What is the legal divorce process like and what can I expect?
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise. Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (such as when there is no significant property involved and the couple has no children) most divorces are far more difficult and can take many different courses. The following is a basic outline of the divorce process.
One spouse contacts a lawyer, who assists in the preparation of a complaint, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
The complaint is filed with the court and served on the other spouse, together with a summons that requires that spouse’s response.
The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
The parties engage in “discovery”, during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.
If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve the agreement, or if there has been no agreement, the case will go to trial.
At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support and property division, and grants the divorce.
Either or both parties can appeal the judge’s decision to a higher court.
Under what circumstances will the court award alimony or spousal support?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the lower-income spouse’s support, the court will usually award alimony, at least temporarily. Either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
The amount and duration of alimony depends on several factors, including:
the length of the marriage;
the age of each spouse;
the health of each spouse
the ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties’ minor children, if any;
the income of the primary breadwinner; and
Standard of living the parties enjoyed during the marriage.
How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child(ren)’s best interest. To make that determination, the court considers:
the child’s age;
the child’s gender;
the child’s physical and mental health;
the parents’ physical and mental health;
the parents’ lifestyles;
any history of abuse;
the emotional bonds between the parent and the child;
the parent’s ability to give the child guidance;
the parent’s ability to provide the basic necessities such as food, shelter, clothing and medical care;
the child’s routines, including home, school, community and religious;
the willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
if the child is above a certain age, the child’s preference.
While courts may award one parent sole custody of a child, courts most frequently award at least partial custody to both parents, which is called “joint custody”. Joint custody takes at least one of three forms:
joint physical custody is where children spend a substantial amount of time with each parent.
joint legal custody is where both parents share decision making abilities on medical, educational and religious questions involving the children; or
both joint legal and joint physical custody.
How are property and debts divided at divorce?
It is common for a divorcing couple to decide about dividing their property and debts themselves, rather than leave it to the judge. But if a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property.
The property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse’s separate, non-marital property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property. Additionally, if non-martial property is not kept separate from marital property, it may lose its “separateness” and become subject to division.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home’s maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property.
What is a premarital agreement (prenuptial) and what does it accomplish?
A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all the property each person owns, as well as their debts, and it specifies what each person’s property rights will be after they marry. Premarital agreements often specify how property will be divided and whether spousal support will be paid in the event of a divorce. In addition, an agreement may set out the couple’s intentions about distributing property after one of them dies. This is especially useful for second marriages when one or both spouses wants to preserve property for children or grandchildren from a former union.
A prenuptial agreement accomplishes the objective of satisfying spouses’ needs for certainty, before getting married, that assets will be protected in the event of divorce. Each spouse must be represented by separate counsel and not be under duress at the time the prenuptial agreement is negotiated and signed by the parties.