Divorce FAQ

What is an "annulment"?

An annulment is a ruling by the court that puts aside a marriage as though it never existed.

When might an annulment be granted?

An annulment may be granted for several reasons. For instance, one party may be underage and did not obtain parental consent. One party may already be married. One party may have fraudulently concealed information that impacted the decision to marry (e.g. infectious disease, inability to have children, a criminal record).

What is a"legal separation"?

Legal separation is a legal status conferred by a court where the parties remain married but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property, and debts.

What are the advantages to a legal separation?

Legal separation has certain income tax advantages with respect to deductibility of spousal support payments. It is sometimes an alternative to divorce for religious reasons. Sometimes it is preferable to a divorce for purposes of insurance coverage. Often it is simply used as a trial for the couple to consider the possibilities of reuniting or divorcing.

What is a"divorce"?

A divorce, or dissolution of marriage, is a judicial termination of a marriage based on marital misconduct or other statutory cause arising after the marriage ceremony. As a result of a divorce both parties become single again.

Can I get divorced before we finalize all the details?

In many states the answer is "yes". In states permitting this "bifurcation", the court will handle the end of the marriage separately from other issues such as child support, custody, visitation and alimony. If the parties cannot negotiate matters themselves, the court retains the ability to resolve all remaining issues at trial.

Can one spouse get a divorce just because he/she is tired of being married?

In some states both sides can agree to a divorce with only a brief waiting period. Other states, however, require "grounds" for a divorce, meaning that the divorce is one spouse's "fault".

What is a"no-fault" divorce?

Many states permit "no-fault" divorces. A no-fault divorce is one in which neither spouse blames the other for the breakdown of the marriage. Both spouses agree that "irreconcilable differences" have arisen.

Can you fight grounds that are alleged for divorce?

Yes, fault grounds can be contested. The party bringing making the allegation must prove the truth of the allegation. The other spouse can rebut that allegation as in any other legal trial.

Can my spouse and I use the same attorney for our divorce?

In situations where all the issues are agreed and there is no apparent conflict of interest, one attorney MAY represent both parties. However, this is usually a very bad idea. Invariably there will be issues that arise that were not initially contemplated, where a conflict can develop.

Using separate lawyers does not have to lead to a messy and adversarial situation where none previously existed. However, it does lead to peace of mind knowing that each individual's interests were properly represented.

How long will it take me to get a divorce?

This needs to be answered on a case by case basis by your attorney. It depends on a number of variables. For instance, it depends partially on the court docket of the venue you are filing in. It depends on whether you are filing under "no fault" or "fault" grounds. It depends on how complex property division might be. It depends on how much the parties are willing to agree to. It depends on the complexities involved with children.

What is a deposition and what's going to happen?

In most divorce cases in many states, both parties have the right to engage in "discovery" to gather facts from the other party, and sometimes from third party witnesses. A deposition is a type of discovery in which the lawyer for a party takes your testimony.

At the deposition you will be put under oath, and your spouse's lawyer can ask you a wide range of questions relating to the case. The lawyer's questions, and your answers, will be taken down by a court reporter.

Your testimony at the deposition will likely be used to cross-examine you if your testimony at trial varies in even the slightest detail from the testimony at the deposition.

You have the right to have your lawyer present at the deposition, and you definitely should. Your lawyer will help you protect your interests. First and foremost, your lawyer should spend time reviewing the facts with you and preparing you to give a deposition. Your lawyer will tell you to listen carefully to each question and then answer only the question that is asked, and not to volunteer anything or raise other issues. Your lawyer will tell you that if you do not understand the question, ask for a clarification. Your lawyer may object to questions that for one reason or another are improper.

The proper purpose of a deposition is to gather background and evidence and lock in the stories of the parties and the witnesses. The lawyer for the other side will also use the deposition session to evaluate how sympathetic you are likely to appear to a jury.

