Are you looking to divorce but not sure where to start?

This guide will tell you everything you need to know before you start your divorce. We will guide you through every step of the process from when you should start to what it costs all the to preparing you to file.

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About the author Chris Jackman

Chris is one of Aberdeens founding partners and a recognized Divorce Lawyer in Washington

Chapter One How Your Case Will Likely Proceed

If you are reading this, you are likely experiencing anxiety over your family and future, what this experience is going to cost you, both financially and emotionally.  This chapter is meant to be a general overview of how most family law cases go.  Obviously, your situation is unique and this is not meant to cover every single situation, nor is it meant to be a guaranteed promise of how your case will unfold.  Rather, this is intended to give you a brief overview of how most family law cases unfold once they reach the courts.

The hope is that by reading this you will have some indication of what to expect from your case rather than being in the dark.  It should be noted, again, that there are numerous outcomes to your case, the direction of which may not be entirely in your control as your spouse may affect things in unforeseen ways.

To begin with, a divorce document must be filed in court.  This is called a petition.  A petition is the first document that is filed and it states the basics of your case, such as who you are, where you were married, and other basic information.  This document has to be served on your spouse and filed with the court.  For a document to be effectively served, it must be handed to them by someone other than you—it could be anyone but you and proof of this service on your spouse has to be filed with the court.  Along with this document, you must file and serve other documents that may pertain to your case, such as a plan that spells out how your children will be parented, how spousal support will be paid, and how child support will be paid and how much.

Once your spouse receives these documents, they will have the opportunity to respond with their own documents, which may or may not agree with what you have stated.  These documents also must be served on you and filed with the court.  Since the trial is the ultimate outcome of your case and since the trial is usually a year or so off from when you file your court documents, you may have an urgent matter that needs to be addressed and decided by the court.  For example, your spouse may be demanding to see your daughter or son, which you do not want.  In order to have this resolved, your only option is to go to court to seek a temporary order, which will last until your trial.

If you do not have an urgent matter such as this, then your case will proceed to what is called the discovery stage.  This is an exchange of information to figure out what your assets are, what witnesses you plan to call at trial, and other related information.  The discovery stage is simply meant to be a dress rehearsal before trial so each side knows and is aware of what documents and information the other spouse plans to give to the judge at trial.

The discovery stage consists of either exchanging written questions and answers or sitting down with a lawyer for depositions, which are in-person questions and answers with a court reporter present, who will type everything that is said and which can later be printed out.  Obviously, if you and your spouse know everything about the other’s financial situation, parenting, and witnesses, or if it appears a settlement is easy to come to, you won’t have to go to all the trouble of this.  The discovery stage is only necessary when you and your spouse are not being honest with each other about key things such as finances or you don’t have an agreement on how parenting should go with your children.

Once discovery is complete, you will likely either come to a resolution or you will complete what is called mediation.  Mediation is done when a lawyer or retired judge agrees to try to hammer out a deal between you and your spouse.  This usually takes either half a day or a full day, depending on how many issues there are and how complex the divorce is.  The vast majority of cases end here.  If the case is not finished at mediation, then the case will proceed to trial, where either a judge or a jury will hear your case.

Washington is the only state that allows a jury to decide family law matters such as divorce.  Normally, a judge decides the fate of your case.  A trial can last as little as a day or as long as two weeks.  While you may get a trial date of, for example, January 3 when you file your court document, it’s not guaranteed your trial will actually be held on that date.  It is possible that the judge or the attorneys, including your own, will have a conflict and the trial will be pushed back.

In any event, at some point your trial will occur, at the end of which your case will be over and whatever the judge or jury decides becomes binding.  If you are not happy with the outcome, or if your spouse disagrees with some part of it, an appeal can be filed by either party.  The appeal is a constitutional right each spouse has.  When an appeal happens, the court of appeals, which is made up of three judges, agrees to read the trial, which is printed off by the court reporter, who was present at trial.  Within six months to a year, the judges from the court of appeals will issue a decision.

Appeals are very rare, but they do happen.  If you lose the appeal or if your spouse loses the appeal, that may not be the end of the ordeal.  Sometime after your divorce, either you or your spouse has the option to file what is called a modification.  This modification can be for anything from the amount of child support paid to the time you see your children.  Again, modifications are rare, but more common than appeals.

To briefly summarize the process: you or your spouse will file and serve the initial court documents, complete discovery in the form of written questions or a sit-down question and answer with an attorney, mediate your differences, and finally go to trial and let a judge or jury decide the issues in your case.  Again, there is no telling when or along which pitstop, so to speak, your case will stop, but it will go through this process.

Chapter Two Different Kinds of Divorce

If you are contemplating separating from your spouse, you might be wondering what the difference is between legally separating and divorcing.  They are similar, but they have different outcomes.  For instance, if you divorce, you are allowed to remarry.  However, if you are merely legally separated, you are not.  Importantly, the judge in your case can order similar things in a legal separation as a divorce.

For example, in both a legal separation and divorce, the judge can order how property and assets are divided, whether one spouse gets alimony or spousal support, and who gets custody of your children, if you have them.  Many people choose to legally separate for religious reasons.  If you plan to legally separate, you still need to file the appropriate court documents.

In order to file for divorce in most states, you or your spouse has to have been a resident for six months and a resident of the county where you want to file your divorce for 90 days.

Annulment

An annulment will also end a marriage.  Despite what popular opinion may lead you to believe, you can receive an annulment many years after you marry.  When you are annulled, it is as though the marriage never even happened.  If you have children from the marriage, even in the event of an annulment, the children are still considered legitimate.  In order to receive an annulment, you have to prove one of a few different things took place.  They are:

The first is if there was fraud or misrepresentation.  A common example might be if a woman led a man to believe that she wanted to have children and could conceive of them only for that not to be true.

The second reason is if one spouse is physically unable to have sexual intercourse and the other spouse was not made aware of this condition prior to marriage.

The third reason is if there is some evidence of incest.  Along these lines, another ancillary reason is if there is one spouse who is under the age of 18 and did not receive their parent’s approval.

The fourth reason is if the spouse is not mentally sound.  This could be by reason of insanity, or if at the time of marriage, one spouse was under the influence of drugs or alcohol.

The fifth, final, and most obvious reason is if one of the spouse’s entry into marriage was because of force.

Without one of these five factors being present, it will be very difficult to get an annulment.

Common Law Marriage

Some couples also hold themselves out as husband and wife but never marry.  To receive the benefits of divorce, you also have to hold yourself out as a married couple.  Legally, it is not enough to simply state that you are husband and wife.  Rather, you have to behave as though you are.  This can include a number of factors, such as:

  • Using the same last name
  • Jointly filing your taxes
  • Referring to each other as husband and wife
  • Living together for an extended period of time

Default Divorce

A default divorce is where your spouse does not respond at all to your request.  It can occur in one of two scenarios.  A default, to be clear, is when you “win” your divorce by getting the things you requested simply because your spouse failed to respond in the allotted time period for your divorce.

The first way a default can occur is when your spouse doesn’t respond after you have served him or her with the divorce documents.  The second way it can occur is when you simply cannot find your spouse despite making efforts to.

Defaults can be easily set aside if the non-answering spouse later surfaces.  Set-aside means it will be rendered null and void, as though the default never happened.  You need to make sure you have an air-tight affidavit of service that details the attempts you have made to locate the spouse.  It is helpful to hire a private investigator.  Always send mail certified so you get proof back when you mail something to your spouse.  In other words, it is not enough for you to simply e-mail, fax, or mail the divorce documents to your spouse’s last known mailing address, assuming they have moved out.  You have to do more, be more proactive and take more concrete steps to locate your spouse.

Residency Requirement

Be aware that in most states, you have to be a resident of the state for at least 60 days before you can divorce.  When you file your documents, you need to file them in the county where you have lived for at least 60 days.  So if you live in Collin County, then you should file there.

Documents to File

When you file for divorce, there are specific forms you need to file with the court and serve on your spouse.  If you don’t file the appropriate documents and serve them properly, your case will either be tossed or delayed, so it’s important you do things the right way.  Be aware that there is a filing fee in every county, meaning you have to pay to file for divorce.  This amount changes from time to time, but it is usually a couple hundred dollars.

Petition – When you file this, you’ll note that there is a request for a two-week temporary restraining order.   The order will expire unless you show circumstances warrant a permanent order, which will require an additional court hearing.  The purpose of the two week order is to prevent one spouse from harming the other, either financially or physically.

Cover sheet –  This does not need to be served on your spouse, unlike the other documents, because it is just an instruction to the court clerk letting him or her know what kind of case is being filed.

Summons –  This document simply alerts your spouse to the fact that you are getting a divorce and they have a set amount of time to respond to your request.

