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What is Family Court

What is Family Court (and Will You Have to Go There?)

Family law is just one small sector of the country’s legal system. But, family law is so prominent in the legal system, that “family courts” are found in every state. This article will explain what family court is, who goes there, and anything else you need to know about it. 

What is Family Court? 

Family court is a type of court that has limited jurisdiction related to familial legal matters. The history behind family court is based on “equity” law. Equity law is the legal concept that focuses on equitable remedies within civil matters. This means that your divorce settlement may not result in a 50/50 split among your assets. Instead, the court focuses on an equitable division of your property. For custody, family court focuses primarily on the best interest of the child. Again, this means that a 50/50 parenting time is not guaranteed in family court. 

Another common term for family court you may hear is “domestic relations” or “domestic courts.” 

What type of cases does family court deal with? 

Family court covers more than just divorce. Other areas of law that family law covers are: 

  • Adoption 
  • Foster care 
  • Domestic Violence and Orders of Protection 
  • Guardianship (some states leave this to probate court; others include it in their family law division) 
  • Juvenile Delinquency 
  • Paternity 
  • Divorce 
  • Child Support 
  • Spousal Support 

The most common cases in family court are divorce, support issues, custody issues, and domestic violence.

Divorce is a broad umbrella term. Family courts have the authority to determine custody arrangements, support, and property division between you and your Soon-to-Be-Ex in a divorce case.  

What happens in family court?

Every state has a bit of a different process depending on the type of case, but there are common threads as to what you should expect in family court. 

In Illinois, for example, there are essentially three types of court dates you can attend. The first is a “status.” A status is a quick check-in with the judge. Your attorney may not even have you attend a status date. Status dates are for the judge to know any important updates on the case, and if there are any motions that need to be heard in the near future. A status can be as quick as five minutes in front of a judge. No ruling or judgment is made during a status.

To learn more about divorce in Illinois, read this piece, “6 Essential Things to Know About Divorce in Illinois.”

A “hearing” is a more formal proceeding in front of the judge. For example, you and your spouse may be in a disagreement about who should keep the family house. If you cannot settle or negotiate it out of court, you would have a hearing about it where you would present your case and your spouse would present his* case. Then, the judge would make a ruling on that issue. There can be witnesses and evidence in a hearing as well, but that is not always the case. It depends on the issue and the level of complexity of the issue itself. 

Hearings last around an hour to two hours. At the end of the hearing, the judge will make a ruling just on the matter that the hearing was about, nothing else within your divorce. 

Then, there’s a trial. A trial covers every issue you and your spouse have not agreed upon. Trials are lengthy and expensive. But, if there isn’t an agreement that you are comfortable with, you are entitled to a trial. At the end of the trial, the judge will decide the terms of your divorce settlement. The same goes for trials related to parenting issues. A common legal issue that goes to trial in family court is relocation. Relocation is where after a divorce, you want to move out of state with you and your husband’s child. 

There are other terms and types of court dates and appearances that your attorney may mention throughout your divorce. In Illinois, for example, the final court date that finalizes your divorce is called a “Prove Up.” Here, the judge will grant you and your spouse your divorce and lay out the terms of your agreement to make sure that you and your spouse understand. After that court date and the judge signs off on your divorce agreement, congratulations, you are divorced!

You may also hear the term “Pre-Trial Conference” throughout your divorce journey as well. A pre-trial conference is a great tool that your lawyer may want to use. During these conferences, your attorney, your spouse, their attorney, and the judge talk about the issues specific to your divorce. The judge does not make any type of ruling, but instead, tells the attorneys what their ruling most likely would be. This is a useful tool because it could save you court time and costs. If your attorney knows what the judge would most likely rule, they can make strategic decisions based off of that to help you and your Soon-to-Be-Ex settle or avoid going back to court. 

Something else to note about family court is that there is very rarely a jury in any type of divorce case. This means that the judge decides the terms of your settlement if you and your Soon-to-Be-Ex cannot. 

Does every divorce go to family court? 

No. There are ways to avoid going to court. Read about the 4 Types of Divorce to understand which model might be best for you.  For example, you and your spouse and your lawyers can endeavor to negotiate an “Uncontested Divorce.” (Check out our post on how to find a good divorce lawyer here.) You could also use mediation or a collaborative divorce, where you and your spouse work things out without getting a judge involved. With mediation, for example, meetings include you, your spouse, and a neutral third party – the mediator. You and your spouse can settle disputes, and the mediator is there to make sure things do not get too heated. This can save money. Plus, you get to be in a little more control of your settlement. Mediation is particularly good if you believe you and your spouse can come to an amicable agreement. 

If you wonder what else you must know and what else you should be doing as a woman preparing for divorce, we urge you to stay committed to you and read “Your 55 Must-Do’s on Your Modern Divorce Checklist.”

Conclusion 

Family court covers a wide variety of civil cases, but since you are here on our website SAS for Women, chances are you are dealing with divorce in some way.  Just know, you may never go to family court, or you may go just once, or you may be in court for a week for trial. It’s also important to understand that family court was created for a reason, often to protect women and in particular the rights of children. You can read more about divorce laws and their history in the United States here; while this article, in particular, gives you a synopsis of what to expect when you go to court, and how to avoid going to court during your divorce process. 

NOTES

Alexa Valenzisi is a 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation. 

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Join our tribe and stay connected.

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

how Much does a divorce cost in New York City by Reynaldo #brigworkz Brigantty for pexels.com

How Much Does a Divorce Cost in New York City?

Preparing for the total financial cost is one of the most critical and daunting factors in planning for a divorce. While the average price for a lawyer-led divorce in the United States is approximately $7,000 – $11,0001 (and usually stems from a more heavily contested case), the national average cost of an uncontested, Do It Yourself (DIY) divorce is $2002. That’s a big span.  But where does New York City stand in particular with divorce costs?

How Much Does a Divorce Cost in New York City?

New York City is known for its high energy, high spirit, and high cost of living. This holds true for the high price of a divorce in the city, too. Check out “The Reality of Divorce in New York City” to understand more, but if we compare it to the rest of the state, the Big Apple boasts some of the most expensive legal professionals in the country. New York price averages reflect the large (and expensive) lawyers in metropolitan New York City, therefore a divorce in a different part of the state will likely be lower than the given averages3.

New York City-based lawyers are among the highest-paid in the country. The rough estimate for a lawyer-led divorce in New York City ranges from $13,000 to $25,000 (per person)4 at the base level. For an uncontested DIY divorce, the New York divorce filing fees alone cost $335.5 That’s another big spread in costs.

This article will explore your choices for divorce in New York City and unpack how much it may cost you.

Different Types of Divorce

Different types of divorce will cost different amounts. Henceforth, their complexity and the time needed to devote to the case. An uncontested divorce will always cost less than a contested divorce because both parties agree (ultimately) on all aspects in an uncontested divorce. The price of a contested divorce will range based on complexity. Read this article to make sure you appreciate the difference between a Contested and Uncontested Divorce.