Your deposition, when properly handled, can go a long way in assisting your lawyer in the litigation either by way of settlement or at the trial. What you do at the deposition can help you or hurt you, depending upon your attitude, truthfulness and appearance.

What will happen to our health insurance for my dependent children after our divorce?

A spouse may sometimes be ordered by the court to keep the children on his or her policy. However, as you are no longer married you are no longer eligible for coverage under your former spouse's policy. Most plans offer a conversion package to individual coverage under COBRA, a federal law. The cost of insurance is usually the responsibility of the separate parties after a divorce.

What is marital property?

Marital property is property that is acquired by either spouse individually or the couple together during a marriage.

What is community property?

There are nine community property states - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction.

These states generally regard as community property all property that has been acquired during the marriage, other than a gift or inheritance. Even if one spouse earns all the money to acquire the property, all the property acquired is considered to be community property. In community property jurisdictions, spouses equally own all community property (fifty percent owned by the husband and fifty percent owned by the wife).

What is separate (non-marital) property?

The property that each spouse owned before the marriage is considered to be "separate" or "non-marital" property. For the property to remain separate, the spouse must keep it apart from marital or community property. Once the separate property has been commingled (mixed) with marital or community property, it may become part of the marital property.

Will the property division or alimony be affected by whether or not I obtain a fault or a no-fault divorce?

That varies from state to state. In some states the court can consider the spouses' faults in deciding how to distribute property and provide what is commonly known as "alimony" (also known as spousal support or maintenance). In a no fault divorce the issue of "fault" does not affect property distribution or spousal support rights.

Do I get a portion of my spouse's stock options in a divorce?

Yes, if a spouse earned stock options during the marriage, most courts will award at least a portion of the options, or the value of the options, to the other spouse in the event of a divorce.

How is the debt incurred during the marriage divided?

In addition to the property acquired during the marriage, the debt incurred during the marriage is divided upon divorce. Dividing the debt upon divorce determines who is responsible to repay the debt.

If both spouses co-signed for a debt, both spouses will probably be held to "joint and several liability" for the debt meaning that each spouse is responsible for the entire debt, but also the spouses are jointly responsible for the debt. When a joint and several liability is divided, the debt is attributed to both spouses. Often, however, one spouse is made responsible for the entire amount of the debt. This is generally offset by giving the spouse who pays a particular debt more property in the settlement than the spouse who is left free from the debt.

In some states debts that were incurred for the benefit of the family are joint and several liabilities of both spouses. Since both spouses benefited from these family expenses, both spouses would be responsible for the repayment of these debts.

Expenses that were incurred solely for the benefit of one spouse may be left as the responsibility of the spouse who obtained the benefit. However, in most community property states, both spouses are equally responsible for the repayment of debt incurred during the marriage, even if only one spouse enjoyed the benefit.

Typically, the debts that one spouse brings into the marriage (separate or non-marital debt) remain the responsibility of that spouse. In special circumstances (in community property states), both spouses can be held responsible for separate (non-marital) debt.

When a joint tax return is filed, the Internal Revenue Service holds both spouses to joint and several liability for the tax.

Why must some retirement plans be divided in a special manner?

Federal law governs most retirement plans. Most retirement plans receive special tax treatment, allowing contributions to the plan to go in before taxes are paid, and further allowing the income on the money in the plan to accumulate without current tax. Upon divorce, a special order, called a "Qualified Domestic Relations Order" (QDRO) must be issued by the court and served upon the plan's trustee. The QDRO defines how much of each payment is to go to each spouse.

What entitlement is there to my spouse's pension?

If the pension was earned in whole or in part during your marriage, you'll generally be eligible to share a portion of it. A lot depends on the state in which you and your spouse live. Many states do consider that the pension belongs to the participant and his/her spouse jointly. A state court will decide whether or not an ex-spouse or child is to share in the participant's pension. ERISA will uphold the court's decision.

What is "Equitable Distribution"?