Parenting Plan (if you have children) – A parenting plan is a very thorough document that you have to fill out that explains how you would like your visitation to be set up, along with where your children will reside, who will pay for their insurance, and many other parent-child related issues.

Financial documents –  Financial documents are things like credit card statements, bank statements, pay statements, and brokerage account documents.

Loan Documents –  The application for a loan, especially a home or business loan, will have information that is important to understanding the financial assets of a couple, such as assets and debts.  There are many kinds of loan documents, which range from home equity lines of credit, credit cards, lines of credit to a bank, car loans, and promissory notes, among others.

Stock Options –   Depending on the spouse, there may be extensive or very little in the way of brokerage accounts that reflect whether one has stocks, bonds or mutual funds.

Retirement Plans, Pension Plans, and Related Plans –  In many cases, a retirement plan can be a significant asset, and many times spouses believe, incorrectly, that their retirement plan is theirs alone and not part of the marital property that makes up part of the assets that can and should be distributed at the time of a divorce.  This assumption is wrong.  It is important to gather these documents so that they can be evaluated, even though it may be difficult to understand them and even though there may be a need for an expert to review them to determine their true wealth.

Income Tax Returns –  Income tax returns are documents such as personal, corporate, state and federal, W’2s, 1099s, and K-1 forms.  In addition, if you and your spouse had a business together, it may be necessary to have corporate tax returns and personal property tax returns that have been filed in the three to five years prior to the divorce

Child support worksheet (if you have children) –  This is the document that spells out how much money you will have to pay or receive in child support.  It is a formula put together by the state.

Proof of service –  This is often overlooked but important.  It is simply the document that states how, when, and where you served your spouse with legal documents.  These documents have to be served by someone, and it can be anyone, other than you.  Be mindful of special considerations if your spouse is in the military and is deployed at the time you divorce.  This should be filed with the court so that there is proof that your spouse was served.

Final orders –  This is just what it sounds like.  At the very end of your case, you will have to enter some final documents in court that become binding, meaning final on your case.  These final documents will become orders, which are binding documents the judge in your case and that you and your spouse must follow.  The final orders can be completed, and then approved, by you and your attorney prior to trial, assuming you reach a final agreement, or they will be completed by the judge when you finish your trial.

Collaborative Divorce

A collaborative divorce is just what it sounds like. It’s a kind of divorce where there is little to no argument or disagreement over the terms of your divorce. This means there is an agreement over how your finances should be split and how your children be parented, if you have any.

It is, of course, ideal to have a collaborative divorce over one that is very much argued over since collaborative divorces are cheaper and they are wrapped up much sooner than a divorce where you and your spouse argue over everything. A collaborative divorce could mean that you wrap up your case in mediation, which is when you hire a retired judge or other family law attorney to hear your issues and help you make a decision on your case, or it could mean where you and your spouse simply come to an agreement on your own.

Chapter Three Stages of a Divorce

This chapter will walk you through the procedural steps of a divorce so you have an overview of how the divorce will unfold from start to finish and how long it will likely take to become divorced.

The first document you file in your divorce is called the petition. This is a document that lays out important details your marriage, such as when it began, where you were married, if you have children, etc. This needs to be filled out completely, signed, dated, filed with the court, and served on your spouse by someone other than you as long as the person who serves the document is over the age of 18. The idea behind this is that courts are afraid that there could be a confrontation between the spouses if one spouse receives it from the other spouse.

The petition is more or less a fill-in-the-blank document that has the most pertinent information regarding you, your marriage, and information relevant to your divorce, such as the date of your separation. You will note, if you fill this document out, that there is a two-week temporary restraining order.

Chapter Four Child Custody and Child Visitation

If you are at odds with your spouse over who will get custody of your children or how visitation will work out with your children, you need to understand how judges think since it is likely a judge will decide these things. The judge uses a “best interests of the child” test to determine who should be awarded custody. While this is obviously subjective to an extent and can vary from judge to judge in terms of how they make decisions, there are specific factors that are listed in most state’s family law code. They are:

  • The age of the child or children
  • Each parent’s living situation, which includes many factors such as job, schedule, if the parent travels, what kind of home the parent has, and other factors
  • A parent’s relationship with their child before the divorce—i.e. was the parent close to the child or distant
  • A child’s preference

No one factor will necessarily outweigh the other unless one of these factors is glaring.
For example, if one parent has been largely absent from the child’s life, it’s unlikely that parent will gain custody of the child. Be aware that the term “conservatorship” is a common term. It’s a term describing the legal relationship between the parent and the child. There is either joint managing conservators, which is when parents have joint custody of the child, and sole managing conservators, when one parent has custody.

If you and your spouse cannot come to an agreement, then ultimately a judge or jury will decide the outcome of your case, with the judge being the likely one to decide. At the end of your trial, you will have to sign a final parenting plan, which describes in detail the visitation schedule of when you and your spouse will see your children.

To set out how your visitation will go with your children, this needs to be committed to what is called a parenting plan. This is a legal document that will describe everything related to your visitation or custody with your children. This is an important document since if you and your spouse have a disagreement down the road about custody or visitation, then this is the document that the judge will refer to in the event you have to go in front of the judge again.

The parenting plan is very long and very detailed and should, if it is done properly, cover every possible scenario you can think of in terms of visitation and how custody is split up. The document should be reviewed before you complete it, but it addresses the following, in brief summary:

  • Every significant holiday you can think of, including Memorial Day and Labor Day.
  • Where your children will spend their birthdays and the birthdays of you and your spouse.
  • How your children will be raised in terms of their religious environment, who will make medical decisions, and where your children will spend their breaks from school, be it the winter or summer breaks.
  • Who will pick your children up from school and how they will be transported back and forth between your home and your ex’s home.
  • Who will pay for your child’s extra-curricular activities, what those will be, and how your children will be transported to them.
  • What kind of religious environment, if any, your child will be raised in.
  • Educational decisions, such as whether your child will attend private school.

Make the plan as detailed as possible since it will leave little wiggle-room when or if an argument ensues over the issues discussed above. If you can’t come to an agreement regarding custody and visitation, most states have a standard schedule for parents who lives within 100 miles of each other. These are the standard factors:

  • The non-primary parent has visitation from 6:00 p.m. on the first, third and fifth Friday of every month until the immediately following Sunday at 6:00 p.m. At the option of the non-primary parent, he or she may pick up the child or children on the Fridays of their weekends at the time school is dismissed for the day and retain possession until the immediately following Monday morning when school resumes.
  • The non-primary parent has visitation with the child from 6 p.m. to 8 p.m. on each Thursday night when the child’s school is in sessions.
  • At the election of the non-primary parent, he or she may choose to pick up the child at school at the time the child is dismissed from school on Thursday and then return the child to school the next morning.
  • The non-primary parent receives the right to have the child for 30 days during the child’s summer vacation.
  • In even-numbered years, the non-primary parent has the right to possession of the child during the child’s spring vacation from school.
  • In even-numbered years, the non-primary parent has possession of the child from the time school is dismissed for Christmas vacation until noon on December 28.
  • In odd-numbered years the schedule flips, with non-primary parent receiving the children beginning at noon on December 28 until school resumes following the Christmas vacation.
  • In odd numbered years, the non-primary parent receives possession of the child for Thanksgiving holidays.
  • The mother always gets to spend Mother’s Day weekend with the child. The father always has possession during Father’s Day weekend.

If you and your spouse live more than 100 miles of each other, then the following schedule applies per the family law code:

  • At the option of the non-primary parent, he or she may have either the first, third and fifth weekends of a month, or one more weekend per month of his or her choosing.
  • There is no Thursday visitation in the standard possession order.
  • The non-primary parent receives custody during the spring vacation in every school year.
  • Summer visitation for the parent who lives more than 100 miles from the child has 42 uninterrupted days when the child during the child’s summer vacation.
  • Holiday possession is the same as that for parents who live under 100 miles away.

If the child is too young to be in school, the parenting time order for vacations follows the calendar of the public-school district where the child lives.

If custody is disputed, be aware that the judge could order a custody evaluation. A thorough child custody evaluation can take awhile, from anywhere from four to 18 months to complete. The evaluator is typically a social worker and this person will interview you, your spouse, possibly your kids, family, friends, and co-workers. The child custody evaluator will likely come to your home to meet with you, so it’s important your home is orderly and neat. If this happens, you need to be friendly and firm with your desires with custody, but you should not badmouth your spouse.

Relocating with Your Children

If you are planning to relocate with your child, then you need to let your spouse and possibly file court documents, depending on your situation. Obviously, the logistics of this also depend on where you are in the divorce process. Most moves come after the divorce, since spouses may get job offers or have a desire to move to a location that is closer to family. It also depends on where you are planning to move. A move to a different part of town, which in turn require your child or children to attend a different school, will be very important, and the same is true if you are planning to move to a different city, state, or even country, and whether this move is temporary or permanent.

