FAQs – 2
All content contained herein is for general informational purposes only. No statements contained within the below Frequently Asked Questions should be construed as legal advice. Every case is different and only a qualified family law attorney can properly review your individual case and make recommendations based on your specific circumstances.
Initial consultations are a great way to meet potential attorneys and to hear different perspectives and opinions related to your case. During your initial consultation, an attorney will review the points of your case and give you an idea of what steps that attorney will take, if hired, and what outcomes are likely. Remember no attorney has a crystal ball and no attorney can give you guaranteed results, however, as a result of his or her accumulated experience in family law, a good attorney should be able to give you the likely outcomes of your situation.
Always remember to ask an attorney what percentage of his or her practice is devoted to family law. Family law is different from almost all other areas of law, and having an attorney who knows the finer points and caveats can make a big difference for a client.
While many people believe that hiring an “aggressive” attorney will ultimately result in a better outcome, that is merely a common misconception. An attorney with an abrasive personality will, in the end, cost you more in fees and will likely only lead to the protraction of your case, and in some cases, the disdain of the Judge assigned to your case.
An attorney with a likable personality is more likely to be one who gets along with other attorneys and Judges. These types of attorneys can often get the job done with little unnecessary conflict, which will result in a lessened impact on you financially.
Whether you choose to proceed using a collaborative approach, mediation, or traditional litigation will largely depend on the particular circumstances of your case, as well as the level of cooperation between both spouses. An attorney experienced in both collaborative law and traditional litigation will help you review your case and advise you on the best possible approach for your specific situation.
In the mediation process, both parties meet together with a neutral party (mediator), typically without counsel, who will help you negotiate a settlement. A mediator has no power to make decisions regarding your case, nor give legal advice. In the event that mediation is successful, your mediator will generally prepare a Memorandum of Agreement. This document should be reviewed by each party’s attorney and reduced to the proper legal format for court by counsel. In the event that mediation fails, typically neither party may call upon the mediator to testify nor hire the mediator as his or her attorney.
The collaborative process is appropriate where the parties desire to avoid formal litigation. The collaborative approach requires each party to be represented by a collaboratively-trained attorney. The parties agree to provide full disclosure during the discovery process to assure that both parties are fully aware of the financial aspects of the marriage. A collaborative team will help you negotiate an equitable settlement in your family’s best interests.
Unfortunately, some cases are not appropriate for either collaboration or mediation. In those instances, you will benefit from an attorney who also has extensive litigation experience and will be able to take immediate action to preserve your interests, your children’s interests and the marital estate.
Start making appointments to interview attorneys immediately. Typically, after being served with divorce documents, you will have a certain amount of time, usually 30 days, to make your presence known to the court by filing what is called an Appearance and Answer to the Petition for Dissolution of Marriage. The process of finding the right attorney takes time, and you do not want to be rushed to hire someone because of the pending deadline.
If you know your spouse has filed for divorce and will likely attempt to serve you, it is not advised that you attempt to hide from the process server or otherwise avoid service. This does nothing to stop the case, and only causes an increase of fees and costs for both parties. The best approach is to accept the papers.
Once served, please remember that the contents of a Petition for Dissolution of Marriage are often generic and are included in almost every other Petition for Dissolution of Marriage that any attorney will draft. If you do not understand one or more of the allegations therein, your attorney should be able to explain them during your initial consultation.
Although seeing the Petition for Dissolution of Marriage for the first time can be emotional and jarring, remember that those allegations are generally standard allegations and do not necessarily represent the ultimate outcome of your case.
If your spouse has filed for a divorce, there is generally not much you can do to stop the divorce process. If you refuse to participate, the court may simply enter a Default Judgment in your absence.
However, if your spouse has filed for a divorce and you have reconciled, or wish to attempt a reconciliation, it is possible to delay the case by placing it on what is called a “reconciliation calendar” (if your county allows this) or simply having your spouse withdraw his or her Petition for Dissolution. Your attorney will be able to explain all options available to you based on your unique circumstances.
It depends on your particular circumstances. As a general rule, it is not advised that a spouse voluntarily leave the home. This is especially true if there are children and if you wish to be allocated the majority of parenting time and parental responsibilities, in which case you should NOT move out.
If there are no children, or if you do not wish to have the majority of parental responsibility or parenting time, there are still many financial issues to consider. Be mindful that if you leave the home, a Judge can still order you to contribute to the expenses of the residence, including but not limited to the mortgage, utilities, taxes, marital debts and so forth. This will likely be in addition to child support and or maintenance.
