Free Online Hawaii Divorce Forms, Papers & Templates.
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US-DivorceForms.com makes it easy for you to obtain a simple uncontested divorce in the state of Hawaii using our online divorce papers and instructions. Don't pay hundreds even thousands of dollars to have an attorney handle your uncontested divorce. Get FREE unlimited download access to online Downloadable Hawaii divorce papers with instruction on how to start and complete a do it yourself divorce. Download your Hawaii divorce paperwork and print them in the privacy of your home or office.
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Fill out the printable fill in the blank Hawaii divorce forms contained in your do it yourself divorce paper kit. File the appropriate divorce papers with the court. Serve your spouse with the appropriate divorce documents. Start your divorce today for free. Click HERE to download your Hawaii divorce documents and begin your divorce.
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Our online divorce papers kit contains the most current information on uncontested divorce in each state. Instructions on how to complete or start a do it yourself divorce are included, as well as fill in the blank divorce forms to file with your local county family divorce court.
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Divorce Settlement Agreement Basics.
Divorce is never easy, but you and your spouse have both agreed to this divorce and you've reached an agreement on how to divide your property, accounts, debts, and/or child custody. You can create a Divorce Settlement Agreement to clearly define the terms of the settlement with your spouse. Use the Divorce Settlement Agreement document if: You know where your spouse is and you are in contact with him/her You and your spouse have decided to divorce and you agree on how to divide your property and assets You and your spouse are currently negotiating the terms of your divorce and would like to create a plan for the division You and your spouse plan to meet with a divorce attorney together and would like to be prepared with an outline for the division of property and assets Because you and your spouse have both agreed to the divorce, and because you agree about how to divide your property and assets, you can legally divorce using this document. A Divorce Settlement Agreement needs to be prepared together by two spouses who are in agreement about how their property, assets, debts and other marital issues will be divided or handled. The Agreement may also be used to define child custody, visitation and child support if the parties have minor children under age 18. You may only use this Divorce Settlement Agreement together with your spouse. Do your research, because each state may call this Agreement by a different title. It might be known in your state as a Marital Settlement Agreement or a Marital Separation Agreement. The appropriate title for your state will be in the Agreement. Other names for this document: Marital Settlement Agreement, Divorce Settlement Agreement Form. Here’s what you and your spouse will have to agree on to file for uncontested divorce. Financial terms It’s important that you and your spouse figure out who receives your joint assets. Note that in many states, the property you enter the marriage with is sometimes seen as separate and might not be distributed during the divorce. Property purchased during your marriage (or gifts you received) must be divided. This division doesn’t necessary have to be a 50-50 split, however. It does have to be fair. Child Custody If you have children, this is the most important point for you and your spouse to agree upon. Since uncontested divorces are usually more amicable than contested ones, hopefully you’ll have worked out who will maintain primary custody of your child(ren) and how often the other spouse will have visitation or custody privileges. Child Support The spouse who is not the primary caregiver for your child(ren) will likely provide some kind of child support for your offspring. Spousal Support Spousal support may or may not be appropriate, depending on your situation. For example, if you and your spouse make the same wage, or if your spouse has a large trust that they brought to the marriage, then spousal support may not make sense for your uncontested divorce. Additional Factors You’ll of course need to know your spouse’s address and be in contact with them to qualify for an uncontested divorce. Furthermore, in some states, there is an issue of fault vs. no-fault divorces. Generally, no-fault divorces can qualify to be uncontested divorces Information in your state If you think that you and your spouse qualify for uncontested divorce, head to our uncontested divorce by state page. There, you can simply find your state and learn about the criteria you’ll have to satisfy to file for uncontested divorce.
Frequently asked divorce questions:
An uncontested divorce is one in which the parties negotiate their own settlement rather than going to trial and letting a judge decide the divorce issues for them. Many people find that an uncontested divorce or no fault divorce will benefit them for several reasons. The divorce process seems to be faster and less expensive. The parties maintain control over their future by reaching their own decisions. The Court does not impose a judgment on them after a trial. The parties are also better able to maintain (or establish) a civil relationship if they are not involved in protracted litigation with all of the positioning and leverage that a contested divorce may invoke. The reduced hostility makes it easier for divorced parents to raise children together.
How to Get a Divorce.
Now that every US state is a "no-fault" divorce state, you don’t have to show cause to get a divorce. While this simplifies things to some extent, there are still some things you need to know to get through the divorce process as smoothly as possible and to protect yourself from a legal perspective.
1. Determine the Status of Marital Property in Your State First.
Find out whether your state is a community property state or a separate property state. If your state is a community property state, then everything you and your soon-to-be ex-spouse own together is presumed to be divided 50-50. If your state is a separate property state, then only those assets acquired during the course of the marriage are presumed to be divided 50-50. Any assets that you brought into the marriage will be excluded from the division pot. Your lawyer can best explain all of the exclusions from the divided marital property in a separate property state. Bear in mind that you must show good cause to deviate from these requirements.
2. Hire a Lawyer Second.
Hire a lawyer who routinely handles divorces. While you can represent yourself in some cases, divorces have their own quirks and attorneys know how to navigate them. There are filing deadlines and conferences with judges that must be handled. Having a lawyer with you is the best way to make the process go smoothly and to ensure things come out in your favor.
3. Prepare for the Possibility of Alimony, Spousal Support, and Child Support.
Alimony, also known as spousal maintenance or spousal support, is paid to the former spouse to supplement the income he or she received from you by being part of the marriage. To determine the amount of support paid, a judge will typically look at the difference between how much you both make. The judge may also consider the income potential of your soon-to-be ex-spouse, which includes education and ability to work, to determine the proper amount. Child support is completely separate from alimony, and is based only on what’s best for the child. The parent who will be responsible for the majority of the child’s day-to-day care will receive what the judge determines is a fair amount based on the child’s need, both parents' earning potential, and the child's age. Support may be terminated if the spouse remarries, but child support will only be terminated once the child reaches the age of majority, even if the primary care giving spouse remarries. Be aware of these possible court-ordered payments as you go through the divorce process.
4. Settle Out of Court if You Can.
Prepare to settle as much as you can out of court. Judges don’t like to have to oversee every disagreement. The more you can settle between you and your ex-spouse, the more care and consideration the judge can give the big issues that really need to be worked out. Your lawyer can help you enter into negotiations with your soon-to-be ex-spouse. In some cases, you may be able to negotiate everything for the final divorce without ever needing to appear in front of the judge, except for the final petition.