If you are in the middle of a divorce and your intention is to move, then you need to communicate this to your spouse and it needs to be reflected in the parenting plan. This should not be something you simply keep to yourself and then spring on your spouse at the last moment with the news in hopes that your spouse will be unable to do anything once the divorce is finalized. This strategy could backfire and is not best practices in any case.

This move, no matter where it is or for how long it is, needs to be stated in the parenting plan. Remember, the judge is going to ask what is in the best interests of the child to help determine whether your parenting plan should be approved. Normally, judges are sympathetic to parent’s who can show that there is going to either be a greater financial opportunity by making a move or by showing that the children will thrive and be happier by making this move to a new location. If your moving just to get away from your spouse, or moving just to get to a warmer climate, it is unlikely the judge will look as favorably on this attempt and may deny your motion to move with your child or children.

If your divorce is final and some time has passed since your divorce and you want to relocate, then there are some important procedural steps you need to make. This is assuming of course that your spouse simply won’t agree to the move. Assuming the move is not agreed to, you have two options. The first is to suggest to your spouse that you meet with a mediator to see if a mediator can offer some insight and can help negotiate a deal on the move. If your spouse will not agree to this, which is their right to do, then your only option is to go to court and have a judge sign an order, or not, granting you permission to move. Whichever option you go with, you want to do this before you move, not after.

If you have to go to court to get a court order from a judge, this could be a lengthy process. First, you’ll have to go to court and file the appropriate documents, which is called a notice of intent to relocate, and then you’ll have to serve these documents on your spouse, just like you would with a divorce. There is normally then a chance for your spouse to respond and eventually a court hearing in front of a judge, with each side making oral arguments before the judge finally, after reading and listening to all arguments, makes a decision on whether to grant or deny your motion to move away.

Problems with Your Children

If you are having problems with your child or children while you are going through a divorce, it is best to seek out the guidance and advice of a therapist or some kind of similar professional. Depending on the age of a child, but especially one who is younger in years, a separation or divorce can be very traumatic for a child and cause them to feel, in some cases at least, as though they are to blame for the split between their parents.

Unfortunately, it is not uncommon for one parent to attempt to win one child over and use the child against the other parent or to simply speak negatively about the other spouse in front of the child as a way to poison the relationship. If you notice your child acting out or behaving badly, in ways that were not consistent with how they behaved prior to the break-up of the spouses, then you need to take pains to address this with your spouse.

Further, it is also a good idea to speak to your spouse and have the parenting plan include a provision in it that requires therapy of some kind, and be sure to specify who will pay for the therapy and how long it will last. The more detailed and exacting the parenting plan is the less room for error the plan will have.

If your child or children are not in your custody during the pendency of your divorce and you notice your child acting out when you do have your child, you should make note of this. In addition, in an attempt to support your case for showing how your spouse may not be providing the best guidance or the best home life for your child, you may need to collect evidence to present to the judge at your trial or your mediation to show the negative affect your spouse has had on your child. You can do this by any number of ways, but the most common and persuasive are:

  • School report cards and related records from your child’s school. If you haven’t been receiving them, you should request them since they will likely communicate key messages about how your children are performing in school.
  • Drawings or writings from your child. If your child has been making drawings or writings of a concerning nature, it is a good idea to present this to a therapist to see if they convey a problem with your child.

Chapter Five Property Division in a Divorce

When it comes to property division and divorce, you need to understand that states like Arizona, Washington, Washington, and many others are considered a community property state. This means any property you acquired during your marriage will be divided at the time of the divorce. There are two exceptions to this general rule.

The first is if you inherited property while you were married. The second is if you were gifted property specifically to you while you were married. Only in those two scenarios are you allowed to keep the property.

When we speak of property in the context of the divorce, it’s a very broad term. It does not just mean a house or land you and your spouse might own. Property also includes things like a car, a boat, furniture, even stocks, and bonds.

When you are preparing to divorce, there are some important precautionary steps to keep in mind. If you have items in safety deposit box that are of even minor value, make sure you do not dispose of them. In fact, if you have access to the box, it’s a good idea to bring a friend along with you who can sign an affidavit attesting to what was inside the box and photographs or videos on your phone of the contents inside.

For property that is considered part of the marital community, meaning you didn’t inherit it and it wasn’t given as a gift to you, most state law requires that the judge evenly divide your assets in a manner that is “just and right” or “equitable.”

There are many circumstances that the judge can consider in determining what “equitable,” including:

  • Fault of one spouse
  • The health of each spouse
  • The difference between how much each spouse makes
  • The education of each spouse and the future prospects of each spouse
  • Which spouse has custody of the children

This list is not meant to be exhaustive or complete. It’s just some examples that a judge will commonly look at when making a decision as to what is just and right in a particular situation.

Also be aware that a judge could award what are called reimbursements in your case. This occurs if a spouse uses separate property, such as an inheritance, to improve jointly owned property, such as a home, then the court will typically reimburse the spouse for his or her efforts and expenses.

The easier you can make it for the judge the better, such as by providing receipts and showing credit or debit card statements. Be aware that the judge in your case has the discretion to determine the value of whatever it is you’re claiming, be it a home or car improvement project.

These are the factors the judge will consider:

  1. The value of money that is contributed before the marriage to the other spouse’s separate property estate.
  2. Payment by the community estate of a spouse’s separate liability.
  3. The enhancement of value of a piece of separate property stemming from money improvements to the property paid by the community estate—i.e. if the house has appreciated in value.
  4. The amount of principal reduction on a debt paid by the community estate benefiting property owned by a spouse’s separate estate.
  5. The amount of benefit lost when a spouse’s time/toil/talent have been used to benefit that spouse’s separate property to the detriment of the community estate.

For the vast majority of spouses, the biggest asset that they own, and thus will have to figure out what to do with, is your house. Most of the time the house will be sold and the assets will be distributed 50/50, but there are other, more creative options available to you as well.

Other pieces of your marital estate that will need to be addressed are:

  • Stocks: if the stocks are issued by your company, they may be vested or unvested. The difference is important and can play an important part in how much of the stock you receive.
  • Pets
  • Frequent flier miles
  • Memberships at country clubs
  • Tickets for sporting events, the symphony, etc.

If you and your spouse co-own a business, it can be difficult to figure out how much
money each spouse should receive from the proceeds of the business. You will likely need a business appraiser, which is an expert witness, to put a value on the business. Be aware that the newer the business is and the more niche the business is, the harder it will be to put a value on the business. In addition, this kind of expert is not cheap, but it is well worth the money because without an expert’s opinion, it will be very hard to evaluate the full extent of the business’ worth.

Chapter Six Child Support

Child support is an important part of every divorce case where there are children involved. It is mandatory to pay child support in most states. There are also important tax consequences associated with either paying or receiving child support, which is to say, there are none. The receiving spouse does not have to pay taxes and the paying spouse cannot have child support payments be a tax deduction. While there are no tax consequences to either spouse for what is paid and received, there is a tax savings advantage for the spouse who has the child or children the majority of time in that the spouse who has the children can file for what is called “head of household.”

This spouse can take a credit of $2,000 for each child who is under the age of 17 or 24 if the child is still a student.

For one child, the guideline for payment is 20% of the parent’s net resources and 25% for two children, with 5% increments from there. The percentage is capped at 40% for five or more children. The child support guidelines apply to the first $8,550 of net resources. This means if the non-primary parent earns $8,550 or more in net resources and is paying support for one child, the amount of support, at most, would be $1,710 per month, which is what 20% is of $8,550.

When factoring child support, everything from income, rental income, and dividend payments are considered for what is paid.

There are forms that you have to complete before your divorce can be finalized by a judge. In addition to completing the forms, you have to attach financial documents that will be considered in calculating your child support payment. Some of the documents that will be considered are:

  • Pay statements
  • Bank statements
  • Brokerage account information, including 401K
  • Retirement plan documents
  • Insurance information, including life and long-term care
  • All kinds of loans, from car to student
  • Home mortgages, including HELOC (home equity line of credit)
  • Credit card statements and debit card statements
  • Pension account

When you determine the amount you have to pay in child support, there are considerations you need to be aware of beyond just the amount paid. These factors include after school activities such as summer camps, private school and private tutoring, and daycare. In addition, you will need to address whether child support will end when the child reaches 18, or if the paying spouse will have to pay for any post-secondary education such as college.

