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Judgment of Divorce

Married couples always start off with the best intentions and try to make things work during a marriage. Unfortunately, not all marriages are meant to be. When it comes to divorce, it’s also great if a couple can resolve any issues they have informally. But if you and your soon-to-be ex can’t come to an agreement on your own, you might have to go to court to determine who gets what, from the kids to the coffee table.

Here is a quick overview of what you can expect in family court and the final judgment of divorce.

What is a Final Judgment in Divorce Proceedings?

The final judgment in a divorce proceeding is the final ruling that ends the marriage between a married couple. These judgments are rendered by the judge or jury. Once the court reaches this decision, the divorce is granted and finalized. In order to get a final judgment in a divorce, a married couple must go through the family court process.

Family Court and Final Judgment: The Basics

The vast majority of divorce cases reach some sort of settlement, whether through informal negotiation between the spouses (and their attorneys) or through more structured proceedings such as mediation or collaborative law.

But, in some divorce cases, no full settlement can be reached. This is usually because the spouses are too far apart in some or all of their respective wishes. They may not agree on a equitable solution for issues such as child custody, child support, and property division.

In these situations, the divorce will be handled in civil or “family” court, at the county/district branch of state court where the divorce petition was filed. A single judge usually presides over the case and issues a final judgment of divorce, although one or both spouses may have the right to request a jury trial.

The Court Process: Evidence and Arguments

In family court, attorneys for each spouse present evidence and arguments related to the divorce on issues like child custody and visitation, child and spousal support, and property division. Evidence in a divorce trial can come in the form of:

  • Testimony from the spouses;
  • Witness testimony — including a guardian ad litem, a neutral third party who advocates for and represents the child(ren) in court, and expert witnesses (financial analysts, property valuation experts, etc.); and
  • Documents — including records related to marital property and finances.

As each side presents its own evidence and arguments, the other side has an opportunity to question witnesses and challenge evidence through “cross-examination” — challenging the witness’s story, testing their credibility, disputing documents, and otherwise attempting to discredit or discount witnesses and evidence.

The Court Process: Final Judgment of Divorce

After hearing and examining all evidence, the judge (or jury) will issue a final ruling resolving the divorce and all surrounding issues. Once the judge reaches a decision, they grant the divorce and enter a judgment finalizing the divorce and all related issues.

This judgment dictates a number of things about the now-divorced couple’s rights and obligations, including:

  • Division of the couple’s marital property, debts, and resolution of other financial matters;
  • Child custody, living arrangements, and a visitation schedule; and
  • Child support and spousal support (alimony): who pays, who receives, how much, when, etc.

Once a judgment is entered, either or both spouses can appeal a trial court judge’s decision to a higher (“appellate” or “appeals”) court, although it is unusual for an appeals court to overturn a judge or jury’s decision in a divorce case.

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What Is Divorce Good For

Most people who are thinking about getting a divorce are aware of what to expect. They have seen divorces in the movies and frequently have at least a few personal acquaintances who have gone through divorce. Even with this “second-hand” knowledge, going through your own divorce is one of the scariest things you can do in life.

You may be facing the end of one of your most important relationships ever, and on top of that, you have to start planning for unpleasant things like the division of assets and finding new housing. In many situations, there is also the sad possibility of losing daily contact with your children.

Divorce and predictability don’t mix. But if you go into your divorce with reasonable expectations, you’ll have the best chance of being happy with the outcome. As a result, it’s a good idea to be aware of what a divorce can and cannot achieve for you. What therefore is there to gain from divorce?

Real Estate Division

The marital property will be divided by the divorce court in the most reasonable manner. Most states will not include any property acquired before the marriage, by gift, or through inheritance in this divide.

This entails a 50/50 split of the property obtained by the partners during the marriage in some states (community property states). Other states (those without a community property system) will try to divide the property fairly by looking into the couple’s individual financial situations, the length of the marriage, the standard of living during that time, and other pertinent factors.

It is advisable to discuss the split of property with your soon-to-be ex-spouse because it is never predictable. Having legal representation will aid in the negotiation and settlement processes as well. For instance, you might decide that, while genuinely wanting to stay in the family home, you must continue running your business. As a result, you might decide to prioritize the business over the home. You can try to reach a mutually agreeable property division arrangement with your spouse in this way.

Assistance Obligations

The outcome of a divorce case can influence a couple’s support obligations. This may take the shape of spousal support and child support (also called “alimony”).

