Tag Archives: Child & Spousal Support

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.

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.

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.

Learn whether a court can divide your inheritance in a divorce.

Not necessarily. For purpose of divorce, the law usually categorizes property as either “marital” or “separate.” As a general rule, marital property is subject to division between the spouses; separate property isn’t. This is true whether you live in a “community property” state (like California), which divides property on a 50-50 basis, or an “equitable distribution” state (like New Jersey), which apportions property based on what the court believes is fair under the circumstances.

Is My Spouse Entitled to My Inheritance in Divorce?

That depends on a number of factors, including where you live. Each state’s divorce laws will govern how to address inheritance, in community property states and equitable distribution states as well.

In the overwhelming majority states, an inheritance is considered separate property, belonging exclusively to the spouse who received it and it cannot be divided in a divorce. That holds true whether a spouse received the inheritance before or during the marriage. But in a state like New Hampshire, for example, courts may consider an inheritance to be divisible in a divorce (unless you can persuade a judge that it shouldn’t be).

Now here’s the rub—although your state may initially view an inheritance as separate property, your actions can change it into marital property. Sometimes that happens intentionally in what is called a “transmutation of property.”

An example of an intentional transmutation of property from separate to marital is where a spouse inherits a house, then puts the other spouse’s name on the deed. The spouses move in and share the costs of living there. In that scenario, if a divorce rolls around, the inheriting spouse would be hard pressed to convince a judge that the house was never intended to be marital property.

But let’s say the inheriting spouse never puts the other spouse’s name on the deed, and neither spouse lives in the house during the marriage. At some point down the road, however, the non-owner spouse contributes to improvements which increase the house’s value. At the time of divorce, a judge might determine that—although the house itself may not be marital property—the increase in value specifically due to the improvements is a part of the marital estate, and thus subject to division between the spouses.

The most common example of converting an inheritance to marital property is when the inheriting spouse “commingles” (mixes) the inheritance with marital assets. This can be intentional, but often it happens by mistake. For example, Uncle Zeke passes on and leaves you $10,000 in his will. After you and your spouse break out the bubbly and toast the kindly gentleman, you put the money in an existing savings account that’s in both your names, and which either of you can access at will. If you did that because you wanted to share the inheritance money with your spouse . . . great! Mission accomplished.

But if you thought that putting that money in the joint account was just for convenience, and that it would always remain yours alone, you may have put yourself behind the proverbial eight-ball. By commingling the inheritance with marital funds, you’ve likely converted it into marital property. You can make an argument to the court that this was never your intention, but you’ll have an uphill climb.

Can I Claim My Ex’s Inheritance Received After Divorce?

Sharing a spouse’s inheritance after divorce is a nonstarter, unless your divorce judgment specifically addresses that topic.

That said, there is a situation where an ex-spouse’s post-divorce inheritance could come into play. If you’re receiving spousal support (alimony) or child support, you might be able to petition the court to increase the support amount, based on that inheritance or any interest income the principal is making.

Courts usually allow modification of support—both up and down—for a variety of reasons, such as a job loss, a spouse or child becoming disabled, or a spouse’s substantial pay increase (again, depending on the laws in your state).

You’d first have to see whether your state views an inheritance as a potential basis for a modification request. If it does, you may have viable grounds to seek an increase in support. Of course, this is going to depend in large measure on how significant the inheritance is. Your best bet for success is when the inheritance has substantially enhanced your ex-spouse’s standard of living.

What does the term “separated” mean? Discover the distinctions between trial separation, permanent separation, and legal separation.

When it comes to marriage, separation is not synonymous with divorce—even if you have a court-ordered “judgment of separation.” Separation is when you live apart from your spouse but remain legally married until you obtain a divorce judgment. While a separation does not terminate your marriage, it does affect your financial obligations to your spouse until the divorce is final.

Separation is classified into three types: trial, permanent, and legal. In the majority of states, only one of the three (legal separation) alters your legal status—but all three have the potential to impair your legal rights.

Separation of Trials

If you and your spouse feel the need for a break from the relationship, one option is to live apart while deciding whether to divorce—a process known as “trial separation.” Legally, little changes during a trial separation—all applicable marital property laws remain in effect. For instance, a court will consider the money you earn and the items you purchase during the trial separation to be property acquired by a married person. This frequently means that you and your spouse jointly own the property (depending on your state’s property ownership laws).

If you and your spouse separate but intend to reconcile, it’s a good idea to write an informal agreement outlining the separation rules. For instance, your trial separation agreement may address the following:

• whether you’re going to continue sharing a joint bank account or credit cards.
• how you intend to budget your expenditures
• who will continue to reside in the family home
• how you intend to split expenses, and
• If you have children, discuss how and when you will spend time with them.
• If you decide to divorce, you may be able to use this trial separation agreement as a template for a marital settlement agreement.
• If you and your spouse agree that reconciliation is impossible, your trial separation becomes permanent.

Permanent Distancing

If you live apart from your spouse with no intention of reconciling but are not divorced, the law considers you to be permanently separated.