Another thing to be aware of is the timing of your filing and if your spouse is not paying child support. Until the trial date, your spouse has no real impetus to pay support, though he or she will be responsible for back support, but the receiving spouse does have a remedy to get support. For example, if you file your petition on January 2 of a given year, it’s possible that you will not have a trial until the following January, during which time no child support could be paid or received. To expedite the payment of support, the receiving parent’s only real option is to hold what is called a temporary orders hearing.

At these hearings, you normally have to give your spouse two week’s notice, file the appropriate legal documents with the court and serve your spouse with these documents and notice of when and where the court date will be held, and your spouse will have time to respond to your request for child support.

This hearing is held in front of a judge, though it may not be the same judge who will ultimately decide the issues of your case trial if the case proceeds to trial, and this judge will only consider the issue of child support based on the written materials you and your spouse submit. No other issues will be addressed or heard by the judge. The judge will then make a ruling and this will be the temporary order that will stay in place until you either go to trial or you and your spouse come to an out of court agreement.

It’s important to understand that while the judge at your trial will likely agree with the judge who heard your temporary hearing, there is no guarantee of this, so it’s possible you might get one child support amount from one judge in, for example, March at your temporary orders hearing, and then get an entirely different result at trial the following January. Of course, a contributing factor for this would be if you or your spouse’s financial circumstances dramatically change from the time you file your documents in court to the time you have your trial.

These are the factors that the court will consider when making a child support determination:

  • Child support from a previous marriage or spousal support from a previous marriage
  • Which parent is currently paying for health insurance
  • Which parent is paying for daycare
  • The ages of the children
  • How much money each parent earns
  • The health and wellbeing of parent

Like every state, uses a child support calculator to determine child support, and this can be found by going online. It’s important to understand that these are only guidelines and that there can be deviation from this.

Enforcement of Child Support

If one spouse does not pay child support, there are important consequences that the spouse could feel. It is possible that, after a certain period, the state will go after the non-paying parent, but this could take awhile since this government agency is overburdened. Therefore, to get the non-paying spouse to pay, you will have to have a temporary orders hearing, which was described above.

Typically, if you have a lawyer, pay your lawyer, and have a hearing, then the non-paying parent will have to pay your attorney’s fees and the non-paying parent could also face a fine by the court. Other consequences of non-payment are the non-paying parent’s rights could be terminated, meaning the parent might not be able to see his or her child, the parent’s wages could be garnished, and their credit could be impacted.

Consult a lawyer about how to go about this because there are very definite procedural steps you have to take. You can’t just appear at court one day and ask a judge to enforce your child support. The steps to accomplish this are as follows. First, you have to file the appropriate documents in court and serve them on your ex-spouse or the parent of your child. This document is called a motion to enforce child support. You must set a court date, typically a couple of weeks away to give your ex time to respond. Then you will appear at the court date and time you picked, where you will have, in most cases, a brief oral argument to explain to the judge why you have requested the motion. Then the judge will issue an order, which is a legally binding document. The judge can do a number of things, including ordering your ex to pay the back support plus interest.

After a certain period of time, it is possible that the judge could put your ex in jail or his or her wages could be garnished.

Chapter Seven Spousal Support or Alimony

Spousal support, also known as alimony or maintenance, is not a given right many states but it is frequently employed by the courts. Therefore, you should not go into your divorce simply expecting or assuming you will receive spousal support. You have to show that it is necessary. The judge will evaluate whether the spouse who wants maintenance will lack sufficient property after the divorce to provide for his or her minimal, reasonable needs. If this evaluation is favorable, then one of two specific factors have to be met. The court normally asks these two questions in making its determination as to whether award spousal support.

First, was the spouse convicted of a crime involving family violence within the two years prior to the filing of the divorce or while the divorce is pending? If this is the case, then the spouse who was abused may be allowed to receive support.

Second, if the marriage lasted ten years, is the money needed to maintain a reasonable standard of living for the non-paying spouse? This is the most common form of spousal support request, but the spouse has to show that they tried to get a job and were unsuccessful or that they tried to get job training and were unsuccessful. And the efforts have to be sincere. They simply cannot be half-hearted attempts.

Alternatively, the spouse can also receive support if that spouse is tasked with caring for a child of the marriage who has a mental or physical disability, and the spouse who is doing the parenting of said child can’t work.

You might be wondering if you pay spousal support, is this tax deductible? The answer is that it is not. However, you have to pay taxes on the amount you receive if you are the one receiving spousal support.

Length of Support

Duration, or the length of time you either have to pay or will receive support, is also an important factor to be aware of. There are specific rules with respect to this. If a marriage lasted less than ten years, then the longest a spouse will have to pay is five years. However, if the spouses were married at least 20 years but not more than 30, then support will last seven years. If the marriage lasted for 30 or more years, then ten years is the longest support can last. Be aware if one spouse remarries or dies, then the payments legally can stop. As you can imagine, it is very important to have a copy of your marriage certificate, which will show the date of your marriage, since the date of your marriage will play a significant role in how long you receive support. If you have lost or cannot locate your marriage license, it is best to contact the state and request one.

Amount of Support

There are a couple of different kinds of spousal support to be aware of. There is reimbursement support and there is also long-term or permanent support. There are a number of factors that a court will look to when determining spousal support or alimony. They are:

  • The amount of property being divided between you and your spouse
  • How you and your spouse lived while you were married
  • How dependent your spouse would be on your income after the marriage to maintain your old standard of living
  • The separate income of each spouse
  • How long the marriage lasted
  • The age, education level, health, and past work experience of each spouse
  • How long a spouse was out of the workforce and whether that spouse left the workforce to raise children
  • Other factors a judge may consider.

The earning capacity of the spouse is also an important factor in how much money is
awarded, if any, by the judge. The judge will also look at whether one spouse is either under-reporting their income or if they are voluntarily not working at all or voluntarily not working at an income level that they could.

Proving fault of your spouse can also help increase your award, and by extension, it can be used to decrease your reward. If you can show that your spouse was abusive, adulterous, or committed some kind of fault during the marriage, then that can increase the amount of money you receive.

Typically, the amount of support is limited to whichever is less: 20% of the paying spouse’s average monthly gross income or $5,000.

Health Insurance

It is often common that one spouse receives health insurance from another, especially if one spouse spends a significant portion of the marriage not working. Therefore, it’s important to be aware you can use cobra to pay for your spouse’s health insurance. Cobra provides that when an employee insured by a group policy gets divorced, the employee’s former spouse can remain covered for up to three years on the group insurance policy. The nonemployee spouse has to pay for this, but they can only be charged whatever the employee spouse is paying, plus a 2% administrative fee. It is important to know when the 36-month plan starts for the nonemployee spouse since this has an important influence on the coverage. Contact the company’s human resources department and get a copy of the plan to be sure.

There are important deadlines with respect to Cobra. Within 60 days of the court issuing the final judgment, the employee spouse has to notify the administrator of the plan that the divorce is over. From there, the plan administrator has 14 days to send you notice about your coverage. You then have 60 days to send back the forms saying you agree to the coverage and 45 days to pay back the premiums from the date you were initially eligible, so returning the documents at once is important.

Enforcing Support

If your spouse doesn’t pay what has been either agreed to by the final settlement or disobeys what the judge ordered in support at trial, then your only option is to go to court and seek a court order compelling your spouse to pay. To accomplish this, you will have to set a court date by filing a motion to compel, serve the documents on your spouse, and then go to court to argue your position in front of the judge. If you hire an attorney for this process, there is a chance the judge will award you whatever attorney’s fees you paid, as long as they are reasonable.

There are defenses that can be raised by the spouse who has either stopped paying support or who has reduced what support has been paid, so be aware of this. For example, if the spouse lost his or her job and had a sudden medical condition that has impaired his or her ability to work, then the judge may weigh this in deciding whether to enforce support. However, if the spouse who has been brought into court to answer as to why he or she has not paid support wants to modify the support, that spouse needs to have a separate hearing for this.

Chapter Eight Division of Debt in a Divorce

When you are either contemplating divorce or in the middle of the divorce process, you need to take your debt into consideration. As you can probably imagine and as you have likely heard, debt and finances are among the most common reasons for couples divorcing in America in general. It is a point of real disagreement and stress among couples as to how they are going to pay for debt and bills they incur during the course of their marriage. Sometimes the stress and disagreement over this rises to such a level that divorce becomes the only option available. When addressing debt and its relationship to divorce, it is important to understand how state law addresses it.

Most states are a community property state with respect to debt too. This means that if you incurred debt during the marriage, you will each share in responsibility for the debt. When the word debt is used in a divorce, debt can be anything from credit card debt to a second home mortgage, known as a home equity line of credit, or even a loan that was made to you from a friend or family member.

There are some exceptions, however.

If your spouse used his credit card to buy an expensive “toy” (for example, golf clubs for a man or a purse for a woman) that has no real economic value or contribution to the marriage, then the judge could decide that incurred debt is the separate debt of the spouse and not shared by the marital community—in other words, it may be determined it is not a debt that is evenly divided.

