Divorce

Introduction

The below will provide general divorce information, and the FAQs answer some of the most common questions people ask. These features, combined with the Glossary and Useful Resources, allow you to make informed decisions. 

If you and your spouse can agree to settle your issues, rather than going to a trial and having a judge decide them for you, the divorce process can be smoother, simpler, and much less expensive. Studies have shown that active participation by the spouses in settling a divorce is the most important factor in avoiding post-divorce conflict and fostering cooperation in parenting and support issues.

 

Uncontested vs. Contested Divorces

At the heart of every divorce are three issues: 

   1. How to divide the community property, 
   2. Who will have custody of the children, and 
   3. How much child and spousal support should be paid. 

While no divorce is truly "uncontested" in the sense that there are no disagreements, these disagreements do not always have to be resolved in court. That's what we mean by an uncontested divorce - one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move much faster through the court system and are therefore less expensive. 

We recommend that every couple seeking a divorce first use all means possible to work out mutual terms for the separation, without going to court. If the spouses cannot work things out on their own, we recommend arbitration and mediation, with or without attorney representation. Not only will this save time and money, but by bypassing the lengthy litigation and trial process, an uncontested divorce typically leads to reduced hostility and resentment among the ex-spouses, and both are able to resume their lives more quickly. 

Contested divorces, on the other hand, often involve complex issues, high financial stakes and technical legal procedures in court. While an uncontested divorce can often be performed without an attorney, we believe that it is best to retain experienced counsel in a contested divorce due to the litigation involved. Furthermore, if one spouse is represented by an attorney or if there are difficult or major financial issues involved in the divorce, we recommend seeking an attorney.

 

Legal Requirements for Divorce

Under most state laws; a divorce (or "dissolution") action must be filed and decided in court. Many states have a "no-fault divorce" policy. In other words, these courts are not concerned about which spouse was wrong or guilty of marital misconduct. 

There are a few legal requirements which must be met to file for a divorce in most states:

1.     Residency: The spouse filing for the divorce must have resided in the state for certain time (oftentimes at least 6 months prior to filing the action, and at least 3 months in the county where the action will be filed).

2.     Waiting Period: There is a waiting period that marks the date the divorce becomes final and the parties are free to remarry. This waiting period is anywhere from 0 to 12 months (on average 6 months) plus one day from the date the papers are filed in court.

3.     Legal Grounds: There are generally two legal grounds for getting a divorce. 1. Irreconcilable differences and 2. Incurable insanity. "Irreconcilable difference" simply means that the parties have marital difficulties which cannot be reconciled, and have led to the permanent breakdown of the marriage.

4.     Jurisdictional Requirement: An action for divorce must be filed in the proper court. The correct court will be located in the county where either the wife or husband has resided for at least 3 months prior to filing for divorce.


 

The Divorce Process

A divorce starts with a divorce petition, which is written by one spouse (the petitioner) and served on the other spouse and filed in the proper court. A divorce petition is filed in a state court in the county where the petitioning spouse resides -- it does not matter where the marriage occurred. The petition includes all the important information regarding the marriage. It contains facts regarding the names of the husband and wife, names of any children, whether there is any separate property or community property, child custody, child support, spousal support and other information. 

The petition must be served on the other spouse, which means presenting him or her with the divorce papers and giving notice that the papers have been filed. If both spouses have agreed to the divorce, then the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign the acknowledgement or is difficult to locate, then a professional process server should be hired to personally hand them the papers. 

Completing the service of process starts the clock running on the 6 month waiting period in some states. It also sets automatic restraining orders on the spouses and helps establish the date of separation. This prevents spouses from removing any children from the state, selling any property, borrowing against property, and borrowing or selling insurance held for the other spouse. 

The other spouse, known as the "respondent", then has the opportunity to file a response to the petition. Although not required, the filing of a response could effectively shorten the actual dissolution dates, plus it allows the respondent to participate in the action and shows that he or she agrees with the action. Thus, by filing a response, it is more likely that the case will proceed without a court hearing, which could end up taking longer and costing more. If a response is not filed within approximately 30 days, the petitioner may request that a default be entered by the court. In that case the respondent spouse will no longer participate in the process of the divorce. Therefore, it is always a good idea to file a response. Of course, the responding spouse may disagree with the information presented in the petition and would so state in the response. 

