Many couples get a divorce when they discover their marriage is not working. Divorce is a legal declaration that ends the marriage. Except for certain obligations like alimony and child support, the parties are free to remarry.
Most states used to grant divorces only if a spouse committed a marital wrong like adultery or mental or physical cruelty. Today, almost all states permit no fault divorces. In a no fault divorce, a spouse only has to show the marriage has failed — he or she does not have to prove a marital wrong occurred. No fault laws make it hard to stop a divorce if either spouse wants one. In some states, couples must live apart for a certain amount of time before they can get a no fault divorce.
Obtaining A Divorce
To get a divorce, one must file a complaint (or petition) in the proper court. Most states have laws that prohibit a divorce unless a spouse has lived in the state for a minimum amount of time (often six months or a year) before filing the divorce action. Couples who do not meet their state’s residency requirements should not necessarily go to another state or country where these requirements are less strict. Such a divorce may be invalid in that person’s home state.
Between the time the divorce action is filed and the divorce becomes final, several matters may require court orders. There may be temporary orders regarding spousal support and, if children are involved, child custody and child support. A “restraining order” may be needed to stop one spouse from harassing the other.
The other part of a divorce consists of dividing marital property, providing for the payment of spousal support, and settling child support and custody issues.
Property Division
The parties can agree by themselves how their property will be divided. They can do this in advance with a premarital agreement, or they can do it at the time of the divorce. If the parties cannot agree how to divide property, a judge will divide their property according to state law. There are two basic ways states divide property -- "community property" and "equitable distribution."
• Community property. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, the couple's “community property” (the property either spouse obtained through working during the marriage) is divided evenly. Any separate property remains with that person. Separate property is property the person owned before the marriage, and any income it generated during the marriage (in a few states, income from most separate property is community property). Separate property also includes property a person receives during the marriage by will or gift (from someone other than the spouse). Separate property can become "community property" if it is commingled with community property. It is important to remember that even in community property states, laws can vary on the subject.
• Equitable distribution. In all other states, the judge considers many factors and then divides the couple's marital property "equitably" (separate property still belongs to each person). "Equitably" does not necessarily mean 50-50, and one party can receive more property than the other. Factors that a court looks at when determining how to split the property include: the income and assets of each party at the time of the marriage and at the time of the divorce; length of the marriage; the need of the parent with custody to occupy the house; the loss of inheritance and other rights because of the divorce; the contributions each person made to the other's career; and the future financial circumstances of each party.
Spousal Support
As with dividing property, the parties can usually also agree on the amount of spousal support (often also called "alimony" or "maintenance"). If the parties cannot agree, a court will decide. There is usually no set formula for determining spousal support. Courts consider many factors in determining whether to award support and the amount. These factors include:
• each person's earning capacity;
• the amount the party receiving support contributed to the other person's job;
• the ability to pay of the person paying;
• the needs of each party based on the standard of living during the marriage;
• the property and debts of each party; and
• how long the marriage lasted.
In many states, a court can consider the issue of fault when determining the amount of support.
How Long Alimony Lasts. Most states allow for payment of "rehabilitative alimony." This is alimony that's usually for a set time period and that is designed to help the person receiving support become self-sufficient. Courts also have the power to grant alimony for an indefinite period. Alimony can also be set to end when the person receiving it dies or remarries.
Tax Treatment. Alimony is usually treated as taxable income to the recipient, and the person paying support may deduct it on his or her taxes.
Child Custody & Support
Child custody decisions are made by a judge. The judge bases his or her decision on the child’s best interests and considers several factors, including the child’s age, health, the parents’ lifestyle, prior living arrangements and the child’s preferences.
If the parents agree who gets custody, the judge often accepts their choice.
There are different types of custody arrangements, and courts usually give some aspects of custody to each parent. The most common types of “joint custody” arrangements are:
• joint legal custody. “Legal custody” refers to major decisions about the children, such as medical, schooling and religious decisions. In “joint legal custody” arrangements, both parents share in making these decisions.
• joint physical custody. “Physical custody” is where the children live. In “joint physical custody” arrangements, the children spend about the same amount of time with each parent.
There are also “sole custody” arrangements, and combinations of joint and sole custody. For example, a “sole physical custody and joint legal custody arrangement” means the children live with one parent, but both parents make major decisions.
Visitation decisions are up to the parents, but are subject to the approval of the court. If the parents cannot work out the visitation rights, then a judge decides.
Child support is determined by the court, usually under guidelines developed by the state. Some states give judges wide leeway in setting the amount, while others do not.
Conclusion
If you are considering separation or divorce, working out a good divorce is vital, as the agreement you make will have a significant impact on your future, especially if you and your spouse have young children. It's important to seek legal help before you move out of the house, start a divorce action or reach a custody or property agreement. If you’re thinking about divorce, your interests and your spouse's interests are different enough for you to need expert legal advice about property settlement, support and custody issues. We can advise you about these issues and help you achieve a good divorce.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.