If you own a home, it is common to sell the home and use the proceeds, if any, to pay off any joint debt, but this is not mandatory. Be aware of capital gains with respect to the sale of your home. As the law currently stands, you can exclude the first $250,000 of money you make from your home’s sale. However, if you make more than that, you will be taxed at the capital gains tax rate.

This percentage amount changes periodically, so it is best to ask a lawyer for the current amount. At the time of this writing, that amount is either 15% or 20%, though it can change. Also note that, as of now, if you jointly own the home with your spouse that you’re selling because of your divorce, you are allowed to exclude up to $500,000 of gain if you lived there for two of the last five years. A vacation house does not count for purposes of capital gains.

A further note about credit card debt since, aside from mortgage debt, that is the most common debt most married couples have: the division of debts between the spouses has no effect on the creditor’s ability to collect the debt. Even if one spouse is allocated the debt in the divorce, if the debt is one for which the spouse is liable, the creditor can seek payment from the other spouse regardless of the wording of the divorce decree. The only option the spouse has is to sue the spouse that was supposed to pay and seek repayment. Be aware of these additional debts as well, though, since they are quite common:

  • Home equity line of credit (HELOC loans)
  • Promissory notes
  • Student loans debts
  • Medical debts

It is a good idea to take photographs of your home, car, and other property before you leave so you can document the condition your property was in at the time of separation. It is also a good idea to notify the credit card companies that you want to be removed from the account and any debt that is placed on the incurred is not your responsibility, assuming you have separated from your spouse.

If you incurred student loan debt, it’s likely that will be a joint debt that your spouse will be responsible for as well, so be aware of this.  In addition, if you own a business with your spouse and you have incurred debt with your spouse for the business, this will also have to be addressed.  Unless you can persuade the judge otherwise, chances are high that this debt will be treated in the same manner as personal debt and you will each be personally responsible for the total incurred debt.

Chapter Nine Handling Retirement Accounts in a Divorce

When you are either about to divorce or going through a divorce, you need to understand that there are some major implications with respect to your retirement accounts.  This can take the form of a:

  • Pension
  • Money market account
  • 401K
  • Roth IRA
  • Self-employed retirement account

If you know or even have some reason to believe that your spouse has a retirement account from his or her work, you need to be able to understand the details of these accounts, including the amount of this account, the kind of account, etc.

To do this, either you or your attorney need to send a written discovery request (see chapter one regarding subpoenas and requests for production) to your spouse’s employer, assuming your employer will not voluntarily turn over this information.   When addressing the spouse’s employer, the following information needs to be requested to understand the nature of the account:

  • A summary plan description for all deferred compensation plans that your spouse is in
  • Copies of benefit statements that show the money your spouse has either received or built up in the account (usually for the last five to ten years, or however long you have been married)
  • Information about company stock or stock options that your spouse possesses
  • Names and addresses of plan administrators.

If the retirement account is in the form of stock, or if your spouse has stock options from his or her company, you need to know whether the stock your husband or wife has is vested or unvested.  The easiest way to obtain this information is to have your spouse sign a written release and then send a request to your spouse’s human resources department.  If your spouse refuses, then the documents can only be obtained through a request for production or a subpoena.

You might be wondering what if your spouse refuses to turn the documents over or even instructs his employer or human resources director to turn them over?  If that happens, and if the human resources director at his or her company refuses to comply with your requests, then your only option at that point is to file a motion with the judge who is assigned to your case and ask the judge make a ruling.  If the judge agrees with you and signs an order in your favor, then the order needs to be served on your spouse and his or her human resource’s director.  That should get them to comply.

Remember that the retirement accounts are 50% yours if they have incurred while you are married.  After you have separated, you may borrow against your retirement account, but make sure you are only borrowing against the portion that is yours, not your spouse’s, and be sure to keep close track of how much you have borrowed.

A recent study has shown that nearly a third of all spouses are not completely honest about their spending and money accounts.  After you separate, it is a good idea to open up your own bank account and have your checks go into that account.  Once you are separated, as in living in different places, the money you earn is yours alone, and the same goes for any debt you incur.  Prior to your divorce, it may be prudent to have an actuary review your pension plan and your spouse’s pension plan if you have one through your work.

As you may already know, there is a big difference in terms of how your money is treated between borrowing money and withdrawing money from your retirement account, such as your 401K.   (It should be noted that you normally cannot withdraw money from your pension plan, should you have one.).  Your 401k is different, however.  You can borrow money from your 401k at any time.

However, there are penalties if you chose to withdraw money from it before you are 59 ½ years old.  If you do, you will have to pay a penalty.  Second, you will likely have to pay taxes on this money you withdrew.

401k and 403(b) plans are more common than pension plans in the present day.  Legally, these are known as contribution plans.  You obviously need to understand the value of the contribution plan.  To do this, you should contact your plan administrator or review your most recent statement, which is normally issued annually.

Sometimes, however, they are issued quarterly.  Normally, to gather an accurate reading of the current value of your plan you need an actuary to review it.  Here is why an actuary may be helpful: some of your 401k may be marital property, meaning it was acquired during the course of your marriage, and some may not be.  For example, if you have been with your company for ten years and you married three years into the marriage, those first two years of contributions do not belong to your spouse but rather to you alone.

The remaining years, however, are owed to your spouse on a 50/50 basis since most states are a community property state, which means, basically, that anything that is yours is split 50/50 with your spouse so long as it is acquired while you were married.  You need to be aware of what is called the “return on investment,” however, so not all of those remaining years may be part of the community, which is why you need an actuary to help you.

If you have to have retirement benefits distributed into the future, then the court has to approve what is called a Qualified Domestic Relations Order (QDRO), though it is pronounced as Quadro.  The QDRO instructs your company’s retirement plan administrator to distribute the benefits at your retirement based on the percentages that you agreed to at settlement, mediation, arbitration, or, if your case was settled by a judge at trial, what a judge ordered.

Social Security can be tricky and you need to understand the nuances of social security law as it pertains to you before you divorce.  If your marriage was shorter than ten years, then there is no money owed from your social security account.

However, if you are 62 or older or your marriage lasted longer than ten years, then your spouse may be entitled to draw from your social security.  You can receive social security benefits as a widow or widower if your ex-spouse dies, even after divorce and even if your ex-spouse has remarried.

If you remarry before you turn 60, you lose the entitlement to survivors benefits from your former spouse, unless your later marriage ends before the death of your former spouse.  If you remarry after the age of 60, or 50 if you are disabled, then you can still collect benefits on your former spouse’s record.  When you reach age 62, you can substitute your new spouse’s retirement benefits instead of keeping your former spouse’s survivor benefits, if the new benefits are higher.

Chapter Ten Life After Your Divorce

Be aware when you are going through a divorce, it can be a lengthy process or, in some rare cases, a short process.  It can last either a few months or in some cases, especially where a trial is involved or even an appeal, it can last a few years.  Regardless of how long it takes, when the divorce is finalized, it’s a good idea to get a certified copy of your divorce order and keep it in a safe space, or upload it onto your computer and save it in the cloud.

You should also make sure the deed of your property is in your name, which you can accomplish by having a quitclaim or grant deed.  This can be done by getting the appropriate form online or visiting a title company.  There are also websites, such as UsDeeeds.com and LegalZoom.com, that offer these.

It is also important to update your insurance coverage, wills, power of attorney, and designated beneficiaries.  Make sure that your bank accounts and credit cards have been separated.

Modification of a Parenting Plan

While divorces are meant to be final, it doesn’t mean that there aren’t things you can do to change what the final documents say if you want to change them and feel circumstances justify changing them.  While they aren’t necessarily set in stone, they aren’t easy to change either.   For instance, you are allowed to ask the judge to change how much you have to pay or receive in spousal and child support and you can also change the time you spend with your children and when you see them as reflected in your parenting plan.

To effectuate any change, you have to modify these documents, and to do this, you have to file the appropriate documents with the court.  Be aware that there has to be a substantial change in circumstances between when your divorce was finalized and the present time in order to get the judge to grant your request.

Once you set the court date to modify either your parenting plan or your spousal or child support, you have to serve the documents on your ex-spouse, and set up a court hearing, normally two weeks in advance.  While every case is particular, if you want to change how custody with your children is set up, you need to be able to persuade the judge that something has dramatically changed since your divorce, or, to use the language many judges use in these circumstances, you need to be able to show that there “has been a substantial change of circumstances” in your case.  Also be aware that it is unlikely that the judge who decided your divorce will be the same judge assigned to decide whether your request to modify your existing divorce, parenting plan, spousal or child support.