You should also be mindful that voluntarily moving out and incurring additional expenses, which are not for the benefit of the marriage, such as your rent and utilities in your new home, can be considered a squandering of the marital estate (dissipation). While this is not common, if your spouse wants to make this an issue in Court, there is case law to support the argument.
If you absolutely must move out of the home, or if you have already moved out, a family law attorney will be able to advise you on how to minimize the impact this will have on your case.
This is not advised. Courts are becoming less and less tolerant of removing a spouse from his or her home. Generally, there are two legal devices available to you to remove your spouse from the marital residence.
You can bring a motion for exclusive possession of the marital residence. While this is generally the less aggressive approach, it is still generally very offensive to the spouse and sets a negative tone to the case, which can ultimately lead to greater conflict and greater fees and costs. If the motion is opposed by your spouse, he or she is entitled to a hearing on the matter, where witnesses may be called and exhibits presented. This is an expensive proposition for both parties. Remember that filing a motion for exclusive possession can also act as an invitation for your spouse to file a counter-motion seeking the same relief. In such cases, the Court may simply ascertain who has the better means of finding alternate house (such as with family in the immediate area) and if that is you, then you may be the one removed from the residence. The bar for granting exclusive possession has been purposefully set quite high, and as such, motions for exclusive possession should be used only in genuinely extreme circumstances.
The second legal option available is an Order of Protection. On an emergency basis, you will have to show that there was some form of extreme harassment and or physical abuse. Although obtaining an Order of Protection is faster, assuming you have sufficient allegations and can meet your burden of proof, it is extremely expensive. It is not at all uncommon for an attorney to spend an entire morning in Court obtaining an initial “emergency” order of protection for a client and then spend a significant amount of time preparing for and attending trial on the Plenary Order of Protection. This court time can quickly add up to thousands of dollars. As such, this approach should only be used in cases where there is a real danger, or history, of physical or severe emotional harm.
The Iaw regarding child support takes each parent’s individual net monthly income and adds it together to determine the combined monthly net income of the parents. Also taken into account is parenting time. These factors are applied to an expenditure table and calculate each parent’s percentage share of their basic child support obligation. Although a child support amount will be computed for each parent, the parent with the majority of parenting time shall retain their share of the basic support obligation which is presumed to be spent directly on the child. A skilled and experienced family law attorney will be able to assess your situation and calculate your approximate child support obligations based on your specific circumstances.
Child support can also be modified at any time upon proper notice, motion and a showing of a substantial change in circumstances. Substantial change in circumstances can include such events as an involuntary loss of employment, involuntary reduction in income, increase of the expenses of the children, or increase in payer’s income.
As a general rule, you should pay the amount of child support which the Court has set. If you feel that you are struggling with said amount, you should consult with an attorney, and if appropriate, petition the court to modify or abate your support obligations. DO NOT JUST STOP PAYING. This is critical. Not only can your spouse take you back to court for past due child support, but the state may also take action against you, including but not limited to seizing your bank accounts and suspending your driver’s license.
It is important to note that, without a court order, any informal agreement you have with your spouse related to child support is not binding and the state can take action against you for past due support. As such, even if your former spouse is in agreement to allow you to reduce or abate your child support obligations, ALWAYS memorialize this agreement with a Court Order.
Whether or not one spouse is entitled to maintenance is based on a number of factors, including but not limited to: the income of both parties, future earning potential of both parties; education and skills of both parties; and the manner in which other assets of the marriage will be allocated. The length of your marriage will also play a role on whether or not maintenance is awarded in your case. Please be mindful that many other factors come into play when it comes to the appropriateness and setting of maintenance. Having a skilled and experienced family law attorney in your corner will help you navigate this area of law and assure that your interests are well represented.
Retirement assets acquired during the marriage are subject to division. Unless the parties agree differently, in consideration of a larger share of a different asset or in cases where the parties have equal retirement assets, the Court will divide the marital portion of retirement assets equitably between the parties, which is typically equally.
In order to avoid creating a taxable event, most retirement assets are divided using a special procedure called a Qualified Domestic Relations Order. This type of order should be prepared by an expert to satisfy various requirements which allow for the transfer without creating an IRS liability.