5. Fill Out All Paperwork Accurately.
Do Not Take Shortcuts Fill out all necessary divorce forms, including the Petition for the Dissolution of Marriage, as accurately as possible. Marriages are created by the state, so only the state government can release the marriage. Follow all the requirements for getting a divorce even if they seem like a hassle. This is especially important if there is another relationship already underway. Adultery can still be used to modify alimony or child support payments between the parties. You should expect the negotiations to inform most of the final decision, but you may need to appear in front of a judge with both your and your spouse's requests, allowing the judge to make the final decision. Avoid appearing contentious, regardless of how you feel. Remain professional and allow your lawyer to represent you in the best possible light.
An Annulment is a way of terminating a marriage that is different from divorce and separation. Annulment is the process of nullifying of a marriage where the court declares that the marriage never took place. In order to annul a marriage, the person seeking the legal action must have sufficient grounds for annulment. What follows is a list of a few of the requirements or grounds for annulment which must be presented to the courts to terminate a marriage in this way. Grounds for annulment typically involve one party's lack of capacity for marriage or some type of fraud. One ground for annulment is if one party had another living husband or wife at the time of marriage. This is valid even if the spouse knew about the other spouse prior to marriage. In some cases a person may have been legally denied the right to remarry, in which case this is sufficient grounds for annulment.
NO. You do not need to hire a divorce lawyer, but it is a good idea to retain one if you and your spouse do not agree on the terms defined in your Petition For Divorce or if your spouse has a lawyer. If you are afraid for your safety or your children's safety, or if you want help with your divorce even if you started the divorce without a lawyer.
Every divorce case is different, and specific laws vary from state to state, but divorce cases generally follow one of two paths. The parties may reach an agreement, submit that agreement to the court in the form of a marriage settlement agreement for approval, and receive a final divorce decree ending their marriage and setting forth the terms of the divorce or dissolution of marriage they’ve agreed upon. If the parties can not reach an agreement, the case will be scheduled for a contested divorce hearing, where a judge will consider evidence like financial records, witness testimony, and expert reports on issues like valuation of property and custody arrangements.
Register with MyDivorceUSA.com for free and get instant access to download online state specific divorce form papers and instructions. Each "do it yourself divorce" forms packet and kit includes easy to understand instructions. The online divorce paperwork and informational packets found in our online uncontested divorce forms library are court approved and updated regularly.
Uncontested Divorce means your spouse has agreed with what you have asked for in your Petition For Divorce, or your spouse is not fighting your Petition For Divorce, or your spouse does not answer your Petition For Divorce before your court date.
When you bring your Original Petition For Divorce to the court clerks office for filing, you should expect to pay between $150.00 to $300.00 depending on your state and your county. You will also need to have several forms notarized. A notary public will charge between $5.00 and $10.00 to notarize a document. When children are involved, other additional court expenses may arise if the court orders DNA tests or drug screens. These tests typically cost $125.00 for drug screens and $500.00 for DNA tests. If the court orders you or your spouse to submit to these tests, in most cases they will require you to take them the same day you appear for your initial hearing. Also, most often when children are involved in the divorce, the court will appoint an attorney for the children. This is done to have a neutral opinion on the children's best interests. The typical fee for the Ad Litem attorney is around $500.00. You are expected to pay this fee and any other court ordered expenses promptly to avoid the possibility of putting your case in jeopardy. The court may not allow you to wait until you get paid. Some judges may want to test to see if you have a support group with enough resources to act on behalf of the children in an emergency type situation. This will be the case even if you are able to get the judge to agree to an "inability to pay affidavit." This affidavit is only for paying the court cost for filing your petition and not the judges special orders. You will be required to pay for court ordered drug tests, DNA tests, parenting classes, Ad Litem legal fees, etc. if ordered to do so.
NO. Only lawyers can give you legal advice. No one at this site or at court can tell you what to do about your divorce case. This means you cannot ask us, the judge, court clerks or other court staff for advice about your divorce case. If you do not use a lawyer, make sure that you learn about your rights and follow the steps outlined in your divorce instructions. Getting a divorce can be very complicated. Even if you cannot afford to hire a lawyer, you should try to speak with a lawyer in your area about what to put in your Petition For Divorce. Some lawyers will give you advice as you need it. This is called "unbundled services". Other lawyers are only available if you retain their services.
Grounds for divorce is the term used to describe the reason(s) you are seeking a divorce. You can ask the court to grant you a divorce based on adultery, cruelty, abandonment, your spouse has been convicted of a felony offense and has been incarcerated. You have been living apart, or your spouse has been committed to a mental institution with little or no hope of recovery. These reasons are not all inclusive. If you are uncertain as to what grounds for divorce you wish to claim then you will want to consult with a licensed attorney or your local legal aid office.
You do not need to know where your spouse is in order to get divorced. However you will need to complete a few special divorce forms which will prove to the court that you have done everything within reason to try and locate your spouse.
Every state has laws designed to protect victims of family violence whether they are getting a divorce or not. If you have already filed for a divorce, the court may grant you emergency orders to protect you and the children involved in your divorce. If you have not started the divorce process, you can apply for a protective order if you fear that you or your children are in danger. Your local woman's shelter, county attorney's office, district attorney's office or your local legal aid office can assist you in applying for a protective order. To locate the office nearest you and to obtain information on the various services they can offer please contact the National Hot-line For Domestic Violence at 1-800-799-SAFE.
What is a protective order?
It is a court order which protects you from someone who has been violent or has threatened to be violent. The court takes this subject very seriously.
How can a protective order help me?
A protective order can order the person for whom you are seeking protection from:
• Not to hurt or threaten to hurt you, your children or your family.
• Not to contact you or go near you, your children, other family members, your home, where you work, or your children's schools.
• Not to have a gun or a license to carry a gun.
• The police can arrest you or your spouse for violating protection orders.
How much will it cost to file for a protective order?
Usually nothing. There is not usually a fee for filing the application for protection.
How do I ask for a protective order?
Fill out the protective order application forms available from our library. Take two (2) copies of them to the county courthouse in which you or the other person resides. If you have already filed for divorce or you have a custody case pending against the other person, you should file these forms in the same county where you live or the court where you have filed your divorce or custody case.
Health or Life Insurance coverage may become an issue for you or your children during or after a divorce. If you are concerned about your health or life insurance coverage or you want to see what it will cost you for reasonable insurance coverage, you will want to look into the options available by shopping for insurance coverage. Internet insurance quote engines provide you the ability to compare multiple insurance rates from trusted insurance providers by filling out one short form. This makes the process of finding quality insurance much faster and at the same time providing you with many policies and coverage options to choose from. Most people can get a quality insurance plan for less than they think. It is even possible to save money over the rate you would have to pay for health or life insurance through your employer. Health insurance for yourself or your children could cost as little as $65.00 per month. Quality life insurance coverage may cost even less. Usually around $25.00 per month for $100,000 worth of coverage.
