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Your State Law and Divorce

Your State Law and Divorce: Where You Do IT Matters

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In the United States, every state has its own set of laws governing divorce proceedings. And while there is a nationwide set of laws guiding divorce or family law matters, it is the state in which you reside, and are a citizen of, that will dictate the specifics of your case. Therefore, it’s important to learn about your particular state’s divorce laws to understand what you are entitled to, what your rights are, and how to navigate your divorce successfully.

State law vs. federal law?

The US federalist system requires two separate court systems: state and federal. Historically, family law has been an arm of state law. The state legislature, state lawmakers, and state constitution dictate laws relating to families, marriage, and children.

The federal courts are specialty courts, so they hear cases relating to the constitution, foreign affairs, disputes between states, bankruptcy, admiralty, and international treaties. The state court system is responsible for matters including most criminal cases, probate (trusts and wills), family, tort (personal injury), and most contract cases.

State courts have almost complete jurisdiction over family law matters, including marriage and divorce.

The federal government does have some discretion about family and children’s courts. This will generally only apply to cases and issues relating to a federal specialty (as stated above). For example, the right to gay marriage in Obergefell v. Hodges is a marriage case; however, it is also a constitutional question. These are very rare cases, and for almost all divorces, state law will apply. 

Different approaches to divorce law

Because family law is a component of state law, divorce law is not therefore, uniform across the states. There might be an overlap in some states; however, each state has its own standards for the proceeding.

To show the differences in divorce laws amongst states, we will explore four geographically diverse states (California, Illinois, New York, and Alabama) and their approach to three common divorce components.

1. Marital conduct in considering child custody

Some state code requires a court to consider morals and marital conduct when determining parental custody. State statute might require the court to consider adultery when determining a child custody ruling.

  • California family code does not state any consideration of morals.
  • Illinois statute reads that there will be no consideration of the conduct of a parent that DOES NOT affect their relationship with the child.
  • Alabama code considers the “moral character and prudence” of the parents when determining custody arrangements.
  • New York does not list any factors concerning parental morals.

2. Date of Classification for Property or when the marriage ended

The date of classification is also known as the date the marriage ended and is the date on which you and your spouse no longer acquire marital property. After this day, any property either spouse obtains is their personal, separate property.

  • California ends the marriage at the date of separation (which is usually the date the couple decides their marriage is done and they are separated).
  • Illinois uses the date of dissolution (the final date the divorce case gets proven, or the divorce trial occurs).
  • Alabama uses the date the complaint for divorce is FILED (submitted) to the court. 
  • New York uses the date of the commencement of the divorce action as the indicator to stop marital property.

To understand more about property in divorce, check out our article “Marital property and Non-Marital Property: The Surprising Differences”

3. Separation or Waiting Periods for No-Fault Divorce

Many states require a formal waiting period or a trial separation before allowing a couple to file or grant a no-fault divorce. This is a historical practice to enable a couple ample time to reconsider and try to amend the marriage.

  • California requires a six-month waiting period post-filing for a divorce.
  • Illinois statute dictates there must be a two-year waiting period UNLESS both couples agree, then the waiting period decreases to six months.
  • Alabama has a one-month waiting period.
  • New York requires one year before a divorce.

As you are seeing, family law and divorce law are not standardized across the country. Every state has a different law regarding critical components of your divorce.

If you are contemplating divorce, you will want to read other things to consider in our “36 Things to Do If You are Thinking About Divorce.”

What state can I file for a divorce in?

While every state has different divorce laws, you cannot choose which state you wish to file in just because that state might provide you with a more favorable outcome. The state you file in must have jurisdiction over your case. This means that the state must have the official legal power to grant a divorce.

SAS TIP: If you are a new resident of a state and are looking to file a divorce there, check the state laws to see if a new resident waiting period applies; and also compare the state divorce laws from where you moved. Which state would better support your divorce goals and objectives?

Read our helpful article for more on which states have the longest residency requirement to file for divorce and which ones the shortest?

Contrary to popular belief, you do not have to file for a divorce in the same state you were married in. If you and your spouse both live in the same state, then one of you must be a resident of that state to file for divorce. A state might require a waiting period if you are new to that state, generally up to one year.

If you are definitely divorcing, make sure you take care of yourself and read “The 55 Must-Do’s on Your Modern Divorce Checklist.”

What if you and your spouse live in different states?

If you and your spouse live in different states and are determining which state you can file a divorce in, the context of your divorce and marriage will dictate which state has jurisdiction.

SAS TIP: If you and your spouse live in different states, the state in which you can file for a divorce will be DIFFERENT based on what you are seeking from the divorce.

