Divorce. It’s the dreaded “D” word. For many, divorce is a time of pain, stress, and great contemplation. Emotions are in a heightened state and respective spouses can feel at odds. When children are at the center of the separation, divorce can become even more complicated. There are matters of children, assets, and the division of property to contend with. During this whirlwind of events, the stress can sometimes become too overwhelming.
In some situations, a vulnerable party can find him or herself in a harmful situation. While you do not necessarily need a lawyer to get you through a divorce, it is important to be prepared for your proceedings, from ensuring proper documentation is prepared to ensuring that you file your documents in the appropriate court. This article provides legal information on how to proceed with filing for divorce and how to create a divorce settlement agreement without the need for a lawyer.
Finding information that pertains to your situation may take some time. While there are a variety of Internet sources that you could find useful, there are also dozens of sites which might be offering incorrect information. In order to ensure that you are making correct choices, it is important to vet any sites that you use in making decisions about your divorce. The wrong choices may impact on you for many years. It is a good idea to conduct thorough research and take notes on all of the information you discover.
When considering all aspects to a divorce, cost is a major factor. Beware of some of the self-help guides on divorce. They may be the most cost-effective solutions, but they may not necessarily serve your best interests. It is best to refer to multiple sources.
Some issues to consider when approaching divorce proceedings on your own are:
A state-by-state approach is also needed to ensure that you are following the correct laws. The first issue to consider when approaching divorce proceedings without a lawyer is whether you and your spouse are in agreement on all of the above issues (i.e. property, children, marital homes, etc.).
If you and your spouse are not in agreement, it can lead to a sticky and complicated situation. The other issue to consider is documenting all complete information about your family's assets and debts (discussed in greater detail below). If, after discussing all of the accounting and financial issues with your spouse, and you are completely comfortable with the decisions you’ve made together, you should also discuss the custody and support arrangements for your children. The goal is to make sure these arrangements are agreeable to all parties.
In terms of child visitation and custody rights, if parties are not in agreement, you may require a mediator. If mediation does not work, a judge would be the next logical step to consider. A judge will always consider the best interests of the children and will also work towards scheduling equal visitation times for both parents. In instances of alleged spousal or child abuse by either parent, a child-protection order may be needed. If there have been any documented accounts of violence, a court-ordered child protection order may be instated to protect you and your children.
Allegations of spousal violence or parental child abuse, accompanied by evidence of strong probative weight, influence court decisions. It is important to keep any records of violence or abuse for your case that may be valuable in helping assist you in your claim of spousal violence, such as:
If a court-ordered child protection order is accepted by the court, your child/children may be granted the ability to stay with the non-violent parent. A visitation and order schedule may be discussed and issued between the parties.
In considering ways to settle disputes, mediation may be a good way to go, before having to involve the court (in the above example, however, a judge may be needed if parties cannot come to a mutually agreed-upon consensus). However, mediation may be a good alternative to consider, as it is a successful way for parties to reach consensus (through an objective person) when faced with issues of contention. Similarly, if there are emotional issues at hand, a counselor may be able to help ease the tension and get the discussions under way. The other great thing about mediation is that it saves money in the long run. It’s a great way to avoid legal costs—especially when parties are not agreeing on important terms.
In retaining assistance for your divorce, you may want to consider speaking with a county clerk. Although counties and states differ, many County Clerks’ offices offer services regarding basic information required when filing a divorce without the use of an attorney.
Although your County Clerk cannot offer legal advice (only a licensed professional such as a paralegal or attorney can provide legal advice), your County Clerk can refer you to correct information regarding your divorce at the law library (if a library is available in your area).
If you need to find further information regarding the location of your local court, the hours of operation, and if there are any filing fees, your local clerk can also assist you.
Regarding the division of property, courts will generally determine the division of property depending on the financial contributions made during the marriage, and concern for the future welfare of the children. Other factors to consider are: the state of the union (different rules apply in different states), the length of the marriage, and the economic statuses of the parties prior to the marriage. In regards to division of assets (land and property), depending on certain qualifications, each person owns property in his or her own name.
If an item does not involve “titled” documents (i.e., a mortgaged home), the item is regarded as owned by the person who paid for it. In regards to gifts, although a person might not have paid for the gift, the gift legally belongs to the recipient. If the item were bought by funds from a joint bank account, or through the understanding that it was the joint property of the couples, it is owned by both spouses.
In Californian law, joint property is known as “community property.” In the event that an item is bought with one spouse’s money and put into the name of the other spouse, the court will conclude that it is a jointly owned item, or that it is owned by the person who paid for it. This occurs when a non-titled spouse claims an interest because of a trust. Laws relating to trusts (constructive trusts, remedial constructive trusts, and resulting trusts) are a complex area of law as they deal with property acquired during marriage. However, the law of property and trusts is used by the court to give property rights to common-law spouses who would otherwise not have such rights.
The courts can assist common-law spouses by applying the doctrine of unjust enrichment, often used in equity to try to remedy a situation in which one party ends up with a benefit they may be entitled to in law, but not in fairness. Generally speaking, the courts start with the proposition that “what is yours is yours, and what is mine is mine.” As stated previously, there are other factors which apply. A thorough examination of the application and the process used to determine shares of property is often needed.