Although there may be some case-by-case variations, state law currently mainly determines how much child support must be paid. Slowly but surely, several states are working to enact laws that restrict deviance from the norm. Ordered custody arrangements may affect child support orders. In general, spousal support is heavily influenced by the specifics of each divorce and the financial situation of the separating couple. Therefore, it is once again challenging to anticipate a court’s final support decision.

Visitation and Custody of Children

When there are children between the parties, divorce can also help determine child custody, timesharing arrangements, and parenting schedules in addition to the division of assets. This is also everything but expected. The “best interests” of the child are supposedly promoted by a collection of considerations that courts frequently attempt to consider when making decisions, however these factors might differ from case to case and court to court.

Furthermore, during tense custody disputes, courts typically hear and see only the worst in people. In light of their constrained “view” of the parents’ lives, a divorce court might not necessarily decide on custody in the “optimal” way. Again, in this situation, bargaining and settlement are key choices to consider. A cooperative child custody arrangement will be advantageous to all parties engaged in the divorce, especially the kids.

Ensure Accurate and Equal Division

An exact or mathematically equal distribution of property and parenting time cannot be achieved through divorce. Since no two individuals, marriages, or divorces are alike. The judge who issues a divorce decree must choose wisely given the time and information at hand. You may need to make some concessions on some of your desires, and the choice may not always be the most just one that could have been made.

Divorce courts frequently need to make the most of bad situations. For instance, when one parent resides in Cheyenne, Wyoming, and the other in Kalamazoo, Michigan, a satisfactory custody agreement is impossible.

Maintain Good Relations

Even while a court can determine the terms of child custody and visitation, the judge will not always be present when it is time for one parent to pick up the children or send them to spend the weekend with the other parent. The court will not be present to watch that they don’t insult the other parent in front of the kids. A court order is ultimately simply a piece of paper. To carry out the provisions of the custody and visitation order, the parents must continue communicate with each other civilly.

Your obligation to your children does not end with your divorce. In the best interests of the kids, this duty also entails courteous communication with the other parent. When there is significant conflict between the parents, most courts will take whatever action they can, such as limiting in-person interactions wherever possible. Examples of this include arranging for parents to pick up or drop off children at school or church so that they won’t have to interact with one another, or if a facility is available to handle exchanges when domestic violence is present.

Keep Your Current Standard of Living

You should also be aware that a divorce court cannot raise your pay in order to stop a decline in your standard of living after a divorce. Unfortunately, maintaining two separate residences is simply more expensive than living together and splitting costs with another person. Your level of life will alter after a divorce, and the court can do very little, if anything, to prevent this.

Fix Emotional Problems

Finally, a court will not be able to hold your ex-spouse accountable or ethically defend you for all the wrongdoings that took place during your marriage. Additionally, the divorce procedure won’t make your emotional wounds better or even eliminate the need for you to grieve the broken relationship. Although you can get help from therapists and support groups, that is your responsibility.

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What Is Equitable Distribution And Separate Property In Divorce

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

This article addresses the two ways in which assets are divided between a couple during their divorce.

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

Individuals often decide to get married after falling in love and realizing they have similar values and life goals. But, romantic ideals aside, marriage is at its core a merger of two entities into a single unit, with shared assets and liabilities. And just as a business merger results in the commingling of assets, so too does marriage (to a degree).

But the question of who owns what typically is addressed only when a married couple decides to call it quits and go their separate ways. Marital property is that which is subject to division upon divorce, but what is separate property in a divorce?

Marital Property vs. Separate Property: The Basics

In order to define separate property in the context of a marriage, we also need to cover the meaning of marital property. Most assets (and debts) acquired during the marriage are considered marital property and thus subject to division in divorce. The way in which marital property is divided depends upon the laws of your state, with a handful of states using the “community property” approach (generally, a 50/50 split).

 

All other property is considered separate property, which means it belongs to just one of the parties in a marriage. When a couple gets divorced, separate property is not subject to division.

 

Assets Considered Separate Property

Unlike marital property, separate property (sometimes called “individual property”) belongs to just one individual before, during, and after the marriage. This mainly consists of that which was acquired before the couple gets married, with a few notable exceptions. Debt also follows these rules; someone who enters a marriage with a heavy debt load typically will be responsible for that debt after the marriage ends.

