Common Divorce Questions
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.
What is the process for getting a divorce?
The laws for obtaining a divorce—or “dissolution of marriage”—differ from state to state. However, the process is quite similar regardless. The divorce process begins when one spouse or both decide to legally end the marriage. Each individual arrives at this decision in different ways and for different reasons. 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.
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.
Are aggressive lawyers effective?
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. 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?
In every state there are provisions for a relatively fair division of property, albeit, not necessarily an “equal” division. In some states, the couple’s assets will be divided equally, as they will be considered “community property.” California is a community property state, which means that any income or property earned by either spouse during the course of the marriage will be split equally between them during the divorce. However, most states follow an “equitable division” model, in which earnings and property (as well as debt) are recognized as the separate property of the individual who earned or incurred it. The courts will divide property according to what they deem fair, rather than dividing all assets equally.
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 or other liabilities and obligations divided?
Debt division is included in the property division process. In community property states like California, the debt will be divided evenly between both parties. In equitable distribution states, the debt will remain with the individual who incurred it.
In our current economic situation, couples commonly experience the problem of having accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This complicates the debt division process. If the parties cannot come to an agreement about this issue, the courts will make a determination based on rationales provided by state law.
How is alimony, or spousal support or maintenance determined?
State law determines whether or not a spouse will be required to make support payments to the other spouse after they get divorced. It will also be determined how long those payments should last. If the divorce operates by the “equitable distribution” model, spousal support may or may not be required at all. If the divorce took place under “community property” law, spousal support is assumed and the question centers around how much the support should be and how property should be divided. Read more under “How is property divided?” for more information about these terms.
So-called equitable distribution property states will take several factors into consideration regarding spousal support, 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
California, however, is a community property state. The factors considered in California regarding spousal support can be found in Family Code Section 4320. Although conflict and tension typically surrounds this issue, many couples are able to collaborate peaceably on making a decision together without involving professional assistance.
Who will have custody of the children?
90% of U.S. couples who decide to divorce are able to come to an agreement about custody and visitation. The other 10% involve a court and often face much heartbreak. Most states have instituted laws that favor “the best interests of the children,” as custody battles and their results can often have damaging and lasting effects on the children. At the end of a custody court proceeding, many states even ask parents to attest to whether they truly believe the proposed arrangements are in the best interests of the child.
Other common safeguards that exist in some states include:
- Parents in a custody dispute are required to seek help from a mediator over the custody issue before moving forward
- The court must appoint a guardian ad litem to weigh into all of the contested custody matters. This individual is an attorney who represented the best interests of the child during the litigation process.
- Social workers or mental health professionals perform court-ordered "custody evaluations.”
All states require the court to consider a long list of statutory factors before making determinations about child custody.
What happens if a child custody or visitation order is violated?
The consequences for violating child custody and visitation orders almost always depend on the severity of the violation. For example, it is unlikely that a parent will incur consequences for arriving a few minutes late to pick up their child, even if tardiness is a recurring issue. A more extreme situation that would certainly result in serious consequences would be if a parent fails to return the child at the designated time and then disappears with him or her for a length of time.
For smaller violations that aren’t considered harmful to the child, most states will not do much to enforce compliance. In these situations, the parent who is frustrated or upset by the other parent’s behavior will have to come up with a strategy for dealing with the situation on their own. For more serious violations where a parent leaves with the child, the amount of legal force that will be applied depends on the circumstances. Law enforcement will become heavily involved and will apply full force of state and federal law if it can be demonstrated that the parent took the child away with criminal intent to withhold or conceal the child from a party who has the legal right of custody.
Through contempt proceedings, a parent can seek enforcement of a court order. This process typically requires a mediator’s help. Commonly the court will change the terms of the custody or visitation agreement in response to a parent’s violation of orders (sometimes in response to one serious violation or to a repeated series of minor violations). When a couple works out an agreement between themselves with the help of an experienced mediator, they are more likely to comply with those terms moving forward.
How is child support determined?
Each state uses a formula to determine the amount of child support that should be paid. Typically, the formula uses a percentage of the paying parent’s gross income. State laws also take into consideration both parents’ income and standard of living, as well as the amount of time the child spends with each parent.
Parents often say that their children mean more to them than anything else. Considering the cost of raising a child, one would certainly hope this statement is 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.
An Example of Child Support Determination
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.
For experienced legal counsel and compassionate help with conflict resolution, contact Pasadena Mediator Baer. He can walk you and your spouse through all of your options and help you arrive at a win-win solution.
Can you change a divorce decree?
Modifications can be made to a divorce decree under certain circumstances. If one party wants to change something regarding property division, the request will most likely not be granted, unless it can be proven that information was reported incorrectly or important information was withheld. Modifications can be made for child custody, support, and visitation, or spousal support if there has been a significant change in circumstances that justifies a modification.
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!"
How does domestic violence affect divorce?
If one party involved in the divorce has been criminally charged with a domestic violence offense, this will play a significant role during the divorce process, especially if the couple has children. If no such charge has taken place, and if the domestic abuse is considered minor, it will likely have little bearing on the legal aspects of the divorce.
However, domestic violence certainly affects the emotional and psychological aspects of the divorce. Manipulation or physical threats can greatly affect the way an abused party thinks and makes decisions. Furthermore, a long and complicated litigation process often only exacerbates the problem by provoking the violent party to more anger.
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.
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, and possibly a 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 necessary that clients ensure 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 about Divorce and Family Law
Visit any of the following pages to learn more about these important issues related to divorce:
- Alimony, maintenance, and spousal support
- Child support
- Physical or legal custody and visitation
- Divorce or dissolution of marriage
- Domestic violence
- Prenuptial and Marital agreements
- Collaborative law
Contact a skilled mediator to help you resolve your divorce in the most peaceable and healthy way possible.
You need Mark Baer on your side. Get in touch for a free consultation.
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