You can find out exactly what quality insurance coverage will cost you by visiting DirectConnectInsurance.com and requesting a free online quote.
Informational Purposes Only...
This web site is designed to give you general information. The information on this web site is in no way intended to be legal advice. Legal advice can only be obtained by a licensed attorney who has the appropriate legal skills and knowledge related to your specific circumstances.
From time to time this web site may advertise the services of attorneys in your state. The hiring of a lawyer is an important decision and should not be based solely on the advertisements listed on this or any other web site. The lawyers advertising on our site have paid us for the listings we provide. Any listing on this site does not constitute a recommendation of the attorney. Before hiring an attorney you should investigate their reputation and qualifications yourself.
In the United States divorce, like marriage, is the province of the state governments, not the federal government. Divorce Laws vary from state to state, but no-fault divorce on the grounds of "irreconcilable differences" is now available in all states. However, in recent years many states, including North Carolina and New York requires a one-year legal and physical separation prior to a formal divorce decree. This legal requirement has led to the creation of a separate, somewhat ambiguous category of relationships - "separated". Once a more informal term used by individuals, it has now become a legal category designating someone who is neither married nor divorced.
Each state divorce papers kit includes step by step instructions on how to fill out and file your divorce paperwork.
Family Court Self Help Forms & Resources.
Divorce in the U.S. is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain Health Insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.
Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a cause such as cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become ubiquitous, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (the last to fall was North Dakota and New York is the last holdout). However, New York does impose a mandatory separation period before a divorce can be granted.
Typically, a county court’s family division judges review petitions for dissolution of marriages. The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for No-Fault Divorce Law around 1960. In some states fault grounds remain, but all states except New York now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, most states require some waiting period, typically a 1 to 2 year separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of this writing.
Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.
Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), allows the parties greater control and privacy, saves money, and generally achieves similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly.
Similar in concept, but with more support than mediation, is Collaborative Law, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. Because of the additional support of attorneys and expert neutrals (such as financial specialists and coaches), the success rate of a collaborative divorce is very high. In the rare event that the collaborative divorce process ends without the parties reaching a settlement, the collaborative lawyers become disqualified, and are replaced by new counsel. The reasoning is that the collaborative lawyers' sole interest will be to settle the case; and lawyers who specialize in collaborative divorce will often have additional training and skills to assist parties to settle.
Non-court based dispute resolution approaches such as a simple uncontested divorce may reduce the trauma of the divorce for all parties. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example. Collaborative divorce, because of its additional support for parties, is better equipped to handle relationships with a history of abuse.
Hostile litigated or contested divorces, in contrast, are expensive both financially and emotionally, and can tend to poison any future relationship the parents may have, which may be important for future co-parenting. Fault grounds can be unpleasant enough when true, and may sometimes be falsely alleged, as may anything else that an unethical spouse can think of. In the 1990s, heated debate arose over accusations of domestic violence and of child sexual abuse arising in the course of hostile divorces. Some found a rapid increase in such charges and in the percentage of them eventually that were found baseless; others found there to be no such problems. It is unlikely the truth will ever be fully known.
States vary in their rules for division of assets in a divorce. Some states are "community property" states, others are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their dependency. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.
Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Connecticut, for instance grants alimony in over 25% of cases. Alimony is also likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in marriages that exceed 12 years.
A decree of divorce will generally not be granted until all questions regarding child care and child visitations and custody, division of property and assets, and ongoing financial support are resolved. Since the mid 1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.
In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu. However, these are not properly "divorce" cases, and different laws apply.
Divorces obtained by US couples in a different country or jurisdiction:
Due to the complex divorce procedures required in many places, especially including many states of the United States, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."
There are four main reasons that people look to another jurisdiction for a divorce:
New York does not have a no-fault divorce, such as "irreconcilable differences" as a legal cause for divorce, and fault is required (often with strict legal requirements) or a separation agreement in force for a year, such as New York State, thus requiring one year from the time the legal separation went into effect unless fault can be proven (possible in some cases just by affidavit however, but the other spouse must not contest the charges otherwise an often lengthy contested divorce is required.)
jurisdictions have complex and long residency requirements
as well as paperwork.
Many jurisdictions take a long time to issue a finalized divorce, anywhere from 3 months to a year or even several in unique circumstances.
Finally, some people are simply out to get around the financial hardship of a divorce, and get a divorce from a jurisdiction that allows fast uncontested divorces that offer little or no spousal support to the defendant.
Divorces granted by other countries are generally recognized by the United States as long as no person's rights were infringed upon. The most notable in this situation is the notion of "due process", which is required by the Constitution of the United States and thus is not flexible. This means that the spouse who is the defendant in the case must be notified of the proceedings and be given a certain time frame to respond to the allegations and state their case. This is only the case in a contested divorce, as in an uncontested divorce both spouses agree to the terms and sign off on the divorce; although in almost any if not all of these jurisdiction only one spouse is required to physically visit the country. While a contested divorce where due process was not observed is likely to be ruled invalid by a court in the United States if challenged, it is not illegal, as matrimonial law is private law and not criminal law, and is valid by default unless or until it is challenged (usually in the state or country of residency of either spouse.)
Thus, getting a contested divorce in another country is not likely to achieve the goals of the spouse requesting it, and is possible to even create a larger problem than before. An uncontested divorce is likely to be upheld in a court of law however, regardless of the general validity of contested divorces from these jurisdictions. While a "quick" contested divorce is likely if challenged to be declared invalid, it is, by case law, not considered bigamy if you remarry as long as the obtainer believed the divorce to be valid.
There are 5 major jurisdictions people look towards for a divorce in another state or country:
State of Nevada
The Dominican Republic
Haiti, Mexico, and The Dominican Republic are fairly similar in this regard. These countries people typically go to get an overnight/long weekend divorce, or to get a quick and relatively painless contested divorce (which are not valid unless due process has been observed.)
Quick Divorce in the Dominican Republic is available to foreigners or Dominican citizens residing abroad, when both spouses agree to file this divorce before Dominican Courts. This procedure is very simple and only requires the attendance of one of the spouses during the hearing which takes usually less than half an hour and you can leave Dominican Republic the same day in the afternoon. It takes ten to fifteen days to obtain a divorce decree.
