I Need To Learn About Divorce

When a client sits down for that first one-hour appointment and says, "I need some information about going through a divorce", I talk about the "four rooms", referring to 4 elements of a divorce: the first room is the grounds and jurisdictional basis you need first in order to get a divorce. Once you pass through that first door, there are three new doors leading to: division of property and debts; allocation of parental rights and responsibilities; and alimony or spousal support.

Why rooms? I use this analogy to convey that each of these categories are governed by rules applicable to room. The rules that apply in one room may be of no use in the next. Many clients, in fact almost all clients, seem to think that the relative faults or merits of each partner to the marriage will determine the outcome of the entire divorce. NOT SO! I often hear things like: "I can get my husband for adultery", or "She says she can get me for abandonment". An appropriate (albeit unprofessional) response might be, "so what?". That means someone may have grounds for divorce, which is pretty much assumed - it gets you through the first door, that's all. It does not in most cases affect the rules that will be applied in the next three rooms, i.e., to determine how your property will be divided, how your parental rights and responsibilities will be allocated, or whether there will be an order for spousal support. Although the outcome of one, or the same facts relevant to more than one, may have some impact on the others, each of those issues will be addressed on its own terms in its proper "room".

The first door to a divorce is having the required jurisdiction and grounds that will permit a court to grant one under the laws of your state. Most states require legal residence within the state for 6 months to be able to file for divorce in the state (some may be shorter or longer). There may also be a venue requirement requiring the spouse to have lived in the county or judicial district for a specified time period to be able to file there. So in order to file for divorce in the Jones County Court, you may have to be a resident of that state for at least 6 months and of Jones County for the last 90 days, for example.

Another consideration in passing through the jurisdictional door is whether you have grounds for a divorce. You have to be legally married to be able to get a divorce, so do you have a valid marriage, or are there defects in the marriage itself that make the marriage invalid and an annulment the correct course of action (such as bigamy, fraud, underage, etc.)?

Next, what grounds are required for a court to grant a divorce in your jurisdiction? There is usually no problem establishing some grounds for divorce these days, but there should be some discussion of what grounds are available under the laws of the state and which of those grounds might be present in your case. These grounds tend to fall into two general categories: fault and no-fault grounds. Fault grounds may include adultery, cruelty, neglect of marital duty, habitual drunkenness, abandonment, for example. Is there admissible evidence to support one of the fault grounds? No-fault grounds may include living separate and apart for more than a year without cohabitation, incompatibility or irreconcilable differences, or just agreement by the parties.

While many clients approach the divorce alleging the most heinous grounds for divorce possible (and I don't begrudge them the need to do that at first), as a practical matter, there is seldom any benefit to using a fault ground when a no-fault ground will do, and courts really have no desire to sift through evidence of marital misconduct unnecessarily. There are a couple exceptions to this general principle, though. Use of a fault ground for divorce may help when the no-fault grounds require the agreement or acquiescence of both parties and one of the parties will not consent to the divorce. Using a fault-based ground in such a case permits the spouse seeking the divorce to present evidence upon which the Court can find grounds for divorce without the consent or agreement of the responding spouse. In other cases, a spouse may choose to proceed on a fault-based ground for the perceived leverage or bargaining power it may provide in negotiating terms of the divorce, such as, "I am prepared to put on the evidence of your misconduct as grounds for our divorce unless you agree to xxxxx, in which case I will agree to proceed on a no-fault basis instead." Any value in using this tactic is in the perception of the parties. As indicated earlier, making one party or the other the "bad guy" in the divorce is not likely to change the actual outcome of the terms of the divorce as determined by the court. Divorce judges, in my experience, want to focus on the real legal issues, and unless the misconduct legitimately bears on an issue relevant to the divorce (such as a history of domestic violence when determining child custody), a judge may take a dim view of the party resorting to such strong-arm tactics.

It is also important to evaluate the jurisdiction of the divorce in the context of what is being determined and may need to be enforced in the future, which may go beyond the simple near-term goal of obtaining a divorce. For example, if a Texas court grants a divorce to a qualifying Texas resident following normal Texas procedures for doing so, but the other party is a resident of another state, the court of another state may not recognize that divorce decree on constitutional grounds when it comes to recognizing or enforcing provisions concerning children who never lived in Texas, real estate located in another state, or child or spousal support against a spouse who had insufficient connections with Texas. The most readily available place to file for divorce is not always the best place to file in the long run.

