But even it will take a bite out of your wallet. Chapter 16 has a list of court websites for each state.
Many couples use a counselor or a mediator to help them come to agreement on property and custody issues. If you and your spouse both stay on top of all the tasks you need to take care of, you should be able to finalize your divorce as soon as the waiting period every state has one is over. TIP A legal document preparer can help you with your divorce paperwork.
In many states, legal document preparers, paralegals, or legal typists different names for the same job can help you prepare court forms for a divorce. They cannot give you legal advice, but they can direct you to helpful resources and then make sure the forms are properly filled out so that your court process goes smoothly.
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How to manage a default divorce is discussed in Chapter 3. In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Even when both people were equally eager to get out of the marriage and the divorce was uncontested, they had to decide which of them would take the legal blame and decide which of the fault grounds they would use in asking the judge to grant the divorce. Now, every state offers the option of no-fault divorce—and in many states, no-fault is the only option.
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In some states, however, in order to get a no-fault divorce you must also have lived apart for a specified period of time. Carryovers of the old fault system do remain. In some states, you have a choice of using fault or no-fault grounds for divorce. This basically means that one spouse may accuse the other of misconduct and argue that it should affect support awards or the division of property. However, if you do intend to argue that fault should factor into property division or support, make sure you use the right forms and check the right boxes when you file your initial court papers.
It also shows the length of separation required before a no-fault divorce is granted. Chapters 9 through 11 contain more information about how fault affects property and support, and Chapter 5 addresses the issue of fault in a contested divorce. In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. Instead, the mediator helps you organize information and communicate with each other until you can come to an agreement.
Mediation is much less expensive than going to trial, but more important is the fact that mediation is a wonderful way to preserve and even improve your relationship with your spouse. Working with a mediator to make decisions that work for everyone is a powerful, and often very positive, process. And in a mediated divorce, just as in every other divorce, you may need the help of actuaries, appraisers, and other professionals to value your assets.
If you have children, you might also consider working with a parenting counselor who can help you create a parenting plan. This is far less expensive than a contested divorce that settles before trial, and much, much cheaper than a case that goes all the way to trial. You and your spouse each hire lawyers who are trained to work collaboratively and who agree to try to help you settle your case.
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Each of you has a lawyer who is on your side, but much of the work is done in cooperation. Often other professionals are involved in the process. Your team may include coaches for both you and your spouse—mental health professionals trained to work with spouses in divorce.
A neutral financial analyst can help you gather the necessary documents to assess and distribute your property. All of the people assisting with your divorce stay in touch with each other and work together to help you come up with an appropriate resolution. A collaborative process can be much faster, and much less painful, than a contested divorce.
It offers the protection and expertise of an attorney combined with an explicit commitment to resolving things without an expensive court fight. Before you agree to a collaborative process, make sure that you are prepared—both emotionally and financially—to decide how much compromise is too much. It may be all of those things, but the commitment you make in a collaborative process is to doing what it takes to reach a solution that truly takes the needs of every person in the family into account.
This can take just as long or longer than a divorce in which you hire attorneys to negotiate for you though usually not as long as a court divorce. That means it can be expensive, as well. Between scheduling all the necessary meetings, gathering information, and getting lawyers to prepare paperwork, your divorce may take a year or more. Arbitration or private judging has some of the same advantages as mediation does, including speed, efficiency, privacy, cost-effectiveness, and informality.
The arbitrator or private judge is usually a lawyer or a retired judge, who you pay hourly. The court system still retains ultimate control over your divorce, and the decision to hire a private judge or arbitrator must be approved by the judge who is overseeing your case or by the presiding judge of the family court. Just as in a trial, each side prepares arguments and evidence and presents them to the arbitrator or private judge, who then makes decisions.
However, the presentation of evidence is usually less formal than in a courtroom. Your court records will still be public if you use arbitration, though. Check with your lawyer, if you have one, or with your local court clerk. The judge and court clerks will be the main players in your divorce case.
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In a minority of other states, you can ask for a jury trial in some circumstances, but this is very unusual. Most divorce trials are not long, drawn-out affairs as you might imagine. Many take a day or two, or even just a morning. The trial itself may be short, but the entire process is long and hard. It will take a huge emotional toll on you, your spouse, and certainly your kids, and also cost you in dollars and cents. A contested divorce, even one that ends in a settlement rather than a trial, can cost each spouse many tens of thousands of dollars.
Which brings us back to our initial advice: Take the high road whenever you can. And less stress about money makes it easier to work out other issues, now and later.
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It will also expedite things—a contested divorce, especially if you are fighting over custody, can take years to resolve. In June , the United States Supreme Court ruled in the Obergefell case that same-sex couples must be allowed to marry in every state and that to deny this right to any same-sex couple is unconstitutional. And because of the decisions in Windsor and Perry , all of these rights will be recognized on both the state and federal levels: Same-sex married couples now have the same rights under federal law that opposite-sex couples have always enjoyed.
These include the right to transfer property at divorce without tax consequences and the ability to roll over tax-deferred retirement funds, among other things. Some of these rules are in question for everyone after the passage of the tax bill in late —those questions are addressed in Chapter Some couples even decide to marry for the express purpose of making their divorce more tax-efficient, but you should see an attorney before going this route.
In nearly every state, there is a marital presumption that establishes parentage in a nonbiological parent, and the federal government will recognize parentage under the Windsor decision. An adoption or parentage order can prevent this—court judgments are entitled to recognition under the Full Faith and Credit Clause of the United States Constitution.
Make sure you take steps to protect your family by seeking a judgment. You can obtain a parentage judgment as part of your divorce in some states, and if you can, you should. Every divorcing couple must consider how to distribute property and debts, and whether one spouse will pay spousal support to the other. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide. Marital debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you.
Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce. If you and your spouse can agree on how to distribute your property, the court will simply approve your agreement.
Divorce is stressful for everyone, but when you have children, the stakes are higher, and you are responsible for protecting these most vulnerable participants in the divorce process. There are three entire chapters about kids later in the book. Even if you and your spouse are never going to see eye to eye about money matters, you should try very hard to come to an agreement about custody and parenting arrangements. A custody fight will harm your children more than any other kind of dispute that might come up in the divorce process.
Do everything you can to avoid it. It may take a while to figure out what long-term arrangement will work best.