If you want a divorce with no allocation of property and no children involved, you can file in any state where ONE person is a resident. Both parties do not have to be state residents to have a divorce proceeding there. Nor does either party need a connection to that state. If you move to a new state and your spouse doesn’t, you can file a basic divorce in that state, even if your spouse has never stepped foot there (assuming you meet the residency and waiting period requirements).

If you are looking for a court to solve financial issues (like property division or establishing spousal support), then the filing state must have minimum contact with both spouses. This means that the out-of-state spouse must have SOME connection with the state. For example, did one spouse live in that state and eventually move away? Versus, did you move to a state, and did your spouse not move with you? One person must have residency in the state, and the other person must have some connection to the state for the state court to consider financial decisions.

If you are looking for the court to determine child custody decisions and you and your spouse live in different states, the court will look to the child’s home state.

This means it does not matter where you or your spouse live. The court will look at the child’s home state for the six months prior to the proceeding. This is because courts want to ensure stability for the child by leading court proceedings in the state they are most familiar with.

What else should you be considering if you thinking about custody concerns? Check out ”Best Advice on Custody for Divorcing Moms”.

SAS Tip: The state you file a divorce in matters!

Conclusion

One of the most important ways to help reduce unneeded stress in your divorce is to have a thorough understanding of your state and its divorce laws. Having an understanding of how your state divorce court runs will allow you to strategize and focus more on the substance of your case and take care of yourself in the process.

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.

All of it, sent discreetly to your inbox. 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.”

The Five Kinds of Divorce Cases: Is One Yours?

The Five Kinds of Divorce Cases: Is One Yours?

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The desire to be separate from your partner is the main reason for any divorce. While many factors and considerations lead up to the divorce, that one big goal generally stays the same. Additionally, while there is one main goal to a divorce, there are five ways to accomplish that goal or five common divorce cases. These cases or examples are the following: an uncontested divorce, a contested divorce, a collaborative divorce, a default divorce, and a summary divorce.

This may seem overly complicated when all divorces share the same goal. However, knowing what profile your divorce is will help you better navigate the process. To that end, this article will give you insight into the five kinds of divorce cases so you understand which one is yours.

Divorce Type versus Divorce Case

A divorce case should be distinguished from different divorce types. The type of divorce you choose addresses the method in which you go about the divorce or the mechanics behind how the divorce process works. It will also give you options for how to proceed with your divorce. This includes the traditional lawyer-led model, mediation, a collaborative model, or a Do-It-Yourself (DIY) divorce. To learn more about the 4 different types of divorce, check out this article that explains the specific models.

A divorce case is broader and more theoretical in nature. It describes the general characteristic of your divorce and what that entails. It does not account for the concrete steps within the categorization. Knowing your divorce case will help you determine what type of divorce is available to you going forward.

1. Uncontested Divorce

An uncontested divorce is one in which you and your husband are (ultimately) in total agreement on all aspects of your divorce. You will work together outside of the walls of the courthouse to file paperwork and gather information because you already agree on the specific outcomes of every part of the process. This can be very complicated, as ending a marriage involves many emotionally charged pieces. An uncontested divorce has agreed upon answers on the issues of child support, child custody, alimony, and division of property.

If you and your spouse agree (or will eventually agree) on all the key details of your divorce, it is likely considered uncontested.

An uncontested divorce will not go to court, saving you both time and money. Uncontested divorces are always cheaper than highly contentious contested divorces. They also allow you the opportunity to explore different ways to proceed in the divorce process and give you more flexibility in choosing the type of divorce that works for you.

2. Contested Divorce

Another common type of divorce is a contested divorce. A contested divorce is one in which you and your husband don’t agree on all the critical issues in the divorce. You may disagree on only one issue or all issues stated above. Either way, it will be up to a judge to settle the disagreements, because you two cannot come to terms. A contested divorce usually requires attorneys for both you and your partner to prepare your court case. This type of divorce is most often seen in the media because it has the potential to be contentious and dramatic. For more on this, read “What is a Contested Divorce?”

Contested divorces are the costliest type of divorce.

The cost of a contested divorce can range greatly, with the United States average being $15,000. This generally accounts for attorney’s fees, court costs, real estate appraisers, and other experts the court might need. The price will, of course, fluctuate based on the complexity of your case and how many issues are being contested. Some contested hearings do not need a trial because the judge can solve any disputes through quicker hearings. In the most extreme (and costly) cases, your divorce might go to a full trial, where your lawyer will present all the evidence and arguments she has collected, and the judge will give a final decision.