The parties should sign a settlement agreement revised by an attorney in their jurisdiction in order to confirm it complies with spouses local laws. This document should include spouses complete data, a list of property, or statement of non-property, the statement regarding minor children and support agreement, your desire of divorcing before a Dominican Court and the authorization of one of the spouses to the other to attend to hearing on her/his behalf. The settlement agreement can be drafted by an attorney in your jurisdiction. Both these documents settlement agreement and power) must be signed by the parties before the Dominican Consulate nearest to your jurisdiction. A detailed instruction on legalization is to be provided to you when instructions to proceed are received.
The State of Nevada is commonly used for a few reasons. It only requires a 6-week stay to meet the residency requirements, the lowest in the United States. One easy way to demonstrate that you have met this requirement is by having another resident of Nevada simply sign an affidavit testifying to your residency there. Nevada allows for "irreconcilable differences" as a cause for divorce, the importance of which are mentioned above. Also, it has an extensive and straightforward system for marriage annulment, and attracts people who would prefer an annulment (which declares the marriage wasn't valid in the first place) than a divorce. One major reason this attracts people is it allows for an easy bypassing of the mandatory 50/50 split in community property states, most notably the adjoining State of California. Nevada, however, is also a community property state and hence will follow similar rules in a divorce proceeding.
Guam had (and still has some) very attractive reasons for obtaining a divorce there. Guam is a territory of the United States. Because Guam is a territory of the United States, its courts are United States jurisdictional courts and the divorces it issues are valid in all of the states in the US. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory at all. After being charged as a "divorce mill", including by many in its own government, an agreement was made with the lawyers and other lobbyists who did not want to change the law to now require a 7-day stay in Guam (as opposed to the much longer ones proposed) to obtain a divorce. Guam allows for "irreconcilable differences" as a cause for divorce, and Guam is much quicker to award a finalized divorce than many US states, taking a few weeks at most. Before the law was changed, it was a very attractive alternative for many Americans, as it was also quite affordable. However, due to its location in Southeast Asia, a trip there would be very expensive and not a viable alternative for most Americans.
In the case of disputed custody, almost all lawyers would strongly advise you stay to the jurisdiction applicable to the dispute, i.e. the country or state of you or your spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.
A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.
Serving the Divorce Petition.
The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called "service of process." If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgment of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers.
Completing service of process starts the clock running on your state's waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.
Divorce Petition Response.
The other spouse is known as the "respondent." Although it's not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.
Final Steps of a Divorce.
Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state's waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.
Uncontested vs. Contested Divorces.
At the heart of every divorce are four issues:
1. Division of community and/or marital property
2. Division of debt
3. Custody of any children
4. Payment of child and/or spousal support
While no divorce is truly "uncontested" in the sense that there are no disagreements, these disputes do not always have to be resolved in court. That's what we mean by an uncontested divorce - one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move more quickly through the courts and are less expensive than contested divorces.
Every couple seeking a divorce should first attempt to work out mutual terms for the separation without going to court. If the spouses cannot resolve disputes on their own, many people utilize arbitration and mediation, with or without attorney representation. This saves time and money by bypassing the lengthy litigation and trial process. An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly.
Complex issues, high financial stakes and technical legal procedures are the marks of contested divorces. While an uncontested divorce can often be performed without an attorney, litigation often makes experienced counsel necessary for a contested divorce. If one spouse is represented by an attorney or there are difficult financial issues, seeking an attorney may be wise.
Community property issues can arise in divorce proceedings and after the death of a spouse. When spouses divorce or die, spouses are often left with the daunting task of splitting up property and proceeds that were acquired during the marriage. This can include items of value such as cars, furniture, paintings, and family homes, but may also include intangible assets (such as stocks, bonds, and legal title), and also debt.
In some states, property acquired during the marriage is considered part of the “community” and is often split 50/50 in cases of divorce. How the states treat “community property”, also known as “marital property,” will determine what happens to debt or assets upon divorce.
Community property is governed by state laws, and not all states have such laws on the books. Nine states (and Puerto Rico) have community property laws that determine how debt and property are divided in a divorce. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Such states typically divide property equally, whereas all other states follow equitable distribution, meaning that a judge decides what is equitable, or fair. Alaska is unique in that it allows divorcing couples to choose.
While each state determines how property is divided after a divorce, the laws may differ slightly on how it is divided. For example, some states, like California, divide debt and property “equally” (50/50), while other states, like Texas, will divide debts and assets “equitably”.
There are several factors a court will consider in states that apply the equitable distribution doctrine. Therefore, certain factors will often warrant uneven distribution of property or debt, even in community property states.
Because community property laws affect property and other valuable assets, they can have a profound effect on a spouse’s future when they are forced to share part of an asset which was thought to be separate property. Absent a prenuptial agreement between the parties, the state law in which the couple was married will dictate how property will be distributed.
What Constitutes ‘Community Property’?
Generally, property acquired during a marriage belongs to both spouses. This is especially true in states that have community property laws on the books. While not every state has such laws, property acquired during the duration of a marriage is distributed equally upon dissolution of the marriage.
Examples of community property may include:
- Wages earned by either spouse during the marriage.
- Home and furniture purchased during the marriage with marital earnings.
- Interest income earned by business investments and operations.
- Mortgages and the family home.
Examples of separate property may include:
- Anything that was owned prior to the marriage.
- Anything that was inherited or received as a gift during the marriage, and
- Anything either spouse earned after the date of separation.
Examples of separate property may include:
- Bank accounts which are held separately.
- Inheritances acquired during a marriage, if held separately.
- Gifts to either spouse.
- Personal injury proceeds.
- Any property acquired after the dissolution of a marriage.
Courts have also defined some property as “partial” or “quasi” community property. This includes property assets that would have been defined as separate property at the beginning or during the marriage, but that has become marital property because of co-mingling and other circumstances within the marriage.
Factors a Judge May Use to Determine the Division of Community Property.
There are several factors a judge may use to determine how to divide property acquired during the marriage. The three main factors a judge will factor include 1) the earning capacity of each spouse, 2) which parent is the legal caretaker of the children (if any), and 3) whether fault grounds such as adultery or cruelty exist.
Therefore, even in community property states, property may not always be divided 50/50. Instead, courts will look at the following factors to determine situations where a disproportionate division of property is necessary:
- Marital Fault: One spouse may receive more of the marital property if fault grounds for divorce were present (such as adultery, cruelty, etc.)
- Loss of Continuing Benefit: Whether one spouse will suffer the loss of compensation that they would have received by continuation of the marriage.
- Disparity of Earning Capacities: Whether gaps exist between incomes, earning capabilities, and business opportunities that may affect the division of property.
- Health and Physical Conditions: Whether the physical health or condition of the spouses may affect the division of property.
- Age Differences: Whether there is disparity in ages of the spouses which may affect one’s ability to work, or receive retirement benefits.