As for “how” you will divorce, or which model of divorce to use, there are four main types of divorces:

  1. The Traditional, lawyer-led model (for Uncontested or Contested divorces)
  2. Mediation (for Uncontested Divorces)
  3. The Collaborative Model (for Uncontested Divorces)
  4. DIY (or Do-It-Yourself, for Uncontested Divorces). To learn more about the 4 different types of divorce, check out this article that explains the specific models.

How Much Does a Divorce Cost in New York City for Traditional Divorces?

When you think of divorce, you often think of the traditional model, where a lawyer prepares your case. Most of your expenses in a traditional divorce will come from a lawyer’s retainer and trial preparation (if you go to court). In New York State, the average hourly cost of a divorce lawyer is $175-325 per hour.6 However, New York City lawyers tend to be more expensive, averaging $340 per hour,7 but can cost you upwards of $800 or more per hour. This hourly fee is on top of the court filing fee of $335 and the in-court fee for litigated divorces, which is $120 per day in New York State.

Even when lawyers are involved, most divorces are uncontested, which means you and your spouse negotiate through your lawyers and eventually agree on most issues.

An uncontested divorce in New York City will run you roughly $5,500 per person8. This accounts for filing fees, lawyer consultations, and settlement agreements.

If your divorce is contested, meaning you and your spouse cannot agree on the issues and must go to trial, your cost will increase considerably. This is because preparing for court is costly. For a trial based on one issue, expect the price to increase by $16,000-$20,000, and for a trial based on two or more points, $22,000-$27,000. The total cost of your litigated divorce will depend on the complexity of your issues. This includes issues like property division, child custody, child support, and spousal maintenance. 

The average price of full litigation for a divorce in New York City is $50,000 — or $25,000 per person.

Finally, New York is one of the few states that still allows for a fault-based divorce. A fault-based divorce is far more expensive than a no-fault divorce. You can choose whether you want to file a no-fault, which means that your marriage is “irretrievably broken,” or a fault divorce, which charges the offending spouse with physical or mental abuse, adultery, abandonment, or imprisonment. Fault-based divorces are far more expensive because they will almost certainly go to trial, and your lawyer must work to discover and prove evidence that proves fault.

Learn about Fault vs. No fault divorce in this SAS piece.

Wonder what “Irreconcilable Differences” are when it comes to divorce? Check out this piece “What are Irreconcilable Differences and Do They Apply to You?”

How Much Does a Divorce Cost in New York City for DIY Divorces?

For a completely uncontested divorce, you might consider a DIY divorce. This is possible only if you and your spouse agree on all aspects of the divorce. and you are willing and able to invest a lot of time and energy into your case. This is because you will be responsible for it all on your own. If this is the case, your main cost will be the New York Court’s filing fee. Every state has a filing fee for filing your divorce with the court. This is the bare minimum, mandatory cost of a divorce. The New York City divorce filing fee is $335. This filing fee is added to the county’s index number cost. The index number is the number for your case that you put on all the papers before you file (it’s like a case identification number). The general index cost in New York is $210.

The absolute lowest cost for a DIY divorce in New York City is about $545 and accounts only for the filing fee and the index fee.

However, because the courts know how difficult it is to perfect the court process entirely on your own, New York offers an online divorce platform to assist you in your DIY divorce. This online system costs about $130. There any many reasons why a couple might invest in a New York Divorce Online service. A service would allow you to fill out the forms wherever and whenever you want, to take your time and be thoughtful with your information, to easily correct any mistakes you might make on the forms, and to have complete control over the process. A DIY divorce is the cheapest and the most personally labor-intensive type of divorce in New York City. Read “How Does an Online Divorce Work?”

SAS Tip: If you have the ability to dedicate time and energy and have an uncomplicated situation, then a DIY divorce is the least expensive option – but we only recommend it if you have little or no assets or debt and there are no children involved.

How Much Does a Divorce Cost in New York City for Uncontested Divorces? (Mediation)

Mediation, rather than litigation, is another option for an uncontested divorce. You might consider meditation if you and your spouse agree on all important aspects of your divorce (think property, child custody and support, and spousal maintenance). Mediation aims to save money by agreeing without having to enter the courtroom or go to trial. In most cases, this option will be far less expensive than a traditional divorce.

The average cost of private mediation in the state of New York ranges from $4,000 – $8,000,9 with New York City being on the higher end of the range.

Typically, mediation costs correlate to how complicated the divorce is (like with traditional lawyer costs) and the number of mediation sessions needed. Mediation fees typically include one to four sessions with a mediator, the preparation of the settlement agreement, and the cost of preparing and filing the divorce papers with the court.

Just like in traditional divorces, the more complex the case is, the more it will cost. The main cost factors in mediation are the number of issues in the case, the complexity of the problems, the cooperation of both parties, and the need for outside experts or specialists. If you use outside support, which is often a good thing, you will want to read this article on how “Hiring a Mediation Attorney in a Divorce Could Save You Money.”

Collaborative Divorce

In New York City, collaborative divorces are still relatively new.

  1. Divorce attorneys assist couples in resolving the contentious issues of divorce in a problem-solving manner.
  2. Lawyers negotiate on behalf of their clients and do not prepare for trial, putting them somewhere between mediation and full litigation.
  3. Divorces are typically less expensive than litigation and court battles, but they can occasionally cost even more. The cost of a collaborative divorce is determined by the complexity of the case.

In some cases, you might need to bring in a team of experts, like therapists, financial experts, or child psychologists, to reach a mutual agreement. Adding experts to a case will significantly increase the overall cost. If no additional experts are needed, then you are paying for the ease and peaceful problem-solving nature that accompanies a collaborative divorce.

Tip: If you have children and do not want to subject them to the litigious court process, you might consider mediation or budgeting for a higher-cost collaborative divorce – to keep the peace for the sake of your children.

Conclusion

Divorces are expensive. They take extensive planning and budgeting to ensure you can afford the type of divorce you want for the results you desire. Prior research and understanding of your options will ensure that there are no financial surprises or unneeded lessons learned the hard way. Make sure you advocate for yourself and ask questions before committing to any divorce model or legal process.

NOTES

Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected

 

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

Sources

  1. How Much Divorce Lawyers Charge, Lawyers.com
  2. How Much Does a Divorce Cost in 2022?, Forbes
  3. New York Divorce: How Much Does it Cost? How Long Does it Take? “New York’s statewide averages are likely a reflection of the large number of attorneys in our study from the greater New York City metropolitan area, where hourly rates were among the highest in the nation.”
  4. How Much Divorce Lawyers Charge, Lawyers.com
  5. Filing for an Uncontested Divorce, NYCourts.gov
  6. How Much Does a Divorce Lawyer Cost in New York?, OnlineDivorceNY.com
  7. How Much Does a Divorce Lawyer Cost in New York?, OnlineDivorceNY.com
  8. How Much Divorce Lawyers Charge, Lawyers.com
  9. How Much Does Divorce Mediation Cost in New York, Snap Divorce
Which States Have the Shortest Residency Requirement to Divorce

Which States Have the Shortest Residency Requirement to Divorce (and Which Ones, the Longest?)

