Family Law - Divorce

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If you are considering divorce or your spouse has already filed for divorce, you have likely already endured significant grief and pain. If you are in this mindset, you probably feel anxious about the legal process and the long list of “unknowns,” including your financial security, future living arrangements, impact on your children, and, least of all, your future happiness. The fear of the unknown can cause all of us to spiral, recalling stories from friends and families who had horrible experiences with attorneys and divorce court proceedings. Amidst the darkness and pain, there is hope for a more positive future.

Our trustworthy, ethical, and strategic team of family law attorneys at The Lento Law Group has seen it all. We understand the nuances, implications, and complexities that come with divorce. Let us help you carve a practical path forward for your family. Call us at 833-536-8652 for a consultation.

Types of Divorces

True No-Fault vs. No-Fault Divorces

There are currently 17 states classified as “true” no-fault divorce states, simply meaning that the conduct of one partner has no relevance on whether the other partner can file for divorce. In these states, the court places no value on the reasons leading up to divorce, such as adultery or abandonment, when making court orders. In other words, the moral conduct of one spouse has no bearing on whether the parties can pursue a divorce. Of course, in situations where one spouse leaves due to domestic violence, there are family law avenues, such as restraining orders, protective orders, and especially child custody protections, that can be utilized.

The other remaining states, while classified as “no-fault” based states, are commonly still referred to as fault-based states because their family law courts can and do allow issues like adultery, cruelty, and abandonment to influence their orders. In these states, one party who committed adultery or abandoned their spouse may suffer the consequences of additional legal fees or even how marital property is eventually decided.

Contested vs. Uncontested Divorces

Divorces can be contested or uncontested, depending on how willing spouses are to work together and compromise. Arguably, the easier route, an uncontested divorce, is one where both spouses agree on all significant issues, allowing them to avoid the time and expense of litigation. In an uncontested divorce, the couple usually files a settlement agreement with the court that outlines their joint requests for issues like child support, division of property, and alimony.

Contested divorces, on the other hand, are much more stressful and time-consuming because the parties cannot agree on critical issues. Contested divorces often involve discovery, negotiation, mediation, multiple hearings, and even trial.

Although uncontested divorces may seem easier at the onset, one party shouldn’t concede on critical issues to “keep the peace,” – especially in instances of abuse, domestic violence, or an imbalance of power. Contested divorces, while messier, may result in more fairness between the spouses, leading to a more equitable resolution for the entire family.

Summary Dissolutions

A summary dissolution is a simplified legal process that ends a marriage or, in some states, a domestic partnership. Summary dissolutions are reserved for “non-complex couples” who meet specific eligibility criteria, such as a shorter duration of marriage, no children, and limited property and debts. One party cannot force another into a summary dissolution as both parties must sign a waiver of rights that waives their rights to spousal support and the ability to contest the dissolution.

While summary dissolutions may seem the apparent route because they are cost-effective and fast, parties should consult with an attorney before signing to ensure they understand and agree on all aspects of property and debt division and any other ramifications.

Simplified Divorces

Anyone who has been divorced or is contemplating separating from their spouse knows that a “simplified divorce” may sound too good to be true! In the legal setting, however, the term is reserved for divorce proceedings that can be finalized within 30 days of filing. Simplified divorces are most often reserved for couples who do not have minor children, are not seeking alimony, and can come to a quick agreement about the division of their assets. It’s important to note that both parties in a simplified divorce are often required to waive the right to trial and an appeal.

Annulments

While a divorce is the legal dissolution of a valid marriage, an annulment is a legal decree stating that a marriage was never legally valid to begin with. Although they seem similar, there is a nuance in recognizing that a valid legal arrangement is ending versus a finding that the “marriage” was never valid. In other words, divorces often end due to circumstances, such as adultery or incompatibility, that arise during a marriage. At the same time, annulments are deemed invalid due to events before marriage, unbeknownst to one, if not both spouses. It’s important to note that children from an annulled marriage are still considered legitimate.

Seeking a court’s approval to grant a petition for annulment is much harder to achieve because annulments are only granted if a party can demonstrate the specific required criteria, such as:

· A defect in a marriage contract due to issues such as fraud or coercion.

· Mental health issues that were purposefully concealed before marriage.

· Incest or bigamy.

In most of these instances, one party likely conceals or induces the other party to marry while hiding significant parts of their life that, if known, might have caused their spouse to walk away from the relationship. In less common instances, both parties may even discover they are related!

Prenuptial Agreements

A prenuptial agreement, commonly called a "prenup," is a legally binding contract entered into by a couple before they get married. This agreement outlines how assets and financial matters will be handled during a divorce. A proper prenup typically includes terms that address asset division, spousal support, and enforceability of the prenup itself.