An example of a substantial change of circumstances might be that your spouse suddenly became a drug addict and you have photographs or a police report that can support this and you can show that this drug addiction endangers your child.  This would certainly be grounds for a successful modification of a parenting plan since you could argue that your children are in immediate danger.

Alternatively, if you are seeking more child support or support for your child to attend private school, you will need to show that your ex-spouse had a pay increase at work or that the private school you desire will have a positive impact on your child’s future.  Merely making an argument without hard, persuasive proof will likely not net you the result you are seeking.

While there is no time requirement in terms of how long you have to wait between your divorce and when you ask the court to modify your plan, unless there are extreme circumstances present, it is usually best to wait a year or so, unless there is some urgent or extreme set of circumstances that warrant your need to go to court.

Bankruptcy and Divorce

After going through a divorce, it is not uncommon for either spouse to contemplate going through a bankruptcy to alleviate some of the financial burden they are feeling.  After all, between legal bills, court costs, and court-ordered fees, along with the possible sale of a home, there is often a dramatic and different standard of living and one’s income is often diverted to a second home or having to support an ex-spouse’s standard of living.  While this book is not intended to cover the particulars of bankruptcy, and while the author would suggest reaching out to a more experienced bankruptcy practitioner, this book will briefly go over the basics of bankruptcy in the event that it pertains to you after going through a bankruptcy.

In the bankruptcy world, the most common chapters you hear about are 7, 11, and 13.  Chapter 7 is for individuals, normal people, who make under a certain economic threshold.  In addition, in Chapter 7, you are allowed to wipe out most of your debt, as long as the debt is in the form of credit cards or medical debt.  You may be able to eliminate a debt if it relates to a second home mortgage, or a Home Equity Line of Credit (HELOC), but it is very difficult, bordering on impossible, to discharge student loan debt.

Chapter 11 is for businesses, so this will not apply to you.

Chapter 13 is for individuals who make more money that people who qualify for a chapter 7.  Under a Chapter 13, you will have to enter into a payment plan to pay back your debts over time.  This is unlike Chapter 7, where you can mostly wipe off your debts.  The most important, and powerful, tool bankruptcy provides is that it provides what is called an “automatic stay,” it means creditors, or those who are owed, money, cannot come after the debtor, the person who owes money, until the bankruptcy is completed.

If your ex does file for bankruptcy, this will not affect how much you receive in child support since that cannot be discharged in bankruptcy, meaning it cannot be simply wiped away.  The same is true for spousal support as well, meaning that just because your ex-spouse files for bankruptcy, it does not mean that your ex-spouse can now just stop paying.  They must continue paying.

If your ex-spouse does file for bankruptcy, do not be surprised if your hear from what is called a bankruptcy trustee.  This is a person appointed by the court to make sure the creditors are paid from your spouse.  This person, who works for the court, may want to speak to you about property that you and your spouse owned together since, in theory, this property could be sold to satisfy creditors who are owed money.

This is because if your spouse agreed, at the time of the divorce being finalized, to take over joint debts and those are included as part of the bankruptcy filing, creditors could ask you to foot the bill in a chapter 7.  In a Chapter 13, this is not possible since co-debtors cannot be targets by creditors.  If your spouse files for a Chapter 7, you may be forced to either pay the debts or have your credit be negatively impacted.  Of course, you could sue your spouse to pay the debt, but if your spouse is in the middle of a bankruptcy, it could be a long time before you ever receive payment, assuming you are able to collect at all.

If you are contacted by a trustee or notified by your spouse that he or she has filed for bankruptcy, then it might be a good idea to speak to a lawyer to make sure your interests are protected.  The reason being is that there are different potential consequences for you, your property, and credit depending on whether your former spouse filed for chapter 7 or chapter 13 and how the trustee plans to work on your case.

Chapter Eleven Domestic Violence

Unfortunately, domestic violence is common in this country with respect to divorce.  While most states are a community property state, fault in the marriage can affect custody arrangements of the party’s children in some states, if they have children, as well as how property is divided and whether spousal support is awarded.  If you are enduring domestic violence, the experts at the National Coalition Against Domestic Violence recommend the following:

  • Make a list of safe people to contact
  • Memorize phone numbers of people who can help in case your phone is taken from you
  • Hide in a safe place an amount of cash that will help you with a hotel, food, and basic necessities if you need them

Have a code word with family, friends, and even co-workers so they can help you if you need it.

If you need to get a restraining order, you can do so through what is called an ex parte order.  Ex parte means without the other party present, so in this case, it would be your spouse.  Normally, if you want to go to court to accomplish something with a judge, then you have to give your spouse notice of the court date, serve your spouse with the documents you wish the judge to consider and rule on.

However, with respect to domestic violence, you can bypass this process.  Typically in most cases, as long as you provide the judge proper evidence that you are the victim of domestic violence, which can take the form of photographs or a police report or a signed affidavit by you, then the judge will grant you a temporary order and then ask you to return for a hearing to allow your spouse the opportunity to respond.  Depending on the outcome of this hearing, then you may get a protection order that lasts up to two years. You can also ask the judge to keep your address confidential if you have a fear of domestic violence.

If you have evidence or suspect your child is the victim of child abuse, then you also need to immediately get a restraining order on your child’s behalf.  Be aware that sometimes judges can be skeptical about such claims during the context of a divorce as it leads some judges to believe the claims of abuse or being advanced just to get an upper hand.  Therefore, taking photographs and documenting the abuse, if you can, is crucial.

Child Abuse

If you have reason to believe that your child is being abused by your spouse, then you need to take immediate legal and medical action, starting by taking your child to a doctor or hospital for medical care.  It is also a good idea, especially if your child is younger, to seek out a therapist for your children to see if professional counseling can help.

As previously mentioned, it is also a good idea to go to court and seek out an ex parte restraining order against your spouse to protect your children.  You can even include your pets in this order.  Again, this order will typically only last two weeks, so it’s a temporary order, until the final hearing can be held when your spouse is present so he or she can make their own arguments to the judge as to why the temporary order should not become permanent.

It should be noted, unfortunately, that some judges can be skeptical of parent’s who claim child abuse for the first time, during the pendency of a divorce proceeding.  That’s why it is best, again, to have some form of evidence to back this up in the form of photographs or an affidavit, where they will state, under oath, that they witnessed the abuse firsthand.  This is very powerful and will go a long way in having your order go from a mere two week, temporary order to a final, permanent one.  If you fear that your child may be abducted if your spouse were to get custody, even of a limited form of custody, you need to make sure that you address this with the judge and note it in your motion for your restraining order.

The reason being that if your spouse flees the state or, worse, flees the country with your children, it can be very difficult to get your children back since, once your child is living in a different country, you are subject to treaties of another country, and this process, as you can imagine, can be difficult because you have to get the representatives of different countries to communicate with one another.

Restraining Order vs. Protective Order

When you are going through a divorce, emotions can run high and spouses can often become volatile emotionally, even violent with each other, to the point that a spouse might feel the need to protect themselves and their children from the other spouse.  People often confuse restraining orders and protective orders and use them interchangeably.  There are, however, important differences between them as the law pertains to them.

On a basic level, the two big differences are one of scope and the fact that one is a civil rule and the other is a criminal one.  Restraining orders come from the civil law and they are far broader than a protective order in terms of what they cover.  You might wonder the difference between civil and criminal law.

The restraining order is automatically issued when you file for divorce, the idea being that it helps keep the peace.  State Family Codes provides additional guidance on what the restraining order covers, since it covers far more than just a protecting a person.  It says that a spouse cannot:

  • Drain the spouse’s bank account.
  • Closing the bank account and canceling charge cards.
  • Bring on new debt or hide assets.
  • Sell property that the spouse’s own, damage it, or reduce its value.
  • Fail to pay insurance.
  • Threaten the other spouse or harass them or even talk bad about the spouse in front of the children.

Protective orders are enforced by the police, but the police have no authority to prosecute crimes in regards to a restraining order since a restraining order is considered part of the civil law.  As you can imagine, a protective order is far more serious in terms of what can happen to a spouse from a criminal standpoint, with a spouse, potentially, being liable for a criminal offense, even jail time, for violating a protective order.

On the other hand, while serious, a violation of a restraining order is going to be met with a contempt of court violation if the order is violated, which is serious and which will reflect poorly on a spouse in a family law proceeding, but it isn’t going to land a spouse in jail for violating it, unless it’s an extreme situation and there have been repeat offenses.

Chapter Twelve Fees and Costs to Expect in a Family Law Case

Divorce is expensive, as is most legal matters related to a family issue.  Not only are there legal fees to be aware of, but there may be expert witnesses who need to be paid and court-ordered fees that need to be paid to accomplish your objective.