Figuring out where to file for divorce can be tricky. Each state has different rules and timelines that dictate who is eligible to file for divorce in that specific state. In this article, we’ll be providing insight as to what the most common requirements are to file for divorce, which states have the longest residency requirements for divorce, and which ones have the shortest. As well, we’ll explore particular requirements of certain states, and finally, what to do to make sure your divorce is finalized as quickly as possible. 

What is residency and residency requirements?

Every single US state has a residency requirement before you can file for divorce in that state.  Residency, or sometimes your attorney may use the word “domicile” means that you live in the state that you are filing. Domicile, however, requires you to reside there and have intent to remain in the state. Residency just means that you need to be present in the state at the time of filing. 

For a divorce to be filed in the proper state, either you, your Soon-to-Be-Ex, or both of you need to be residents of the state in which you are filing for a divorce. Only one of you needs to be a resident. Keep that in mind in case you and your Soon-to-Be-Ex separate and move to different states and want to obtain a divorce.

Some states have longer residency requirements, and others have much shorter ones

States implemented residency requirements so couples could not “forum shop” and pick the state with the best divorce laws for their situation. Instead, you need to meet the residency requirement before you can file for a divorce. Each state differs in its residency requirement. Most states have a 6-month residency requirement. That means you have to live in the state for 6 months before filing for a divorce in that state. 

States that are fast at granting a divorce

Some states are much faster at divorces than others. For example, Alaska, South Dakota, and Washington state only require that you be a resident at the time of filing. So, say you move to Alaska on Monday. Tuesday, you can file for divorce there.  

It’s important to remember that filing your divorce is the first step in the legal process. Even after you meet any residency requirement, the court still needs some processing time to finalize your divorce. Other states are faster than others at this. Alaska is notoriously fast at finalizing a divorce. Alaska, Nevada, and South Dakota can usually finalize a divorce in just under two months. Of course, each divorce is different and your particular circumstances could cause a delay. For example, the fastest divorces are ones in which you and your Soon-to-Be-Ex agree on everything (an uncontested divorce). In this case, you (or your lawyer) just need to send in the agreements for the judge to approve. 

Understand more about “agreeing on everything” by reading “What’s the Difference Between a Contested and Uncontested Divorce?” And if you want more info on what makes a “contested divorce,” read this important piece.

States that are slower in granting a divorce

Some states take much longer to get a divorce. They may have a longer residency requirement, and also have long waiting periods before your divorce is finalized. California, for example, has a 6-month state residency requirement and a 3-month county residency requirement. Vermont is another state that is notoriously slow at finalizing divorces. Vermont has a  one-year residency requirement, and there needs to be six months where you and your spouse live separately, and a three-month “decree nisi” period before the judge approves the divorce. This decree nisi just means that the judgment (in this case, your divorce) will become binding at a later date.

What you can do to speed up your divorce

Something else to keep in mind is whether or not your state has “no-fault” divorce. No fault divorce means that you do not have to prove something is wrong in your marriage, or someone is to blame; you just have to inform the court that irreconcilable differences caused a breakdown of the marriage. Most states have no-fault divorce laws, but if your state is a faults divorce state, there may be a long process to prove someone did something wrong in your marriage. Certain “faults” that warrant a divorce are adultery, insanity, alienation of affection, or emotional and physical abuse. Read more about fault vs. no-fault divorce in this SAS article.

Something else that can cause a delay in your divorce process is whether or not your state requires parenting classes. Some states like Illinois for example, require parents who want to get a divorce to complete an online parenting class before allowing the parties to divorce one another. 

Check out “6 Essential Things to Know About an Illinois Divorce.”

Certain state requirements, such as parenting classes, will be something that your attorney will know. Make sure to ask a divorce attorney about any particular requirements you may face in your state so that you can get going on anything you need to get done to ensure your divorce moves along swiftly.

If you’ve not yet connected for an educational consultation with a divorce attorney near you, check out this piece on how to find a good divorce lawyer.

It is important to note that there can be another issue to consider when evaluating where you can file for divorce. If you have children, child custody cases must be filed in the child’s home state. 

While it is not completely in your control, as each state is different, there are things that you and your spouse can do to make the process faster. Transparency with your attorney and your Soon-to-be-Ex is the best policy. The faster you can agree on things without the judge, the faster your divorce will be finalized and ready to go. That being said, never feel the need to settle if your spouse is not willing to negotiate. The judge can step in, that’s what the justice system is there for. 

Conclusion about residency requirements

To summarize, each state varies in the residency requirements to get a divorce. Some states have additional requirements on top of residency that you need to know about before filing for divorce. Make sure you learn the rules for the state in which you file your divorce. Regardless of any waiting period or specific requirements, the more on top of things you are, the faster you can get your divorce finalized.

NOTES

Alexa Valenzisi is a rising 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation.

Annie’s Group

For women thinking about … or beginning the divorce process, you’ll want to consider Annie’s Group, SAS for Women’s signature, 3-month group coaching program for those wanting an education, community, and guidance for learning what is possible for their lives. Whether it’s separation, divorce, or even staying married, commit to discovering what will be the healthiest thing for you and for everyone.

Check out Annie Group here.

*We support same-sex marriages and fluid gender identities. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

What Are You Telling Yourself After the Affair Has Ended?

What Are You Telling Yourself After the Affair Has Ended?

What do you do when your world implodes and the love you thought would last is suddenly gone? I’m not talking about your marriage. I’m talking about your affair. What do you do after the affair has ended?

Affairs, like people, come in all shapes and sizes. They begin and end for different (though, interestingly, somewhat predictable) reasons. And they run their courses on different (though, again, somewhat predictable) timelines.

From Darwin to Freud to Dr. Ruth, theories on the motivations for cheating abound.

Modernize those theories with statistics on women who cheat, and the discussion becomes much more interesting and telling.

There are countless factors that influence the temptation and even proclivity to cheat. Like the “sets and subsets” of our elementary math days, they overlap in some areas and stand alone in others.

You can’t ignore, for example, the concurrence of women flooding into the workforce and stepping out of their marriages. Suddenly “having more” or “having it all” became an equal-opportunity employer because of…well, opportunity.

Perhaps the most constant and accepted theory of why women cheat zeros in on a woman’s natural yearning for emotional connection in a relationship. Centrifuge that down to its core message, and it sounds something like, “Men want sex, women want connection.”

Sounds pretty raw and overreaching for a stand-alone theory, but it’s not without merit. And its inherent message can be enlightening – even life-altering – after the affair has ended.

If nothing else, this focus on what a woman not only wants, but needs in a relationship can inform and guide her choices if (but more likely when) her affair ends.

So let’s use the end of an affair as a starting point. After all, the majority of affairs do end, and for fairly predictable reasons.

From being united in a common bubble of excitement, misery, and secrecy to succumbing to unchanged coping styles, eventually, most affairs crumble.

If you’re a woman who has cheated on your husband and are now at the end of an affair, you’re probably feeling like a rowboat mid-Atlantic at midnight. 

Where are you? What the hell do you do now after the affair? 

