders one spouse to pay before the divorce becomes final. The payments are typically part of the court’s temporary orders that the parties must abide by until the final divorce decree.

    “Permanent alimony” is support that is paid until the death of the spouse receiving the payments, or until her remarriage. Permanent alimony paid on a month-to-month basis is sometimes referred to as “periodic alimony.” It is awarded to a spouse who does not have the capacity to support himself because of advanced age or disability.

    In some cases, the court periodically reviews an award of permanent alimony. If the spouse receiving the payments regains the ability to work, remarries or begins living with someone else on a permanent basis, the court may terminate the payments.

    SIDEBAR: Alimony is not awarded in community property states because it is regarded as an allowance that is the personal debt of the spouse. In those states, one spouse cannot owe another spouse support after a divorce. Instead, the payments are based on the rights the spouse receiving support has in the community property, which is owned by both.

    EXAMPLE: A husband may be ordered to pay a wife $1,000 per month for 3 years after the divorce. The wife spent several years staying home with the children and her time is an asset she contributed to the community property. The support payments allow her to share in the assets since her time cannot be recovered.

    “Rehabilitative support” or temporary alimony is routinely awarded by courts for the purpose of getting a spouse on his feet until such time as he is able to support himself. In most states, the payments are referred to as “spousal maintenance” and the law often limits the duration of the payments. Typically, the payments last for 1 to 5 years. Spouses with a decreased earning capacity, lesser education, fewer skills and fewer business opportunities generally receive some amount of payments for a time.

    A lump sum payment is a one-time payment to an ex-spouse that fulfills any future support obligations. The payment can be calculated based on the number of alimony payments that would be due in the future, or may be based be a “cash-out” of one spouse’s interest in the marital property.

    If my ex-husband dies, is his new wife responsible for continuing my alimony payments?

    No. Alimony payments end when the person paying dies. You have no further claim for alimony from your ex-husband’s wife or his estate.

    TIP: Take out a life insurance policy on your ex-spouse. The benefits will compensate you and replace the alimony payments in case of his death.

    Do I have a right to alimony?

    No. There is no legal right to alimony or post-divorce support. You must show the court that you qualify for spousal support after the divorce is granted.

    How does the court determine if I will receive spousal support payments after the divorce?

    The judge considers:

    I stopped practicing law to stay home and raise our children. Will my husband be ordered to pay support?

    Probably not. Your education, skills and earning capacity most likely do not qualify you for support payments.

    Do I have to work while I’m receiving support payments?

    Not necessarily. If you are unable to work because of a disability, or if you are in the process of getting an education and training to obtain employment skills, you are not required to get a job. However, if you are able to work, you must be actively seeking employment to remain eligible for support payments.

    I’m quite wealthy. Is there a limit to the amount of maintenance my ex-spouse can receive after our divorce is final?

    Yes. Laws generally set a ceiling on the amount of maintenance that the court can award. For instance, the law in your state may prohibit payments that exceed 20 percent of your gross income.

    SIDEBAR: Laws may set a maximum amount on spousal support payments, regardless of the paying spouse’s income. For example, Texas law prohibits the court from ordering monthly support payments in excess of $2,500.

    Can I have the amount of spousal support I receive increased?

    Yes. You can ask the court to modify the support or maintenance payments any time there is a change in circumstances.

    I’ve lost my job since our divorce. I was not awarded spousal support when the divorce was granted. Can I ask for it now?

    No. The change in your circumstance does not “reopen” the issue of whether you are due spousal support. If you have been receiving some support, the court may increase the amount. However, the court will not begin instituting support payments.

    Can my ex-husband have my alimony payments stopped if I am living with my boyfriend?

    Yes. Although you are not married, the court may have the authority to terminate the payments if you are cohabiting with your boyfriend on a permanent basis.

    TIP: A platonic roommate will not affect your support payments. The payments typically terminate only if you have a sexual relationship with the person.