3. Collaborative Divorce

A collaborative divorce is one in which the couple needs some legal help in navigating the terms of their divorce, but it is handled completely outside of the courtroom. A mix of lawyers and mediators will help you and your spouse come to an agreement in a problem-solving fashion. In a collaborative divorce, both parties will hire their collaborative divorce attorney specializing in, or having experience in, alternate dispute resolution. This means that they understand what collaborative divorce is and have the tools to lead you through it. You and your attorney will work with your spouse and his attorney to settle the issues through mediation.

The goal of the collaborative model is to take away the big fight with “winners and losers” that is seen in court and instead aim to problem solve together civilly. A collaborative divorce can be amicable, as the goal is to avoid litigation and solve issues together. To learn more about the different types of amicable divorces, check out this article on amicable divorces and how to ensure you have one.

A collaborative divorce can help you, and your spouse keep familial peace at the forefront of your divorce. A collaborative divorce model is often used when the couple can work together and if there are children involved. This is because it puts the family at the center of the divorce. It ensures that the child will not have to be involved in a stressful court setting. Collaborative divorces tend to cost less than litigation and court battles but sometimes more than a usual uncontested divorce. The complexity of the case will determine the cost of a collaborative divorce.

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. And keep in mind, if you and your spouse (and the experts) cannot come to an agreement on the terms of your divorce, and you must abandon the collaborative divorce process, you will have to abandon all the professionals you’ve hired and start fresh with new counsel.

4. Default Divorce

A default divorce is when your husband (the respondent) does not respond to your petition within the appropriate time frame. It is technically considered an uncontested divorce where your spouse has foregone his chance to participate in the proceedings. This usually means that the other spouse is unreachable by the court. The court must make a genuine effort to locate the other party, but if they cannot, or your spouse refuses to participate, the divorce will go through as a default. In this scenario the court will usually grant your requests related to the divorce.

5. Summary Divorce

Summary divorce is not a traditional divorce. If your marriage fits certain (usually time and complexity related) requirements, then you may qualify for a simplified summary divorce. It is a quicker process with less paperwork, fewer court appearances, and less overall involvement for you and your spouse. That being said, very stringent standards must apply for your marriage to qualify for a summary divorce.

For a Summary Divorce, the actual eligibility requirements will vary state-to-state, so make sure to research your specific state. Generally, a summary divorce requires a short marriage (around five years or less), no minor children, no real property (real estate), little to no marital property (all assets aside from land), little to no separate property, and neither spouse is looking to receive alimony.

If your marriage fits these tight qualifications, then a summary divorce might save you time and money.

Conclusion

Understanding the different divorce cases is important in classifying your divorce. If you can classify your divorce, then you are more likely to understand the upcoming process, what professionals to use, how to budget for the divorce, and how to manage your expectations.  This will lead to fewer surprises and more peace of mind.

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. 

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.

What is a Restraining Order and How Do I Get One?

What is a Restraining Order and How Do I Get One?

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During your divorce process, situations may arise that require the court to get involved, and one tool you have at your disposal is a restraining order. To protect yourself before, during, or after your divorce is finalized, you can obtain a restraining order against your Ex (or if it’s before your divorce is finalized, your Soon-to-be-Ex or husband *). This article provides information and answers to common questions women have related to restraining orders.

What is a restraining order?

A restraining order stops someone from doing something harmful to you. The harmful activity can be posting negative comments about you on the Internet, stealing money from your account, or even speaking to you.

Restraining orders are usually used for stopping someone from temporarily doing something that affects you, and typically, the acts themselves are nonviolent.

A very common example of a restraining order in divorce litigations is when your spouse drains a marital asset. Say, for example, you and your spouse have a joint bank account with all of your assets pooled together and that is the account you use to pay for your daily living expenses. Your spouse, during the course of your divorce process or litigation, completely drains the account so that there is nothing left in the account for you to use.

This is when a restraining order is a great tool. You and your attorney could file an Emergency Temporary Restraining Order, which would order your spouse to stop spending any money he took from the account, and to freeze any other activity within that account.

Another thing to keep in mind is that every state treats restraining orders differently. Make sure you ask your attorney the specific uses, benefits, and downsides of filing a restraining order in your state.

If you are thinking about, or beginning a divorce, learn more and check out “The Top 5 Frequently Asked Questions About Divorce.”

How do I get a restraining order?

It’s important to remember, however, that a restraining order, at the end of the day, is just a piece of paper. While it’s a great tool that the legal system allows you to use, you will have to stay on top of your spouse to ensure that they are in fact following the provisions of the restraining order.