And are those fins you just saw circling the boat, or is it your imagination?

Before you start paddling aimlessly toward a dark, unknown destination, you have a big question to answer: Should you stay or should you go?

What may surprise you – and even attempt to heist your decision-making – is the grief you will feel. 

And it may be overlapping grief for two relationships.

Depending on the length of your affair, you may have developed a deeply emotional relationship with this other man. With women especially, this kind of affair can feel like a marriage in itself – or at least a transition away from an unsatisfying marriage.

Distinguishing between the natural grief that accompanies the loss of anything important to you and the realization of what you were seeking to begin with will be difficult.

As if that’s not a weighty enough task, you will be crushed by the obvious and imminent dilemma: Do you tell your husband about the affair?

Is it possible that he really doesn’t know or even suspect? 

What will the backlash be like? 

Will he even want to stay married to you? 

Do you even want to stay married to him? 

How will you discover the answers in the midst of so much hurt, anger, and confusion?

You have a handful of choices at the moment:

  • Tell your husband about the affair and express remorse and a desire (and commitment) to work on your marriage.
  • Tell your husband about the affair and tell him you want a divorce, even though the affair has ended.
  • Tell your husband about the affair and tell him you want a temporary separation to work on yourself and potentially your marriage.
  • Don’t tell your husband, but stay in your marriage and work to make it better.
  • Don’t tell your husband, stay with things as they are, and hope he doesn’t find out.

Every choice carries consequences that can’t be reneged on.

You may not have consciously considered the possibility that marriage isn’t for you at all. 

Searching outside your marriage may not have been at all about looking for what someone else could fill.

It may have been about looking for what only you can fill.

You are now in a position of unfathomable accountability.

You are also in a position of unimaginable opportunity.

And you will have to embrace both at the same time.

Before rushing into a decision, you need to get down and dirty with your reasons for cheating in the first place. 

What lured you into becoming part of the cheating wife phenomenon

Were you really starving for an emotional connection that could/would never exist in your marriage? 

Or were you, perhaps, yearning for the sexual gratification that has long been nodded to cheating men?

These aren’t and won’t be easy questions to answer. If epiphanies were a checkout-lane commodity, perhaps we wouldn’t leave such devastation in our quest for them.

Certainly now, more than perhaps any other time in your life, is the moment to seek guidance in your process. 

Discernment counseling can help you learn if there is any hope left in your marriage. It can also help you devise a plan for telling your husband (if that’s your intention) and deal with the fallout.

And hiring a divorce coach can ensure you are informed of the divorce process before you or your husband rush into any irrevocable decisions.

Finally, one assurance you must have:

You are not alone on this journey. Millions of women have been and still are where you are. 

And support and camaraderie – without judgment – are right here for you.

This period – this black hole after the affair has ended – not only can be but will be life-changing. 

It’s up to you to decide what that change looks like.

NOTES

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklist,s and support strategies for you, and your future. Join our tribe and stay connected.

 

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

Legal Issues of Divorce

The 4 Biggest Legal Issues You Might Face in Divorce

Each and every divorce is unique in its own way. That being said, there are certain legal issues that just about every single divorce proceeding deals with. You might not know that, because the phrases or words your divorce attorney uses, or the way the legal issues are presented in your research, or the documents and forms you are viewing can be very confusing, foreign-sounding, and alienating. This is why, to make things clearer and more accessible for you, we present the following: a breakdown of the 4 biggest legal issues you might face in your legal divorce process.

Legal Issues of Property Division

As one of the most common legal issues in divorce, property division is an umbrella term that encompasses a lot of the financial aspects of your divorce. Property division focuses on your assets and divides them equitably. It is important to know that courts focus on equity, not equality, so don’t be surprised if your property isn’t divided 50/50 at the end of your divorce. 

There are four major steps in figuring out property division: 

  1. Identify the property. 

Your attorney will ask you to fill out some sort of financial affidavit, which is a fancy way of listing out your assets. This can be culled from income statements, deeds, financial documents, and tax returns, but involves retirement accounts, cars, your house, in fact, anything you, your spouse, or both of you own. You will need to disclose everything.

  1. Classify the property as marital or non-marital. 

Then your attorney will want to figure out what is your separate property, and what is marital property. Whatever is your own property, you keep to yourself. However, how your assets (and debt) are considered (whether it’s your property or marital property) depends very much on which state you live in and the divorce law there.

Read more in our “Property Division: Community Property States vs. Equitable Distribution States.”

For example, say you have a savings account only in your name, and your spouse has one in their name. You would keep your respective savings accounts; however, if you two had a joint bank account, that becomes marital property because you both “own” it.

  1. Assign the value to all of the marital property. 

This is usually a relatively easy step. If you have a joint bank account that has $5,000.00 in it, that is worth $5,000.00. Attorneys typically ask what the fair market value is to figure out the worth of a vehicle, house, or other tangible items. 

  1. Divide the marital property equitably. 

After figuring out all marital property, every asset needs to be divided equitably. It is important to note that “fault” is not considered in an equitable division. For example, if your Ex cheats on you, that is not a factor when determining how to equitably divide a property. 

Read the SAS “Fault vs. No-Fault Divorce” article to understand more about “fault.” 

Legal Issues of Spousal Maintenance

Another common legal issue in divorce pertains to maintenance, which is another name for alimony. Maintenance is one adult paying the living expenses of another. Maintenance is usually the most unpredictable aspect of divorce because there are a lot of factors that courts will look at to determine who, if anyone, should receive maintenance. That being said, courts are leaning towards a formula approach rather than a factor approach to make things more predictable. 

How Maintenance Works

The most important factor courts look at is the ability of the spouse with the lower income to support themselves post-divorce. The easiest way to explain maintenance is to give a standard example courts see during divorces: 

Say a couple has been married for 15 years. The woman, after having children with her husband, decides to stop working and stay at home with the kids. The court considers the mother’s income to be $0. This has nothing to do with the “worth” of a stay-at-home parent, but rather, they do not have an income from a job. Say the father in this example makes $100,000.00 a year. The woman, over the years, got used to a standard of living with a $100,00.00 income. Maintenance accounts for her standard of living during the marriage and her ability for her to support herself. In this case, the man would definitely have to pay maintenance to the wife. 

Maintenance can be permanent or short-term, and it can be modified. The key term to modifying maintenance is a “substantial change in circumstances.” If someone wants to modify maintenance, they have to prove a substantial change in circumstances occurred. 

You and your Ex can waive your right or his right to maintenance as well. Similarly, not every divorce case is one where maintenance is appropriate. Maintenance, whether paying it or receiving it, is not guaranteed in your divorce. 

Legal Issues of Custody and Parenting Time

These legal issues only apply if you have a minor child. A minor child is a child under the age of 18 who is not emancipated. If you have at least one minor child, custody and parenting time will be something brought up in your divorce. 

There are two types of custody: legal custody and physical custody. Legal custody is the power to make legal decisions (school, medical, religion, etc.), and physical custody relates to the day-to-day routine (routine care, outfits for school, etc.).

