FAQ Divorce

FAQ: Divorce

If you are facing divorce, you likely have many important questions that need to be answered as quickly as possible. We encourage you to read our answers to common divorce questions below. If you have additional questions, or would like legal assistance, please do not hesitate to contact us directly to set up a consultation.

Common Divorce Questions

What is the process for obtaining a divorce?

Every state has its own laws for obtaining a divorce, or dissolution of marriage as it is called in some states. Like many other types of civil process, the legal process is somewhat similar in all states. The first step, in any divorce, is that one spouse or both spouses make a decision to initiate a termination of their marriage. Arriving at this decision is different for each individual. Mark Baer has written extensively about the various processes available for handling family law matters in California and things to consider before filing for divorce. There is no doubt that the break-up of a romantic relationship is wrought with emotion, but it is a grave mistake to make emotional decisions that you will later regret.

The average "financial cost" of a divorce in the United States is estimated to be $20,000.00. While some divorces only cost a few hundred dollars, others can cost millions of dollars. "Each case has its own 'price point.' The amount of fees and other expenses that may be required to resolve a case depends on at least four variables: (1) Level of conflict, (2) Complexity of issues, (3) Sophistication of clients, and (4) Choice of counsel." This quote is from an article by Nancy Chausow Shafer titled Dispute Resolution Processes in Limited Finance Cases - Stepping up to Client-Centered Decision Making that was published in the Fall 2013 edition of ABA Section of Family Law - Family Advocate.

The reason I specifically mentioned the "financial cost" is that it fails to take into consideration the emotional costs to the parties involved, their children and the family as a whole. You must always remember that money comes and goes, but family is forever.

Mr. Baer advocates mediation or collaborative law rather than litigation to those involved in divorce, paternity or other family law-related matters. Litigation attorneys tend to resolve matters in an adversarial manner, regardless of the field of law. Cases involving family matters should not be handled in the same way that attorneys would handle a criminal case, a medical malpractice case or a toxic tort case. Litigation tends to exacerbate the level of conflict, which tends to increase the amount of time and expense required to resolve the matter. However, mediation can decrease the conflict while resolving legal and other issues, simultaneously addressing emotions and feelings.

Using litigation in family law is like involving ground troops, as a first resort, when countries have international issues; similarly, using judges and arbitrators would be like choosing the nuclear option. When the U.S. is having a dispute with another country, it initially attempts to resolve the issue through diplomatic efforts. If diplomacy doesn't work, it might try economic sanctions of varying levels. If that doesn't work, it may use drones to drop bombs. If that doesn't work, it may involve ground troops. The final option, if absolutely necessary, would be to drop a nuclear bomb, something it has not done since 1945. But if our country is not getting along with Iran, Russia, or any other country, we don't start resolving the conflict with ground troops or nuclear weapons; we try diplomacy in an effort to resolve it.

As with international disputes, family law matters should start with conflict resolution through diplomatic efforts by way of mediation. The best mediators are those who are well versed in evaluative, facilitative and transformative mediation and can seamlessly move from one approach to the next as the need arises. Mr. Baer explains the different types of mediation, available, in his well-received article for the Huffington Post entitled "How To Select The Best Mediator Is a Must Read for Everyone."

What makes a really exceptional mediator is the ability to capture the essence of a conflict and move people to a place of empathy and compassion, which is the role of facilitative mediators. Litigators are warriors so these skills are inconsistent with their role. In fact, it is unlikely that they even have such skills.

Furthermore, children, step-children, grandchildren, and others frequently suffer the collateral damage of their parents' decision to handle their differences in an adversarial manner. These individuals, and potentially their offspring, will carry forth the fall-out from the adversarial way their parents' relationship ends. However, if mediation or collaborative law is used right from the start, this destruction can be averted.