- Size of Estate: The size of the estate can affect the division of property. Generally, the larger the estate, the more the court may reward a 50/50 division.
- Anticipated Inheritances: Whether one of the spouses stands to receive a large inheritance.
- Gifts to a Spouse: Gifts are usually converted to separate property after a divorce.
- Custody of Children: A spouse who gains primary custody of children under 18 may affect the division of property.
Get Legal Help.
If you are going through a divorce, and need to learn what may happen to your marital or separate property, contact a local divorce attorney to see how the laws of your state will apply to your specific situation.
Division of Debts Upon Divorce.
Equitable distribution requires the court to divide not only the assets of the parties, but also their debts. Given the common nature of debt in modern society, it is surprising how little statutory guidance exists as to how debt should be divided. When establishing rules for the division of assets, most statutes contain carefully drafted rules which set forth the process of classification and division in some detail. Yet often these statutes devote only a sentence or two to the classification and division of debts. Necessarily, therefore, much of the nationwide law on the division of debts has been established by the courts themselves.
Existence of a Debt Upon Divorce.
The first step in dividing an asset is to determine whether the asset meets the definition of "property." Some interests, such as professional degrees and future gifts and inheritances, are too speculative to constitute property.
By the same logic, the first step in dividing the parties’ marital debts is to determine whether a debt actually exists or not." Ketchum v. Ketchum, 2003 WL 21134713, at *6 (Ohio Ct. App. 2003). Just as some parties seek a more favorable division by concealing assets, other parties will seek a more favorable division by manufacturing debts.
As a general rule, a debt exists only where there is an enforceable legal obligation to pay money to another. One common battleground involving the definition of a debt is transfers from close family members. The spouse whose family provided the funds often claims that the transfer was a loan which must be repaid. The other spouse often claims that the transfer was a gift.
A good example is Schaefer v. Schaefer, 263 Neb. 785, 642 N.W.2d 792 (2002). There, the husband testified that the parties had borrowed $51,000 from his parents during the marriage. He alleged that his mother kept a balance sheet showing the amount due, but the balance sheet was not produced. The husband "admitted that there were no promissory notes or other documents obligating the repayment of the debt and that the last payment was made 8 years prior to trial." 263 Neb. at 787, 642 N.W.2d at 795. The trial court found no debt, and the Nebraska Supreme Court affirmed:
The only evidence in the record regarding the legal existence of this debt is Joe’s assertion that he intended to fully repay his parents. No payment has been made on any amounts owed for at least 8 years, and neither Joe nor Carla ever signed any document evidencing the debt. Thus, even if any money borrowed was used for marital purposes, there is no evidence in this record to support the existence of an enforceable marital debt. The district court did not err in excluding the purported debt from the marital estate.
263 Neb. at 791-92, 642 N.W.2d at 798. The husband’s argument was probably doomed from its inception, for it faced two impossible obstacles: the lack of any documentation proving the debt, and the failure of the parties to make actual payments on it for at least eight years. See also Grode v. Grode, 543 N.W.2d 795 (S.D. 1996) (husband had made no payments for 14 years on undocumented, alleged loan from his father; error to treat transaction as a debt); Elman v. Elman, 45 P.3d 176 (Utah Ct. App. 2002) (obligation had not been listed on financial statements until after wife filed for bankruptcy, husband told wife that transaction was a gift, and parties made only one payment; proper to find no debt).
Where the obligation is documented or there is a regular history of repayment, the court is likely to find a genuine obligation. In Smith v. Smith, 2002 WL 1900091 (Ohio Ct. App. 2002), the wife’s sister testified that she had loaned the wife approximately $10,500 to pay living expenses during the wife’s pregnancy. The wife and her sister both testified that the wife was expected to repay the sums advanced. In addition, and most importantly, the sister produced a balance sheet of the sort mentioned but not produced in Schaefer. The trial court found a debt, and the appellate court affirmed:
Appellee’s sister produced a ledger sheet that she prepared to keep track of the money as it was repaid. Appellee produced checking account statements that show some of the deposits. Although appellant argues the written proof does not establish $10,500, the testimony of the witnesses was sufficient to establish the full amount of the debt. We find no abuse of discretion in the trial court’s determination that the money was a loan that was marital debt and that appellant should pay half of the amount.
It was very important that the balance sheet in Smith was prepared as the individual advancements were made. Contemporaneous documentation is a very important factor in proving a real obligation. See also Sprick v. Sprick, 25 S.W.3d 7 (Tex. App. 1999) (husband borrowed funds from third party on eve of divorce to support his business while he was incapable of working; loan was documented, and third party testified that he expected repayment; proper to find a valid debt).
Where complete documentation suddenly appears well after the fact, however, the courts tend to view the documentation with a careful eye. In Sherrod v. Sherrod, 709 So. 2d 352 (La. Ct. App. 5th Cir. 1998), the husband’s mother advanced the parties $15,276.60 to assist with acquiring a home. The wife was never told that the funds were a loan, and the parties never made any payments to the husband’s mother. At some point after the funds were actually advanced, however, the husband alone signed a promissory note promising to repay the funds. The trial court found no debt, and the appellate court affirmed. "After considering the conflicting evidence presented, the judge refused to consider this as a community debt, finding that there was insufficient proof as to the validity of the note in favor of Marge Sherrod. Based on our review of the record, we cannot say that the trial judge was manifestly erroneous in this determination." Id. at 355; see also In re Blazis, 261 Ill. App. 3d 855, 634 N.E.2d 1295 (1994) (transfers from husband’s mother were not loans where mother’s testimony was vague and actual notes had not been prepared until parties were having marital difficulties).
Classification of Debts Upon Divorce.
Very few equitable distribution statutes expressly require the court to classify debts. Nevertheless, the strong general rule is that only marital debts should be divided. If debts are not classified, then the parties must share any debt incurred during the marriage. But there are clearly some sorts of debts which should not be shared. Gambling debts, excessive living expenses, and unreasonable investments are only a few of many potential examples. Just as some types of property acquired during the marriage should generally be retained by one spouse (e.g., gifts, inheritances), some types of debt incurred by one spouse should be charged to that spouse alone.
In most states, a marital debt is any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. Ketchum v. Ketchum, 2003 WL 21134713, at *6 (Ohio Ct. App. 2003); see also, e.g., Nieboer v. Nieboer, 816 So. 2d 1259 (Fla. Dist. Ct. App. 2002); McGuire v. McGuire, 11 Neb. App. 433, 652 N.W.2d 293 (2002); Hickum v. Hickum, 320 S.C. 97, 463 S.E.2d 321 (Ct. App. 1995); Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398 (2002).
