Frequently Asked Questions About Divorce
Wondering how to divorce? Getting a divorce is not a complicated process. There are certain requirements you must meet based on your state’s divorce laws before you file for divorce. Once you have filed for divorce other factors such as child support, spousal support, and division of marital property come into play. Below is a list of questions asked most often from people going through a divorce.
1. How Much Will My Divorce Cost?
The cost of a divorce is determined by how complex the case is and whether or not the issues in the cases are contested. An uncontested divorce is naturally going to cost less than a contested divorce. In other words, the more adversarial the divorce the more expensive the divorce will be in the long run. In addition to attorney fees, you will also have the expense of court filing fees and other expenses incurred during the divorce.
If your state laws require you to choose a Divorce Mediator you and your spouse will be responsible for those costs. If there are large assets to split, a business to be valuable or property to be appraised you may need to assistance of a Divorce Financial Analyst. This is another expense you and your spouse will be responsible for.
2. If My Spouse Cheated on Me Can I Sue Him/Her for Divorce on the Grounds of Adultery?
Whether or not you can sue for any “grounds” depends on what state you live in. Most states have adopted no-fault divorce laws meaning a divorce action can be brought against a spouse without the need for a reason. Be sure to check with a local attorney to find out what your state’s laws are concerning grounds for divorce.
On the other hand, if your spouse had cheated the negative behavior can come into play during divorce settlement negotiations. For instance, if a cheating husband/wife spends marital funds on the other woman/man the courts will take this into consideration when considering how marital assets are divided. A competent divorce attorney will be able to answer any questions you have about how your local court deals with such situations.
3. What If I Don’t Want a Divorce?
Anyone can obtain a divorce whether his or her spouse wants one or not. In no-fault divorce states, all you have to do is file your petition for divorce. Some states have laws requiring a period of separation but, after that period a divorce can be obtained whether your spouse agrees to it or not.
If you are struggling with accepting a divorce you don’t want, you can find a therapist to help you process your emotions. It’s imperative that you be able to navigate the divorce process and not allow negative emotions to cause you to make bad choices.
If you are mourning the loss of a marriage you wish to keep, staying emotionally stable and able to make logical decisions during the divorce process is important.
4. What Do I Have to Do to Get the Divorce Process Started?
There has to be a petition for divorce filed with your local court clerk. You can do this through a divorce attorney or you can do it Pro Se without the benefit of an attorney. Once a petition for divorce is filed, your spouse will have a certain number of days in which to respond to the petition.
Once a petition has been filed, the court clerk will stamp it and give it a case number. Once it is given a case number and your spouse responds the court will set a date for either a hearing for temporary court orders or mediation.
5. What Is the Difference Between a Legal Separation and a Divorce?
In a legal separation, you remain married. In a divorce, the marriage is dissolved and any legal ties between the parties are broken by law.
There are many reasons to choose a legal separation over a divorce. For example, a legal separation allows you to remain on a spouse’s health insurance plan. It also allows you to run out the clock on the 10-year requirement for being able to draw on a spouse’s social security benefits. Look into the benefits to you as a couple before following through with a divorce.
6. How Does the Court Determine Who Gets Custody of Any Children of the Marriage?
The court will take into consideration what they feel is in the “child’s best interest.” The court will take into consideration a number of issues when considering custody. Issues such as who the child is living with at present, the relationship with each parent, and a parent’s ability to care for and provide for the child.
Each state has guidelines they use when determining child custody. Ask your attorney or, Google, “your state child custody guidelines” for more information.
Most courts are moving toward equal or shared parenting these days. If you are a father who wishes equal time with his child you should pursue the right to parent your child on a 50/50 basis with the child’s mother.
7. How is property be divided during the divorce?
All property is considered to be marital property unless it can be proven that it is separate property. Separate property is property owned by one spouse prior to the marriage, property that was inherited and never commingle and property that was given as a gift to one spouse or the other.
Other issues that will be taken into consideration when dividing property are the earning power of each spouse, the expectation of a return on retirement benefits, contributions made by one spouse to the education or career development of the other spouse and the need of a custodial parent to stay in the marital home.
8. Will I receive spousal support?
State laws differ from state to state when it comes to the issue of spousal support. Your attorney will be able to advise you on how it is normally handled in your state. One issue that most states take into consideration is the earning ability of the wife, whether she was a stay at home mom and how much she contributed to her husband’s career.
As a general rule, a wife is considered a dependent spouse if she makes less money that her husband and is substantially dependent upon him for her maintenance and support. This applies to either a wife or husband.
9. My husband is abusive, what can I do to protect myself during the divorce process?
You need to protect yourself before, during and after your divorce by filing a restraining order against your husband. The kind of assistance you can receive differs from state to state. There are state domestic abuse resources and programs available that you should take advantage of.
You can also make sure you have a support system to help you during, before and after your divorce. Victims of abuse are at most danger after they leave their abuser. You should have a plan of action before leaving your abuser. Have somewhere to go, some way to support yourself and someone to call if you feel in danger. A plan, a restraining order and friends and family to support you before and after leaving will go a long way in helping you and your children feel safe.
10. How much child support will I have to pay?
Every state has their own child support guidelines. Issues considered when determining child support are the incomes of each parent, how much time each parent spends with the children and whether there are any special needs associated with raising the child.
11. If my ex doesn’t pay child support may I withhold visitation?
No, Child Support and Visitation are two separate issues. If you withhold visitation you can be held in contempt of court. If your ex is not paying child support you should see an attorney who will advise you on how to recover the lost child support and to further ensure that your spouse makes future child support payments.
12. Can I stop paying child support if my ex won’t let me see my children?
No. If you withhold child support, you can be held in contempt of court. You should see an attorney who will be able to advise you on what steps you need to take to ensure visitation with your children and that your right to see and parent your children is no longer interfered with.