Unfortunately, people excel at not only talking themselves out of handling their matter in a constructive manner, but also tend to retain aggressive attorneys. However, as set forth by Mr. Baer in his article titled " When Divorcing, Don't Hire a Pit Bull Attorney - Aggressiveness won't help you in court" that was published in Psychology Today, that is a mistake that people tend to later regret. As Mr. Baer likes to remind people, "outcomes are determined by the way in which the 'game' is designed."

For the reasons stated by Mark Baer is his article titled "How To Select The Best Mediator Is a Must Read for Everyone," it is essential for people involved in family law disputes to select the mediator before involving attorneys. It is also advisable that you select a mediator carefully.

Family law is extremely complex because it involves the interplay between the law, emotions, family dynamics, finance, and taxation, among other things. Successfully resolving those disputes requires skills beyond those traditionally taught in law schools. The same is true of "uncontested divorces." While most people believe that an uncontested divorce does not require the help of a seasoned professional, they are highly mistaken. Always remember, competent people making informed decisions can agree on anything they want, that is not illegal or otherwise in violation of public policy. Without professional assistance, how can you be certain that you are making informed decisions that are not illegal or in violation of public policy?

The typical legal issues involved in a divorce include division of property and debt, parenting plans and timeshare schedules regarding children, spousal support, child support, contributions toward attorney's fees and costs, and possibly domestic violence restraining orders. If the couple entered into either a prenuptial or post-nuptial agreement, those documents may impact some of these issues and must therefore be analyzed. With the exception of domestic violence restraining orders, the issues that actually led to the breakdown of the marriage are legally irrelevant, which Mr. Baer believes tends to exacerbate the conflict. He has discussed this reality in many of his articles, including " The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law" and " When the Law Is Involved, Do Feelings and Notions of Fairness Matter?"

How is property divided?

All states provide for a more-or-less equitable, but not necessarily equal, division of marital property. Marital property includes the parties' income acquired during the course of the marriage. Community property states have laws that set forth in specific detail precisely what property is considered community property and thus available for division, and what property is considered separate property and thus not available for division. Once community property is identified, some community property states provide for an equal division of the property. Others apply the same principles as those states that use the equitable division of property model.

Mark Baer firmly believes that competent people making informed decisions can agree on anything they want, that is not illegal or otherwise in violation of public policy. He has written extensively about the grave mistake of confusing "legal justice" with "fundamental fairness." He feels that people should be made aware of the law in order to make informed decisions, but is against coercing them into reaching agreements based upon what someone predicts would occur inside a courtroom. Family law differs from state to state and country to country. In fact, California is only one of nine states that have community property laws. In other words, what occurs in court varies significantly based upon nothing more than which state or country in which jurisdiction lies at the time of the divorce. Mr. Baer therefore does not believe in forcing people to resolve their matters based upon what anyone believes may occur in a courtroom.

Despite lore to the contrary, most divorcing couples are able to resolve their issues regarding division of property and debt without resort to a court's decision-making process.

How are debt and other liabilities and obligations divided?

Debt division is considered part of the property division process. In community property states, liabilities, like assets, that are brought into the marriage belong to the spouse who incurred them. In equitable distribution of property states, the debt, like the property, is divided equitably between the parties. If the debt is secured debt, the general rule is that the value of the encumbered asset is reduced by the amount of the debt in determining division. For instance, this often happens in the case of family cars. For many divorcing couples, each spouse has a vehicle, but one may be a paid-for clunker worth relatively little with no car payment. The other may be a late model car worth well over $10,000, but with a loan balance equal to its present value. Despite the fact that the vehicles may have very different gross values, the net value for them is equal.

A very common problem for couples in our current economy is that they have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This situation poses a complicated issue for debt division. In cases such as these, the advice of a financial consultant, or even a bankruptcy attorney, could be very helpful to the parties.

As with other property issues, if the parties cannot reach an agreement on their own, with our without the help of professionals, state laws typically provide a rationale for courts to follow in making debt division decisions.

How is alimony, or spousal support or maintenance determined?

