Frequently Asked Questions in Family Law:
What are the Grounds for Divorce?
A. "No Fault" divorce (Generally 12 month separation.
B. Mental Cruelty (This is extremely difficult to prove.)
C. Adultery.
D. Desertion/Constructive Desertion.
E. Conviction of a Felony.
When are you "Legally Separated"?
You are separated the moment you are not cohabiting as husband and wife, generally not living under the same roof, or physically separated. A separation can start while the parties are still living in the same house but in separate bedrooms. There also has to be an intention of one or both parties that the separation is permanent. (Nothing needs to be "filed", as most people seem to believe, to start the separation period.)
What is a Separation and Property Settlement Agreement?
This is a contract in writing, signed and notarized by both parties, in which all of the issues of the marriage are agreed including duties and obligations in reference to children, if any, (custody, visitation (also known as "parenting time"), child support, health insurance, etc.), debts, distribution of real estate, personal property, whether tangible assets (household items, furniture, cars, etc.) or intangible assets (securities), retirement accounts, other financial accounts and pensions. The second the Agreement is signed you have basically written your own Divorce Decree or Order. (Rather than having a judge do it for you!) The only issues that can be modified, if circumstances change, are those having to do with the children, such as custody, visitation and child support, as well as spousal support (if not waived).
Describe the Legal Process of Divorce.
A detailed answer would be too lengthy, but in general, what starts the divorce is a document which is the initial divorce pleading called the "Complaint". The other party has twenty-one days to answer your allegations and file their own divorce pleading, a "Cross-Complaint". Thereafter, counsel for both parties will engage in various discovery procedures including: interrogatories, request for production of documents, request for admissions of certain statements, depositions of the parties or witnesses and subpoenas duces tecum (ordering the custodian of certain records to send to the party requesting them).
At the end of the discovery process the parties should know enough about the financial situation and attitude of the other side to negotiate an agreement or proceed to full litigation. Financial information can also be done voluntarily, of course.
What is a "No Fault" (Uncontested) Divorce?
If an agreement is signed, then on the anniversary of twelve months (six months, if no children and a Separation Agreement is signed), the parties can proceed to finalize the divorce in an uncontested manner. You will need to take a corroborating witness for a very short hearing. (This type of divorce is what people refer to as based on the grounds of "irreconcilable differences".)
People seem to be very confused about who signs the Divorce Decree as they believe that they must personally sign it. This is not so unless they are unrepresented by an attorney or pro se parties. The parties, must, however, sign a Separation (or Property Settlement) Agreement.
What is a "Contested Divorce"?
This is when the parties do NOT have an agreement. It has been my experience that at least 90% of all divorce cases, no matter how horrible they are in the beginning, end up with an agreement before the end. If there is no agreement, the case becomes much more expensive. As of November 2004, the judges in Circuit Court started hearing contested divorce cases. It is a lengthy, costly process with a multitude of procedural steps.
When can I start dating?
This is a question that needs to be answered on a case by case basis. Obviously, if you are not divorced, dating which leads to romantic involvement and a sexual relationship is (technically) adultery. If you are found guilty of adultery you may not receive spousal support. If you are in the middle of a custody battle, being involved in an adulterous relationship may not be viewed as beneficial to the children and could affect your custody case. Some case law suggests that adultery may cause a division of marital assets less favorable to the guilty spouse. However, this is something that needs to be discussed with an attorney before an appropriate answer can be given.
If you are involved in a relationship, do not keep this information from your attorney as it may hurt your case.
When can I leave home?
If you agree that the marriage is over and one of you should leave, there should be no problem. However, I recommend that a written agreement be signed by both parties so that there is no accusation later of desertion or abandonment. It is best if your attorney drafts such an agreement. A valid reason why one person may leave the marital residence is when the other party is having an adulterous affair. Since you do not know whether your actions will constitute desertion or not and what to do to prevent that charge leveled at you or whether your desertion will, in fact, affect you, you need to discuss your particular case with an attorney before moving out.
How Much will the Divorce Cost?
There is no clear answer to that except "it depends". It depends on the following: who the other attorney is, and how difficult he or she may make the case; how carefully you use my time and are able to understand that some communications should be properly made to your therapist or physician or a good friend rather than to me and my office; how reasonable or unreasonable you and the other party are; how quickly you can learn to look at a divorce as a "business situation" and therefore be able to work out a fair and reasonable separation and property settlement agreement, and most importantly, how focused both parents are on the best interests of the children. From the moment of the first consultation in my office I will explain the retainer amount that I will charge for your particular case. I pride myself on detailed monthly statements sent to the client, as well as always exploring the best cost-benefit solution for each client's situation.
Can One Attorney Represent Both Parties If They Seem To Be In Agreement As To Most Things?
Absolutely not, unless that attorney is a mediator. Otherwise, do not let your spouse take you to his or her attorney's office saying that the attorney has agreed to represent you both. We are ethically forbidden from doing that, as we can only "serve one master".
What is a Divorce Mediator?
This is an attorney, or other professional, that is trained in mediating conflict. They do not tell you what to do, they simply create a structure wherein you and your spouse can communicate effectively and come to a meeting of the minds as to an agreement. (I am a mediator. If you would like information on the mediation process e-mail a request or call my office. Below are Frequently Asked Questions regarding mediation, as well as other informational material and forms.)
