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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

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

(480) 744-7711
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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

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.

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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.

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What Is Divorce Good For?

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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Divorce And Business Ownership

Eric and Ariel reached the terrible choice to divorce after 19 years of marriage. Ariel’s profession of collecting and selling various collectibles began before their marriage. However, now that she is getting a divorce, she is concerned about the future of her business. Will it be divided between her and Eric, or does she retain sole ownership as she owned it before to their marriage? Well, it depends.

A business will be evaluated as an asset in the case of a divorce. Whether it will be shared depends, among other things, on state rules, whether the business is considered marital property, and whether a prenuptial agreement is in existence. Learn more about divorce and company ownership by reading on.

Define Conjugal Property

The key determinant of whether an enterprise is subject to property division is whether it is classified as marital or separate property. The term “marital property” refers to the joint property of a married couple, which is more complicated than it may appear.

First, state rules influence the definition of marital property, which is typically community property or property susceptible to equitable division. Second, how the property is handled and even what happens to it throughout a marriage might influence how it is finally classified.

Community Property versus Equitable Distribution in Business Ownership upon Divorce

A divorcing couple must first establish whether they reside in a community property state or an equitable distribution jurisdiction. In states with community property, practically all property acquired during a marriage is considered joint property, while property owned prior to the marriage is considered separate. Obviously, the law is seldom straightforward, thus exceptions exist. Gifts and inheritances received by one spouse during a marriage are regarded separate property; however, combining them with communal property can alter their status.

In states with equitable distribution, the partition of property is less easy because a judge decides how it should be shared. Obviously, state laws establish specific standards about how property should be split. Additionally, the concept of equitable distribution is that property is divided “fairly” but not necessarily evenly.

When Is a Business Marital Property In the Context of Divorce?

The business will be considered marital property if the couples are co-owners. However, this is not the only method in which a business might be considered marital property. If a business was established after the marriage, it is likely to be regarded marital property.

Sometimes, businesses created by one spouse prior to marriage are not considered marital property. However, this is not always the case. For instance, if the non-owner spouse made contributions to the firm throughout the marriage, it may still be considered marital property. It is vital to remember that “contributed” can refer not just to direct contributions of time to the business, but also to caring for the home while the business owner ran the company.

Using a prenuptial agreement to safeguard business ownership

A prenuptial agreement is the greatest approach to ensure that a business is not subject to property division in the event of a divorce. Occasionally, a spouse may start a business after the wedding, in which case it would be impossible to include it in a prenuptial agreement. However, it is possible to obtain a postnuptial agreement to define business ownership, which is similar to a prenuptial agreement except that it is executed after the couple is married.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Scottsdale Divorce, Scottsdale family attorneys, Scottsdale Legal Help
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10 Things To Do Before You File For Divorce and Realities of the Divorce Process

10 Things To Do Before You File For Divorce and Realities of the Divorce Process

Here are ten actions to take if you believe that your marriage is beyond repair and that divorce is inevitable.

Speak with a lawyer.

Find out what your legal obligations and rights are. Consider the scenario where you decide to relocate to your parents’ home with the kids while you wait for the divorce to be finalized. Moving in with your parents, even for a short time, could be a grave legal error.

Copies of documents.

Make copies of everything you can find by going through household files, including tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits manuals, life insurance policies, mortgage papers, financial statements, credit card statements, wills, Social Security statements, car titles, etc. It’s crucial to learn as much as you can about the company’s finances if your spouse runs a self-employed business. If you have financial information on your home computer, make copies of it.

List the belongings in the home and in the family.

The major possessions should be listed, including furniture, jewelry, art, appliances, and cars. Don’t forget to search your home’s storage spaces and your safe deposit box for valuables.

(Knowing all of the marital assets is crucial when it comes to dividing the property.)

Understand the household budget and costs.

Write down each monthly expense for utilities, a mortgage, and other living expenses as you go through your check register for the previous year, if you can. Keep track of the money you spend every day so you can figure out your monthly cash outlays as well.

Choose a family debt management strategy.

Determine the family debt, if any, and think about settling it before filing for divorce. One of the most challenging issues to settle during a divorce is how to divide the marital debt. When assessing debt, consider whether any of it was racked up by one spouse or the other before the wedding. The spouse who incurred it would be responsible for paying off this “non-marital debt,” which belongs to them.

Find out the exact salary of your spouse.

If your spouse receives a regular paycheck, it is simple to check a pay stub; however, if your spouse is self-employed, owns a business, or receives any portion of income in cash, you should try to keep track of the money coming in over the course of several months.

Analyze your earning potential in a realistic manner.

Perhaps you have been focusing solely on raising children while you have been out of the workforce for a while. Analyze your current employability and whether pursuing more education before getting divorced would be advantageous for you in the long run.

Look at your credit report.

If you don’t already have credit cards in your name, apply for them right away, use them, and build your credit. If you have a bad credit history, try to pay your creditors now so that you can raise your credit score before the divorce.

Make your own “nest egg” by yourself.