So assuming we have jurisdiction and grounds for divorce, let's move on to the next three "rooms", starting with property and debts.

Probably the most often misunderstood aspect of division of property and debt in divorce is grasping the difference between what the court adjudicates between the parties and the rights of creditors and lienholders. It may help to think of it this way. The spouses signed purchase agreements, mortgages, and revolving credit agreements making certain promises to the banks and businesses involved. Those banks and businesses relied upon the spouses' promises, employment, credit history, etc. when making those loans to the spouses during the marriage. The fact that the spouses come into divorce court to end their marriage and settle their own family affairs does not affect in the slightest bit their legal obligations to those banks and businesses that arise from those contracts and agreements. So while the divorce court divides property and debt between the parties, it has no right to tamper with or modify the agreements the parties have made with banks and businesses holding their credit accounts and property liens. (In those cases when the divorce really does devastate the parties' ability to meet their credit obligations, their legal recourse against those obligations is in the bankruptcy court, not the divorce court).

Difficulties can arise when the parties don't have the ability to align the divorce settlement with their obligations to the third party creditors. For example, let's say each spouse is going to keep one vehicle and pay the loan against their respective vehicles. If the purchase loans were signed by both parties, the divorce settlement ordered by the Court for each party to pay the loan associated with each vehicle establishes a legal obligation between the spouses to do that, often with wording that they will "hold the other party harmless" with respect to the debt. But their legal obligation to each other to do that does not affect the underlying credit agreement with the creditor in which both of them assumed responsibility for payment (unless the creditor is willing to voluntarily grant a release to one of the spouses, which is rarely done). If the wife faithfully pays for her vehicle but husband fails to pay the loan on his, the creditor and lienholder can still collect against the wife even if the divorce court ordered the husband to pay. The wife's recourse is to make the best deal she can with the bank to salvage her finances and credit history, then file a motion to reopen the divorce case to obtain a judgment requiring the husband to make her financially whole for his failure to meet his obligations under the divorce decree.

Because of this, a good strategy when possible is to try to cut all the property and financial cords to make the cleanest split possible. For example, rather than each party simply assuming the existing debts, it is far better for each party to pay off those marital debts with their respective shares of the marital funds, or refinance their respective debts separately so that each spouse's divorce obligations are aligned with their on-going credit obligations free of dependence or impact upon the other. This will benefit both parties in being able to obtain future credit as well, since even if the former spouse pays the joint debts flawlessly, credit reporting agencies will still report the joint debts as open credit obligations against both spouses, encumbering the credit of both spouses until paid off.

Divorce 101 does not provide an in-depth legal analysis of different legal concepts as used by each state, such as equitable distribution, marital property, community property, etc., which can vary widely. But it does offer some basic understandings fairly common to all.

Start from the premise that everything you and your spouse obtained during your marriage belongs to you both and will be equally divided between you both upon your divorce, no matter "whose name it's in". The fact that the one working spouse puts all his income into a bank account in only his name is not going to prevent the court from ordering him to share it with his wife. The fact that the paid-off Porsche is in the Wife's name while the husband drives the loan-encumbered, zero-equity Ford pick-up truck is not going to keep the court from equalizing the property distribution. Whether it's cash in a bank account, a loan-encumbered vehicle, a retirement account or pension twenty years away from penalty-free distribution, the court will find a way to equally divide the parties' interests in the marital property. This can be done by ordering offsetting distributions of property or cash; ordering liquidation of assets and division of proceeds; or ordering division of accounts at the time of the divorce or some future date, such as an order to divide pension benefits when eligible for payment.

Special consideration is, however, given to property that came to one of the parties from a non-marital source, and is therefore treated as non-marital or separate property not subject to division with the other spouse. Examples might be the home that one spouse already owned at the time of the marriage, or a gift or inheritance from a parent (if they still retain that separate quality at the time of the divorce). Another exception might be that rare case when the parties entered into a valid prenuptial agreement. Sometimes separate property has been commingled or otherwise used during the marriage in such a way that it has arguably lost its separate character, such as the sale of the premarital home owned by one spouse and investment of the proceeds in the couple's new residence. A retirement or pension plan may have been partially earned during the marriage, and partially before or after the marriage, and need to be evaluated by an expert to determine its relative marital and non-marital values. These issues will take us well beyond Divorce 101, so we will note them for future discussion and move on.