This short chapter is intended to help you understand what your fees and costs are likely to be and how they can be paid. Of course, no case is identical, nor is every attorney’s fees and every expert witness’ fees exactly the same.  In fact, in some cases, you will not even need an expert witness, nor will you need an attorney potentially, but this is rare and certainly the exception rather than the rule.  This chapter is intended to help you create a loose budget of what you are likely going to have to set aside or finance in order to complete your divorce.

Filing and Service of Lawsuit Fees

Even if you do not need a lawyer or expert witness, you are likely still going to incur the cost of filing for divorce and serving the divorce and related family law documents on your spouse.

In point of fact, the only way you can entirely avoid paying any costs or legal fees is if you are the one who is served and filed against by your spouse for divorce.  If you file for divorce, you are responsible for paying the filing fee, unless you can qualify for a fee waiver by proving that you are below a certain economic threshold and thus cannot afford to pay the court fee.

Therefore, if you are petitioner in a case, meaning you are the one who files for divorce, you are responsible for the filing fee and the fee to serve the documents on your spouse.  Every county has their own fee schedule, which can be found with a simple search on Google.  In addition, the fees a county charge will change every few years, and it is rare that the fees go down.

Rather, most of the time fees go up.  In Dallas county, for example, it costs $277.00 to file for divorce.  After filing, unless you have a friend or family member who can serve the documents on your spouse, you will have to hire a company to serve the documents.  These companies charge anywhere from fifty dollars to a couple hundred of dollars.

If your spouse retains a lawyer, chances are high that you will work out an agreement with your spouse’s lawyer where you can e-mail documents to each other, so you won’t have to worry about paying a company every time you want to serve a document on your spouse.  If you need to hire a company to serve your spouse, you can again find one on Google by using terms like “legal process server” and then type in your city.  You should see plenty of results from this.

Expert Witness Fees

Another possible cost you will incur are fees for an expert witness.  An expert witness might sound intimidating and like something you simply cannot afford, but they are often necessary.  An expert witness could be any kind of witness that will help prove an important element of your case.  Normally, an expert witness is used in regard to some financial aspect of your case.  For example, if you and your spouse own a business, you may need a business appraiser to help determine the value of the business in the event that you have dissolve the business and divide the assets.  Or if the business has messy financial records that have not been properly maintained, with taxes that have not been filed for many years, you may very well need to hire a forensic accountant to help review your financial documents, including tax returns and pay statements, to put together accurate financial record keeping.

Another expert witness that you may need, which are common in divorce cases, could be a real estate agent in the event that you made improvements or additions to your home while you were married, especially if the home was purchased prior to the marriage.

Finally, you may wish to hire a private investigator to conduct surveillance on your spouse if you believe your spouse is having an affair or if you believe your spouse is engaging in conduct that may reflect poorly on his ability to parent.  Since fault does play a component in how judges and juries decide cases in terms of custody and property division, having proof of your spouse’s poor or questionable behavior can provide powerful and persuasive evidence to present at trial.

These witnesses can be expensive and they normally want to be paid either entirely up front or they will ask for a retainer to bill against.  However, their cost may be worth it if it can help prove a part of your case that might be weak without it.  You might wonder if other witnesses, such as character witnesses, can charge for their time.  The answer is that it is common to pay a witness, such as a family or friend, to pay for a witness to travel from out of town, such as paying for their hotel or flight.

Legal Fees

Legal fees are an important consideration when coming to a decision on how your divorce will proceed.  No lawyer or law firm is exactly the same in terms of how they are paid for their time.  The majority of lawyers will ask for a retainer, which is an upfront fee that you will have to pay.  This amount varies widely from a few thousand dollars to as much as twenty thousand dollars.  The dollar amount depends mostly on the lawyer and the length and complexity of the case.

The lawyer will deposit that money into what is called a trust account, which is a bank account separate from a lawyer’s business or personal account.  The lawyer’s hourly rate, which may range from a hundred dollars an hour to six hundred dollars per hour, will then bill against this retainer amount.  When the amount of the retainer is drained to zero, then you will likely have to pay the lawyer another retainer amount.

Some lawyers, however, will simply bill their clients on the first of every month.  Most lawyers nowadays will allow you to pay their bill with a credit card so your bank account is not drained.  In addition, you can also have a friend or family member pay your legal bill, although normally the lawyer will have this person sign a document stating that they will not interfere in the case or attempt to control the outcome simply by the fact that they are paying the bills.

You might be wondering how to find out how much a lawyer charges for his or her time.  Unfortunately, there is no third-party website that lists this, nor do lawyer’s typically list this on their website.  The best, and frankly only, way to discover this information is simply to call the law firm and ask what their hourly rate is and what they require for a retainer, assuming they request one.

One thing to be aware of is that some divorce cases are a sprint and some are a marathon.  In a sprint, you won’t need to budget a great deal of money in legal fees, which is the case when, for example, you have no children, little in assets, or if there is just a general agreement between you and your spouse as to how you should divorce.  In a marathon, however, you may need to be really aware of how much money you are budgeting because your case may end up in trial.  If you foresee a custody fight, or if you just cannot agree with your spouse on anything, then you really need to be aware of the fees you are likely going to have to pay to go to trial. Remember that at trial your lawyer will be working, in most cases, ten to sixteen hours a day, which is being billed, plus work beforehand and there is normally work to do even after the trial, such as preparing final documents, filing them, and even going to court to present them to the judge.

It is not unusual for a lawyer to charge between $40,000 to $100,000 to go to trial.  You need to have a clear plan with your lawyer about how much your fees could be and meet consistently with your lawyer, or at least talk with him or her, about the likelihood of trial and what that will cost.  The worst thing that can happen to you is for you to be caught off guard with respect to the legal fees that are coming your way.  Hopefully this chapter has helped you understand your possible exposure to legal fees, costs, and expert witnesses.

Finally, be aware that there are obviously instances when one spouse controls the finances for the family, particularly in cases where the wife has stayed home to raise her children.  If during the separation one of the spouses refuses to release control of the finances so the spouse can use the finances to retain a lawyer, the spouse in need of funds will have to go to court to ask the judge to release money so money can be freed up to pay for the lawyer’s services.  Obviously, it’s best practices to have money set aside to pay for this, but this cannot always be done.

Chapter Fourteen Glossary of Key Terms

Affidavit: This is a document that a witness will sign, under oath, stating what they saw, heard, or remembered about a particular event.  It is used in some cases instead of having the witnesses come to court to testify in person about something related to the divorce.

Alimony: This is another term for spousal support or maintenance.

Cross-examination: This happens at trial, when your lawyer or your spouse’s lawyer asks questions of a witness who is opposed to you or your spouse.  For instance, your lawyer would do a cross-examination of your spouse or his witness at trial.

Decree: This is the final document that the judge issues in a divorce case that sets out how the divorce has been finalized.

Deposition: This is a sit-down question-and-answer session with an attorney, with a court reporter present typing everything you say, with answers and questions under oath.

Dissolution: This is another word for divorce.

Interrogatories and Requests for Production: Interrogatories and Requests for Production is part of the discovery process.  These are intended to produce evidence in a case.

Judgment: A formal and final decision on a particular issue that is brought in front of the court for a decision.

Jurisdiction: The authority that a judge has over a particular area, both from a geographical standpoint and from a subject matter stand point.

Maintenance: This is another word for alimony or the amount one spouse has to pay the other.

Motion: This is a document written by you, or your lawyer, or either party and their lawyer, asking the judge to do something on a case.  For example, if you wanted to change the visitation of your children, you would write up and file a Motion for Modification.

Orders: This is the final document the judge will sign in your divorce or family case.  This document will be binding, meaning final, on you and your case.

Petition: This is the document that is filed in court that asks for a divorce.

Petitioner: This is the person who files for divorce.

Respondent: This is your spouse, or the other person you’re going up against in a family law case.

Retainer: This is the amount of money that most lawyers will ask you to put down.  Once this money is put down and placed in the lawyer’s trust account, the lawyer will bill against this amount of money until there is no more money left.

QDRO: This stands for Qualified Domestic Relations Order.  It’s an order that comes from your divorce that divides a retirement plan or pension plan so that the other spouse gets a portion of that plan’s benefits.

Service or Service of Process: This is just when you have legal documents served on someone.  The rule is that anyone besides you, the one bringing the divorce, can serve the documents.  For service to be considered legally effective, the person or company responsible for serving the documents has to hand the documents to your spouse.  They cannot be left at a door, mailed, or left under a windshield wiper, absent a court order.

Spousal Support: The amount of money that one spouse must pay the other.  It is the same thing as alimony or maintenance.

