Family Law

Divorce & Child Support

There can be many reasons why a marriage isn't working out, and most couples do their best to work through their problems. But sometimes there is no way to work out the inevitable. While the reasons for a break-up are vast and varied, the legal process by which a marriage is ended is relatively uniform in every state. Some people separate or get a court order for a legal separation in order to test the waters or to see if some time apart can help in either resolving the conflicts or in working out the property, debt, custody, and/or support issues before filing for a divorce. Some people file for a divorce right away. Below, you will find an overview of the divorce process, from beginning to end.

Legal Separation

You can get a court order for a legal separation and it can cover issues such as child custody, child visitation, child support, property and debt division, and spousal support. There is no need to get this order before filing for a divorce or dissolution of marriage, but some people prefer to legally separate instead of divorce for religious or other reasons. The couple may also want to make sure that their agreement about the children, finances, debts, and so on, are clear while they try to repair a faltering relationship.

Filing a Petition for Divorce or Dissolution

Residency

Most states have a residency requirement for filing a petition for divorce or dissolution, which simply means that if you are filing for a divorce in that state, you must have lived there for a certain period of time. Residency periods are typically from around 6 months to 1 year. A few states don't have a residency requirement, and you just need to live there on the day you file your petition. If you have recently moved to a new state, check the law before you file.

Grounds

The grounds for a divorce are simply the reasons why the person filing for the divorce wants out of the marriage. Most states used to require, as part of the divorce paperwork, that the reasons, or grounds, be specified in the petition for divorce. Legislators soon realized, however, that it was really unnecessary for the state to require a showing of fault in a divorce. If the parties were no longer happy together, they should be able to get a divorce no matter whose fault it was or what the grounds were. So the no-fault divorce was born, and is now the dominant law in the U.S.

No-Fault

All states now have a provision for what is called a no-fault divorce or dissolution. This means that the spouse filing the petition does not have to claim that the other party is at fault in some way in order to get a divorce. There is no way the other spouse can stop a no-fault divorce, though there may be disputes about issues like child custody and property division.

Fault

It is still possible to file a petition for divorce or dissolution that claims the other spouse was at fault for the divorce. The traditional grounds for fault are cruelty, either physical or emotional; adultery; desertion (check your state law for the length of time); imprisonment (see state law for length of time); and an inability to have sexual intercourse that wasn't revealed before the marriage.

There are a few reasons why a spouse might bring a petition based on fault: The state law may have a shorter waiting period for the final decree and the state law may consider fault in dividing property. Many states do not use fault to decide property division and the proof of fault may cause delays in the case, so be sure to check your state law before you consider this option.

Paperwork

A divorce or dissolution usually begins with the filing of a form, typically referred to as a petition. This must be filed with the court that deals with marriages in the county where you live, which may be called a family law court. After the petition has been filed, a copy must be served on (or delivered to) your spouse. Neither you nor your children can do that. The petition must be served by an adult who isn't involved in the case. Read instructions carefully or get advice on how to do this properly.

You can often get the forms you need from the clerk of the court, but the clerk won't be able to help you fill them out. (Clerks aren't allowed to practice law.) There is a short or simplified form you can use in some states or counties if you meet certain conditions, such as agreeing on all issues and having no children.

Working Out Property Division

You will need to either work out an agreement on how your property is to be divided or argue about it at a trial. Courts prefer that the parties work things out for themselves, and some states or counties require a mandatory mediation, which means meeting with a neutral third party who will help you resolve conflicts over who gets what.

If the parties can't agree on a way to divide their property, the court will decide. There are two ways courts usually divide property, depending on state law.

Working Out Debt Distribution

The debts incurred during the marriage need to be divided between the spouses along with the property. Joint debts may be deducted from the amount of property the spouses own together or some debts may be considered the responsibility of only one spouse. This depends on the system the state uses for dividing property.