Some states calculate the proceeds of a divorce by a term known as an “equalization payment.” An equalization payment is calculated via each party’s economic standing. For instance, a snapshot is taken of the value of the assets that each party owns (on the date of the marriage and again on the date of the separation). The date of separation is also known as the “valuation date.” All items are counted and valued as of these two dates. The current value of each party’s books, furniture, automobiles, bank debt, student loan debt and so forth, are valued. The value of these items is measured by their value before the marriage and then on the valuation date.
For example, if you were married in 2004 and owned a classic 1960 BMW, a silverware collection, and a leather couch when you got married, the question would be “What was the value of each item on the marriage date in 2004?” If any of these items were still in your possession at the time of your separation (for example in 2008), then you would set out the 2008 value for each item you still have on the date of separation (valuation date).
The 1960 BMW may no longer be in your possession on the separation date, and the leather couch—which may have been purchased for $1,000—may now be worth only $200 at a garage sale. However, the silver collection worth $600 at the date of the marriage may now be worth $1,000. As a result, you would enter the couch at $200 and the silverware collection at $1,000 for the valuation date values.
Once the value of the items that each party has brought into the marriage has been calculated (less any debt), this value is subtracted from the value of items owned at the separation date (less any items received as gifts or inheritance). This equation is known as the Net Family Property (NFP). Each party must calculate their own NFP. The lower NFP is then deducted from the higher NFP and the difference is then divided in half. This new figure is the amount of the equalization payment. It is termed as an “equalization payment” because it is paid from the financially well-off party to the party with less, financially. It should be noted that one party may have more assets than another due to the reasons mentioned below.
The equalization payment may be further complicated by the fact that there are certain items which are not included in the calculation. For instance, the value at separation date of an inheritance or gift received after marriage is excluded from his or her NFP calculation. If one inherits $25,000 from an uncle a few years before the separation, and he or she spends it on a vacation, or to pay off the mortgage (and none of the funds are left at separation), there is no value to the inheritance. However, if the $25,000 inheritance is put into a separate bank account or it is invested in stocks, the value of the bank account or the stocks at the date of separation is not taken into account with the NFP.
In some cases, the amount of the exclusion is greater than the value of the gift or inheritance, especially if the item has been invested in a stock which has increased in value, or an investment which has increased in value. There are other exclusions from the NFP to keep in mind, such as specific policies which state that one cannot deduct the value of the matrimonial home in one party’s name. Due to the importance that these deductions and exclusions have in determining an equalization payment, a thorough calculation is needed to properly calculate each party’s entitlements.
A matrimonial home is all the property in which a person has an interest. In addition, the interest is determined by the home which was occupied by the person and his or her spouse and deemed as the family residence at the time of the separation. There can be multiple matrimonial homes:
The matrimonial home in California qualifies for special treatment in two ways. First, regardless of whose name the matrimonial home is in, both spouses have equal rights to the possession of the home. This right continues until both parties are no longer spouses, or until there is a court order in which an agreement is made, proving otherwise. No one can “throw out” the other spouse because the “thrower” owns the house. And secondly, if a matrimonial home at the time of separation (owned by one of the parties and the other party moved in before or after the marriage, or it was purchased to be the family’s home by one of the parties) is the same home lived in at the date of the marriage, the owner cannot deduct the marriage date value when calculating his or her NFP.
The matrimonial home’s valuation date is included as a valuation date asset but without a corresponding deduction. This situation is rare, but it can have an impact on equalization payments. Sometimes, however, the facts regarding ownership may not be that simple, an agreement may have been made beforehand (between the spouses) or there was an understanding that the house belonged to both of them, even though they were not both on the title. Rebutting the presumption created by a title can be difficult, and it does require a great deal of evidence that the intent was for the house to belong to both spouses.
Other issues to consider are tax issues. For instance, there are serious and long-term tax considerations for many divorces. Before embarking on divorce proceedings without a lawyer, it is a good idea to consult with an accountant or financial advisor, or even tax preparer who can alert you to potential tax issues after a divorce. IRS is the official website where IRS officers offer free information about all tax issues pertaining to divorce.
Another issue in regards to taxes is the issue of alimony. Alimony plays a part in tax-filing. For instance, alimony is taxable to the recipient. This means that if one partner is receiving alimony, that partner must pay taxes on the alimony they are receiving. The person who pays alimony gets to deduct it.
Child support, by contrast, is not taxable to the recipient, and it is not deductible for the person paying it. The last major tax issue to consider is your filing status. When you are filing your taxes, your marital status at the end of the year determines how you file your taxes. For instance, if you are divorced on December 31st, you are considered single.
Pension is considered property, and must be taken into account when calculating the NFP and equalization payment. However, the value of a pension is difficult to calculate and, as such, requires the assistance of an actuary. Generally speaking, one can assume that the pension that each party has is worth more than one can accrue. A pension is worth more than the value of contributions made to it. In addition, the value of a pension changes, depending on how many more years the pension member will work. The pension also takes into consideration whether an early retirement will take place, and whether the pension member was terminated at the valuation date, or whether the member will continue to work until a normal retirement date.
Pension is governed by federal legislation. In addition, each pension plan has its own set of terms and provisions. A myriad of rights will apply if you are separated at the time the pension becomes payable (in some cases, this may not apply). For instance, the rules on pensions can differ in the following scenarios:
There are many situations in which the calculation of pension will vary greatly. Thus, while a marital home can be lived in or can be sold to raise money, a pension cannot be. If a pension is valued and made part of the equalization payment, there may not be sufficient funds to make the payment. In determining your rights, all of the issues raised above are areas to consider.