It is important to understand that the notions of joint benefit and marital purpose do not require that every debt benefit both spouses. In every marriage, both parties spend marital funds and incur marital debts for their own sole benefit. For example, the wife may buy a dress which only she will wear; the husband may buy new golf clubs which only he will use. Nevertheless, in the great majority of situations, both of these debts will be marital. What has happened is that the parties have agreed, implicitly if not expressly, that each of them will be permitted to use a certain amount of marital funds for his or her sole benefit. So long as these expenditures are consistent with one another and with the general marital standard of living, no one would contend that they are improper. For purposes of classifying debts, an obligation which is consistent with the established marital standard of living is incurred for joint benefit, even if it technically benefits only one spouse alone.
Volumes of cases have been written on the subject of which debts are and are not incurred for a marital purpose. This article will cover only a few highlights from the recent cases.
Debts incurred in the process of producing marital property are always marital debts. When a marital business enterprise succeeds and earns income, the income is clearly marital. But those who share the gain must also share the pain. The debts of a marital business are therefore marital debts. See McCleary v. McCleary, 2002 WL 31875127 (Md. 2002) (error to treat debts of marital business as nonmarital debts) (published opinion not yet released in A.2d); In re Marriage of Holden, 81 S.W.3d 217, 224 (Mo. Ct. App. 2002) (rejecting wife’s argument that husband’s business debt could not be considered).
This result is true even if the business fails and produces nothing but debt, so long as the business was operated in good faith and failed despite the best efforts of the operating spouse. E.g., In re Collins, 875 S.W.2d 643 (Mo. Ct. App. 1994) (wife was properly ordered to pay debt incurred by husband’s failed business, where husband had started business in good faith); Sien v. Sien, 889 P.2d 1268 (Okla. Ct. App. 1994) (farm debts were marital even though they resulted from unsuccessful operation by husband; husband acted in good faith). The leading case nationwide, which occurred in the context of dissipation but which is otherwise on point, is Goldman v. Goldman, 275 N.J. Super. 452, 646 A.2d 504 (App. Div. 1994).
Business and investment debts are nonmarital if the business was not operated in good faith. The most common example is unreasonable investment or gambling debts. See Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001) (husband forged wife’s name on credit card applications, and incurred debt on cards for purposes of gambling). But cf. In re Marriage of Williams, 84 Wash. App. 263, 927 P.2d 679 (1996) (gambling consistent with the overall marital standard of living is not materially different from any other expenditure for entertainment). For other cases, see Lawson v. Lawson, 288 A.D.2d 795, 732 N.Y.S.2d 753 (2001) (husband borrowed money to start new business without wife’s consent, and business had substantial negative net worth at time of divorce), and Gadomski v. Gadomski, 245 A.D.2d 579, 664 N.Y.S.2d 886, 888 (1997) (husband lost 25% of parties’ net worth in "rash and unreasonable" investments in "penny stocks"). The clear trend is to find a nonmarital purpose only where the business is clearly unreasonable.
The same principles apply to income tax obligations. "Income tax liability incurred during the marriage is one of the accepted costs of producing marital income, and thus, we hold that income tax liability should generally be treated as a marital debt." Meints v. Meints, 258 Neb. 1017, 1023, 608 N.W.2d 564, 569 (2000). This is true regardless of whether the obligation is paid on time or late. "Even if the taxes are overdue, the principle behind the rule is the same, and the underlying tax liability would ordinarily be a marital debt." 258 Neb. at 1023-24, 608 N.W.2d at 569.
The rule is different, however, to the extent that a late payment by one spouse alone increases the total amount due. Thus, any interest and penalty are normally the separate debts of the spouse responsible for the late payment. See Killough v. Killough, 72 Ark. App. 62, 32 S.W.3d 57 (2000) (trial court properly awarded husband the entire interest and penalty component of tax obligation); Meints; Lekutanaj v. Lekutanaj, 234 A.D.2d 429, 651 N.Y.S.2d 154 (1996) (debt for unpaid taxes for last year of marriage was marital obligation; penalties and interest were husband’s separate obligation). At least one court has applied the same rule to other types of penalties. See Clark v. Clark, 324 N.J. Super. 587, 737 A.2d 189 (Ch. Div. 1999) (wife faced state-required insurance surcharge after conviction for driving while intoxicated; surcharge was a nonmarital debt). Where both parties share the responsibility for the late payment, any interest and penalty are marital obligations. See In re Dunseth, 260 Ill. App. 3d 816, 633 N.E.2d 82 (1994) (wife was aware of husband’s failure to file and benefited from an excessive lifestyle permitted by nonpayment of taxes).
One of the most interesting areas of law in recent years is the classification of debts incurred to pay living expenses after separation. During the marriage, debts incurred for living expenses are of course marital. E.g., DiOrio v. DiOrio, 751 A.2d 747 (R.I. 2000). Debts incurred to pay unreasonable expenses beyond the normal standard of living are nonmarital, regardless of when incurred. See Goodman v. Goodman, 8 S.W.3d 289 (Tenn. Ct. App. 1999) (debt incurred for living expenses was partly excessive; error to treat entire obligation as a nonmarital debt); Mathew v. Palmer, 8 Neb. App. 128, 589 N.W.2d 343 (1999) (credit card debt incurred by voluntarily unemployed husband after separation "to continue his indolent activity" was nonmarital); cf. Harbour v. Harbour, 227 A.D.2d 882, 643 N.Y.S.2d 969 (1996) (wife spent $35,985 for a new wardrobe after separation; finding dissipation).
The hard issue is funds spent for normal living expenses after the separation of the parties. There is law holding that all debts incurred to pay living expenses are marital, regardless of when incurred. See Fuchs v. Fuchs, 276 A.D.2d 868, 714 N.Y.S.2d 381 (2000) (debt incurred for post-separation living expenses was marital, stressing that amount of debt incurred by each party was roughly equal).
But this rule reached an unjust result in states in which the date of classification is the date of separation or the date of filing that is, in states which treat post-separation or post-filing (hereinafter post-classification) income as separate property. In those states, if debts incurred to pay post-classification living expenses are uniformly marital, then the parties are encouraged to pay their living expenses with marital debt, while hoarding separate post-classification income for their own benefit. Such an incentive is bad policy. Post-classification living expenses should normally be paid with post-classification income.