If both spouses have signed for a debt like a mortgage, car loan, credit card, or joint tax return, they are both liable for the debt, no matter what the divorce decree or property division agreement says. If the spouse who agrees or is ordered to pay a debt in a divorce decree doesn't do it, the creditor can still collect from the other spouse. The other spouse has the responsibility of collecting from the one who didn't pay. Because of this, it is best to close joint accounts and refinance as much as possible to free both spouses from the debts of the other.

Working Out Spousal Support/Alimony

Support paid by one ex-spouse for the support of the other used to be called alimony, but is now often called spousal support or maintenance. The laws for spousal support vary a great deal from state to state, and you should be sure you know what your state requires. Spousal support can be awarded to both husbands and wives.

Spousal support can be permanent, for a set time, for a time that will allow the supported spouse to become self-supporting, or a lump sum. A court can consider factors like the length of the marriage, the physical and emotional states of the spouses, the income and assets of both spouses, homemaking contributions, time needed for parenting, and whether one spouse helped the other to advance in a career.

Working Out Child Custody/Visitation

The single most important thing parents need to work out in a divorce or dissolution is the way they will continue to raise their children, and it's always best if they can work out this plan cooperatively. Some states call this a parenting plan and no longer use terms like custody and visitation.

There are many questions that must be resolved, such as where the children will live, how much time they will spend with either parent, where they will spend holidays, and which parent will make decisions about the children. One or both parents might make legal decisions, such as where the children will go to school and what medical care or medication they will receive. Parents also have to resolve issues about the religious training and activities of the children.

Parents are not the only people who have an interest in parenting plans. Other people who have had a significant relationship with a child, such as grandparents and stepparents, can petition for visitation rights.

If the parents can't agree on these issues, the court will consider the best interests of the children in resolving the conflicts. The court will look at the gender of the parents and children, their physical and mental health, emotional bonds, the effect on children of changing their living situation, and-if a child is around 12 years or older-the child's preference. The court also considers practical matters such as the ability of the parents to provide the necessities of life, such as shelter, food, and clothing. Court orders involving children are never final. They can always be changed if the best interests of the children require it. If there's a change in circumstances while the children are minors, the parents can always go back to the court that made the original order and ask for a change.

Working Out Child Support

After a divorce or dissolution, both parents remain responsible for supporting the children. Divorcing parents need to decide how they will divide up the childcare expenses. There are several factors to consider in working this out, such as the income and assets of the parents and whether one parent has primary childcare responsibilities. Child support may have tax consequences.

If the parents can't work this out cooperatively, the court will make the decisions and order the parents to comply. Child support is usually for minor children, but a court may order that a parent continue to pay support when a child is an adult if the child is attending school or is disabled or otherwise dependent. Some courts require the non-custodial parent to pay support directly to the state to make sure that child support is actually paid, unless the parties agree to a direct payment to the other spouse. Check your state laws.

If the circumstance of the parties change, such as an increase in income, loss of a job, or high medical costs for a child, the parties can go back to the court that made the original child support order to ask for a change. If a child becomes dependant on government funds, the government can enforce child support orders, so it's important to have an order changed if a parent is unable to pay.

Mediation

Divorce mediation is a process where the divorcing parties sit down with a mediator (a neutral third party) to work out and resolve conflicts over property division, finances, debts, support and/or child custody/visitation. If the state is paying for the mediation, the mediator often reports back to the court with information about the mediation session(s). The parties can also arrange their own privately-paid-for mediation sessions, which will be completely confidential. Decisions reached in mediation aren't legally binding, but can be included in the court's final order or decree. Attorneys usually don't attend mediation sessions, though they may be available to advise the parties on legal issues.

Final Judgment of Dissolution

The final judgment of dissolution is the final order of the court that legally ends the marriage. The final judgment can also contain legally binding orders about other issues, such as child custody, child support, visitation, spousal support, property division, and how property division is to be carried out. It can also restore the pre-marriage name to one or both spouses.

One party (or his or her attorney) is often required to prepare the final order, which may incorporate part of the spouses' agreement, if they have reached one. Check with your state laws for details.

You are not divorced until the final judgment is signed by the judge.

Feel free to visit attorney Kamal Nawash for a consultation.