Marital debt is also divided starting with the premise of equality, no matter whose name it's in. The goal is to arrive at a settlement that in total will leave each spouse with a relatively equal share of the marital assets and debts. This can be challenging when spouses have unequal earning capacities, and in some cases may appear unfair to the lesser earning spouse. With cooperation and creativity, however, it can be achieved in most cases in a fair way.

The court's division of marital property and debt is generally final and not modifiable, unless the Court expressly reserves the jurisdiction to modify it in the future. If a divorce settlement is not capable of being fully executed at the time of the divorce, such as the parties agreeing to sell the real estate and divide the proceeds in the future, or a pension will be divided upon retirement, it is generally advisable to expressly reserve that jurisdiction in order to respond to unforeseen changes or problems in executing the parties' or court's intentions.

When there are children of the marriage, the court will adopt a parenting plan that allocates the parents' rights and responsibilities with respect to parenting the children to adulthood. The preference is for both parents to have the maximum parental role possible under the circumstances.

An opening issue for discussion is to ensure that the parties' children are "children of the marriage". This is a time to legally clean up any issues such as children who were born to these parents but before they were married. Are both parents on the birth certificate or established in an administrative or judicial parentage determination? Is there another court case somewhere addressing the child's parentage, custody or support that needs to be addressed in some way? Is each child really the child of both spouses, or is there some question of paternity of a child that needs to be addressed through genetic testing? Do the parties know (or question) that a child is not the biological or legally adopted child of one of the parents, but want to treat the child as though he or she is, even if that means doing so "under the table"? These issues, if they exist, warrant a frank discussion with your attorney to avoid potential extremely serious repercussions to parents and child later on.

Any time a court case involves custody of a child, an interstate custody law called the Uniform Child Custody Jurisdiction Act adopted by each state requires parties to notify the court in a sworn statement where the child has resided and with whom for preceding five years, of any prior court orders pertaining to the child, and of any party who might claim a legal interest in the custody of the child. A lot of time can be saved by preparing this information prior to the first meeting with the attorney. Do not sign documents that are not true! In order for a state's court to exercise jurisdiction over the custody of a child, the child must have been a resident of the state for six months preceding the filing of the request, subject to limited exceptions. Once custody over the child is established within that court, jurisdiction will normally continue throughout the child's minority unless relinquished to another state for good cause later on. It is therefore important to discuss whether the intended divorce court is an acceptable forum for the custody determination under interstate child custody laws, and whether it is the best course of action based on future intentions to remain in the area or relocate the children to another state.

A future Hub will go into more detail concerning parenting plans, but up front it is important to know that courts will expect parents to be parents who are able to put the best interests of their children first above their own self-interests. In my experience, most parents going through divorce and custody litigation are sincerely interested in maintaining a full and active role in the parenting of their children, and willing to do what it takes to cooperate with the other parent to do so. The courts take a dim view of parents who behave in a manner considered harmful to their children's best interests, such as "trash-talking" the other parent in the presence of the child (or allowing others to), imposing barriers to parental involvement of the other parent without justification, not permitting the child to greet the other parent or step-parent in the grocery store (yes, really), etc. On the other hand, if there are legitimate concerns as to the other parent's suitability to properly parent the children, such as supervision, substance abuse or violence issues affecting his or her ability to care for the children, it is entirely appropriate to raise such issues and take them into account when establishing parenting plans, and irresponsible not to.

Specific topics that need to be addressed in the parenting plan include the residential plan for the children, that is, when will the children reside with each parent? This can range from a more traditional residence with one parent and alternating weekends with the non-residential parent, to an equal sharing of time such as week on-week off, month on-month off, or even alternating every 6 months or year. Requirements of joint decision-making for education and medical issues, extra-curricular activities, respect for differing belief systems, and conflict resolution procedures are all fairly standard subjects for inclusion in modern parenting plans.

State laws and regulations (mandated by federal welfare laws and regulations) impose requirements for calculation of child support obligations. These formulas, although state-specific, are generally based on the relative incomes of the parents, may provide some adjustments for recurring child-rearing expenses such as health insurance and child care, and are readily available through various web-based resources. The court has the latitude to deviate from the guidelines-generated amount upon good cause for the benefit of the child. Grounds for deviating from the guidelines might include equal time-sharing, long-distance parenting schedule with additional travel expenses borne by the child support payor, etc. Medical support responsibilities, such as who will provide health insurance and how out-of-pocket medical expenses will be apportioned between the parties, are also addressed in the parenting plan. Allocation of which parent will claim the child as a dependent for income tax purposes is often addressed in the parenting plan as well.