State laws determine what’s considered separate property, but they’re fairly consistent with one another. Generally, the following is considered separate property:

  • Property owned by one spouse prior to the marriage;
  • Gifts or inheritances received by one spouse prior to or during the marriage;
  • Property acquired by one spouse (in that individual’s name only) during the marriage and not used by the other spouse or for the benefit of the marriage (unless it’s a community property state);
  • Property/debts designated as separate in a legally enforceable contract, such as a prenuptial agreement;
  • Personal injury awards, minus any compensation for lost wages (unless it’s a community property state); and
  • Any property obtained by one party using their separate property assets (such as inheritance funds) with the clear intention of maintaining the acquired property as separate.

Separate property that’s been so commingled with marital property that it’s virtually impossible to identify will be considered marital property (and subject to division) in a divorce. For instance, if marital property (shared income) is used to pay off a car originally purchased by one spouse before the marriage, the car (or a portion of its value) will be considered marital property.

Separate Property: Community Property vs. Common Law States

It’s important to understand how community property states and common law property states differ in how separate property is distinguished. Common law property states, for the most part, automatically define that which is registered in one spouse’s name only as separate property. This isn’t the case in community property states (such as California), where an express, written agreement is required for such a determination.

Additionally, common law property states will take into consideration each spouse’s separate property when determining how to equitably distribute marital property during a divorce. Since community property states split marital property in half, they don’t consider each party’s separate property.

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What Is Equitable Distribution?

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

 

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

 

This article addresses the two ways in which assets are divided between a couple during their divorce.

 

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

 

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

 

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

 

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

 

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

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Divorces and Business Ownership

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Eric and Ariel made the sad decision to file for divorce after 19 years of marriage. Since before the two were married, Ariel has had a business collecting and selling different collectibles. However, she is concerned about what will happen to her business now that she is getting a divorce. Since she had it prior to being married, will it be split between her and Eric, or does it only belong to her? It depends, really.

A business will be considered an asset in the case of a divorce. However, how it will be divided will depend on a number of issues, including state legislation, whether the firm is considered to be marital property, and the presence of a prenuptial agreement. To understand more about divorce and business ownership, continue reading.

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Determining Marital Assets

The designation of a business as separate or marital property is the main determinant in deciding whether it is subject to property division. Marital property, which is more intricate than it looks, is the collective possessions of a married couple.

The first factor is state law, which typically defines marital property as either community property or property subject to equitable division. Second, how the property is finally classified can vary depending on how it is handled and even what happens to it during the course of a marriage.

Prior to filing for divorce, it’s crucial to ascertain whether the couple resides in a state that follows the equitable distribution or community property model. Property that each spouse owned before the marriage is distinct property in states where community property is the law. Almost all property acquired during a marriage is joint property of the spouses. Of course, there are exceptions since the law is never straightforward. Any gifts or inheritances granted to one spouse during a marriage are regarded as separate property, though their classification may change if they are combined with common assets.

Property partition is more complicated in jurisdictions with equitable distribution since a court determines how it will be done. Naturally, there are rules established by state law on how the property should be distributed. Furthermore, the concept of equitable distribution holds that property should be distributed “fairly,” though not necessarily equally.

When Is a Business Marital Property in the Case of Divorce?

If the spouses jointly own the company, it will be regarded as marital property. But it is not the only circumstance in which a corporation will be deemed to be marital property. It is possible that a firm that was founded after the couple’s marriage will be regarded as marital property.

Businesses created by one spouse before to marriage may not necessarily be regarded as marital property. For instance, if the non-owner spouse made contributions to the firm throughout the marriage, it may still be considered marital property. It’s vital to keep in mind that “contributed” might refer to both direct labor contributions to the business and caregiving while the owner operated the enterprise.

Prenuptial Agreements and Business Ownership Protection

A prenuptial agreement is the greatest approach to guarantee that a business is not included in the split of assets after a divorce. Of course, it’s possible for a spouse to start a business after they get married, in which case a prenuptial agreement couldn’t include it. To explicitly identify business ownership, it might be conceivable to enter into a postnuptial agreement, which is similar to a prenuptial agreement but takes place after the couple has already been married.

Speak With One Of Our Divorce Attorneys In Scottsdale

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Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, divorce mediation, collaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Family Court Decisions: Temporary Orders

Family Court Decisions: Temporary Orders

There are challenges that a couple must deal with when they decide to divorce. Finalizing formal family court rulings might take months or even years. Numerous problems cannot wait that long. For instance, parties should rapidly resolve matters such as child custody, child and spousal support, ownership of the family automobile, and ownership of the marital house before the formal divorce or legal separation hearings.