All state divorce laws address the issue of whether, and for how long, one spouse shall be required to make support payments to the other spouse after termination of their marriage. In cases involving equitable division of property, one of the usual factors for division of property is whether one spouse will pay support to the other. On the other hand, when determining spousal support, or maintenance, as it is known in some states, one of the factors to be considered is the division of property.

In community property states, the division of property between the parties is not necessarily a factor to be considered in the determination of support, but their prior standard of living and the relative economic status of the two parties are relevant factors. In the so-called equitable distribution property states, other factors to be considered are much the same as the factors to be considered by the court in the division of property, such as:

  • Length of the marriage
  • The extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse
  • The presence of young children in the home
  • Employment opportunities available to the spouse requesting support

The factors considered in California can be found in Family Code Section 4320.

Although spousal support may be a highly contentious issue in divorce, many couples are able to resolve it on their own or with the assistance of professionals.

Who will win custody of the children?

The fact is that in 90% of cases in the United States where parents have decided they will not parent together, the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents, children, the extended families, and even for professionals involved in their cases.

Because of the high potential that a custody battle can have long-lasting negative impact on children, most states have instituted as many safeguards against that possibility as possible. In general, all child custody decisions are to be based on "the best interests of the children." In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. Safeguards in place include:

  • In many states, parents with a child custody dispute are required to attempt mediation of the custody issue before a contested custody case may go further
  • In some states, in any contested custody matter, the court must appoint a guardian ad litem, an attorney whose role is to represent the best interests of the child during the course of litigation
  • Sometimes the courts order "custody evaluations" which are investigations and reports from impartial professionals with specific training for the task, usually social workers or mental health professionals
  • In some states, depending on the age of the children, courts allow children to have some input into their custody decisions
  • All states have a long list of statutory factors that the court must take into account prior to making such determinations

What happens when a custody or visitation order is violated?

The consequences for violating child custody and visitation orders almost always correlate to the magnitude of the violation. For instance, if a parent is a few minutes late in arriving to pick up a child at the time for exchange, even though it may happen repeatedly, it is likely there will be little or no consequences for this minimal violation. For the most part, a few minutes difference in arrival time will not endanger the children in any way. On the other end of the spectrum, of course, is the situation in which a parent fails to return the children at the designated time and disappears with them with no trace for days, months and sometimes even years.

At the lower end of the spectrum of violations, most states do not provide much assistance to parties trying to force compliance with a court order. Often a parent, frustrated by such behavior from the other parent, may merely have to have ready a 'plan B' that insures the safety of the children while allowing the parent to minimize the inconvenience of the repeated tardiness or other minor violations.

At the upper end of the spectrum, depending on how long the children are gone and whether the parent has crossed state lines, and at even the middle of the spectrum, the full force of both state and federal law enforcement is enlisted to protect children and penalize offenders. It should be noted that the violation must demonstrate a criminal intent to withhold or conceal the child from a party with the right of custody before law enforcement considers a crime to have been committed.

All states have procedures for seeking enforcement of a court order through contempt proceedings. These procedures generally require the assistance of an attorney. Most courts look very unfavorably upon violations of its orders, typically providing a remedy for the other parent. Courts have been known to alter a custody or visitation schedule completely in response to a parent's significant or repeated violation of their order.

For what it's worth, it is well known that when people are able to reach an agreement on their own or with the assistance of professionals, they are more likely to comply with the terms of the agreement.

How is child support determined?

Prior to the institution of child support guidelines, child support determinations were entirely within the judge's purview, based on only two factors. The first factor was the level of ability for the obligated parent to pay. The second related to the needs of the child. This situation has changed dramatically over the years, with changes gaining momentum from federal legislation that required more uniformity among the states in exchange for federal child support funding.

Now all states have adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. States have, for the most part, made a determination that every child has the right to the support of both parents while at the same time, parents' rights and needs are to be taken into consideration as well. Based on these principles, states have adopted formulas for determining what the level of child support should be. Generally, these guidelines are based on a percentage of the payor parent's gross income. Of late, more states are taking into account the income and standard of living of both parents, and the actual percentage of time that the children spend with each parent. Most states also provide that the formulas are presumed to result in a correct amount, however, states have also adopted procedures for deviating from the guidelines.