    SIDEBAR: Mere allegations that an ex-spouse is living with a person on a permanent basis are not enough to terminate support payments. There must be actual evidence to support the allegations. For instance, testimony from someone other than you that your ex-spouse moved her furniture to her boyfriend’s house is evidence of the living arrangement.

    I may be laid off in 6 months. Shouldn’t the support payments that the court awards take this into account?

    No. The court cannot base support payments on the possibility that an event may occur in the future.

    TIP: Increases in property taxes, health insurance and other expenses that have increased in the past and will increase in the future may be taken into account in determining the amount of spousal support. Those events are not purely speculative.

    During the 2 years it took to obtain a divorce, my husband provided me with only the bare minimum in support although he could have afforded much more. Will my alimony be increased as a result?

    No. However, you may be entitled to retroactive alimony in the form of increased payments.

    SIDEBAR: Courts award retroactive alimony dating back to the date the divorce was filed.

    My wife has refused several promotions to keep her income down as well as her support payments to me. Is there anything I can do?

    Yes. The court will assign or impute income to your wife if she is refusing to use her best efforts to earn more money.

    Intervention In Divorce By Creditors

    Certain persons with a legitimate interest in a lawsuit to which they are not an original party can intervene in the lawsuit. Creditors intervene to protect their interest in property that is going to be distributed and divided in the divorce. For instance, the wife’s former divorce attorney who is owed legal fees can intervene in the divorce as a creditor. Since he is a party, the court must consider his interests when allocating the spouse’s property.

    On the other hand, while the court may have ordered the wife to pay all the credit card bills, if the account was in both spouses’ names, the bank can go after the husband for payment. The divorce decree does not take the husband’s name off the account or relieve him of his liability to the bank.

    Mediation

    Mediation, also referred to as “alternative dispute resolution,” allows the spouses to resolve the issues themselves rather than have the court resolve the issues. The mediator does not decide issues; she simply facilitates a process that allows the spouses to create their own settlement agreement. A settlement agreement reached during mediation is referred to as a “mediated settlement agreement” or MSA.

    In some cases, the spouses choose mediation as the sole method of determining property, maintenance and custody issues. After a successful mediation, a marital settlement agreement can be created and filed with the petition for divorce. In most instances, however, mediation occurs because the court has ordered it after a divorce has been filed. Laws in some states require the court to order mediation before a final divorce decree is entered. When mediation is ordered, the parties must attend and attempt to resolve their differences in good faith.

    SIDEBAR: Divorcing spouses can agree to go to arbitration. Unlike the mediator, the arbitrator does make the final decision on the issues in dispute. Arbitration has been likened to a mini-trial and like a judge, the arbitrator’s decision is generally binding on the parties (unless they agreed otherwise.)

    Is mediation required by law before a divorce will be granted?

    In some states. In others, mediation is ordered by the court if the parties request it or as part of the judge’s selected procedure.

    CAUTION: Once mediation is ordered, you must attend.

    SIDEBAR: In cases where there is family violence or domestic abuse, mediation typically cannot be ordered.

    Who picks the mediator?

    Both parties must agree on the mediator. If the mediation process is court ordered and no person is acceptable to both spouses, the court will appoint a mediator.

    TIP: Once the court appoints a mediator, you must use that person and pay their fee. However, by choosing your own mediator, you have the ability to control the expense.

    What requirements should our mediator have?

    In some states, mediators may be required to obtain a license. However, most states do not require licensing and anyone “can hang out their shingle” advertising his mediating services. It is important that the mediator you choose:

    How long does mediation take?

    Typically the parties spend most the day resolving their differences and putting the agreements in written form.

    SIDEBAR: Some mediators practice ongoing mediation with divorcing spouses where the parties attend mediation meetings on a regular weekly basis until a settlement is worked out.

    TIP: If you and your spouse agree that a divorce is inevitable, consider hiring a mediator from the outset to help negotiate the entire process. The divorce will be much friendlier if the two of you “mediate” the fact that one of you must move out, rather than having one person feel as if they were forced to leave.