These pressing problems are quickly resolved thanks to the family courts’ temporary orders, which are discussed in more detail below.

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When a couple separates, family courts hold a hearing and issue temporary orders. Even before filing separation papers, a party may in several jurisdictions ask the family court for an interim order. The hearing can then take place in a few days or weeks.

Plans are made for the urgent family law issues following the hearing. Until the parties go through the formal divorce process or engage in another type of legal settlement, such mediation, the arrangement is temporary and remains in force. Despite having just a short-term legal effect, formal family court judgements frequently take temporary orders into account.

Hearings for temporary orders are generally less formal and shorter than full hearings in family court. Before the hearing, a couple or/and each party should be certain they are clear about their goals. The hearing will move swiftly, leaving little time for participants to dilly-dally in expressing what they think is best.

Temporary Orders Address What?

There isn’t a specific list of topics that all interim orders cover because every circumstance is different. The orders do, however, typically specify the temporary configuration for the following categories of family court cases:

  • Sale or ownership of the marital residence
    having access to the family car
    Child support is often calculated using the child support standards.
    spousal assistance
    Schedule for child custody and visits
    health protection
    Uncovered medical costs
    preventing one spouse from speaking with or approaching the other spouse. (This can have the result of ejecting the partner from the marital residence.)
    order prohibiting the sale of any important assets or household belongings by either spouse
    Keep in mind that not all decisions made through interim orders are final. They are meant to preserve the family’s stability and circumstances until more formal and binding judgments about the family’s future can be made by the family court.

The significance of temporary custody orders for children

Some couples can come to decisions by themselves. It will probably save you some hassle if you ever find yourself in that circumstance. To avoid any future ambiguity, make sure you and your husband jointly draft and sign the child custody and visitation agreement.

If, like many couples going through a divorce, you and your spouse are unable to come to terms with these matters, you should seek a provisional injunction right once. This is crucial when discussing custody of children.

It’s crucial to at least apply for custody as soon as possible if you’ll be keeping custody of the child(ren), especially if you take them away from the house. To best defend your rights and future in family court, you want the legal request on file.

As quickly as feasible, an enforceable order directing the child custody arrangement, including periods for visitation/parent time, needs to be entered into the court’s records. Law enforcement may be reluctant to intervene with one parent against the other in the absence of a court order awarding one parent custody.

The Hearing for a Temporary Order

The judge can do the following during the hearing:

  • Review your request’s specifics.
    Think about the underlying details
    Ask the parties any questions you have.
    Find out your spouse’s perspective.
    To determine your proposal for child support, take into account both your financial situation and the state laws.
    Sometimes the hearing for your temporary order provides an opportunity for the various parties to reach a compromise before appearing before the court. This gives the judge and the court much-needed time to concentrate on the actual difficulties at hand.

Requests for Temporary Orders: The Decision-Making Process

Unless the matter is really time-sensitive, it’s uncommon for the judge to make a judgement right away from the bench (in which case the specific issue will be decided). Within a week of the first hearing, the whole temporary order is typically issued. The court will decide whether to approve the order in its entirety or to make any necessary modifications.

Note: You could be needed to provide proof of your income and a breakdown of your spending if you’re asking for interim child support. Before or when you file your request, some courts may ask you to complete pre-made forms. It may be wise to create these documents even if your state does not have any such obligations in order to bolster your requests for financial assistance.

Sometimes the court finds that more information is required in order to reach a just conclusion or that your spouse was not properly informed prior to the hearing. In these situations, the judge may issue a ruling that is only valid up until a further temporary order hearing can be scheduled.

Any agreements the parties were able to reach prior to the hearing are included in the temporary order. The judge will assess the parties’ agreement if they manage to reach a comprehensive one. Most of the time, the judge deems these agreements to be acceptable and may rule that they act as the temporary order.

Temporary orders only last as long as your divorce is finalized or as long as you and your spouse can agree on a divorce settlement. However, decisions taken at hearings for interim orders may have an impact on divorce procedures.

How to Make a Temporary Order Request

It requires submitting certain documentation to the family court in order to request a temporary order. These forms are offered online on the websites of many courts. Find out whether there is a self-help legal center at your court where these forms could be obtained. Even the courts occasionally employ individuals to assist you with paperwork organization. States have different deadlines for submitting requests for interim orders. While other jurisdictions permit filing immediately after separation, some states mandate that you wait until divorce papers have been filed.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

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As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyers, divorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, and more.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Appeals and Motions to Modify the Divorce Decree

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After a divorce is finalized, either spouse may have grounds to appeal certain court rulings. Either a divorce decree modification request or a court judgment appeal may be made in order to accomplish this.

