DIVORCE/CUSTODY

Family Law

WHAT IS DIVORCE?

Divorce is the legal process that dissolves a marriage between two spouses. After the divorce process is completed, both parties are free to remarry if they so choose.

Divorce law is the body of laws which governs the divorce process. To finalize a divorce the court will issue a divorce decree. This document provides a judgment and order that makes the termination of the marriage official. Each divorce decree will differ because it will be based upon the unique facts and circumstances of the case.

The purpose of divorce decrees is to provide an outline of the rights and duties of each party in relation to the divorce. It also serves to provide the parties with instructions regarding the division of property and child custody, if those issues apply.

A spouse's status as married or divorced will not be altered or finalized until the divorce decree is issued. A divorce proceeding that has not yet been finalized may affect numerous areas of an individual's life, including:

  • Debt;
  • Property possession;
  • Taxes;
  • Employment benefits; and
  • Other legal rights.

The divorce decree will typically address issues including:

  • The division of property between the spouses;
  • Spousal support or alimony;
  • Issues related to children, including custody, support, and visitation; and
  • The financial obligations of each spouse.

Divorce records are usually kept at the local county records office and can typically be obtained at the county court where the divorce was filed.

WHAT ARE SOME TIPS WHEN FILING DIVORCE PAPERS?

Tips parties can follow that may be helpful when filing divorce papers include:

  • Attempt to be cooperative: If a party is difficult or evasive, it only serves to complicate the process and may make it more lengthy and expensive;
  • Think ahead: Be sure to note any issues that may be of immediate concern, such as any outstanding debt or property issues;
  • Laws are different by state: Divorce laws are very different from region to region. It is important to speak to a professional; and
  • Be honest when making disclosures: Laws prohibit individuals from concealing hidden assets in a divorce proceeding.

Aspects of divorce proceedings which often require clarification include spousal support, division of property, child support, child custody, child visitation, and remarriage issues.

WHAT ARE SOME TIPS FOR THE DIVORCE PROCESS?

When an individual is going through the divorce process, they may find the following legal tips helpful:

  • Keep an open line of communication with the other spouse;
  • Be sure to disclose all assets and property;
  • Ask questions;
  • Do not complicate custody or visitation agreements for the children;
  • Do not get married during the divorce proceedings; and
  • Do not sell any major assets during the divorce.

Although a lawyer is not required to obtain a divorce, having one may make the process go more smoothly.

WHAT IF THERE ARE UNFORESEEN ISSUES WHEN FILING FOR DIVORCE?

It is always best for the parties to be prepared before and during their divorce proceedings. As with any legal proceeding, however, there may always be unforeseen legal matters and issues which may arise. For example, if one of the parties had a recent change in residence, it may create legal issues related to relocation and child custody matters.

An individual should inform their attorney if there are any new issues which arise during the divorce proceedings. An attorney will not be able to make the best recommendation for their client unless their client has provided them with all of the facts.

HOW TO FILE FOR DIVORCE WHEN SPOUSES RESIDE IN DIFFERENT STATES

While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing for divorce. All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition.

The amount of time required for establishing residency varies from state to state, but generally ranges from six months to one year. If you and your spouse are now residing in separate states, each of you maintains the right to file for a divorce in your current home state.

WHAT DO I NEED TO DO TO FILE FOR DIVORCE IF MY SPOUSE LIVES IN A DIFFERENT STATE?

The first step will be to check your individual state's divorce residency requirements. If both spouses file for divorce at the same time (concurrent filing), the general rule is that whichever petition is filed and served first will proceed to court. The divorce process typically includes:

  • Notification: The other spouse must be notified or served with the divorce papers and has twenty to thirty days to respond.
  • Temporary or Preliminary Hearing: An initial meeting for the spouses, their attorneys, and the judge to address immediate concerns such as temporary child support, custody, or use of the marital residence.
  • Negotiations, Mediation, and Agreements: The parties may attempt to resolve differences through negotiations or mediation.
  • Trial: Issues not resolved through negotiation must be addressed through trial.
  • Post Trial Issues: Additional legal issues such as appeals and child custody adjustments may arise after trial.

THE PROS AND CONS OF FILING FOR DIVORCE IN A DIFFERENT STATE

Because each state has different laws regarding divorce and community property rules, it may be more advantageous to file in one state. Some common issues to consider include:

  • Does the state allow for a no fault divorce? All states allow for some form of a no fault divorce. Some states also allow a spouse to allege fault, which may cause the court to award higher alimony payments or a larger share of marital property.
  • How does the state handle the distribution of property? Some states follow community property distribution (divided evenly), while others follow equitable distribution (divided fairly).
  • How does the state handle child support and alimony? Every state applies their own formula when calculating these amounts.

HOW CAN AN ATTORNEY HELP ME WHEN FILING FOR DIVORCE FROM A SPOUSE LIVING IN A DIFFERENT STATE?

The divorce process is often challenging and emotionally charged. A skilled divorce lawyer can help educate you on your state's residency requirements, advise you on which state is best to file in, assist you in fulfilling procedural requirements, and represent your interests in court.

Call our office today at (833) 388-7044 or complete the convenient online contact form to set up a consultation.