Next, both spouses are required to disclose information regarding their assets, liabilities, income and expenses to each other. If the divorce is uncontested and the spouses can agree on the terms of the divorce without the need for a court, then there is just a little bit more paperwork to file. Once the court enters the judgment, the divorce is final, but the marriage will not be formally dissolved, and the spouses may not re-marry, until the end of the six-month period starting on the date the petition was served. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

 

 

Custody of Minor Children

Both parents must decide on custody of minor children under the age of 18. Divorce courts are very concerned regarding the well-being of any children born naturally to both parents or adopted by the parents. If the wife is pregnant, the child should be listed as "one unborn" in the petition and be treated as a born child for purposes of a dissolution of marriage. There are four basic types of child custody recognized under state laws:

1.

Sole Physical Custody: Sole physical custody means the children shall reside with and under the supervision of one parent, subject to the power of the court to approve the parent's plan for visitation rights granted to the other parent.

2.

Joint Physical Custody: Joint physical custody means that each of the parents shall have significant periods of physical custody. In other words, the physical custody of the children shall be such that both parents have more or less continuing contact with the children.

3.

Sole Legal Custody: Sole legal custody means that one parent shall have the right and the responsibility to make decisions relating to the health, education and welfare of the children, subject of course to the visitation rights of the other parent. Although courts favor joint legal custody, sole legal custody continues to be the leading type of custody for most children when there is a marital breakup.

4.

Joint Legal Custody: Joint legal custody means that both parents share the right and the responsibility to make decisions relating to the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of the minor children when the parents have agreed to joint legal custody and submitted a workable "parenting plan." However, joint legal custody is not for everyone. It requires the parents to cooperate and lay aside all differences for the benefit and interest of the children.

Visitation Rights

In recent years, lawmakers have come to recognize that visitation rights are not something that can be easily made into law. Nonetheless, law states that any person having an interest in the welfare of the children is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another; therefore, discretion is left with the parents to implement standards of visitation that are reasonable under their circumstances. This would include grandparents and others.

 

Visitation Rights

In recent years, lawmakers have come to recognize that visitation rights are not something that can be easily made into law. Nonetheless, law states that any person having an interest in the welfare of the children is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another; therefore, discretion is left with the parents to implement standards of visitation that are reasonable under their circumstances. This would include grandparents and others.

 

Child Support

Child support is mandatory in all actions involving minor children. Petitioners with minor children must include an order for child support, even if the other parent is unemployed or cannot be found. 

Under most State Laws, a standard uniform guideline is used to determine child support payment amounts. It is based on the incomes of both parents and the amount of time each parent spends with the children. The guidelines do provide for add-on amounts for the following:
  • Child care costs
  • Health care and health insurance cost
  • Cost of special educational or other needs of a child
  • Travel-related expenses for visitation

However, parents can either increase or decrease the statutory guideline amount if the following conditions are met: 

   1. Both parents acknowledge that they are fully informed of their rights pursuant to California law and that the amount of child support is being agreed to without coercion or duress, 

   2. Both parents declare that the agreed amount is in the best interest of the children and the children's needs will be adequately met by the agreed amount, and 

   3. For welfare recipients, the right to support has not been assigned to the county pursuant to Section 11477 of the Welfare and Institutions Code, and no public assistance application is pending by either parent. 

Child support orders can be modified at any time in case of special circumstances or substantial changes in the income of a parent. The parties can agree in writing to the changed amount or can motion the court to change the amount. You should seek an attorney to change the amount in the future if needed. 

Any order for child support payments must include an order for the assignment of wages, unless it is agreed in writing that no wage assignment will be filed with an employer if the spouse is not in arrears by more than a specified time or is current on his/her payments. 

The commencement date of child support is normally fixed at a date when it is anticipated that the judgment dissolving the marriage will be signed by the court, even though the parties will not legally be divorced for yet another 6 months. If the entry of judgment is delayed for some reason, e.g., a hearing is set or respondent opposes the action, then an application expediting the payment of child support can be filed with the court. You should seek an attorney if this is the case. 

If a parent does not pay child support or is late by a significant factor, he or she can be sued for contempt of court, have wages attached, have tax refunds attached, or have driver’s licenses blocked. These actions should be handled by an experienced attorney.

 

Spousal Support (Alimony)

Spousal support, as it is now commonly called, has in the past been known as "alimony". Spousal support is not mandatory in most states. However, if the circumstances are such that a spouse will face hardships if he or she does not receive financial support after the divorce, than spousal support should be considered. The deciding factor regarding spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes that a wife (or husband) should not be forced to live at a level below that enjoyed during the marriage. 