Parents almost always tell me that their children mean more to them than anything else. Considering the cost of raising a child, I would certainly hope this statement to be true. However, what parents seem to forget when they are divorcing or their relationship is ending is that children are expensive. Since most parents never used the USDA Calculator, they never really thought about the cost of their children. It is only when the relationship comes to an end that the parents have to deal with the issue of child support. Child support is the payment by one parent to the other for the support of the child[ren] of their relationship. Federal law requires that the amount of child support be determined in accordance with a guideline. Child support calculations take into account the respective gross incomes of the parents, tax deductible expenses and the percentage of time that each parent has the children, among other things.

Reflect upon the following example: (1) father's gross monthly income is $4,500, (2) mother's gross monthly income is $3,500; (3) there are 3 minor children involved, ages 3, 5 and 7; (4) father has the children 25 percent of the time; (5) father files his taxes as single; (6) mother files as her taxes as head of household; and (7) mother spends $600 a month on child care. For this example, no other factors exist for purposes of calculating guideline child support. The father in this case would be ordered to pay the mother guideline child support in the sum of $1,320 per month and he would be left with net spendable income of only $2,051 per month. After taking into account the child support she receives, the mother would have monthly net spendable income of $4,800.

Invariably, father would complain that the laws are unfair and that he cannot afford to pay that amount of child support. He may also be troubled by the fact that the mother is not obligated to account for her use of that money. The father might refuse to purchase clothing and other basic necessities for the children because he is paying child support to the mother. However, what the parents have not considered is that according to the USDA Calculator, the estimated annual cost of those 3 children is $32,300 and he is paying the mother $15,840 per year in child support, which is $16,460 less than the estimated annual cost of raising those children. The child support that he pays to the mother basically equalizes the fact that she has the children 75 percent of the time and therefore incurs 75 percent of their cost. Father still has the children 25 percent of the time and has costs associated with his time with them. Both parents struggle to support the children, one thinking he is paying too much in support and the other that she is receiving too little in support. In reality, the only reason the couple was able to afford the 3 children while still together (assuming that they could afford the 3 children) is because they only had one household to support.

According to the USDA's report, "As a proportion of total child-rearing expenses, housing accounted for the largest share across income groups, comprising 30 to 33 percent of total expenses on a child in a two-child, husband-wife family. For families in the middle-income group, child care/education (for those with the expense) and food were the next largest average expenditures on a child, accounting for 18 and 16 percent of child-rearing expenses, respectively." In determining housing expenses, the USDA takes into account the average cost of additional bedrooms needed to accommodate the children.

In any event, current state of the law does not provide much room for disputes about who should pay what amount of child support.

Can a divorce decree be changed?

As the answers to legal questions often do, the answer to this question usually generates a set of additional questions, such as:

  • Who wants the order modified?

In almost all cases in which someone other than a party to the divorce wishes to change the divorce decree the answer is no. Thus, the question should be, can the divorce decree be changed upon the request of a party to the divorce. This leads to more questions.

  • What part of the order does the party want to modify?

If the modification has to do with property division, in most states, the answer is again no, unless there is evidence that the original decree was based on significantly incorrect information. In this event, states provide procedures for correction of the order based on the newly revealed information. Since states generally require that the parties provide full disclosure of assets and liabilities, if the incorrect information was intentionally provided in order to conceal assets, the court may also impose significant penalties.

If, on the other hand, the desired modification involves other issues, child support, spousal support, child custody and visitation, the next question is typically:

  • Has there been a significant change in circumstances since the entry of the decree that warrants a change?
    • In child custody matters, a number of different factors can come into play so that the court may find there is a significant change in circumstances justifying modification. Some states require an even higher standard for modification of the decree in the first two years of an order simply to help insure that parents do not keep disrupting their children's lives by dragging the other parent back to court.
    • In child support and spousal support matters, the answer again depends on the question of whether there has been a significant change in circumstances to warrant the change. If so, the court may modify its original decree.