    Is the mediator a lawyer?

    Not always. Some mediators are retired judges; others are therapists, religious leaders and sometimes accountants.

    Can the mediator give me legal advice?

    No. Only your attorney can you give you legal advice.

    How much does it cost to use a mediator?

    The mediator usually bills by the hour. The fee can be anywhere from $50 – $250 an hour or more.

    TIP: A lawyer or retired judge will be on the high end of mediation fees.

    What is a mediation agreement?

    A mediation agreement is the contract that all of the participants sign before mediation begins. The agreement sets the ground rules for the mediation, such as the maximum length the parties can be required to mediate with each other. The agreement also includes a confidentiality clause prohibiting the parties from revealing to third parties what was said during mediation.

    Can I refuse to sign the mediation agreement?

    Yes. You cannot be forced to sign the agreement even if you previously consented to its terms. However, once you do sign the agreement, or some variation of it, you are contractually bound by it.

    Who attends the mediation?

    The spouses and their attorneys, if they have attorneys, participate in the mediation. While children of the marriage can be involved, especially when they are old enough to voice an opinion, they usually are not present.

    Can I bring my best friend to the mediation as moral support?

    No. Because the discussions during the course of mediation are confidential settlement talks, outside parties will not be allowed to attend or participate in the mediation.

    If we have successfully mediated, do we still have to go to court?

    Yes. A divorce is a legal decree. You must file a lawsuit in order to obtain a final decree of divorce, or you remain married.

    TIP: Since all the issues have been resolved where there is a mediation settlement agreement, the divorce is uncontested, and it will be granted as soon as the waiting period has passed.

    Can the mediator represent me in court?

    No. Only a licensed attorney, or you yourself, may represent you in court. If you are handling the divorce, the mediator can advise you and attend court proceedings, but she cannot speak to the judge on your behalf.

    Can what we say during mediation be used at a trial or hearing before the judge?

    No. Settlement talks are confidential and cannot be used later as evidence in court.

    SIDEBAR: The signed agreement may be presented to the court if one of the parties is refusing to abide by its terms.

    If the court orders mediation, do we have to enter into a settlement agreement?

    No. You always have the option to litigate your differences before the judge or jury.

    Can I withdraw my consent to an agreement reached in mediation?

    Yes. However, if you signed an agreement, your spouse can attempt to enforce the agreement as a contract between the two of you. The judge may be inclined to grant a divorce decree based on the terms of the signed agreement because of your consent.

    TIP: Some mediation agreements include a provision that they are binding and cannot be revoked once signed. If you sign such an agreement, it is likely the court will enforce it and make it part of the final decree over your objections.

    My spouse lied about her assets during mediation. Can the agreement we reached and filed with the court be set aside?

    Yes. Agreements that are reached because of fraud, such as your wife’s failure to disclose assets, will be set aside by the court.

    Trial

    A divorce is set for trial when the spouses are unable to come to an agreement on an issue. The parties can request a bench trial or a jury trial. A bench trial is one that is held before a judge only; no jury is present.

    When the trial is completed, the judge or jury makes a final determination on the issues in dispute, and the court enters a final decree of divorce.

    A divorce trial proceeds like any other trial: a jury is picked if it is a jury trial, lawyers make opening statements, witnesses testify, evidence is presented to the court, closing statements are made and a final ruling is announced by the court.

    What issues are decided at trial?

    The judge determines:

    Do I have to testify at my divorce trial?

    Yes. If you want the judge or jury to hear your side of the story, you must testify. Additionally, if your spouse does not appear at trial, you must testify to “prove up” or recite the relevant facts in order to obtain a final divorce decree.

    What questions will I be asked on the witness stand?

    You will be asked to give:

    Once the trial has begun, is it too late for my spouse and me to come to an agreement?