Parties may seek prenups for various reasons, such as a desire to protect substantial inheritances or be protected from their future spouse’s debts. While many people in a prenup may assume they are stuck in an ironclad agreement, this isn’t always true. Courts may choose to set aside terms of a prenup agreement if they determine an imbalance of power if one party lacked counsel or felt coerced into signing the agreement. For states that have adopted the Uniform Premarital Agreement Act, prenups can also be set aside if voluntary consent was not provided or determined unconscionable when signed.

Distribution of Marital Property

Divining assets and property in a divorce is challenging, to say the least. Not only are parties tasked with making significant decisions that can affect the rest of their life, but they are also asked to do so during an already emotionally charged time. While many people suffer the loss of their partner as they near divorce, dividing things like cars, houses, and accounts is a physical representation of this pain that often brings about new feelings of grief and loss. Depending on where you reside, courts typically divide assets as equitable property if you reside in a fair property state and as community property if you live in a community property state.

Equitable Distribution

Most states follow the equitable distribution method for dividing marital property. Under this model, courts emphasize fairness rather than equality, meaning dividing a couple’s assets may not result in a 50/50 split. This model considers the unique circumstances of each spouse and couple to arrive at a fair division, although not strictly equal.

While opponents of this method may balk at the inequality, proponents argue that it protects spouses who may be more financially disadvantaged than their spouses, especially when partners forgo career opportunities to contribute child-rearing and homemaking skills. Courts may also award less property to spouses who acquired reckless debt or misused marital assets.

Community Property

In contrast to equitable distribution states, the nine community property states divide property “equally” under an assumption that the property acquired during a marriage equally belongs to each spouse. Unfortunately, or fortunately, community property states also find that debts acquired during a marriage likewise belong equally to each spouse.

While the concept of community property may seem straightforward, some important caveats apply precisely because these states carefully distinguish between “community property” and “separate property.” While community property includes all debts and assets acquired during the marriage, separate property, which is not divided equally or at all during divorce proceedings, refers to anything one spouse owned or received before the marriage, including any profits earned from these items.

It’s worth noting that while some may argue one model of distribution is better than the other, they both ultimately recognize the partnership aspect of marriages and divorces. That is to say that spouses often equally contribute to a marriage, whether those contributions are financial or not.

Protections For Common Law Marriages and Domestic Partnerships

Common Law Marriages

Many people have heard the term “common law marriage” thrown around but may not understand the legal implications and protections involved. However, not every state recognizes the concept of a common law marriage; those that do choose to acknowledge the significance of relationships between partners who, while never legally married, were nevertheless significantly committed to each other in a long-term relationship. Some critical elements of a common-law marriage include:

· Cohabitation: The parties must have lied together for a significant period, which varies from state to state.

· Intent: Both parties must have intended and agreed to be considered by society as married. An example of this would be holding themselves out as married partners or failing to correct others who assume they are married.

· Public Representation: The couple must have also presented themselves as married to the outside world. This can be shown through using the same last name, referring to each other as spouses, and even filing joint tax returns.

Couples who can show that they were in a common law marriage are afforded many of the same rights and responsibilities as legally married couples, including the right to have a court decide the division of property, the right to inherit without a will in the event of their partner’s death, etc.

Domestic Partnerships

A domestic partnership is a legally recognized relationship between two adults who reside together but are not legally married. Contrary to common law marriages, parties in a domestic partnership often must register their partnership with their state government to receive the protections and benefits like married couples.

Couples in domestic partnerships are often entitled to healthcare and employment benefits as if they were married. They usually have the same authority to make financial and medical decisions for one another as if they were spouses. If the parties separate, they often receive similar protections as if they had been married, especially in dividing financial assets.

Custodial Issues

Nearly every divorce is challenging and heartbreaking enough without the complexity of child custody battles. Even couples who are more equipped to co-parent following their separation still experience the anxiety of the emotional, psychological, and practical consequences a split home can have on their children. While the “ideal” custody arrangement may seem far off to many people at the beginning of their divorce, there are a variety of custody and visitation options that all emphasize the “best interests” of the children involved.

Sole Custody vs. Joint Custody

In any custodial matter, parties may seek sole or joint custody. One parent may seek exclusive physical and legal custody in issues of sole custody. Similarly, if parties seek joint custody, they seek to share legal and physical custody of the children. Sometimes, the parties may automatically agree on custodial issues and enter into a settlement agreement, giving one party sole custody or agreeing to share physical custody. Other times, this agreement is reached through mediation or the result of a court order following a child custody hearing (discussed more below). It’s important to note that even in instances where one party may be granted sole custody, the other parent can still have visitation rights absent instances of neglect, abuse, or abandonment.