An overview of the procedure to challenge a court order pertaining to a divorce proceeding is provided below.

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Having Your Divorce Judgment Reviewed

A state court of appeals can hear an appeal of a divorce court judge’s ruling. While the initial judge’s ruling in a divorce case is respected, it is uncommon, though not unheard of, for an appeals court to reject the lower court judge’s judgment.

An appeal can only address material mistakes that were made during the trial. This could be a case of factual, legal, or judicial misconduct.

Due to the fact that both parties to the divorce agreed to the terms of the settlement, divorce settlement agreements are typically unaffected by an appeal. A spouse can attempt to claim that there were issues with the way the agreement was created, which could create a problem with its enforcement.

Divorce Appeal Notice

A notice of appeal is given to the opposing party to start the appellate procedure. For filing and serving notice, there are detailed guidelines and timeframes. Your right to appeal could be lost if you don’t adhere to your county’s and state’s filing requirements.

The Appeal’s File

The Record on Appeal must be prepared once the notice of appeal has been submitted to the court and served on each party. The processes used by the states to record court transcripts differ. Ask the court clerk what documents are maintained there and how to get them for your appeal.

The clerk’s record consists of all the written materials—documents, papers, pleadings, etc.—that were submitted to the court. It contains every piece of evidence and document presented during the trial. Other court documents (like motions) that were not initially introduced at trial may be found in the Record on Appeal.

Every word spoken in court while a court reporter was present is recorded in the court reporter’s transcript, a typewritten booklet. It often includes all of the witness testimony, the arguments made by the attorneys, and any remarks made by the judge or the parties.

The appeals document

The written appellate briefs submitted by the attorneys for each party serve as the primary vehicle for argument on appeal. A brief is a piece of writing that presents the case’s legal arguments and supports them with citations to relevant statutes, case law, the reporter’s transcript, and records kept by the clerk.

After being hired, the parties’ divorce lawyers file their pleadings to the appeals court. Regardless of whether they first represented you, a lawyer must be retained in order to represent you in the appeal court. You will need to consult with your lawyer or get new counsel for your case.

When submitting a brief, the lawyer may be asked to specify whether or not oral arguments are necessary.

Oral Debate

If a request for an oral argument is made, the time allotted for each party to deliver its case will normally not exceed 15 or 30 minutes. There will be no witness summons and no consideration of fresh evidence.

You might retain the same trial court attorney to defend you on appeal, or you could get new counsel. The lawyer will go over the mistakes that were made in the trial court and how they contributed to the outcome of the initial divorce case.

Appellate Court’s Decision

The appellate court will issue its decision after receiving the Record on Appeal, the appellate brief, and any oral arguments. State-to-state variations in time exist. Typically, an appellate court can take as little as a month or as long as a year or more to rule on an appeal.

The appeal court has the option of upholding the trial court’s judgment or remanding the case back to the trial court for judgment revision or a fresh trial. In rare cases, the court may simply vacate (overturn) the judgment.

Divorce modification requests

The appeals process is costly and might not yield the outcomes an ex-spouse is hoping for.

The easiest way to get the divorce decree modified is to just ask for it, which is much less expensive and usually more effective. It is possible to change some aspects of the divorce, including spousal support, child support, child custody, and visitation, however some changes are simpler to make than others.

A “move to modify” must be submitted in order to request a change to a property settlement, child custody arrangement, or alimony payment. The same court where the divorce judgment was rendered is where this motion was filed.

The majority of states offer specific paperwork to fill out. To see if they are open, inquire with the state and county courts in your area.

When writing a motion to modify, you must provide evidence of new circumstances that call for a revision. For instance, the termination of employment may be cause for alimony or child support modification.

Each state has its own laws governing the modification procedure and the evidence required for the modification to be approved.

Although it is challenging, child custody arrangements can be changed. Following the approval of the custody agreement, courts generally reluctant to modify custody arrangements. However, if it is in the child’s best interest and a change is required due to external factors, they will.

The completed petition for modification must be submitted to the court and served on the ex-spouse. The court will set a date for a hearing where the arguments will be made.

You should provide a copy of your agreement with your petition if you and your spouse concur that a revision is required. The adjustment may be made by the court without a court presence being required.