You ought to have access to your own money at all times. You will be responsible for paying bills if your spouse leaves and stops doing so until temporary support orders can be put in place. You will require funds for a retainer if you plan to initiate the divorce. Start putting money aside now, and when you have a sizeable nest egg of your own, consider starting divorce proceedings.

Prioritize spending time with your children.

Keep your kids’ schedules as regular as you can throughout the divorce process. If you and your partner can’t be with the kids together without fighting, schedule separate times for you both to be with them. Participate in your children’s school, sports, and extracurricular activities. Don’t speak poorly of your spouse in front of your kids. Put your kids first in everything you do.

The Scottsdale divorce attorneys at Canterbury Law Group handle complex divorce cases throughout Arizona, California, Nevada and New York. Their skilled litigation team provides no-nonsense legal counsel for family law cases at the highest level possible.

The law team at Canterbury thoroughly prepares clients while understanding that all cases have unique circumstances and laws vary by state and local jurisdiction. The Scottsdale divorce attorneys also prepare clients for the constant surprises that inevitably arise during the divorce process:

Length of divorce – Depending on your unique situation, divorce can take few months to well over a year, leaving issues that still need to be settled. The vast majority of matters resolve within one calendar year. More complex dissolutions with large asset bases and children, can take up to two years. At Canterbury Law Group, we help clients work out many divorce issues before entering court in attempt to eliminate or reduce long cases. The longer the case, the more expensive it is for both sides.

Court TV is not reality – Court TV may have constructed an unrealistic image of what court is like for the majority of divorce cases. In fact, most cases reach a settlement before needing to see a judge, or if you see a judge, it might only be for a few preliminary hearings and no trial if you elect to settle later.

Rescheduling is common – Expect your court dates to be rescheduled for other cases that take priority in your jurisdiction, such as criminal trials. You cannot insist upon a court date just because the court issued it. Rather, be prepared for rescheduling. Change is constant in a divorce proceeding.

Patience is needed – In most courthouses, your case will not be the only case scheduled for a hearing. Be prepared to sit and wait for other cases to be heard before yours. However, you must always be on time in the event the court is on time.

Everyone has an opinion – When you are going through a divorce, you will realize that everyone has an opinion. Ignore most of them because each case is unique, and no one can give you divorce advice better than your divorce attorney. Don’t rely on what you ‘hear’ or ‘read’ on the internet. Secure top legal counsel and let them steer you successfully to the resolution of your case so you can move on with your life. For more on divorce legal services, go to www.canterburylawgroup.com or call 480-744-7711.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Family Law, Scottsdale Divorce
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Divorce Timeline

Most people have no idea what to expect when they decide to get a divorce. Considering that divorce is a difficult legal process, it may be filled with unpleasant surprises and annoying delays. Reviewing a legal divorce timeline is always beneficial to give you a general idea of what to expect and make you feel more at ease during a difficult time.

The timeline below provides a general idea of how a divorce typically plays out, but your divorce may deviate slightly due to unique circumstances involving you and your spouse or unique legal requirements in your state.

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1. Beginning the legal divorce process

One of the spouses hires a lawyer to begin the divorce process, and the attorney drafts a petition (also referred to as a complaint), which is a legal document outlining the grounds for the divorce as well as the terms for dividing assets, child custody, and other matters.

2. Making the complaint and serving it

The petition or complaint is submitted to the court by the attorney. The petition or complaint, along with a summons requiring the other spouse to respond, are served on that spouse by the attorney or the court.

3. Getting Your Partner’s Response to the Divorce Complaint

The served spouse has a set amount of time to respond (usually about three weeks). The response indicates whether or not the spouse who was served concurs with the petition or complaint. He or she is presumed to have accepted the terms of the petition or complaint if they fail to respond. The response—also known as an answer—describes the served spouse’s preferred method of handling divorce-related decisions.

4. Beginning the process of property division and exchanging documents

Documents and information about things like property and income are exchanged by the couple. The couple and the court can make decisions regarding property division, child support, and alimony by reviewing this information.

5. Engaging in negotiations or mediation

The couple may occasionally agree to settle all of their differences amicably through mediation or settlement. In some states, divorcing couples must go through this procedure.

If a settlement is reached, it is presented to the judge during a non-judicial hearing. The judge will inquire about a few fundamental facts and whether each party is aware of the agreement and chooses to sign it.

6. Getting any settlement agreement court approval

If the judge accepts the settlement, they issue the couple a divorce decree outlining the terms of their agreement. The case will go to trial if he or she does not approve it or if the couple cannot come to an agreement.

7. Taking part in a divorce trial

The judge decides the unresolved issues, such as child custody and visitation, child and spousal support, and property division, after attorneys for each side present evidence and arguments at trial. The judge then grants the divorce after coming to a conclusion.

8. Contesting the judge’s judgment

A judge’s decision may be appealed to a higher court by either spouse or both spouses. However, it is uncommon for an appeals court to reverse a judge’s judgment. Also keep in mind that if both spouses accept the terms of the settlement, it is typically not subject to appeal. But if something needs to be changed after the trial, you might be able to change the divorce judgment.

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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