It is equally unjust, however, to hold that post-classification living expenses are never a marital debt. In a significant number of divorce cases, the husband leaves the wife because of his own misconduct and refuses thereafter to support her. Eventually, the wife can get temporary spousal support. But until the court gives an order, the wife must live off of her own income. If she cannot meet her basic support needs, she is literally forced to live off of marital funds. Even if she can meet her own basic needs, there is no reason why she should be forced to live at less than the marital standard of living. She is surely entitled to that level of support (or as close to it as the parties can afford) when the court makes its temporary support order. It is hard to see why she would act improperly by consuming marital funds to live at that level before the court has the opportunity to make an actual award. (To avoid undue linguistic complexity, this paragraph assumes that a wealthy husband has left a less-wealthy wife, but the same rules of course apply when the parties’ sex roles are reversed.)
The best rule, therefore, is that post-classification living expenses must be paid first from post-classification income. If a spouse incurs debt to pay living expenses, when post-classification income is available to pay the same expenses, the debt should be treated as nonmarital. Once post-separation income is exhausted, the parties should be allowed to incur marital debt (or to spend marital property without a finding of dissipation) so long as the living expenses involved are within the marital standard of living. Expenses above the marital standard of living, of course, are excessive and always nonmarital.
Only one case has considered this issue in the context of a marital debt. In Howell v. Howell, 31 Va. App. 332, 523 S.E.2d 514 (2000), the parties had established the practice of living beyond their incomes and paying off each year’s debt with the husband’s year-end bonus. After separation, the husband failed to pay off that year’s debt with the bonus he received after separation. The court held that the debt not paid off was marital and was properly allocated to the husband. The result suggests that, by failing to pay post-separation living expenses first from his post-separation bonus, the husband acted improperly.
Most of the discussion of post-separation living expenses occurs in the context of dissipation that is, whether a party acted improperly by spending a marital asset to pay those expenses. But no one contends that the result should vary, depending upon whether the party spent a marital asset or incurred a marital debt. In both cases, the marital nature of the purpose is the key question.
For cases holding in the dissipation context that post-classification living expenses are not a marital purpose unless post-classification income has been consumed first, see In re Marriage of Frey, 258 Ill. App. 3d 442, 630 N.E.2d 466 (1994) (husband dissipated assets by using marital savings for post-separation living expenses; noting that husband had not shown how he used his post-separation income); Parker v. Parker, 996 P.2d 565 (Utah Ct. App. 2000) (wife withdrew over $100,000 from bank accounts during separation even though her income exceeded her expenses by $2,000 per month); Holland v. Holland, 1999 WL 262433 (Fairfax County, Va., Cir. Ct. Mar. 3, 1999) (the best policy discussion); and Preiss v. Preiss, 238 Wis. 2d 368, 617 N.W.2d 514 (Ct. App. 2000) (husband’s use of marital funds to establish post-separation household was dissipation where husband could have paid the same expenses from post-classification income).
Division of Debts Upon Divorce.
As a matter of law, secured marital debts must be offset against the value of the asset they encumber. E.g., Ritter v. Ritter, 690 So. 2d 1372 (Fla. Dist. Ct. App. 1997) (error not to subtract loans against insurance policy from its cash surrender value).
If an unsecured obligation is classified as marital, it must be considered in dividing the marital estate. It is difficult to find case law stating exactly how debts must be considered. The general practice is to assume that marital liabilities offset marital debts that is, to divide the marital estate so that each party receives an equitable share of the net balance of the estate.
Because the courts are looking primarily to the final net balance, there is clearly no requirement that individual unsecured debts be allocated in any specific manner. Debts incurred to support a business are almost always awarded to the spouse who receives the business, e.g., Costa v. Costa, 57 Conn. App. 165, 752 A.2d 1106 (2000) (awarding business debts to husband, who received business assets, even though business was run in wife’s name); debts from a family member are almost always awarded to the spouse with the family relationship, e.g., Lykins v. Lykins, 34 S.W.3d 816 (Ky. Ct. App. 2000) (proper to award husband debt from his brother); and questionably incurred (but still marital) debts are often awarded to the spouse who incurred them. E.g., Lohstreter v. Lohstreter, 574 N.W.2d 790 (N.D. 1998) (error to make equal division of debts incurred by husband; some of the debts were for alcoholism treatment, and others were excessive living expenses). Otherwise, the most common practice is probably to allocate the debts in general proportion to the parties’ ability to pay them. Thus, the party with the most income generally receives most of the debts. See Kocsis v. Kocsis, 28 S.W.3d 505 (Mo. Ct. App. 2000) (where husband was employed and wife was not, proper to burden husband with larger share of marital debt); Schmaltz v. Schmaltz, 586 N.W.2d 852 (N.D. 1998) (proper to award most of the debts to the wife, whose income was substantially greater than that of the husband).
Again, these rules normally determine only which spouse receives the actual debts. The final net award of marital property to each spouse still depends upon all of the facts of the case, analyzed in light of the relevant equitable distribution factors. For example, if an equal division is equitable, and the husband is the only spouse with significant income, he will probably receive most or all of the marital debts, but the assets awarded to the wife will be reduced so that the overall net division is equal. Likewise, the rule that marital business debts are awarded to the spouse who runs the business is most emphatically no excuse for failing to consider the debts in determining the net value of the parties’ respective property awards. In re Marriage of Holden, 81 S.W.3d 217, 224 (Mo. Ct. App. 2002).
Because the division must be based upon net value, a court which assigns disproportionate debt to one spouse must explain why the overall net award to each spouse is equitable. The recent trend is to reverse greatly unequal allocations of debt without any supporting basis. See Bernard v. Bernard, 730 A.2d 663 (D.C. 1999) (error not to expressly consider $50,000 tax debt; "to assume that [the trial judge] considered it, as [the wife] urges us to do, without any indication of how, is tantamount to saying he could ignore it"); McCleary v. McCleary, 2002 WL 31875127, at *5 (Md. 2002) (trial court summarily noted the existence of a substantial amount of marital debt, but it failed to expressly consider that $7,812,111 of the debt was owed by the husband, while only $714,400 was owed by the wife; the fact that appellant’s debt was greater than appellee’s by at least $7 million warranted discussion in the court’s marital property analysis") (published opinion not yet released).
Both parents must decide on the custody of minor children under the age of 18. Divorce courts are concerned about the well-being of any children born naturally or adopted by the parents.
There are four basic types of child custody recognized under state laws:
- Sole Physical Custody:
- Sole physical custody means the children shall reside with and under the supervision of one parent. The court must approve the parent's plan for the other parent's visitation rights.
- Joint Physical Custody:
- Joint physical custody means each of the parents will have significant periods of physical custody. In other words, both parents will have more or less continuing contact with the children.
- Sole Legal Custody:
- Sole legal custody means one parent shall have the right and responsibility to make decisions about the health, education and welfare of the children. The other parent retains visitation rights. Although the courts favor joint legal custody, sole legal custody is the most common custody arrangement.