On a temporary basis, the parties can agree, or the Court can order, upon Motion by a party, that each party contribute in specific amounts toward the household expenses. The house is generally either ordered for sale, or in the event a spouse can afford to stay, the mortgage is typically refinanced by the one that resides therein and the other is paid their share of the equity in the home, if any.
How liberal and flexible parenting time is depends mostly on how well both parents are able to work together. When both parents can cooperate and agree on a schedule that works for the parties and the children, the Court will generally honor these arrangements and they will be memorialized by an Agreed Allocation of Parental Responsibility Judgment and Parenting Plan.
In the event that the parties cannot cooperate effectively, a default parenting time schedule may be set by the court.
Much like parenting time, the allocation of parenting responsibility is mostly dependent on how well both parents are able to work together. When parents share in parental responsibility and major decision making, they are required to consult with each other and agree as to education, healthcare, religion and extra curricular activities regarding their children.
If parents are not able to work together, one party may be allocated the majority of parental responsibility and all major decision making, whereby that parent has the final decision related to education, healthcare, religion, and extra curricular activities for the children. It should be noted however, that even though one parent has final say, he or she is still under the duty to keep the other parent informed as to all matters involving the children. Additionally, the other parent continues to have the right to request and examine the children’s health and educational records.
It is important to note that allocation of parental responsibility and decision making and parenting time are two different issues. Your attorney will be able to guide you through the process and assure that your rights as a parent are protected.
All parents have certain rights as it relates to their children. There is essentially no difference between Mother’s Rights and Father’s Rights. Generally attorneys who call themselves Father’s Rights/ Mother’s Rights attorneys are doing so for advertisement purposes in order to be attractive to potential clients who are either the mother or father.
A seasoned attorney will know how to translate your desires in a manner consistent with the children’s best interest standard applied by the Court.
If your spouse had or is having an affair, and is spending marital money in courting his or her paramour, you may be able to bring a dissipation claim against him or her during your divorce. This can be a very painful process for both parties, however, it will give you the opportunity to confront your spouse and his or her paramour during a deposition, and possibly in court.
Establishing a dissipation claim is fairly simple, and the burden will be placed upon the accused spouse to prove that the money in question was spent for the benefit of the family. If the accused spouse cannot prove that his or her spending habits are innocent, the Court presumes that the spending was for purposes unrelated to the family and the cheating spouse must then return the money to the marital estate. This typically takes the form of the innocent spouse taking a larger portion of the marital assets.
A qualified family law attorney will help you put together a litigation strategy and advise you on the appropriateness of a claim of dissipation.
An uncontested divorce is one where both parties agree that the marriage is over, and more so, have already discussed and agreed on the issues of allocation of parental responsibility, maintenance, child support, and the division or assets and debts. If your divorce is truly uncontested and you and your spouse have already discussed and are in complete agreement as to the above noted issues, then a qualified attorney should be able to quickly and efficiently prepare the necessary documents and guide you to completion of your divorce with minimal costs.
It is important to note that one attorney CANNOT represent both parties. Although it is always advisable that each party retain his or her own attorney, many parties opt to have one attorney represent a spouse, while the other spouse represents himself/herself. If you have decided to represent yourself, be mindful that your husband/wife’s attorney represents ONLY them, cannot give you legal advice, and is only concerned with a good outcome for his/her client.
A legal separation is a legal process which can be as long and expensive as a divorce, but comes with its own issues and concerns. Additionally, legal separation is only an available option if your case meets specific requirements. A family law attorney will be able to review your case and advise whether or not a legal separation is available to you under current law.
Although a legal separation may deal with issues of support and maintenance, it usually reserves issues such as allocation of property and debt. This means that you are not likely to escape your spouse’s spending habits or mounting debts.
Many may be interested in a legal separation as a way of separating from their spouse but maintaining access to their spouse’s health insurance benefits. Unfortunately, many insurance companies and many employers now consider legal separation as a “life event” which will cause the termination of the spouse’s coverage.
There may be limited and rare circumstances in which a legal separation may be a good option for your family. An experienced family law attorney will be able to review your specific circumstances with you and advise you on the best approach for your case.
The answer to this question depends largely on you and your spouse, the attorneys each party retains, and the issues involved. Where parties are able to part ways amicably and calmly discuss financial and parenting issues, your case will likely be over quickly and with minimal costs. However, if one or both spouses are too difficult, too emotional, or too vengeful to consider the long term affects of their actions within the divorce, it is likely that your case will take a long time, even years, and will cost thousands of dollars.