Many marriages today end in divorce. If you feel that your marriage has reached a stage where divorce is the only option it is important that you understand fully the implications of divorce and the issues that arise from divorce. Here is a guide to ten key issues that you should understand before you proceed with divorce.
1. Finding the Right Divorce Attorney
At the outset the most important thing you can do is to find the best divorce attorney for your own needs but they may not offer a cheap divorce so see to it when getting one that you are financially ready. Remember that a cheap divorce lawyer may not always provide best outcome so consider the consequences if you decide to get one for your legal representation. If no children are involved and the divorce is particularly acrimonious you may prefer a lawyer with a reputation for being ruthless. However if there are children involved you are advised to look for a lawyer with a strong reputation in family law and specifically matrimonial law. While divorce is indeed the process of dissolving the marriage it cannot dissolve a family when children are involved. To find a family law specialist you can contact the American Academy of Matrimonial Lawyers which have their own examination process for certifying family law specialists. It is also important that you realize that the divorce process can vary from state to state and therefore you should choose a lawyer with expertise within your local area.
2. The Divorce Process
The legal objective of divorce is to end the marriage and make a decision on any issues such as child custody and alimony. The process itself varies from state to state. Generally speaking it involves a petition for divorce being lodged and a subsequent response from the other party. This will then lead to either a settlement or if necessary a trial. It can be important which partner actually lodges the initial petition as this can then decided which court will hear the matter. It is therefore advised that you seekfrom the outset if you feel your marriage is moving towards divorce.
3. Alternative Dispute Resolution
The end of the marriage can often take on a snowball effect with each party scrambling to save themselves and not giving ample time to consider alternatives. Seekingmay start the ball rolling on the divorce process but it can also be a way of seeking advice regarding counseling if there is any desire to reconcile. Failing this a good divorce lawyer will start by attempting to solve the issues through mediation. Mediation involves both parties meeting with an impartial third party to try and reach agreement on issues pertaining to the divorce, for example alimony payments and child custody arrangements.
Alimony is also known as spousal support or maintenance. It arises out of the obligation which exists between two married people to support each other. While the marriage can be ended in certain cases the court can find that this obligation still outlives the marriage. Finding a good divorce lawyer will protect your rights at the stage of deciding alimony payments. The granting of alimony varies from state to state with certain states such as Texas proving strict guidelines to judges. Other states allow judges, in their own discretion, to award alimony based on testimony given by both parties. In some case certain binding agreements may have been signed before entering the marriage which will dictate such issues as alimony.
5. Child Custody Issues
The saddest element of any divorce is most certainly where children are involved. It is important that neither party loses sight of the best interests of the child throughout the divorce process. It is a traumatic time for the children. Like divorce the child custody process is best resolved at mediation level than being carried on through to a hearing. Child support and visitation rights will also be worked out during the custody hearing.
6. Division of Assets
At the time of divorce the court must assess how property can be divided. Property can be considered as either community property, acquired during the course of the marriage, or separate property which was acquired by one spouse before the marriage. Both types of property are subject to distribution taking into account factors such as income, contribution to the family and custodial arrangements. Most states have attempted to draw up tests which can be used to divide property in a fair manner. It is therefore necessary that you have a good divorce lawyer to argue your case at the stage of division of assets, but also one that knows the divorce law of that state. The division of assets is a very complex process and one that you would be foolish not to seek advice on.
Other things may affect the division of assets, for example the existence of prenuptial agreements.
7. Pre-Nuptial Agreements
Prenuptial agreements are made before the marriage occurs and stipulate how assets will be divided should the couple divorce. Generally such agreements are considered contractually binding if they meet the following five requirements:
- They must be written
- They must be signed voluntarily
- The agreement must have been witnessed by a person who has been given authority by the state to witness legal documents such as a lawyer or other public figure
- The agreement must have been made on full disclosure of all relevant facts. If one partner marries under false pretences they cannot then claim the prenuptial agreement is still valid
- They must be ethically fair
Prenuptial agreements can include contingency clauses to cover all eventualities such as the marriage not lasting more than a certain number of years, or adultery committed by one party.
8. Third Parties
As of 2010 all fifty states now recognize the no-fault divorce. However while this is suitable in cases where both parties agree to the divorce there may also be occasion when issues such as adultery are raised as a grounds for divorce. You should beware of involving third parties as it will mean that they must be called to give corroborating evidence of adultery.
9. Estate Planning Implications
Following a divorce you will need to reassess any previously drafted wills or life insurance policies. In some states divorce will automatically change your estate plan for property you hold. If you are in any doubts about this talk with your lawyer who will best advise you on estate planning post-divorce.
Often hiring the best divorce lawyer does not come cheap. Cheap divorce lawyers may not provide good outcome of your case. Discuss fees at the outset so that you can have a reasonable idea of what to expect. If it is possible to keep the divorce amiable and therefore agree as much as possible out of court the cheaper the overall cost will be. If you are unable to afford a lawyer but your spouse has a much greater income you may be able to request the court to order the other spouse to pay all or part of your fees. In some areas, and based upon individual circumstances, free legal aid may also be available.