Custody is awarded in the best interest of the child. The best interest of the child does not mean asking the child who they want to live with. Instead, courts will look at the entire situation that both parents are in, and figure out who should have custody based on the best interest of the child. 

Child Support

Child support is the financial aspect of child-related legal issues. It is incredibly important to understand that parenting time and child support are two separate issues – so just because you have parenting time, it does not mean you may be owed child support and vice versa. 

Courts usually take a formula approach to calculating child support, so it’s a pretty predictable financial issue in your divorce. The majority of states follow this formula: 

(Gross monthly income of parent 1) + (Gross monthly income of parent 2) = the parents’ combined income

Courts take the combined income and multiply it by a child support percentage, coming up with a “child support amount,” and then figure out who is owed what portion of that amount. 

Child support is usually awarded to the parent who has the child, or children, the most amount of time. So if your kids live with you most days out of the year, your Ex would owe you child support. Child support is designed to take care of the everyday essentials for children. Child support ends when you and your Ex’s youngest child turns 18. 

For more on this important topic, read “Child Support: 5 Things Mothers Must Know.”

Prenup and Postnup

Some couples decide to sign a prenuptial (prenup) or a postnuptial (postnup) agreement. A prenup is signed before you are married, and a postnup is signed after you are married. In the eyes of the law, prenups and postnups are binding contracts. If you signed either one of these before or during your divorce, it will be binding on your divorce agreement. This means that if you do have a prenup or postnup, whatever you agreed to in those contracts will be part of your divorce settlement. 

Check out “The Top 7 Things to Know About Postnuptial Agreements.”

If you did not sign any prenup or post nup, this is nothing to worry about. It just means there is no prior contract between you and your Ex and you can negotiate as many issues as you would like during your divorce. 

Legal Issues in Settlement vs. Trial

Your attorneys may encourage you to try to settle with your spouse. Settling basically means you come to an agreement with your Ex before going to court and having a judge decide certain details about your divorce. The biggest positives of settling are it will cost way less in attorney’s fees and lessen the ongoing, emotional rollercoaster of dealing with your break up. Settling is the best option if you and your spouse are in agreement with most legal issues of your divorce, or will eventually agree to them. So, do keep it top of mind when you talk to your attorney. 

If you are thinking about or beginning divorce, you’ll want to check out this complete list of things to help you stay organized and protected:  “55 Must Do’s On Your Modern Divorce Checklist.”

Legal Issues in Divorce: Get to Know Your Terminology

While every divorce is different, there are some things that almost every couple has to deal with. Property division and spousal maintenance are standard legal issues in any divorce. If you and your Ex have a minor child, you’ll also have to figure out custody and child support. This is not an exhaustive list, but a pretty good start to know what issues may arise and what your attorney may ask you about when you start your divorce. 

NOTES

Alexa Valenzisi is a rising 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation. 

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. 

Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing.  Join our tribe and receive six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Be with us and stay connected.

Fault Divorce

Fault Divorce vs. No-Fault Divorce: What You Need to Know

One aspect of a divorce that can be difficult to fully understand is the legal concept of fault. Now you can probably point to many faults that led to the end of your marriage, like emotional abandonment, drifting apart, or poor communication, etc. So, it’s unlikely you’d define the end of your marriage as no-fault when you describe its breakdown to your friends and family. However, these are common societal examples of fault. They hold no legal significance. The legal system has a different, more stringent definition of fault when it comes to divorce. 

Your initial petition for divorce will ask or indicate a reason for the divorce or the grounds for separation. Based on your state, this is where you indicate whether you are filing a no-fault or fault-based divorce.

What is a No-Fault Divorce?

A No-Fault divorce occurs when a marriage is irreparably broken in the eyes of the court. In plain terms, this means that neither spouse is at fault for the end of the marriage. Nothing specific or plainly traumatic happened to cause an immediate break-up. The union just cannot be repaired. Neither spouse must present evidence of a reason for the divorce. The fact that one or both parties want a divorce is enough for a state to allow no-fault divorce. This also means the court does not have a bias against either party regarding alimony/spousal support or property division. 

No specific person is to blame for a no-fault divorce. And every state has some version of no-fault divorce. 

States might use different language to describe a breakup that is not based on one person’s fault. Illinois uses the term “irretrievable breakdown” to describe a no-fault divorce. Other states use words like “irreconcilable differences” or “incompatibility” to indicate no fault. 

If you are contemplating divorce, you’ll want to read “36 Things to Do If You are Thinking About Divorce.”

Why Choose a No-Fault Divorce?

You might choose a no-fault divorce for the ease and lack of expense it brings. Because you do not need to prove blame in court, these divorces tend to be quicker and less expensive than a fault-based option. Another reason for no-fault divorce is property division, alimony, and child custody. The court will look at these factors fairly under state laws and allocate resources without prejudice to either party. 

SAS Tip: A no-fault divorce will always be cheaper than a fault-based divorce.

Check out: “What is an Amicable Divorce? And 5 Ways to Ensure One.”

What is a Fault-Based Divorce?

A fault-based divorce means there is a legal, evidence-based finding of fault that caused the marriage to end. Legal grounds for fault are far more stringent than the colloquial definition of fault. For example, your spouse might be done with the marriage and stop putting in the effort, which might seem like it would be their fault the marriage dissolved. However, this would not be considered a fault in the eyes of the law. 

A court will allow you to file a divorce based on fault only if: the state provides for fault-based divorces, and you (or your spouse) can prove the other person’s wrong actions directly caused the divorce. States that recognize fault-based divorces have slightly different categories of fault.

However, the most common categories that are recognized as grounds for fault are: cruelty (which means one spouse inflicting extreme/unnecessary emotional or physical pain), adultery, abandonment (after a certain period of time), incurable insanity, imprisonment, and the inability to engage in sexual intercourse to completion IF a spouse didn’t disclose it before the marriage. Other categories might include sexual desertion (your spouse refuses to have sexual intercourse over an extended period of time), a prior continuing marriage, or substance abuse.

If you are beginning the divorce process, you will want to know how best to protect yourself and also, how to ensure the healthiest outcomes. Read “55 Must-Do’s on Your Modern Divorce Checklist.”

Why Choose a Fault-Based Divorce?

A person might choose a fault-based ground for divorce for specific strategic reasons. Fault grounds overpass the separation waiting period required in some states. Some states also consider fault in distributing property or alimony. A state can alter or give alimony based on a finding of fault. Finally, some people also might choose to file a fault-based ground for emotional reasons, you might need the closure or reassurance that a legal finding of fault can bring.

Fault-based divorces are generally more time-consuming than no-fault divorces.

Fault-based divorces tend to require a lawyer’s expertise to accomplish this successfully. A lawyer will need to compile evidence and present it to the court to show that your case qualifies for fault-based grounds and that you have the proper evidence to prove it in court. A lawyer will ensure this is done properly and follows that protocol, which is very difficult without legal training and experience. This is at least one reason why, if you are consulting attorneys about your case, you should not look for cheap divorce lawyers. Training and expertise matter.