How Separation from Your Spouse Affects Your Rights

Depending on the local law, a permanent separation may alter the property rights of spouses. For instance, in some states, assets and debts acquired during a permanent separation are considered to belong exclusively to the spouse who acquired them. Once a couple is permanently divorced, each spouse assumes sole responsibility for any debts incurred. Similarly, spouses who divorce permanently lose their right to any property or income acquired by the other.

Why Does the Date of Final Divorce Matter?

Due to the fact that spouses’ rights to each other’s property and obligations to pay debts change significantly as of the date of a permanent separation, spouses frequently argue bitterly about the precise date of their permanent separation. For instance, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you did not discuss divorce until after the month passed, the date the separation became permanent may be unclear. That means that if your spouse earned a sizable bonus at work during that month, you may be able to argue that you are entitled to a portion of the bonus.

If you move out of the house and do not anticipate a long-term reconciliation with your spouse, reconsider going out or spending the night together just for the sake of old times. If you reconcile briefly, you risk changing the date of separation and becoming financially responsible for your spouse during a time when you believed you were solely responsible for your own.

After you have legally separated from your spouse and reached basic agreements regarding your joint assets and debts, you are not required to divorce immediately. You may choose to remain married for a variety of reasons, including avoiding disruption of your children’s lives or retaining insurance coverage. Or, in some cases, preserving the status quo is simply more convenient than pursuing a divorce. On the other hand, you may decide to divorce as soon as the paperwork is finalized, or when the required separation or waiting period in your state expires.

Is Separation Required Prior to Divorce in My State?

Certain states’ laws require spouses to separate before a divorce can be finalized. State laws governing required separations vary in detail—for example, many states require spouses to live “separately and apart” for a specified period of time before the court will accept a divorce petition (formal request), while others do not require separation until after the petition is filed. If you file before meeting the requirements for separation, the court may dismiss your case. Other states may require spouses to live apart during the divorce process.

In Arizona, there are two ways to formally and legally remove your estate from your spouse: divorce and legal separation. It’s important to understand that these are two different processes. Legal separation is not another term for divorce. While there are certain overlapping legal similarities between the two, it’s important to understand that these are two different things. Read below to find answers to commonly asked questions about divorce and legal separation in Arizona:

What is the Difference between Divorce and Legal Separation?

Obtaining a divorce means that the marriage is legally dissolved, with all assets separated, and both spouses legally become single people capable of remarriage and child custody rights are legally established. In contrast, a legal separation does not dissolve a marriage. The spouses will be technically still married to each other, but also judicially separated. However, like with a divorce, virtually all assets and debts are typically separated between the two spouses. But unlike in a divorce, the spouses cannot claim to be single persons for any legal reason nor can they remarry.  Most people pursue Legal Separation to maintain valuable health care coverage, among other reasons.

Why Seek Legal Separation Instead of a Divorce?

Legal separation may be suited for some people over a divorce for several reasons. Most spouses who do not want to divorce due to religious reasons or personal convictions can still undergo legal separation to judicially extricate oneself from a spouse. Spouses that want to live apart but without getting a divorce can obtain a legal separation.

Some people prefer to legally separate rather than divorce in order to keep valuable health insurance benefits of a group plan. As mentioned above, legally separated spouses are still considered married, and thus can benefit from continued spousal health insurance coverage. Similarly, those who have been married for less than 10 years can continue to receive social security benefits on their spouse’s federal benefits following a legal separation, unlike with a divorce in which such benefits are completely terminated for the lower earning spouse.

If you need to formally cut all legal, civic and other ties to a spouse, then you will need a divorce.

Grounds for Divorce or Legal Separation

Arizona is a no-fault state. It does not matter who did what to whom, or who cheated with whom.  Therefore, for both divorce and legal separation, you don’t need to show any reason for divorce to a court. If one spouse desires to divorce then the court will grant the divorce. Similarly, spouses do not need to prove a reason to get a legal separation. Claiming that the marriage is “irretrievably broken” is reason enough to obtain a Decree of Legal Separation as long as the other spouse does not object.  Only one of the two spouses must desire the divorce.  The person who “wants to hang on” cannot prevent the legal divorce from ultimately taking place.

What if One Spouse Insists on a Divorce?

Unlike in a divorce, legal separation is only granted if one spouse does not object. If one spouse wants a legal separation but the other wants a divorce, the court will convert the case and grant the divorce. Because a spouse can object, it’s important to discuss and make sure this is what both parties want. Consult with a local divorce attorney in Scottsdale to discuss your options.

What if the Legally Separating Couple has Children?

Child custody issues for legally separating couples are handled similarly to a divorce by Arizona courts. The courts will always prioritize the needs of the children. A family court will also determine parenting time and parental responsibilities.  You will receive formal judge imposed custody orders from the Court under either scenario.

What Happens to Marital Assets and Debts When a Couple Legally Separates?

Asset and debt separation for legal separations are also handled similarly to divorces. A court will make the determination.   Usually, the date upon which the original Legal Separation or Divorce Petition is “served” on the receiving spouse is the date that the community terminates.  Put another way, any salary or paychecks received after the date of service will usually be the earning spouse’s sole and separate property.  Exceptions apply, however.  Please consult seasoned legal counsel on all of these issues.