However, other factors also need to be considered. For example, spousal support should most likely not be considered if: 

   1. the marriage was for a short duration (under two or three years), and 
   2. both spouses are employed and self-sufficient. 

This does not mean that the parties cannot agree on spousal support, which the court is, more or less, bound to accept. 

Spousal support can run for an unlimited period, subject to the death or remarriage of the recipient spouse, or it can be fixed to terminate on a specific date. 

Child support payments take precedence over spousal support. However, there is no firm dollar figure that is used for spousal support. This amount should be decided by both parties to the action. The amount payable can be up to 40% of the paying spouse's net income after deducting child support, less 50% of the amount of the supported spouse's net income if the supported spouse is working. 

Spousal support can be waived by the recipient spouse, but it should be in writing signed by both spouses. If the higher income earner is the petitioner for the divorce, it is generally not enough to simply allege in the divorce petition that the other spouse waives spousal support. The other spouse must acknowledge the waiver in writing. If the lower income earner is the petitioner for divorce, then the waiver can be included in the petition, and subsequently entered into the judgment.

 

Marital Settlement Agreements

A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody and child plans, debt division, spousal support, and any other relevant issues related to the divorce. 

Although not required, filing a marital settlement agreement has many advantages. First, because it lays out all of the agreements in writing, there are no ambiguities. Second, the spouses will probably never have to go to court because the judge will most likely honor the written agreement if written correctly and if it covers all material aspects of the divorce. Third, it shows the court that the issues were thought out, and the case will move more quickly through the system. 

Marital settlement agreements can be entered into at any time before the final judgment. They are typically filed with the final judgment. If a spouse is receiving welfare, the District Attorney's office may need to review and sign the marital settlement before it is filed with the court.

 

Community Property and Separate Property

One of the primary issues in a divorce is how to split up the community property assets. Community property is everything that a husband and wife OWN TOGETHER. Arizona is a community property state. This means that both the husband and wife are deemed to equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with "community" money is deemed to be owned equally by both the wife and husband, regardless of who purchased it. 

Like community property, all debts contracted from the beginning of the marriage until the date of separation are community debts, and thus, each spouse is each equally liable for these debts. In most cases, this includes any unpaid balances on credit cards, home mortgages and automobile loan balances. It is important to close out all credit cards, bank accounts, and all other "joint" accounts as soon as possible after a divorce has been decided. It is not enough to remove names from the account, or both with still remain liable. 

Separate property, on the other hand, is everything that a husband and wife OWN SEPARATELY. Separate property does not need to be divided between the spouses. In most cases, separate property is: 

   1. Anything owned prior to marriage, 
   2. Anything inherited or received as a gift during the marriage, and 
   3. Anything either spouse earned after the date of separation. 

Separate property can also include anything that one spouse gives up to the other spouse in writing. In certain cases, separate property can become mixed with community property. In this case, it is important be able to trace the payments and show where certain money came from. For example, a husband may have put in the down payment for a house, got married, and then paid off the mortgage with community property. In this case, the husband would be reimbursed for the down payment if he could prove that his separate funds were used to pay it. No interest would be payable on the down payment amount. 

Similar to separate property, separate debts belong to one spouse. All debts incurred before marriage are separate debts. Thus, for example, educational loans or job training loans incurred before marriage are separate debts. 

Date of Separation

The date of "separation" is the date when both husband and wife finally decide that the marriage is over, with no intention to stay together as husband and wife. This is a very important date because it marks the end of when property is characterized as community property. Unfortunately, the date of separation is subjective and often open to debate. Courts will look for physical evidence as to a final breakdown of family relations, such as moving out of the house.

 

Retirement Benefits 

Accrued or vested retirement benefits are community property, thus subject to division in a dissolution action. The retirement benefits which are subject to this community property application include military pensions, veterans educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc. 

Certain retirement benefits are not considered community property. They include railroad retirement benefits, social security payments, compensation for military injuries, and worker's compensation disability awards. 

In all dissolution actions, no matter the length of the marriage, the issue of retirement benefits should be settled one way or the other. For example, the petition, marital settlement agreement and judgment should all provide either for the spouse's waiver of retirement benefits or the division of any such benefits. A spouse should waive retirement benefits only if that spouse's share is worth very little. 

In the case of a division, there are two options: (1) the presents-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Note that stock options and pension plans where a person must work for a certain number of years may be worth more than you think, and it may be advisable to retain a professional pension actuary or appraiser. This will cost $150 to $300, but will be well worth it. 