Speak With One Of Our Divorce Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, divorce mediation, collaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Divorce Mediation
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Regular Post
Written by Canterbury Law Group

Does Divorce Impact Social Security Benefits?

Credit and Divorce

You’ll want to pay attention to how divorce and remarriage affect your Social Security, just as you would with marriage. For example, a name change must be recorded to the Social Security Administration (SSA) in order for your earnings to be accurately reported, and remarriage affects survivor benefits.

Essentially, if you have been married for at least 10 years, you will likely continue to get Social Security benefits. If your marriage lasted fewer than ten years, you would not be eligible for your ex-benefits. spouse’s Remarriage and other variables can affect your benefits.

During a divorce, it is not overly complicated, but you must understand your rights and take care of these matters immediately.

How long must a couple be married before receiving benefits?

To be eligible for spousal benefits, you must have been married for at least 10 years.

How much Social Security does a divorced spouse receive?

This is crucial information for your divorce financial planning. To comprehend your spouse’s or ex-retirement spouse’s funds, you must obtain their Social Security benefits statement. This is particularly significant if you lack your own earnings or employment history.

When you reach the full retirement age, you will get full or unreduced benefits as well as fifty percent of your retirement savings account. Typically, if you have your own benefits, you will receive them first. If your spouse receives a bigger benefit than you do, you will also receive funds from their record.

The current full retirement age is 66, but it will shortly increase to 67. You can apply for Social Security payments at the age of 62, but the amount you get will be decreased. You may be eligible for delayed retirement credits if you or your spouse prolong your retirement age. These raise your monthly benefit amount.

Can You Continue Receiving Social Security Benefits After Divorce?

You can only get Social Security benefits after a divorce if:

  • You were wed for a decade.
  • You have not married again*
  • Your ex-spouse is qualified for Social Security and disability benefits.
  • Your personal retirement benefits are lower than those of your ex-spouse.
  • You are age 66 or older
  • You have been divorced for a minimum of two years.
  • Generally, remarriage will nullify your former spouse’s benefits.

How Are Social Security Benefits Divided Upon Divorce?

Social Security can be split in a variety of ways. Still, it is common for each spouse to get fifty percent of the retirement account. You may be subject to Social Security regulations, or you may be eligible for a greater payment or additional benefits. Divorcees must consult with an attorney to guarantee that each party receives what is due.

A delayed retirement can affect the timing and amount of benefits received. Overall, delaying retirement is preferable to retiring early, so your benefits will not be lowered.

Can You Collect Social Security If Your Ex-Spouse Has Died?

Yes, you will receive the full amount of their retirement benefit if your ex-spouse dies. At age 62 or beyond, you will begin receiving Social Security. Delaying your Social Security payments until age 65 or 67 ensures you receive the entire amount (retiring before age 67 can result in a reduction of 0 to 15% in benefits till age 67).

How Divorce Affects Benefits for Survivors

If your divorced spouse dies, you are eligible for widow/widower payments if your marriage lasted at least 10 years. However, you will not be required to meet the length-of-marriage criteria if you are caring for your deceased ex-minor spouse’s or disabled child. Benefits paid to a 60-year-old or older surviving divorced spouse do not influence the benefit rates of other survivors receiving benefits.

Keep in mind that the SSA will not notify your ex-relatives spouse’s if you apply for survivor benefits. In addition, there is no limit on the number of individuals who may claim for benefits from a single Social Security account.

How Remarriage Affects Benefits for Survivors

In general, if you remarry before the age of 60, you are ineligible for survivors payments until the second marriage ends by death, divorce, or annulment. You can continue to claim benefits on your former spouse’s record if you remarry after age 60 (50 if disabled).

At age 66 or older, you are eligible to receive retirement benefits based on your new or current spouse’s record if it is greater. Your remarriage would not affect the amount of child support given to your children.

Name Modification on Your Social Security Card

If you change your name, you must inform both the Social Security Administration and your employer. This will ensure that your earnings are reported and documented accurately by your company.

You can obtain a new Social Security card bearing your new name. You must produce a copy of your birth certificate, adoption decree, or other appropriate documentation to confirm your date of birth. To establish your identity, you’ll need a valid U.S. driver’s license, state identification card, or passport.

Are You Afraid of Divorce, Remarriage, and Social Security? Consult a Lawyer

Social Security-related information is available at SSA.gov. A divorce can effect many aspects of one’s life, even after death. It is essential to comprehend the legal ramifications of a divorce, from retirement benefits to name changes on Social Security cards.

