Divorce and Legal Separation Question & Answers
- What happens when I get divorced?
- What is divorce and what are “grounds” for divorce?
- What happens to my property and debts?
- What happens to our children?
- Will child support be paid by me and how is it determined?
- Will I get alimony or spousal support after the divorce?
- Will I get my attorney’s fees paid?
- What is legal separation and can I get one?
- What is a paternity case?
- What is alternative dispute resolution?
1.What happens when I get divorced?
There are basically six issues to consider in a divorce:
- Grounds for Divorce
- Property and Debt Division
- Child Custody
- Child Support
- Spousal Support
- Payment of Attorney’s Fees and Costs
2.What is divorce and what are “grounds” for divorce?
Divorce is the legal court ordered dissolution of your marriage. If you have grounds for the divorce under our state laws, then you can get divorced. Grounds are the legal reasons for requesting a divorce. When a person initiates a divorce by filing a complaint, he or she has to state the reason for requesting the divorce.
3. What happens to my property and debts?
You will need to discover and list all of your property and debts. Once you have a list then the property or debt is characterized as either property, community property, separate property or a combination of both community and separate. The law then gives instructions to the parties and the court as to how to divide community and separate property. The division can either occur through a contract between the parties called a Marital Settlement Agreement or by a trial and division by the court.
4. What happens to our children?
Child custody laws in our state seek to provide some sense of order to the disruption of divorce and separation in efforts to smooth over this transition from a unified, nuclear family to a two-household family, with the spouses/parents living separate and apart. Our state presumes it is in the children’s best interest to maintain joint custody where both parents participate actively in making legal and major decisions for the children. Joint custody does not necessarily mean equal time with the children. Both parents will have defined periods of responsibility with the children called a time sharing arrangement.
Sometimes the court may make an award of sole custody for one parent to make the legal and major decisions for the child. Sole custody is awarded in a very limited set of circumstances. With sole custody, the other parent still has times of visitation with the children. Custody or time sharing arrangements can be either negotiated in a Parenting Plan or by a trial where the judge issues a custody order. If the parties cannot agree, a court may have to decide an interim arrangement for custody until a divorce or paternity case can be finalized.
5. Will child support be paid by me and how is it determined?
The law requires parents to support their children. It doesn’t matter if the parents are married, or if they are living together. The responsibility of child support is that of the parents as individuals or as a unit. Indeed, it doesn’t matter if the parents have not had continued contact after the conception of the child. All parents are legally responsible for child support. Courts are very concerned with providing for children’s needs, and one of the most basic needs is economic support. It is in the interests of the state and the court to make sure that children do not slip into poverty, and that they have the ability to grow up to become happy, productive members of society. Generally the parent who has the children for less time than the other parent will pay support.
The state guidelines govern the amount of support paid and how such support is paid. The guidelines take into account the gross income of the parties, medical, optical, dental insurance premiums and other expenses for the children. The determination of how much support can be negotiated between the parties according to the state guidelines are determined by a court at a final hearing. Sometimes the court may award child support during an interim period until a divorce or paternity case can be finalized.
6. Will I get alimony or spousal support after the divorce?
Spousal support is the term used for payments or transfers of money or assets from one spouse to another after a divorce. You may be more familiar with the word “alimony,” or the term “maintenance”, which are the same as “spousal support.” Determination of spousal support is within the discretion of the judge or negotiation of the parties. There are numerous factors which have to be analyzed to determine whether spousal support should be awarded and if awarded for how much, how long, etc.
7. Will I get my attorney’s fees paid?
Payment of attorney’s fees is governed by case law and by rules. The basic rule is that payment of attorney’s fees or costs is discretionary with the court. There is no automatic payment of fees by either party. Asking for such fees is done after an analysis of entitlement to the fees based upon many factors.
8. What is legal separation and can I get one?
Legal separation is a court ordered separation which is ordered by the court after the parties have entered into a separation agreement. The only difference between the issues in a divorce or legal separation is the fact that the legal separation does not divorce the parties. All the other issues typical to a divorce must be decided. A separation agreement is a contract between a husband and a wife. The agreement is designed to settle any property, debt, alimony, child custody, visitation, insurance, tax, and child support issues that may lie between them. The above mentioned issues are the more significant and are often at the forefront of most agreements, but each agreement is unique and can address other issues.
9. What is a paternity case?
A paternity case occurs when parents have children under circumstances when they are not married. A paternity case decides the issues of who is the father of the child/children, how the parents will have custody, and who will be paying child support. The child support and child custody issues are decided the same as if the parties were divorcing.
10. What is alternative dispute resolution?
“Alternative dispute resolution” is a term that covers a few different methods of resolving a dispute or agreement. The main objective is to get the parties involved in the dispute together and see if they can put aside their differences and come to some sort of agreement. The alternative dispute resolutions are available to the parties in a divorce, legal separation or paternity case include mediation, arbitration and more recently collaborative law resolutions.
Mediation is a method of resolving a dispute with a neutral third party as the facilitator of the negotiations. The mediator is a trained professional who tries to help the two parties in dispute reach a mutually agreeable solution.
Arbitration is a method of resolving disputes that involves the decision making process of a third neutral party. This person agrees to hear all the issues at hand and to make a decision as to the merits of each side’s stance on the issues. This person who is hired to lead the arbitration hearing is usually a lawyer or at least an individual that is familiar with the law and past court rulings.
In the context of a divorce, the idea of the “collaborative divorce” is becoming very popular. Some lawyers specializing in family law think that collaborative divorce will become more common because it is somewhat of a combination of mediation and arbitration.