If the retirement account is to be divided, special attention must be paid so that the tax advantages of retirement benefits are not lost. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse. Please contact the retirement plan administrator or a qualified attorney for more information regarding QDROs.

 

Tax Implications

Divorce can be a very challenging period in your life. Which spouse owes tax? What forms and returns need to be filed? When do I need to file? How do I file? What is the best tax planning strategy for my divorce? 

Tax Filing status

A taxpayer is considered to be unmarried at the end of a tax year if his spouse is legally separated from the taxpayer under a decree of divorce or separate maintenance contract at the close of the tax year. 

A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer's spouse was not a member of the household for the last six months of the year and the household is the home of a dependent child. 

Liability on Joint Return

You may request relief from liability for tax, plus related penalties and interests for which you believe that your spouse (or former spouse) should be liable. 

Innocent Spouse Relief is available if you: (1) filed a joint return and (2) are no longer married to, or are legally separated from the spouse with whom the joint return was filed. 

Dependency Exemptions 

In general, the dependency exemption for children of divorced taxpayers will go to the parent who has custody of the child for the greater part of the calendar year. 

Alimony

In general, alimony and separate maintenance payments are income to the recipient and are deductible by the payer. Different rules apply to payments made under post-1984 divorce or separation instruments and payments made under pre-1985 instruments. 

Child Support Payments

Fixed payments for child support are not deductible for tax purposes. If the amount paid is reduced contingent to the child - such as attaining a specified age, dying, leaving school, or marrying - the amount of the specified reduction is treated as child support.

 

DISCLOSURE: It is required under law that both spouses provide the other with all information related to their property, income, assets, and debts. This is called Full Disclosure. Failure to fully disclose all relevant information or concealing information can lead to serious problems, so be very precise in listing all assets, debts, income, and property. There are two disclosure forms which will be generated:

  • Preliminary Declaration of Disclosure - Within 60 days of filing the petition, the petitioner must serve the other spouse with this form. It preliminarily lists all your debts, assets, income, and property.
  • Final Declaration of Disclosure - Both parties must serve this form on the other party prior to signing an marital settlement agreement. If any changes have occurred from the Preliminary Declaration of Disclosure, they should be made on this form. Furthermore, the Final Declaration can be waived by both parties if a marital settlement agreement is signed.

HEALTH INSURANCE: Unless it is agreed and included in a marital settlement agreement, one spouse covered by health insurance is not required to pay health insurance premiums for the other spouse upon the dissolution of the marriage. However, the spouse without coverage is given the right to continue the insurance coverage at his or her own expense up to 3 years at the same or similar rates. In order to exercise this right, the non-covered spouse must notify the other spouse's insurance plan administrator of the election to continue coverage within 90 days after entry of the final judgment.

FILING COST: Mandatory court filing fees for divorces cost an average of $100. If a response is filed, an additional amount of approximately $100 will also be required.

ALIENS and NON-U.S. CITIZENS: Resident aliens who are divorced after less than 2 years of marriage may lose their resident status. In addition, any children may be deported. You should seek an attorney.

CONFIDENTIAL COUNSELING: Some counties have a Conciliation Court. These courts are designed to provide free counseling or cheap counseling for couples who desire it. Your first visit is usually free, but it is never mandatory.

COMPLEX ISSUES: If your divorce involves complex issues, you should seek an attorney or other professional to assist you. Examples of complex issues are:

Assets and Debt

  • One spouse transferring assets to themselves without permission
  • An unequal division of assets
  • Assets being sold without permission
  • The possibility of hiding assets
  • Valuing stock options and pension plans which require a certain length of employment
  • Lots of debt
  • Considering bankruptcy

 

Spouse

  • Immediate threat of harm to you or your children,
  • One spouse does not agree that a child is theirs,
  • You and your spouse cannot agree to divide property or decide on the best interest for your children, even after numerous attempts,
  • You or your spouse are active in the military
  • The spouses cannot agree on a date of separation
  • If one spouse put the other through school or training.

         info@mydocsolution.com

Certified Document Services (CDS) prepares legal documents for non-lawyers in their own legal actions. CDS offers no legal advice, recommendations, mediation or counseling under any circumstance. CDS are not Lawyers, are not employed by a Lawyer, cannot give any legal advice and our employees are not acting as your Attorney. CDS can give you general factual information pertaining to legal rights, procedures or options available to you in a legal matter when you are not represented by an attorney. CDS cannot give you specific advice, opinions or recommendations about your legal rights, remedies, defenses, or strategies.