History of Fault-Based and No-Fault Divorces

Traditionally, a couple needed a fault for a state to grant a divorce (see Divorce Laws: Then and Now.) Courts would only give “innocent” spouses a divorce. That innocent spouse would have to be found not guilty of traditional fault grounds to be granted the divorce. This was because the court wanted to protect the sanctity of marriage. Lawmakers wanted to encourage married couples to stay together for life, barring some extreme events, and keep divorces from clogging court dockets. No divorce would be granted if both spouses were “guilty” of a fault ground. 

This purely fault-based system led to increased divorce fraud. Couples might lie about the issues in their marriage to get a divorce. This proved incredibly timely and costly for state courts, so in 1969, California became the first state to incorporate no-fault separations. This paved the way for the presumption of no-fault splits to this day, with New York being the last state to offer no-fault divorces in 2010. 

What are my options?

Divorce law varies by state. Make sure you know the laws of your state before you begin the process. Your ability to enter a no-fault or fault-based divorce depends entirely on the state in which you live. States can generally be divided into two groups, true no-fault states, and optional no-fault states.

A true no-fault state is one in which your only option is to file a no-fault complaint

Seventeen states have removed the fault-based option. These true no-fault states are Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California. Only filing as no-fault can be frustrating if you want the law to acknowledge your spouse’s wrongdoing. However, it is more efficient, less expensive to all parties, and fairer across the board. 

A fault state allows you to choose whether you want to file on a no-fault or fault-based ground.

The other thirty-three states offer the option to file for divorce under a fault or no-fault ground. This means that the person filing for divorce can decide to file in the way that would be most beneficial to their specific circumstance.

SAS Tip: Know what you want out of your divorce. This will help you to decide whether a no-fault or fault-based divorce (if allowed) is best for you. As a beginning step, meet with a divorce coach to help you learn how to evaluate and prioritize things.

Conclusion

While all divorces take some level of fault for them to fall apart, they don’t all qualify for fault-based grounds. Understanding whether your state recognizes fault-based divorces and the definition of fault will help you understand your divorce options. Speaking with someone who understands the divorce process like a divorce lawyer or a divorce coach will help you gain the perspective you need to manage your expectations and make the right decision.

NOTES

Elizabeth Newland is a third-year law student in Chicago committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you and your future. Join our tribe and stay connected

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

divorce after 30 years of marriage

Your “Surprising” Divorce After 30 Years of Marriage

There was a time when every year of marriage was faithfully attached to a specific kind of gift: paper, silver, gold, emerald, or diamond. The tradition not only kept a long list of industries dropping rose petals down the aisle to the bank. It also made metaphorical references to the various stages – and challenges – of marriage. Thirty years, for example, has traditionally been the “pearl” anniversary, representing divinity and wisdom. How ironic, then, that so many couples see it as an endpoint and divorce after 30 years of marriage.

If you are in this position – three decades into marriage and raising a family – are you surprised to be here? Did you quietly see it coming? Did you want it? Or did you do everything in your power to hang on?

What we do know is that the rate of divorce as a whole has been declining, especially among Millennials and younger generations. But for those over 50, the rate of divorce is actually on the rise.

So, what’s going on? What’s happening (or not happening) that’s causing couples who have stuck it out for so long to divorce after 30 years of marriage?

Just as importantly, who is initiating these divorces? And what are the dissatisfactions and unmet expectations that finally reach a breaking point?

When you consider the statistics for gender-based post-divorce life, it really is remarkable that women continue to be the initiators of most divorces. Post-divorce life, after all, statistically doesn’t favor women, especially financially. Why, then, are women initiating divorce more often than men? 

The truth is, if both you and your husband or Soon-to-Be-Ex take a fearless look at your marriage, you will most likely come face-to-face with signs that really aren’t so surprising.

It’s easy to slip into believing that, if you have made it this far, you’ll cross the finish line together.

But women aren’t so resigning.

They tend to come to married life educated and informed. 

They often have careers before and during their marriages. 

They know what women are accomplishing in the world. And they know what they are capable of accomplishing.

They dream, create, invent.

And yet, they continue to be the primary homemakers and caretakers in their families, as if the Betty Crocker era never skipped a beat. 

So, should either spouse be surprised that the woman expects more from marriage than just a home and financial security? That she wants emotional connection, communication, balance in caretaking, and equality that actually feels like equality?

She may have done everything in her power to keep her commitment against divorce. 

After 30 years of marriage, however, she has had a lot of time to think, ponder…deflate.

She has also had a lot of time to imagine the life she’s not living.

And, given longer life expectancies, she may see a long prison sentence ahead if things don’t change soon.

Add in the predictable way that aging makes people less tolerant of others’ habits and tempers, and it’s understandable how a spouse can seem like a stranger.

Does any of this sound familiar?

The day-to-day responsibilities of raising children can drop a curtain of distraction on the marital relationship. 

It’s so easy to see the world through their eyes – to immerse yourself in their needs, their activities, their dreams…

…and to forget your own.

But what happens when their dreams demand to be lived, as they should? (Check out “Divorce and One Woman’s Journey” and see if you identify with this divorce tale.)

One by one the children leave to find life and love – just as their parents once did. And you are left to cheer them on from what has become a lonely, forgotten place.

It happens. It doesn’t have to. But it does.

And that 30 years that once seemed a lifetime away has suddenly marked itself on your calendar.

It also presents itself as a moment of reckoning: What do you have to show for your marriage?

Do you share the same values? The same life vision?

Do you still hold one another in respect, affection, awe?

Do you even recognize one another anymore – enough to say, “Oh, there you are! Let’s get back to the business of us?

The realization that your relationship has been on the back burner while taking care of “life” and others doesn’t have to mean the end of your marriage.

But sometimes the chasm is too great to bridge with any memory of intimacy or common vision.

In that case, it’s important to go into divorce with your eyes open. Acknowledge the signs you have been living with for years so you let go of what never was and manifest what can be.

And be prepared for the changes likely to come with getting a divorce after 30 years of marriage.

Divorcing in your 50’s and 60’s comes with its own unique experiences and consequences. Do you know what a gray divorce means for you?

If you stayed in your marriage for financial security, for example, you will likely see a decline in your finances and lifestyle

You may lose access to a growing retirement fund, forcing you to seek financial guidance and closely examine how you spend and save.

You may have to enter or reenter the job market in order to pay your bills. And that can be a daunting experience if you haven’t worked outside the home or in more than a part-time capacity for years.

All these “notes from a cautionary tale” may make the gray in “gray divorce” seem a little grayer. But there is actually a very bright, hopeful chapter at the end of the tale.

In many ways, this time in your life can be the most freeing, despite the circumstances.

Unlike younger divorcées, you don’t have the pressure to remarry and have children (or more children).

You are probably much more comfortable in your own skin and know yourself better than you did 20-30 years ago. So, you are now able to be a better, more accepting friend to yourself than you were then.

You may still have a sex drive that longs for partnership. But chances are it’s not turbo-charged by the same fury of your younger days, meaning that you can make decisions with wisdom and (relative) calmness. Consider this SAS article, “Finding Your Sexy Again After Divorce.”