    No, cases are routinely settled during the trial. Since you are already before the judge, your attorneys will read the agreement to the court and each of you will testify that you have consented to settle the case.

    Appeal

    Once a final divorce decree is entered after the trial, either party can appeal the ruling. The first appeal is to the trial court in the form of a motion for new trial (generally not granted). The party then files an appeal with the appellate court. In an appeal, one of the parties is asking the appellate court to overrule or reverse the rulings of the trial court judge. The appeal can be confined to one issue or cover several different matters the party believes were incorrectly determined.

    Appeals have extraordinarily short deadlines. The timeline in an appeal consists of many different deadlines that must be met. The failure to meet any of these deadlines means that the appeal is waived. Because they are so complicated, appeals are usually handled by appellate lawyers – lawyers who specialize in this field.

    TIP: Once a final divorce decree is entered, it cannot be modified unless the trial court orders a new trial or an appeals court reverses the trial court’s order.

    Name Change

    A spouse, almost always the wife, has the right to have her name changed back to the one she used prior to the marriage. The name change is ordered in the final divorce decree and is accomplished by filing a name change certificate or other documents with the court clerk. The fact that any children of the marriage and their mother will have different last names is not a basis for opposing a name change.

    My husband wanted the divorce and now has requested that the court change my name back to my maiden name. Can my name be changed over my objection?

    No. The court does not have the authority to change your name on your husband’s, or anyone else’s, request. Only you can request the name change.

    If I change my name, am I still liable for the debts I incurred under my married name?

    Yes, your name change does not extinguish any money you owe. Your liabilities follow you, even with a different name.

    Remarriage

    Persons who obtain a divorce return to their status as unmarried and single. They are free to remarry after the final divorce decree is entered and a short waiting period has passed. The waiting period can date from the date of the divorce decree or relate back to when the respondent was served with the lawsuit.

    SIDEBAR: Texas law, for example, prohibits remarriage within 30 days after the judge signs the divorce degree. In California, however, a party may remarry as soon as the divorce is final, as long as at least 6 months have passed since the ex-spouse was served with the divorce papers.

    Post-Divorce Issues

    Although a divorce has been granted and a final decree has been entered, the issues between the parties do not dissipate. After the divorce, the court continues to have authority over the parties with regard to any obligations they were ordered to perform under the divorce decree. If the parties do not proceed according to the decree, the court can enforce the order by placing one of the ex-spouses in contempt or fining him or her.

    Enforcement Of Divorce Decree

    The court that issued the final divorce decree has the continuing authority to enforce its provisions. Either party can bring a suit to enforce the decree with the court at any time. After hearing evidence, the court may hold the non-complying party in contempt for refusing to follow the provisions in the decree.

    Typically, issues arise as to property division (identity of property, time and manner of delivery) and the decree may need to be clarified. Rather than hold one party in contempt, the court can issue a “clarification order” setting out further instructions for the division of property.

    SIDEBAR: The judge cannot amend or change a final divorce decree. Clarifying the decree simply clears up any ambiguity; it cannot change the original terms. For instance, if the decree ordered the husband to put all the household furnishings in storage for the wife and he did not include the china or silver, the judge can clarify that “furnishings” in the original decree included china and silver. Broadening “furnishings” to encompass additional items is not considered to be a change; it is a clarification of what the judge meant by the term.

    My husband quit paying my support payments. How do I get the decree enforced so he will make the payments as ordered?

    You must file a suit to enforce the decree. The court can then convert the past due payments into a money judgment. The judgment is just like any other judgment that a person could obtain against your husband, and he becomes a judgment debtor.

    TIP: Judgments are enforced by first filing with the county clerk, and then by seeking certain legal actions. For instance, once you have a judgment, you can obtain a writ of garnishment. A writ of garnishment is a legal summons concerning the taking of wages of a debtor to satisfy a debt. As and example, the writ can be served on the husband’s bank, and any money in the debtor’s account is taken, or garnished, to satisfy the judgment.