Keeping the previous example in mind, if your spouse drained the marital account, you would want to alert your attorney immediately so they begin drafting a Motion for a Temporary Restraining Order. In certain cases, it can be an Emergency Motion, and the judge will hear it faster. Every state is different, but in Illinois, for example, you have to prove that you are entitled to what you are asking for, that you suffered harm because of your spouse’s action, and that there is no  legal remedy for what your spouse did. While this sounds daunting, the example we are considering meets all these requirements easily. You need to prove that you had a right to the account, you used it for your everyday living expenses, and that you are burdened by your spouse’s actions.

There’s so much paperwork involved with a divorce. Read this piece, to understand specifically what “Divorce Papers” are.

How long do restraining orders last?

Again, this depends on the type of restraining order and the state you reside in.

Following the example in this article, you would want to make sure that you ask in your Motion for Temporary Restraining Order for your spouse to provide information about where he sent the funds; that the funds be frozen; and that he returns the funds to their proper bank account.

Once you present your motion in front of a judge, assuming it is granted, he or she will write an Order giving your spouse a timeline to complete everything that you are asking for.

Moreover, if you agree to a restraining order with your spouse (such as you two agree not to speak to each other or post about one another on the Internet), these Agreed Orders state how long they will last.

What else must you know if you are a woman dealing with divorce? Begin here: “55 Must Do’s on Your Divorce Checklist.”

What happens if someone violates a restraining order?

Penalties for violating restraining orders differ based on the circumstance and the state. In Illinois, for example, if someone violates a restraining order, you need to file a Petition for Rule to Show Cause. This petition needs to show that a restraining order was entered and that your spouse violated it for no good reason.

If you are successful in your petition, the judge can hold your spouse in contempt of court, and set a bail amount or even send them to jail. Again, keep in mind that you would have to go back to court, file a new petition, and argue it in front of a judge before this occurs.

What is the difference between a restraining order and an order of protection?

One thing to keep in mind is that some states use restraining order and order of protection interchangeably. Be sure to ask your attorney what the proper language is in the state you reside.

The kind of lawyer you use DOES matter. Consider reading this piece on

Why it’s not in your interest to hire a cheap divorce lawyer.

Restraining orders typically stop someone from doing something harmful to you. Orders of protection keep someone away from you. Orders of protection have more bite to them, and you can file them ex-parte (meaning the other party is not present).

Restraining orders can also be filed ex-parte, but they are rarer, and sometimes, these are agreed upon between you and your spouse. 

Another key difference is what happens when someone violates a restraining order versus an order of protection.

If someone violates an order of protection, there is a criminal charge against them. Restraining orders require more court appearances and judge intervention before the person is disciplined for violating it.

Something that you can use as a bargaining chip is changing your order of protection against your spouse to a restraining order. The logic behind this is that you still have protections in place, but it holds less severe penalties than an order of protection.

Conclusion

Restraining orders are a useful resource for women going through a divorce. It gives you a sense of security during and after your break up by providing you with guidelines as to what your spouse can and cannot do. This article provides insight into what restraining orders are, when to use them, and what to expect in court when you file them.

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.”

Divorce Mediation: What is It and How Much Will it Cost?

Divorce Mediation: What is It and How Much Will it Cost?

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Introduction to Divorce Mediation

There are multiple ways to obtain a divorce. One way to go about it is through divorce mediation, a process where you and your spouse meet with a neutral third party. This third party helps facilitate your conversation with your spouse as you eventually come to an agreement about all elements of your divorce. These elements include dividing your assets and debt, potentially a custody agreement, and anything else that you two need to split. This article will explain what mediation is, its benefits, and what types of couples are good candidates for the process.

What is Divorce Mediation?

Mediation is when you and your spouse come to an agreement on all of the terms of your divorce with the help of a mediator. Lawyers are welcome to attend mediation, but they are never required to be present. A mediator is present as a neutral third party to make sure nothing gets too heated or whenever there is a disagreement, the mediator can try to parse out what you and your spouse are saying and try to find the middle ground. 

Understanding Divorce Mediation

It’s critical to understand that a mediator is not your attorney. They cannot provide you with legal advice. Their sole purpose is to remain a neutral third party while you and your spouse discuss your negotiation. Often licensed divorce attorneys themselves, mediators may charge you by the hour or by “the package.”

Court-Ordered Mediation

In this article we are discussing private mediation. But there is also a “court-ordered mediation.” This is when a judge orders you and your spouse to attend a mandatory mediation session in a divorce proceeding. This is different from private mediation when a couple decides to use mediation as the means to attain a divorce.

Private Mediation 

Private mediation happens before you are divorced. You and your Soon-to-be-Ex will go to mediation together in hopes to come to an agreement before any litigation or your attorneys negotiate on your behalf.