Put your mind at ease by allowing an expert divorce attorney in your state to assist you in making the right decisions regarding divorce, remarriage, and Social Security.

Divorce & Legal Separation, Divorce Attorney, Divorced Parents, Scottsdale Attorneys, Scottsdale Divorce
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Written by Canterbury Law Group

Military Divorce

While military divorces are not more complicated than civilian divorces, there are particular divorce procedures and requirements that apply to U.S. service members and their spouses. These differences may pertain to support payment compliance, service of process, residency or filing requirements, or the distribution of military pensions. The following is an outline of the laws that govern the divorce of U.S. servicemen and women.

Military Marriage Statutes

Both state and federal laws govern military divorce. For instance, federal rules may govern where divorcing spouses end up in court or how military pensions are shared, whereas state laws may govern the issuance of alimony and spousal support. The exact state laws applicable to a divorce depend on the state in which the divorce is filed.

Jurisdiction

Before a court may award military members or their wives a divorce, it must have “jurisdiction,” or the authority to hear the case. Generally, a person’s place of residence determines the court’s jurisdiction over them. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.

Residency, Filing Requirements, and Proceedings Stays

Numerous states have decreased or removed the residency requirement in military divorces, allowing service personnel or their wives to petition for divorce in the state where they are stationed, even if they are not legal citizens.

In general, military members and their wives can petition for divorce in one of three states:

  • The state of residence of the filing spouse
  • State in which the service man is stationed.
  • The state in which a service member asserts legal residency

The reasons for divorce, including property division, child custody, and child support, are defined by the state where the divorce is filed. As a result, the specific conditions of a divorce will change based on that particular state’s laws.

It is important to note that active-duty service members have certain protections against court proceedings. Under the Servicemembers Civil Relief Act (SCRA), for instance, service members are protected from default judgment and can apply for a “stay” — a temporary halt — of any civil action, including child custody proceedings, initiated against them during active duty or within 90 days of their release from active duty.

This stay is in place so that service members can devote their time and attention to defending the nation while still being subject to court orders or verdicts while they are unable to appear in court. If a servicemember desires a delay that continues beyond 90 days, he or she may petition the court to grant it, but the court has the discretion to grant or deny any additional extensions.

Pensions and Military Benefits

Like civilian retirement benefits, military pensions are subject to distribution between spouses in the case of divorce. Depending on the jurisdiction, the Uniformed Services Former Spouses’ Protection Act (USFSPA) permits state courts to recognize military retirement money as either sole or communal property. While the USFSPA does not specify a method for distributing retired pay, the amount is often established and distributed in accordance with state regulations.

In addition, the Defense Finance and Accounting Service (DFAS) pays the former spouse’s portion of military retirement immediately if there were at least 10 years of marriage and 10 years of military service overlap (known as the 10/10 rule).

However, regardless of the length of the marriage, a court may sanction an offset payment to a military spouse who has been married for less than 10 years. In such a case, payment would come from the retiring spouse, not DFAS.

In addition to pension benefits, spouses of former military personnel are eligible for full medical, commissary, and exchange privileges following a military divorce if they meet the following criteria:

  • The couple was married for 20 years or more
  • At least 20 years of service are credited toward the service member’s retirement compensation.
  • There was at least a 15 year overlap between marriage and military duty

Matrimony and Child Support

There are particular restrictions regarding spousal maintenance (alimony) and child support in the military. The purpose of these regulations is to ensure that a service member’s family support obligations continue after a divorce or separation.

A court may enforce spousal and child support obligations in a number of ways, including by:

  • Court-order
  • Garnishment
  • Willful or Unwilling Allotment
  • A court may also mandate the paying spouse to retain life insurance to cover child or spousal support payments for a predetermined amount of time.

Consult a Lawyer Regarding Your Military Divorce

Because a military divorce needs understanding of laws that do not apply to civilian divorces, it is prudent to consult with a divorce attorney who has experience handling military divorce matters. An expert, local divorce attorney can assist you understand the many laws that may apply to your situation, your rights as member of the armed forces, and more.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Scottsdale Divorce, Scottsdale family attorneys, Scottsdale Legal Help
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What Is Divorce Good For?

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People contemplating divorce are typically aware of what to anticipate. They’ve observed divorces in the movies and often personally know at least a handful of people who have been through a divorce. In spite of this “second-hand” experience, facing your own divorce is one of the more frightening events in life.