You are also likely to find much more contentment and satisfaction in the companionship of friends and social connections. And that’s regardless of whether or not romance and/or remarriage are on the horizon.

Yes, there is a lot to think about and learn about life after gray divorce.

But there is also a lot to look forward to in this next chapter that you get to write and illustrate…hopefully with a giant box of crayons. Let loose and listen to yourself. Color outside the lines.  

NOTES

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Join our tribe and stay connected.

*We support same-sex marriages and fluid gender identities. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

Spousal Support - Divorce and Alimony

Spousal Support, Alimony and Maintenance: Who Gets It?

Spousal support goes by a lot of different names in the world of divorce law: maintenance, alimony, and spousal support can all be used interchangeably. Maintenance is the more modern, most common term that courts use today, though the concept of maintenance has been around for quite some time. In fact, the idea of alimony dates back to the Middle Ages. But modern maintenance has changed a lot since then. Here’s a breakdown of what you should know about maintenance and how it works today. 

What is “Maintenance” Spousal Support and Who Pays It? 

Maintenance is when one spouse provides financial spousal support to his or her Ex. Maintenance helps ensure that the spouse with lower income can still support themselves after the divorce. Courts want to make sure that after a divorce, each spouse lives the same type of lifestyle they had during their marriage, which can sometimes lead to legal issues in the alimony agreement negotiation. To do this, courts approximate the “marital standard of living” and make sure the maintenance payment provides you and your Ex the proper funds to maintain that standard of living on your own.  

Historically, the wife received maintenance because the husband had a duty to support his wife financially. Maintenance used to also account for whose “fault” the divorce was and would make that spouse pay the other. Today, the more modern rationale for maintenance is rooted in “economic partnership”. Courts now look less at the traditional male and female roles within a marriage, and instead, look at the amount of money each person makes. So yes, if you are a woman, the breadwinner, and the primary caretaker of your children, you may have to pay your Ex maintenance. 

If you are a Stay-At-Home-Mom, discover more must-knows by reading “How to Prepare for Divorce if You are a Stay-At-Home-Mom.”

If you make more money than your spouse, check out “Breadwinning Women Face an Uphill Battle When Marrying and Divorcing.”

Is This Related to Child Support?

Maintenance is completely separate from child support and parental responsibilities. You can receive child support but have to pay your Ex maintenance. This would be most likely if you were the both primary caretaker of your children and the breadwinner of the family. This may seem like a shock, but as more mothers become the primary income earner, paying spousal support maintenance to their husband is becoming more and more common. If you are the breadwinner of your family, it is important to have your financials organized and in check. Your attorney will ask for your financial documents almost immediately at the beginning of your divorce journey. 

Maintenance statutes are present in every state, but the way courts go about them in each state can differ. Maintenance is typically a factor test. Courts look at the length of the marriage, the ages of the couple, the job skills they have, the income gap between the couples, and much more. Not every couple going through a divorce are “eligible” for maintenance payments. For example, if a couple married for 15 years has one partner who makes $300,000.00 a year and the other who did not go to college and stayed home to raise the kids, this would definitely be a maintenance case.

This means that the higher-earning spouse would have to pay maintenance to the other. But, if a couple was married for 2 years and had pretty equal levels of income, the likelihood of this being a maintenance case is much lower. These are just a few details that contribute to the legal issues of determining alimony and spousal support.

Changing Your Maintenance

Maintenance can also change over time. Originally, maintenance was a lifetime commitment, meaning that once someone was on the hook for maintenance, they were on the hook for the rest of their life. Now, it’s harder to obtain permanent maintenance, but not impossible. Instead, courts usually award temporary maintenance. Maintenance can change based on the circumstances you and your Ex fall into after your divorce becomes final. These circumstances can range from you or your Ex marrying someone else to a change in financial earnings, both of which can affect spousal support.

How to Modify Maintenance

The key to modifying maintenance is to prove that a substantial change in circumstances has occurred. Whoever wants to modify the maintenance has to prove that a substantial change in circumstances has in fact occurred. Either spouse can ask the court to modify maintenance. For example, if you are paying your Ex maintenance and your Ex gets a huge promotion at work and their salary increases, this would be a substantial change in circumstances. You could argue they do not need as much spousal support anymore, and that your maintenance payment should be modified to a smaller amount. On the flip side, if your Ex in that same situation got laid off, they can argue that there was a substantial change in circumstances and that they need more maintenance from you because now they have no income. 

Nobody likes paying maintenance. You can contract out of maintenance during your divorce journey if you want. Within your divorce settlement agreement in Illinois, for example, you can “waive” your right to maintenance, and your Ex can too. If you choose to do this, in your marital settlement agreement, you would have a section that states you do not want maintenance, and you will not ask for it in the future. This is a great option if you and your Ex earn about the same income, or for whatever reason you agree that there is no need to pay spousal support. You may want to consider getting a financial consultation to look at your options with the help of an expert and to better understand the details involved in these legal issues.

Maintenance and Taxes

One thing of note is that maintenance is taxed to the recipient, so keep that in mind if you are awarded maintenance. It’s important to ensure you have your finances in check during and after your divorce. Because things like maintenance can change, it’s a good idea to have your finances organized in case anything comes up later down the line.  

Conclusion: Spousal Support Varies

Spousal support maintenance is not something to be afraid of or embarrassed by whether you receive it, or pay it to your Ex. Maintenance is something that comes up in any divorce in some way, shape, or form. The modern approach to maintenance is to ensure that you and your Ex can maintain the same standard of living you two had during your marriage. Maintenance is a huge part of the financial elements of your divorce journey, so you and your attorney will definitely discuss this issue early on in your conversations so you adequately negotiate what is right for you. 

NOTES

Alexa Valenzisi is a rising 3L student in Chicago committed to the legal issues that arise in child law and education law. She aims to work in education law or family law after graduation. 

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Join our tribe and stay connected.

Frequently Asked Questions about Divorce

The Top 5 Frequently Asked Questions About Divorce

One of the most daunting parts of a divorce is not knowing – not knowing the answers to questions, not knowing the steps to take, not knowing what to do first, and surely, not knowing the big and small outcomes of your every move. This article will review five common or frequently asked questions about divorce. And in response to those questions, we’ll give you a quick answer that helps manage your expectations and also, lets you hit the ground running. 

1. How long will it take for me to get a divorce? 

Frequently asked questions about timelines are often at the forefront for those eager to get out of their marriage. From a legal perspective – and from a bird’s eye view – the divorce process goes like this: 

  • Filing a Petition for Dissolution of Marriage 
  • Financial disclosure and discovery 
  • Dispute any issues you and your Soon-to-Be-Ex may have 
  • Drafting Divorce Agreement Papers 
  • Judgment for Dissolution of Marriage gets granted 

Those are the primary steps in any divorce case. If you and your spouse* are in agreement with everything (splitting up marital assets, debt, custody, maintenance, etc.), you can pretty much skip steps 2 and 3 and go straight to drafting the divorce agreement with your lawyer. 