What are the other three ways to divorce, besides mediation? Learn about them in “The 4 Types of Divorce and How to Know Which One’s Right for You.”

Before going to court and having a judge involved in your divorce, mediation can be a good first step. In fact, some judges in certain states will recommend that you go to mediation before scheduling a court date. But it is always a voluntary option.

SAS Tip: Regardless of what type of divorce model you decide on as you seek your uncontested divorce, we recommend that every woman secure a private legal consultation with a divorce attorney first, to hear what your rights are and what you are entitled to BEFORE you and your spouse start splitting things up. 

Check out this piece on how to find a good divorce lawyer or this article for the important questions to ask a divorce attorney at a consultation.

If you and your spouse eventually agree on everything at mediation, the rest of your divorce will be relatively simple. The mediator will draft a settlement agreement for you to sign or have reviewed by a divorce attorney before signing. Alternatively, the mediator will provide you with a memorandum (also known as a Memorandum of Understanding – or MOU for short) that documents what you and your spouse agreed to during mediation. From there, you can have your attorney integrate it into your divorce settlement agreement.

If you wonder what other steps you could be taking to ensure your divorce goes as healthily as possible, read our “36 Things to Do If You are Thinking About Divorce.”

What are the Benefits of Divorce Mediation?

Probably the most enticing element of mediation is that it makes your divorce much cheaper than the opposite, the polar extreme of a highly contested divorce trial. The average cost of mediation ranges between $3,000.00 and $8,000.00, whereas the average cost of going to trial for a divorce is $4,100.00 for a completely uncontested divorce and rises to an average of $20,400.00 for a trial on just one contested issue. The average cost of retaining a lawyer without going to trial averages out to about $10,600.00.  So, among other benefits, there is a financial incentive for you and your spouse to take a shot at mediation before hiring a lawyer or going straight to court.

Maybe you don’t need mediation? Perhaps you will not divorce?

Consider reading “What Percentage of Marriages End in Divorce?”

You also have more control in your settlement agreement during mediation. The mediator is not there to dictate what your settlement agreement will be, that is up to you and your spouse. If you two are in agreement on most things, and they are lawfully sound, then you just need your divorce settlement memorialized and written up. Mediation may be the best means to achieve your goals.

Is Divorce Mediation Right for You?

Mediation is a great tool if you and your spouse can work together and are on the same page about the division of assets, support, and custody arrangements. (Check out “Child Support: 5 Things Mothers Must Know.”)

Something else to keep in mind is that if you and your spouse cannot come to an agreement during mediation, that is okay. If after mediation there is still no agreement, then that is when you would want to talk to an attorney about other strategies. You never have to agree to something you are not comfortable with during mediation.

SAS Tip: You can choose mediation while also being legally educated on your rights and private interests outside of the divorce mediation process. Read our “Hiring a Mediation Attorney Can Save You Money.”

When is Divorce Mediation Not a Good Idea?

Mediation, however, is not for every couple. It is important to understand that you and your spouse both need to be open and willing to talk with each other and come to an agreement that works for the two of you. If you know your spouse will not agree to anything that you want just to spite you, mediation may be futile.

If there is any sort of cheating, deception, hiding of funds or assets, power imbalance, financial imbalance, or anything else of the like between you and your spouse, then mediation is probably not the best course of action.

Other times when mediation is not a viable option is when there is a history of abuse, including emotional, physical, psychological, and financial. It there’s any alcohol abuse, a history of mental illness, or physical violence from any or both parties, these too are warning signs against mediation. These situations are not an exhaustive list, but the underlying fact is that you and your spouse need to be willing to work with each other, not against each other. In mediation, the power should be equally shared.

Conclusion

Mediation, while not for everyone, can be a good tool for securing your divorce. It saves you money and gives you more control over the terms of your divorce settlement. However, it is not for every couple and you have to decide if it is right for you. There are some situations where mediation is not appropriate, and instead, getting a lawyer right away may be your better option. Learning about mediation, however, is a worthy exercise. Asking yourself certain questions helps you understand more about the personality of your marriage, and in so doing, you better advocate for yourself.

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.

 

Since 2012, smart women around the world have chosen SAS for Women to partner with them through the emotional and oftentimes complicated experience of divorce. We invite you to learn what’s possible for you and your precious life. Schedule your FREE 15-minute consultation with SAS now.

*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?

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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?)

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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.”

Legal Issues of Divorce

The 4 Biggest Legal Issues You Might Face in Divorce

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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.

Spousal Support - Divorce and Alimony

Spousal Support, Alimony and Maintenance: Who Gets It?

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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

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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.