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Not only do you face a court-sanctioned ending of arguably one of the more meaningful relationships you have ever had, you also must begin to think about such unpleasant things as the division of property and new living accommodations. In many circumstances, there is also the terrible prospect of no longer seeing your children on a daily basis.

Predictability and divorce don’t go together. But if you have reasonable expectations, you will have the best chance of being pleased with the outcome of your divorce. Consequently, it is prudent to comprehend what a divorce can and cannot accomplish for you. So what is divorce good for, anyway?

What Divorce Can Do

Property Division

A divorce court will endeavor to split marital property in the most cost-effective manner possible. Most states will exclude from this division any property that was acquired prior to the marriage or that was acquired via gift or inheritance.

In some states (community property states), this involves a 50/50 split of the property acquired by the parties during the marriage. Other states (non-community property states) will look into the couple’s individual financial conditions, financial intentions for the future, and other pertinent considerations in trying an equitable allocation of the property.

Because the division of property is never predictable, if you have a strong need for some item of property, it may be best to have your attorney negotiate and settle the property distribution ahead of time with your spouse’s attorney.

For example, you may decide that, although you would really like to stay in the family home, you really need to keep your business. Therefore, you might choose the business over the house. In this way, you can attempt to reach a mutually agreeable property division agreement with your spouse.

Support Obligations

Divorce proceedings can help determine a couple’s support obligations. This can come in the form of child support and spousal support (also called “alimony”) (also called “alimony”).

Child support payments are now largely set by state law, but deviation from those standards are not uncommon. Also, child support orders may depend on the custody arrangements ordered. In general, spousal support largely relies on the specifics of each divorce and the divorcing couple’s financial circumstances. Therefore, here again, any attempt at predicting a court’s ultimate support decision is often difficult.

Child Visitation and Custody

Aside from the distribution of wealth, divorce also can help set child custody and visitation schedules. Likewise, this is not at all predicted. While courts frequently try to base their decisions on a set of factors deemed to promote the “best interests” of the child, case-by-case and court-by-court, these decisions can vary. After all, in making custody decisions judges are naturally influenced by their own beliefs, opinions and values.

Further, judges generally see and hear only the worst of people during heated custody proceedings. So, based on their limited “view” into the parents’ lives, a divorce court may not always make the “best” possible decision when it comes to custody. Here again, discussion and settlement are crucial choices to keep in mind. Everybody engaged in the divorce, especially the children, will benefit from a cooperative child custody arrangement.

What Divorce Can’t Do

Ensure Precise and Equal Distribution

A divorce cannot accomplish an exact or mathematically equal division of property and time with children. Because no two people, no two marriages, and no two divorces are alike, the judge who writes a divorce order must make the best decision with the limited time and information available. It may not always be the fairest possible decision that could have been reached, and it is certain not to favor you individually in every possible way.

Frequently, divorce courts must make the best of awful situations. For instance, there can be no appropriate custody agreement when one parent lives in Cheyenne, Wyoming and the other lives in Kalamazoo, Michigan.

Ensure Civil Relations

Even though a court can determine custody and visitation, it will not be present every Friday when mom drops off the children, nor will it spend the weekend with dad to ensure he does not make disparaging remarks about mom in front of the children. A court order is ultimately just a piece of paper. Mom and dad will STILL have to civilly deal with each other to carry out the terms of the custody and visitation order.

This includes interacting with the other parent, as divorce does not make your ex-spouse less of a parent to your child (one exception being cases of abuse).

Maintain Your Current Level of Living

You should also recognize that a divorce court can’t increase your salary to prevent your standard of living from declining once you divorce. Unfortunately, from a financial perspective, it is much more cost-effective for two individuals to live together and share expenditures than to run two separate households. There is little, if anything, the court can do to prevent a reduction in your standard of living after a divorce.

Resolve Emotional Issues

Finally, a court will not be able to punish your ex-spouse or morally vindicate you for all of the bad things that happened while you were married. In addition, the divorce process will not heal your emotional wounds or eliminate the need to mourn the failed relationship. That is your job, although you can seek assistance through therapists and support groups.

Still Want to Get a Divorce? Explore Your Options With an Attorney

As you determine the benefits of divorce, at least in your specific situation, you will likely have questions along the way. A great way to get those questions answered is by speaking with a legal expert today. A skilled divorce lawyer in your state can provide you with peace of mind.

Speak With One Of Our Divorce Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, divorce mediation, collaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Divorce Mediation
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