Legal Custody

Legal custody refers to a parent's or guardian's right and responsibility to make significant decisions regarding a child's life. These decisions can include education, religious upbringing, and medical care. Legal custody can be joint or sole. In other states, the parties may share joint legal custody while one party receives “tie-breaking authority” to exercise legal control over their child’s medical treatment, education, extracurricular activities, etc.

Physical Custody

In contrast to legal custody, which deals with the legal responsibility parents are given to make decisions for their children, physical custody only refers to legal rights and obligations to care for children on a day-to-day basis in your home – or simply put the right to have your children reside with you. While many assume that physical custody only results in sole custody or 50/50 shared custody, many variations of physical custodial arrangements can look closer to 60/40, 70/30, or even 80/20, depending on the family’s circumstances and needs of the children involved.

Visitation Rights for Grandparents

Visitation rights for grandparents vary significantly from state to state, with some states being more open to visitation rights than others. For states that allow petitions for grandparent visitation rights, family law courts apply standards that also consider the child's best interests. In these instances, courts look towards the relationship between the child and their grandparents, the strength of this bond, and the impact of these visits on the child’s life. At the same time, courts also give considerable weight to parental wishes and examine reasons for objections very closely.

Contentious Child Custody Litigation

Child custody proceedings are usually initiated when a party files a petition for custody in their local family court. In some states, this petition is also part of the initial petition for dissolution of marriage. If the other party does not agree to the custodial requests of their partner, they indicate their desired custodial requests in their response to the child custody petition or petition for dissolution of marriage, resulting in a contested divorce. During this time frame, temporary custody orders can remain in effect until a final decision is made.

More likely than not, the parties soon proceed to mediation to reach an agreement about custodial disagreements without the need to go to a costly and emotionally draining child custody hearing. Mediation occurs before a neutral third party trained in child custody disputes and family law matters. The matter proceeds to a formal child custody hearing if the parties cannot reach an amicable custody agreement.

Child Custody Hearings

Child custody hearings are emotionally draining, expensive, and contentious. At these hearings, both parties submit evidence of their parenting skills, bond with their children, and ability to provide a safe and nurturing home. Parties often submit evidence contradicting their partner’s ability to do the same. Parties can also testify in court and submit testimony from those who have intimate knowledge of the child’s emotional well-being and physical safety, such as teachers, doctors, counselors, family members, etc.

Parties can also utilize expert witnesses who can testify on their behalf. Expert witnesses typically include social workers, child psychologists, doctors, etc., who are paid to present their professional opinions and experience regarding the child’s needs, parental abilities, and any pertinent psychological evaluations freely conducted or ordered for the child or parents.

Throughout the hearing, the family law judge can apply various standards to the information presented before the court. These standards differ from state to state but most often emphasize the “best interests” of the child. Though there is no uniform definition of the best interests standard, courts generally consider several factors that should be taken into consideration when making decisions about a child’s safety and emotional well-being. Some of the factors states often use in a best-interest analysis include:

The extent of a child's emotional relationship and tie (if any) with their parents, siblings, and family members, including half-siblings.
The consistency of a child’s routine emphasizing school or child care schedules, extracurricular activities, and closeness to extended family members.
Each parent willingness to foster a relationship with the other parent.
Any history of abuse or neglect by either parent, including substance abuse history.
The ability of each parent to provide a safe and loving home. Some states also emphasize a parent’s capacity to provide adequate clothing, food, and shelter. At the same time, even fewer states also recognize the physical and health needs of the child as well as the mental and physical health of the parents, such as disabilities, etc.

After hearing all the evidence, reports, and arguments from both parties, the family law judge issues a child custody decision, which may also include orders on visitation schedules and parental responsibilities. While these orders must be followed while in effect, parties who are unhappy with the court’s decision may seek a modification to the court’s order or even appeal the order.

Child Custody and Visitation Modifications

If the court has already issued your family a child custody or visitation order, you may wonder what change can be made down the road. Because a family’s circumstances can and often do change significantly over time, parties can file a petition to modify previous court orders to reflect the current needs of the parents or children. To succeed in a modification request, states will likely require the ability to demonstrate a “significant change in circumstances” since the last order was made. Some examples of change warranting modification may include work schedules, changes in a child’s needs, concerns about a child’s well-being, or even relocation.

Child Support Orders and Enforcement

Child support disputes typically involve claims of non-payment or underpayment of governmentally ordered child support or disputes over the calculation of support obligations. Although each state emphasizes resolving these issues swiftly to ensure the child's well-being, states differ in their laws, guidelines, and approaches to determining child support obligations.

For example, many states use the Income Shares Model, which considers both parents' income proportionate to what the child would have received if the parents lived together. Other states may use the Percentage of Income Model, which emphasizes the percentage of the non-custodial parent’s income. Although states may vary in their approach, most emphasize the following factors:

The income and financial status of each parent
Existing court orders
Any special educational, psychological, or medical needs of the child.
The child’s lifestyle and extracurricular activities before their parents’ separation.