SAS Tip: Even if you think you and your spouse are in agreement with the splitting of assets and debt, and how the children will be cared for, it is ALWAYS a good idea to get a private legal consultation to hear what your rights are and what you are entitled to before you commit. Another level of due diligence is to meet with a certified divorce financial analyst for a financial consultation to divorce and to drill down on what would be the best way for you to split things. Economically, it is harder for women after divorce.

What affects the duration of the divorce process?

Because frequently asked questions about the divorce process duration have so many different answers, here’s a run-down. If you and your spouse do not agree on everything, your attorneys will attempt to negotiate a deal and ask you for some financial documents so that they can figure out what is an equitable distribution or resolution. After this, documents signed by both parties will be presented to the judge. The judge will then enter a divorce judgment that states you and your Ex are divorced. 

You will always have the option to get a judge involved if you and your spouse cannot come to an agreement about a part of your divorce agreement. This could be a trial but more likely, you will have a hearing, which is much shorter and only focused on a specific issue. Involving a judge is a longer and more expensive process, but also know that less than 10 percent of divorce cases in the United States go to a full-blown trial. A trial is useful if the settlement proposal you receive is not something you would agree with. 

So overall, how long your divorce takes really is dependent on the situation. You may be in total agreement with your spouse and can get in and out of the process in a month. Sometimes, however, with more complicated situations, the process can be lengthier. Your attorney can probably give you an estimate.

If you are actually asking, how long does it take to get over a divorce? Ah, that is a different question entirely.

2. How will our property be divided?

Most states equitably divide the marital assets you and your spouse acquired during your marriage. (To know for sure about your state, check out “Divorce Property Division: Community Property States vs. Equitable Distribution States.

The first step in dividing property is figuring out what you have, and the value of everything. Then, your attorney figures out what you and your spouse jointly own. Anything jointly owned goes into the “marital estate” and everything in that marital estate is divided equitably. Of course, you can make agreements with your Ex about how you want to divide your assets, and the court will usually honor such settlement agreements. A common example of this is if you and your spouse own a house, and one of you wants to buy out the other. You and your attorney will put language in your divorce agreement about that, and the judge will most likely find this to be a sufficient agreement. 

Keep in mind that debt acts the same way as assets – and is dependent on whether you live in an equitable distribution state or a community property state.  For example, if you live in an equitable distribution state, and you have a student loan or debt on a credit card that is in your name, then that debt is considered personal property and is not divided between you and your spouse. If you live in a community property state, the debt is considered marital debt.  So where you live matters.

3. Will I receive child support and/or spousal support? 

Again, it depends! First and foremost, child support and maintenance are two separate areas of financial support and are determined separately. Spousal support or maintenance, previously known as alimony, is support so that you and your Soon-to-Be-Spouse can maintain the standard of living you had during the marriage. Child support covers the everyday costs of children.

You can receive maintenance, child support, or both depending on the circumstances. If you are the custodial parent (your children reside primarily with you), you will most likely receive monthly child support. Child support is supposed to cover the basic necessities of the children – like food, clothing, and shelter. You can modify child support at any time after your divorce is finalized too. 

SAS Tip: Try to forecast what you will need in the future for yourself and your children so you negotiate for it in the divorce document rather than later. It costs money in legal fees and time to go back and revisit a divorce document!

Frequently Asked Questions About Divorce and Maintenance

If you make less money than your Ex, you will most likely receive maintenance. Keep in mind, however, that maintenance is a factor test, and not every divorce warrants maintenance. Maintenance can also be modified after your divorce proceeding. You can also waive maintenance, meaning that you do not even want to ask your Ex for spousal support at any time now or in the future – but you may ask for something else as part of your divorce negotiation.

SAS TIP: Be prepared. If you are a Stay-At-Home-Mom, discover more must-knows by reading “How to Prepare for Divorce if You are a Stay-At-Home-Mom.” If you make more money than your spouse, check out “Breadwinning Women Face an Uphill Battle When Marrying and Divorcing.”

4. What about our kids?   

Depending on the state you live in, child support and college tuition can be ordered until a child reaches the age of 21. With issues concerning custody and visitation, however, the young person is considered an adult when they turn 18. 

So, when it comes to custody or visitation, courts only deal with minor children (children who are not emancipated and/or under 18) during a divorce. If you and the father of your children cannot agree on a fair custody or visitation schedule, the Courts will determine the time each parent spends with the child, and who gets to make decisions on the child’s behalf. 

Custody Considerations

For custody, the first issue, you and your spouse will come up with a parenting schedule. This can be a complete 50/50 split of parenting time, or you can have most of the parenting time with your Ex having strict visitation limits. If you and your spouse can negotiate this directly or with the help of your lawyers, all the better. Left to the Courts, the Courts will determine the custody schedule based on the best interest of the child. It’s important to know that in most states, the Courts will lean on you and your spouse having equal time/custody of your children, so 50/50.

The decision-making portion goes primarily the same way. You and your spouse can have joint decision-making, meaning that you two have to agree on big decisions in the child’s life, or you can have sole-decision making. The courts again focus on what is in the best interest of the child.

If you wonder how the children will survive the divorce, please read this piece to help guide your behavior and promote your best decisions.  “Will the Kids Be All Right? Long Term Effects of Divorce on Children.”

5. What does a judge consider during my divorce? 

These are frequently asked questions for a reason: the answers really matter. Your judge affects the outcome of your divorce! Most states have a “no-fault” divorce rule. This means the judge or the state does not care whose fault it was that the divorce is happening. Make sure you understand the difference between No-Fault and Fault Divorce.

If you go to court, a judge will look at the facts of your case, and try to make sure that there is a fair division of property (per your state’s divorce laws) and that the children’s best interests are followed. 

Your judge will take all of the facts presented into account, and figure out, based on your specific situation, what is a fair divorce agreement to come to. Make sure that if you are going to trial, or have to argue any part of your divorce in front of a judge, that your attorney knows exactly what you want and what you would and would not agree to. Transparency is the best tactic with your lawyer so that they can properly advocate for your wants and needs in front of the judge. 

Conclusion

Be kind to yourself. It’s natural that you may have some of these frequently asked questions when it comes to the topic of divorce. In fact, even as your progress through the divorce process, the questions never stop coming. 

If you are like a lot of people, chances are you just want to “get it done,” but we urge you: please be mindful of your future and the future of your children. Do not simply get things done, rush, or push through without doing due diligence in finding out what would be the best step for you personally, legally, and financially as a woman.  Read our “55 Must-Do’s on Your Modern Divorce Checklist,” so you take control, smartly and healthily. Remember: even if we answered your frequently asked questions, you’ll still want expert advice customized to your situation.

We wish you good luck and are always here for you.

About the Author

Alexa Valenzisi is a rising 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation. 

Notes

Whether you are thinking about divorce, looking for answers to your frequently asked questions, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

To all women, SAS offers six free months of email coaching, action plans, checklists, and support strategies for you—and your precious future. Join our tribe and stay connected.

* At SAS, we support same-sex marriages. For the sake of ease, we may refer to your spouse or Ex as “he/him” but we understand that exes come with many gender identities.