Most states employ "equitable distribution" in dividing marital property as a result of the divorce. Instead of a strict fifty-fifty split equitable distribution looks at the financial situation that each spouse will be in after the termination of the marriage. While equitable distribution is more flexible, it is harder to predict the actual outcome, since the various factors are weighed. Some factors considered in equitable distribution include:

  • Earning power of the spouses.
  • One spouse having done most of the work to acquire the property.
  • The value that a spouse contributed as a home-maker.
  • Fault of one spouse in wasting marital property.
  • Duration of the marriage.
  • Age and health of the spouses.
  • The responsibility for providing for children.
  • Grounds for the divorce, if any.

What are premarital and post marital agreements?

An "ante-nuptial" or "premarital agreement" is a legal contract between two people who are about to be married. In the agreement, the prospective husband and wife may agree upon the rights that each will have to the property that they bring into the marriage, and/or acquire during the marriage. They may also agree as to the amount of support owed to the other in the event of divorce.

A post marital agreement is a similar contract between a husband and wife, but after they are married. This agreement may alter the rules for the division of property between the spouses in the event of divorce or death. A particular form of post marital agreement, often referred to as a Marital Settlement Agreement, specifies the distribution of property and responsibility for debt between the respective spouses as part of the divorce proceeding.

Laws in each state governing these agreements vary from state to state. To be valid in most states the agreement must be in writing, executed by both parties, must be entered into voluntarily with sufficient time to consider the contents and sufficient information about the financial situation of each party.

What is the effect of a divorce on a will?

It depends on your state's law. In some states, a divorce automatically revokes an entire Will. In other states it revokes only those provisions that made gifts to the former spouse, not the Will itself. Either way, any property arrangements in a Will should always be reexamined when you contemplate a divorce.

Types Of Financial Obligations Owed As A Result Of Divorce

Some of the more common terms and definitions used to describe financial obligations owed as a result of divorce include:

  • Alimony: Payments made from one spouse to the other during a separation or a divorce (dissolution of marriage). Also known as spousal support.
  • Child Support: As a general rule, both spouses have a duty to provide support for their minor children.
  • Family Support: A combination of alimony and child support. Similar in nature to separate maintenance payments.
  • Rehabilitative Support: Payments made from one spouse to the other over a period of time to enable the supported spouse to obtain a career and become self-supporting. Also known as alimony and spousal support.
  • Separate Maintenance Payments: Payments made from one spouse to the other when they are no longer living together as husband and wife for the support of the spouse and the children in his/her custody. Similar in nature to family support.
  • Spousal Support: Payments made from one spouse to the other during a separation or a divorce (dissolution of marriage). Also known as alimony.

How are support payments treated under Federal income tax rules?

Child support payments are typically not deductible from the income of the payer and are not included as taxable income to the supported spouse. Alimony or spousal support payments are tax deductible by the payer and taxable income to the supported spouse.

What factors can be used to determine the amount of alimony?

Some of the factors (which vary from state to state) used to determine the amount of alimony to be paid by one spouse to the other include:

  • The ability to maintain the standard of living established during the marriage, considering the earning capacities of each of the parties.
  • The marketable skills of the supported spouse, the job market for those skills, the education or training needed to develop marketable skills.
  • The ability of the payer to make support payments taking into account his/her earning capacity.
  • The duration of the marriage.
  • The ability of the supported spouse to be employed without unduly interfering with child care responsibilities.
  • The age and health of the respective spouses.

How long will alimony be ordered?

Alimony is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination. In some instances, depending on the age and health of the supported spouse, it could be permanent.

In addition, typically a court order for alimony terminates upon the death or remarriage of the supported spouse.

Can medical insurance be included in alimony?

Often. In a case where the supported spouse depended upon the other spouse for health insurance during the marriage and does not have sufficient means to obtain such insurance, the court may require the payer spouse to continue to provide medical insurance. Alternatively, the amount of alimony can be increased so that the supported spouse will have the ability to purchase medical insurance.