Regardless of the calculation method used by different states, all 50 states have tools that they utilize for investigation and enforcement of child support obligations that are employed, such as wage garnishment, seizure of tax refunds, and even suspensions of professional licenses. Like child custody orders, child support orders can also be modified if a party can demonstrate a significant change in circumstances since the order was made.

Alimony

Alimony, or spousal support, is a legally binding financial agreement that seems to equalize the effects of a divorce by ensuring that a lower-wage-earning or unemployed spouse does not suffer any unfair economic consequences of a marriage or divorce. How alimony is calculated varies from state to state, but the goal of equalizing financial effects remains the same. One approach to calculating alimony is the Duration-Based Approach; in this approach, shorter-term marriages typically result in no or low alimony, while long-term marriages can result in significant financial support. On the other hand, the Needs-Based Approach considers the recipient’s financial needs against the other partner’s ability to pay. This approach can also view the parties’ living standards during their marriage.

Other approaches, such as Rehabilitative Alimony, which awards financial assistance to a partner while working towards financial independence, or the lump-sum method, are temporary payment models not designed to last for significant periods. The spectrum of payment options is vast, considering that permanent alimony payments can also be ordered indefinitely until one spouse marries or dies.

Some important factors that courts take into consideration when determining alimony include:

· The length of the marriage.

· The health and earning capacity of both parties.

· The financial and non-financial contribution each party has made to the marriage.

· What transition assistance, if any, does one spouse need in their post-divorce life?

· The economic fairness of the lower-earning spouse.

Enforcement

Despite court orders, some spouses may refuse or become unable to make their alimony payments. Regardless of why one spouse may become non-compliant with court orders, financial challenges for the receiving spouse must be taken seriously. In instances where one party refuses to make payments out of spite, courts can choose to use various enforcement measures, such as holding the non-compliant spouse in contempt of court, garnishing their wages, seizing their assets, and even intercepting their federal and state tax refunds or placing liens on their property.

In instances where payments were not received due to issues like unemployment or illnesses, courts may be more lenient against the non-compliant spouse. However, it’s important to note that courts will not simply take the non-compliant spouse on their “word” and will generally require the party to make “good faith efforts” to comply with the order and evidence of injury, unemployment, etc.

Alimony Modifications

Like child custody or visitation orders, alimony orders can be modified if a court approves a petition to modify previous orders. Parties seeking to change alimony orders must demonstrate a significant increase or decrease in the income of one or both spouses. For example, a partner could show that they cannot pay the same amount of alimony payments due to illnesses or unemployment. That same partner could also argue that an improvement in the other spouse’s finances, such as a new job or promotion, warrants a reduction of court-ordered payments. Alimony payments can also change depending on whether one spouse remarries or moves in with a new partner. Not all modifications must be contentious; in some cases, alimony modifications can result from mutual agreement.

Domestic Violence Issues in Divorce

Divorce is always a difficult journey, and it becomes even more challenging, although sometimes liberating, when domestic violence issues are a factor in the couple’s relationship. While more in-depth discussions of domestic violence are often warranted, a simple definition of domestic violence encompasses a wide range of abusive behaviors, including physical violence, emotional abuse, psychological abuse, and financial control – often leading to a breakdown of the marriage.

Domestic violence issues impact nearly every aspect of a divorce. For that reason, individuals who have been abused or abused by their spouses must be honest and forthcoming with their attorneys about their past experiences. Perhaps one of the most critical considerations in a divorce stemming from domestic violence includes child custody matters. Courts may be more than hesitant to award custody to an abusive parent out of fear of the child’s safety and emotional well-being.

Even in states where divorces are awarded on a no-fault basis, the showing of fault based on abuse may be a powerful tool to pursue as it can influence the division of assets and alimony.

In most divorces, alimony and marital property division are highly litigated. If a court determines that past abuse was present in a relationship, they may consider the extent of financial control one spouse had over the other, potentially in favor of the victimized spouse.

If you have been the victim of domestic violence, recognizing and admitting to this is a complex and courageous step. After doing so, you must be honest with trusted individuals about your concerns and remain vigilant in your boundaries. From a divorce perspective, sharing your past with counsel is crucial, especially in instances where protective or restraining orders should be considered or where medication may not be suitable due to an imbalance of power or safety concerns.

Call The Lento Law Group Today

If you are navigating the complexities of a potential divorce, you need a team of compassionate and strategic advocates who can help you gain clarity and empowerment over your circumstances and future. With counsel across the country, we can help you move toward a uniquely right resolution for you and your family. Don’t wait! Contact us today at 833-536-8652 for a free consultation.