Moving To a Different State with a Child

It is common for one parent to relocate to a different state for several reasons such as a new job, educational opportunity, legal separation, divorce, remarriage, or even just to live in a different climate. Moving to a different state with a child comes with legal requirements and certain challenges for such a parent; for instance, you must take permission from the other parent or the family court. In case of disagreement of both the parents about the custody of the child after moving to a different state, the court decides what they must do.

Key Requirements with Moving To a Different State with a Child

The very first thing to know is that one parent cannot just decide to move to a different state with a child. The child remains under the court’s jurisdiction until the age of 18.

The custody agreement is just applicable for the parents who want to follow it. One good thing about converting it into a court order is that both parties involved become legally bound to comply with it.

In a no custody order, parents enjoy equal rights to child custody and each of them may have legal possession of the child at any point in time. It is another thing, though, when one parent moves to another state with the permission of the other parent. This action may lead to grave legal consequences, up to a child kidnapping charge.

The Court Verdict

Clashes often arise if the custodial parent files permission to move the child out of the state. To know if the move is permissible, the court makes the final decision based on the child’s best interest and as per the Arizona family law guidelines for child custody. The factors that may influence the court decision include:

  • The reasons relocation
  • The reasons by another parent that place objection on child’s relocation
  • The period, quality, and degree of a child’s relationship with each parent
  • How the relocation would affect the child physically and/or emotionally
  • If the relocation can improve the quality of life of both relocating parent and child
  • If the relationship between the child and the non-relocating parent may be maintained with a changed custody arrangement
  • Up to what degree the relocation can impact the non-custodial parent’s access to the child
  • What is the child’s preference, if the child is mature enough to express

Relocating is not only a matter of moving across states. If both parents live in Arizona and share custody, the parent wishing to relocate with the child must provide the other parent 60 days’ notice before relocating with the child over 100 miles from the other parent or from that state. The notice offers the non-relocating parent sufficient time to request a court to stop the move. If one parent relocates to over 100 miles from their existing location, then a custody agreement must be modified.

Key Challenges with Moving To a Different State with a Child

The parent requesting a relocation with a child is legally responsible to prove that it is in the best interest of the child. If the non-relocating parent has any objection to moving with the child, Arizona law obliges that “the court shall determine whether to allow the parent to relocate the child following the child’s best interests.”

If the move is challenged, parents might face a thorough court hearing along with battling research and comparisons of the school districts and neighborhoods.

Moreover, the relocation of the minor children cannot be taken lightly since these cases are problematic, uncertain, and generally very costly to litigate.  The potential effect on the children must be determined from every possible viewpoint before jumping into relocation court cases.

Final Thoughts

Moving to a different state with a child leads to a custody matter that is a complex area of Arizona child custody law, with substantial consequences in case of violating the family laws. These situations should be consulted with a qualified family law attorney to reach the optimal solution.

Contact me for a reliable consultation as I have helped couples and families in Arizona for years.

Father’s rights

The care for the children must remain affected either in legal separation or divorce cases. In such cases usually, where the parents do not agree on a plan to raise the children, custody laws in Arizona come into play. Such laws now grant an equal right to fathers as of mothers during a legal separation or divorce. Mothers do not get favorable treatment anymore over fathers in child custody cases.  The law puts a duty on Father and Mother in terms of legally protecting the parenting rights and responsibilities.  The same applies to soon-to-be Fathers and Mothers.  These rights and responsibilities include but are not limited to parenting time of children, child custody, adoption notice, and child support.

How can fathers best get custody of their children?

Fathers may seek help for child support for their children. If you are a father of a child for whom you are the primary custodial parent, you possess the right to request the court for ordering the other parent to pay the child support to help raise your child. Under Arizona family laws, all parents are responsible to provide financial support for their children. In child support cases, the courts make decisions based on the child support guidelines, assess the incomes of both parents, and take into account the amount of time the child has with each parent to decide the amount of child support to be paid.

The Challenges Fathers Have With Getting Custody of Their Children

Fathers face several challenges when it comes to laws about parental rights and responsibilities. In many cases, a father is required to prove that he holds the right to visit and care for his children. In other cases, he may need to prove that he is the father to a child. Paternity is the main factor in Arizona custody cases and it is recommended to consult a reliable attorney for the best advice to get your children custody.

Also, keep in mind the following:

  • If paternity is not established, you are not accountable for child support. Unfortunately, you do not have any guaranteed right to visit your child or share custody. It is strongly suggested to take paternity ruling on an immediate basis in such cases.
  • Under Arizona Revised Statute 25-812, a father may willingly acknowledge paternity or request a court order that establishes him as the biological father of the child.

The paternity is established if any of the following applies:

  • The man and woman were legally married to each other within the past 10 months
  • The purported father’s signature is present on the child’s birth certificate
  • Genetic testing confirms fatherhood with a minimum of 95% certainty

Another challenge that a father faces while claiming custody of his children is the societal pressure where the mother is still considered to have an edge over children’s custody matters. With that saying, the family members or society may emotionally influence the fathers to let go of the children’s custody to a mother.

The Process of Getting a Custody Order

The court can issue a custody order just in specific types of cases. Most often, child custody is determined if the parents are having a legal separation or divorce, or when parents want courts to change a custody decision made before in a separation or divorce case. Custody can also be ordered if one parent files a court case to decide the paternity (or maternity) of a child.

After initiating the case and if the parents cannot agree on child custody, the custody matter automatically goes into the court to decide. Once a decree of the legal separation or divorce is granted, the court still reserves the right to change (amend) a previous custody order.

Final Thoughts

Father’s role in their children’s healthy development cannot be neglected. While some state laws have been transformed to support shared parenting, some courts still need time to catch up. Consulting with an experienced and reliable attorney in Arizona can help you make a strong case to protect your rights as a father.

Contact me for a reliable consultation as I have helped couples and families in Arizona for years.

Legal Separation

Family law in Arizona about legal separation cases is confusing to many; though, it is quite simple. The outcome of both the legal separation and divorce is the same except a difference that in a legal separation case, the spouses cannot marry anyone else since they are still legally married to each other. In case of divorce though, it is permitted; however, concerning the complexity of the case, it is recommended to consult an attorney.

The Difference between Legal Separation and Divorce

To understand legal separation, the very first thing to acknowledge is that legal separation is not divorce. In a legal separation, even if the spouses have ended their social property relationship, are financially separated, and living apart, they remain legally married. On the other hand, divorce spouses are no longer married.

The differences between legal separation and divorce include differences in terms of tax issues and the right of the spouses to remarry. Moreover, the ability to keep maintaining a spouse’s employee benefits, like life insurance and health insurance also vary.

What Happens in Legal Separation?

Though the marriage remains intact in a legal separation, the proceedings are almost the same as those of divorce. To get a legal separation decree in Arizona, one of the spouses who wants a separation files a petition to which another party should answer. Temporary orders are issued in the hearings, including parenting time and child support. Both parties negotiate on the terms of a separation agreement. Then there might be a trial and a family law judge may issue final orders based on his determinations. A family law lawyer can mediate the whole process or any of these steps on your behalf.

Spouses can take part in the mediation process to resolve matters, including parenting plan terms. Usually, the parenting time and legal decision-making are determined once the child’s custody is evaluated. Arizona Child Support Guidelines form the basis of child support decisions; while spouse maintenance can be granted to support the financially dependent party.

Disadvantages of Legal Separation

A legal separation process is as lengthy as divorce, often requiring much time, legal counsel as well as paperwork. Legal separations also involve the separation of property, including the division of debts and assets. Couples filing for legal separation must follow the same process of division as of divorce. Moreover, any disagreement between the spouses in matters like division of assets, child custody, and child support is to be finalized through a court.

A legal separation is not free of stress since a legal separation can become as complicated as divorce, placing an additional burden on an otherwise tantalizing relationship.

Lastly, a legal separation might seem like the only way to predict the future of your marriage, but having the separation informally is a better way to determine the status of your marriage without going through a stressful and costly process.

Benefits of Legal Separations

Even with its disadvantages, one can still have legitimate reasons to opt for a legal separation. Spouses who want to avoid divorce due to personal, cultural, or religious reasons can be legally separated and still follow their personal values and beliefs.

Many couples use separation as a way to utilize healthcare policies. In most of such cases, divorced spouses can still use the other spouse’s healthcare plans for a definite period, typically six months or less. However, this period can be extended based on various factors.

Final Thoughts

Since separation usually leads to the same level of stress, time, and cost as a divorce does, we do not always recommend it as a practical substitute to divorce. Spouses who see reconciliation as a potential outcome of their legal separation should go for such arrangement, while couples on the other end of the spectrum can consider divorce.

If you are one of those couples feeling that a legal separation is the only best step in your marriage, I can help you make the process and transition as easy, fast, and smooth as possible. Contact me for a reliable consultation as I have helped couples and families in Arizona for years.

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