That being said, competent people making informed decisions can agree on anything they want, that is not illegal or otherwise in violation of public policy. Mr. Baer has written extensively about the grave mistake of confusing "legal justice" with "fundamental fairness." He feels that people should be made aware of the law in order to make informed decisions, but is against coercing them into reaching agreements based upon what someone predicts would occur inside a courtroom. In fact, unless the facts are undisputed and the law is crystal clear, he has concluded that any prediction is more perception than reality. Nothing is preventing two people from making adjustments or modifications to their agreement on their own or with the help of professionals. Of course, outcomes are determined by the way in which the "game" is designed and " Family Law Litigation Is the Gift that Keep on Giving!"

What Role Does Domestic Violence Play in Divorce?

As with so many issues involved in divorce cases, domestic violence may or may not play a significant role in the legal process depending upon the exact circumstances. Of course, in cases in which criminal law has been invoked because of the level of domestic violence, it will likely play a significant role in the divorce case. This is especially true in cases involving child custody and visitation determinations. However, if the parties don't have children and the domestic abuse has been relatively minor, even if law enforcement has been involved, the domestic violence of one party against the other may play a miniscule legal role.

On the other hand, because the very definition of domestic violence implies an on-going pattern of control of one party by the other, using not only physically, but also psychologically and emotionally abusive methods, domestic violence may play a very significant role in the emotional and psychological aspects of divorce. This can be especially true in the original decision-making process of whether or not to initiate a divorce. Many domestic violence survivors leave a marriage because of the abuse, and many victims of domestic violence stay in the marriage because of the abuse, knowing that an attempt at separation might result in an escalation of all aspects of the violence.

It is worth noting that the American Bar Association has long been aware of the connection between custody battles and an increase in domestic violence. In fact, as many as 50 percent of disputes relating to child custody involve domestic violence. Forcing suffering people to endure frustrated expectations and prolonged ambiguity, as the family law system routinely does, is unquestionably - if passively - malignant, and can be a real trigger for violent behavior. As Mr. Baer keeps saying, outcomes are determined by the way in which the "game" is designed.

Mr. Baer advocates mediation or collaborative law rather than litigation to those involved in divorce, paternity or other family law-related matters. Litigation attorneys tend to resolve matters in an adversarial manner, regardless of the field of law. Cases involving family matters should not be handled in the same way that attorneys would handle a criminal case, a medical malpractice case or a toxic tort case. Litigation tends to exacerbate the level of conflict, which tends to increase the amount of time and expense required to resolve the matter. However, mediation can decrease the conflict while resolving legal and other issues, simultaneously addressing emotions and feelings.

What is collaborative law?

Collaborative divorce is a process within which to resolve family law issues in a fair and respectful manner, without going to court. It is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. Both mediation and collaborative divorce involve interest-based negotiation. However, in collaborative divorce, an interdisciplinary team is assembled of attorneys, mental health, and financial professionals working interactively with the clients as co-equals. The attorneys guide the clients through the legal process to reach a negotiated settlement. The coaches assist them in managing their anxiety, improving the way in which they communicate with each other, creating an effective parenting plan, and restructuring their family. The child specialist is a neutral third party whose job is to understand the situation from the perspective of the child(ren) and to advocate for their interests. The financial professionals help to educate the clients regarding the best ways to divide their assets, and to plan for the financing of two households.

One would expect that since collaborative professionals are using mediation techniques in a multi-disciplinary team approach to dispute resolution, the professionals involved would be trained in both mediation and in the collaborative process. Unfortunately, as with many things in life, it is not wise to make assumptions. Some collaborative divorce organizations require their members to receive training in collaborative practice, mediation, negotiation and communication skills, and annual continuing education. However, such organizations are the exception rather than the rule. Therefore, it is incumbent upon the clients to ensure that each of the professionals involved on their team have such training.