Two key points about parenting plans distinguish them from the other "doors". First, the standard for the court's decision-making is always what is in the best interest of the child. Arguments based on fairness to the parents generally do not prevail, while arguments based on what is best for the child generally do. Secondly, once determined, parenting orders are modifiable until the child becomes an adult, upon the showing of a change in circumstances making modification necessary to the child's best interest.

The last door leads us to a discussion of spousal support, or alimony. Once we've been through the other "rooms" and have a sense of how to divide the property and debts, how we will allocate the physical and financial needs of the children, there is a last opportunity to review the situation and correct any remaining financial needs or inequities, on either a short or long-term basis as needed.

The award of spousal support is largely within the discretion of the court and does not easily lend itself to general rules or formulas. It may be used to provide additional support to a spouse who is economically disadvantaged due to disability, or due to household or child care roles assumed during the marriage. It may also be used to assist a spouse who requires assistance from a higher earning spouse in order to obtain education or experience to transition from a marital role to a workplace role. In some cases, it may be awarded to assist or recompense a spouse who sacrificed earning or career advancement opportunities in favor of the marriage, or invested substantial assets or effort in the advancement of the other spouse. It is not as likely to be awarded in short-term marriages or from low-income payors, but is more likely to be awarded in longer term, older age, higher income marriages.

Since alimony arises from residual obligations of support from the prior marriage, it generally terminates upon the remarriage of the recipient. Periodic alimony (paid per week, per month, etc.) often produces a taxable event to the recipient and a deduction from taxable income of the payor spouse (unlike child support). It may be modifiable, for a set term, or indefinite as determined by the court awarding it.

I have encountered clients at risk of paying it who view payment of spousal support as a poison pill to be avoided at any cost. I have encountered clients who view anything short of an alimony award as injustice per se. As a practical matter, very few cases actually result in an award of spousal support. In my experience, however, it has been useful in some cases (in addition to the more "classic" alimony cases described) to afford assistance for short-term needs and gaps. It has been particularly helpful as a means to afford funding for the former spouse's payment of health insurance premiums to maintain health insurance coverage under the employed spouse's health insurance plan until new medical coverage is obtained elsewhere. Otherwise, an obligation to provide the former spouse's coverage during a post-divorce transitional period would not arise as an element of property division or parental rights, while treating the payment of the premium as periodic alimony permits the paying spouse realize the benefits of a tax deduction, with termination upon remarriage.

A divorce can be commenced by one party filing papers in court against the other party that the other party must receive and respond to (a contested divorce), or by both parties reaching a complete agreement that they jointly file with the court for approval (uncontested divorce). The latter is almost always preferable when it can be achieved in a timely, conciliatory manner. In addition, most divorces that start out in the court system as contested do reach settlement prior to trial, leaving a truly small percentage of divorces that actually go to trial and decision by the judge. Although my discussions with clients, and this Hub, are phrased in terms of what "the court" will do as a guide for discussion, in reality it is not the court who decides the outcome of your divorce, it is you and your spouse. The court will, in most cases, approve any reasonable settlement the parties reach and submit for approval.

You do not need to be alone in the process. Divorcing couples often retain the services of professionals to assist them in reaching agreements and processing the divorce to approval. Attorneys can assist with the legal process from start to finish. Social workers and counselors often assist in assessing parenting skills and providing parental education, help in the drafting of appropriate parenting plans, either independently or through court referral, and provide mental health services to deal with what can be emotionally trying circumstances. Financial experts and appraisers may be retained to provide realistic values of property, retirement and investment accounts for informed financial decision-making. Mediators can be employed, either to assist in reaching a pre-filing agreement, or to assist in negotiating a resolution of a contested divorce before it goes to trial.

Going through a divorce is not easy, especially after all you've gone through to arrive at that point. I encourage you to not let your divorce "happen to you", but rather intentionally take advantage of every available resource to help you through it. Thoughtfully consider practical outcomes that can work best for you, your former spouse and your children, and work to achieve them as you move on past this moment in your life journey.