In any event, the result is that we are able to support them through their transition in a knowledgeable, compassionate and non-adversarial way so that they are able to make the best decisions for their family. The attorneys pledge to not litigate the matter or threaten to litigate the matter. The reason for this pledge is that litigation/judicial involvement is one way of solving a problem. If that means of problem solving is available to collaborative practitioners, they will more likely resort to that option rather than assisting the parties in developing more creative, constructive and effective alternatives for the clients and their family. If the case cannot be settled, and the process of collaboration fails, the same attorneys cannot be involved in any future litigation.

Rarely is a legal problem purely legal, especially in family law. Almost all disputes involve emotional and interpersonal dynamics. Successfully resolving those disputes requires skills beyond those traditionally taught in law schools. Collaborative divorce incorporates all of the skills needed to increase the likelihood of a successful outcome for the client through its interdisciplinary team approach to divorce. In other words, the spirit of collaborative divorce is its interdisciplinary team approach.

Mr. Baer discusses the process of collaborative divorce in more depth in several of his articles, including, but not limited to, " Navigating the Emotional Waters within Collaborative Family Law," " A Comparison of Dispute Resolution Methods Available in Family Law Matters," and "' Collaborative Divorce' Is Collaborative in Name Only."

Learn More: Divorce

Alimony, maintenance, and spousal support are legal terms for payments, usually made monthly, from one spouse to the other, often for a certain number of years. Payments may be on a temporary basis during the pendency of the divorce. They also may be permanent obligations. At present, in most states, spousal support payments are used as a means of catching up for those spouses whose circumstances have kept them out of the workplace for a significant period.

Child support is a phrase that generally refers to the amount of money one parent pays to the other to help support their common-children when the parents are not living together. The current state of the law takes most of the contention out of the child support issues. Child support guidelines in most states make it primarily formulaic to determine whom is ordered to pay support, and in what amount.

Physical or legal custody and visitation are terms used when determining the amount of time children spend with each parent and how decision-making authority for major issues is assigned. For instance, a parent may have joint legal custody, the right to share in making decisions, such as in what religion the children will be raised, or what schools they will attend, whether or not they may get their driver license, join the military, or get married, but may have the children physically with them as little as every other weekend.

Divorce or dissolution of marriage are terms for the process by which the marriage of two people is terminated. It may also establish their right to remarry, distribute their property between them according to the law of the state in which they reside, determine whether either party will pay spousal support, and, if they have children, with whom the children shall live and whether one party will pay child support.

Domestic violence is sometimes referred to as intimate partner violence because it is not limited to parties living together. Domestic violence is the control of another through physical, verbal, emotional, psychological and spiritual violence. Intimate partner violence figures broadly in many family law issues, including child custody and visitation. Studies have shown that the period between initial separation and divorce can be the most dangerous for victims of domestic violence and their children.

Prenuptial agreement is a legal term for a contract entered into by parties still contemplating marriage setting forth their intentions how their individual property will be divided should they ultimately separate. If not patently unfair to one party, most prenuptial agreements will be enforced in court so long as the court is convinced the parties entered into the agreement with full disclosure and no coercion, and if the agreement does not work a hardship on either of the parties.

Community property is a legal term that describes the law in some states setting forth the prescribed division of that property that was acquired by the parties, either individually or as a couple, and includes the income of the parties. Some states divide community property equally, while others first make a determination of what constitutes community property and then make an equitable division of the property.

Equitable division is a term that describes the law in most states that provides a process for the division of property of the parties. Taking into account all of the circumstances of the parties division or property is completed according to the equities of those circumstances.

Collaborative law is a process within which to resolve family law issues in a fair and respectful manner, without going to court. It is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. Both mediation and collaborative divorce involve interest-based negotiation. However, in collaborative divorce, an interdisciplinary team is assembled of attorneys, mental health, and financial professionals working interactively with the clients as co-equals. If either party consequently decides to go to court all attorneys must withdraw, and the parties must find new legal counsel.