- Joint Legal Custody:
- Joint legal custody means both parents share the right and the responsibility to make decisions about the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of minor children when the parents can make it work and submit a workable "parenting plan." However, joint legal custody is not always easy. It requires both parents to cooperate and lay aside all differences.
Visitation Rights in a Divorce.
In recent years, lawmakers have realized visitation rights do not translate easily into laws. The law does state that any person having an interest in the children's welfare is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another. That's why parents are left to define reasonable visitation standards for grandparents and others.
When a married couple gets a divorce, the court may award "alimony" or spousal support to one of the former spouses, based either on an agreement between the couple or a decision by the court itself. The following is a discussion of the basics of alimony and spousal support.
The purpose of alimony is to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. Part of the justification is that one spouse may have chosen to forego a career to support the family, and needs time to develop job skills to support his or herself. Another purpose may be to help a spouse continue the standard of living they had during marriage.
How is the Amount of Alimony Determined?
Unlike child support, which in most states is mandated according to very specific monetary guidelines, courts have broad discretion in determining whether to award alimony and, if so, how much and for how long. The Uniform Marriage and Divorce Act, on which many states' spousal support statutes are based, recommends that courts consider the following factors in making decisions about alimony awards:
- The age, physical condition, emotional state, and financial condition of the former spouses;
- The length of time the recipient would need for education or training to become self-sufficient;
- The couple's standard of living during the marriage;
- The length of the marriage; and
- The ability of the payer spouse to support the recipient and still support himself or herself.
Alimony and Support Orders.
Although awards may be hard to estimate, whether the payer spouse will comply with a support order is even harder to gauge. Alimony enforcement is not like child-support enforcement, which has the "teeth" of wage garnishment, liens, and other enforcement mechanisms. The recipient could, however, return to court in a contempt proceeding to force payment. Because alimony can be awarded with a court order, the mechanisms available for enforcing any court order are available to a former spouse who is owed alimony.
How Long Must Alimony Be Paid?
Alimony is often deemed "rehabilitative," that is, it is ordered for only so long as is necessary for the recipient spouse to receive training and become self-supporting. If the divorce decree does not specify a spousal support termination date, the payments must continue until the court orders otherwise. Most awards end if the recipient remarries. Termination upon the payer's death is not necessarily automatic; in cases in which the recipient spouse is unlikely to obtain gainful employment, due perhaps to age or health considerations, the court may order that further support be provided from the payer's estate or life insurance proceeds.
In the past, most alimony awards provided for payments to former wives by bread winning former husbands. As the culture has changed, so that now most marriages include two wage earners, women are viewed as less dependent, and men are more likely to be primary parents, the courts and spousal support awards have kept pace. More and more, the tradition of men paying and women receiving spousal support is being eroded, and orders of alimony payments from ex-wife to ex-husband are on the rise.
The issue of alimony will come up in many divorces, whether through out-of-court settlements, or in a divorce trial. If you would like to discuss the possibility of paying or receiving alimony, consider talking to a divorce attorney in your area who may be able to help.
It's over. You've signed the divorce papers, and the relationship you entered with so much hope is officially dissolved.
Everyone's divorce story is different. Maybe you had been married for decades, maybe just a year or so. Maybe you have children, maybe you don't. Maybe the divorce was your idea and maybe it was your partner's, or maybe you both agreed that separation was best. Maybe you're relieved, maybe you're heartbroken -- or a bit of both.
But however you got here, the question now is where do you go from here? And how do you figure out who you are and what you want as a newly single person? What is your new life going to look like, and how do you start moving in that direction?
Here are eight of the first steps:
1. Let yourself mourn.
Nobody gets married thinking, "I sure hope we can get divorced someday!" Even if, by the time you split, the divorce was something you wanted, a divorce still represents a loss.
"Whatever your marriage and divorce experience has been, there will be emotions that have to do with grief," says psychotherapist Florence Falk, PhD, MSW, author of On My Own: The Art of Being a Woman Alone.
"You may feel remorse for what you did or didn't do, or wonder what you did wrong. Don't dwell on those feelings, but make room for them," Falk says. "Loss is loss. There is an empty space where something once filled it up, even if that something may not have been desirable."
2. Work through your feelings.
Don't tote that heavy baggage from your previous relationship into your new life. Find a way to work through the lingering emotions from the demise of your marriage, advises psychologist Robert Alberti, PhD, co-author of Rebuilding: When Your Relationship Ends.
That may mean talking out your feelings with a therapist or focusing your energy in a healthy activity you enjoy. "It's common to sweep these emotions under the table, but you have to work through them or they'll pollute your life going forward," Alberti says.
If you find yourself resisting the idea of therapy, you might want to keep in mind that therapy doesn't mean you have a problem or that you're in crisis. It can be a way to work toward a better life, with someone who has no agenda but YOU.
3. Learn to like yourself.
That may sound cheesy and New Age-y. But the fact is that many people feel a lot of self-rejection after a divorce.
"You might think that there must be something wrong with you if you couldn't make this relationship work," Alberti says. "You have to work on getting confidence and faith in yourself and ability to believe in your own worth."
This is also something you could pursue in therapy, or through Tip No. 4:
4. Rediscover who you used to be.
Especially if you were married for a long time, you may have given up a lot of the things you enjoyed as a single person because they didn't fit with your "couple hood."
Maybe you loved to go out, but your spouse was a homebody. Maybe you always loved going to the theater but your husband hated it.
"What were your hobbies and activities before the marriage? What did you defer in favor of the relationship?" Alberti asks. "Exercising your interest in those again is important to rebuilding yourself."
5. Discover a new side of yourself.
The life-changing period of divorce, though often difficult and unwelcome, holds a silver lining: to shake things up and try on a new lifestyle.
Maybe it's as simple as a pixie haircut after a lifetime of wearing long, flowing locks. Maybe it's trying a new sport, considering a different place of worship, or going back to college. Maybe you realize that you'd like to move to a new city or even spend a year living in Paris.
Of course, you can't just flit away and throw caution to the wind. Chances are, you have some very real considerations -- kids (if you're a parent), a job, and a budget (which may have been hurt by the divorce).
But chances also are that although you might not be able to do whatever your fantasy is, there may be other changes that ARE within your reach. So don't reject the idea of any change, just because you can't make every change.
"As long as the changes you make are healthy and constructive, these are very appropriate," says Alberti. "Think about who you want to be -- the person you were before the marriage, or maybe a new person? What are some of the things you can do differently?"
Look for changes you can say yes to, instead of dwelling on what's out of reach.
6. Dare to be alone.
Being alone doesn't mean being isolated and never seeing anyone. It just means not being coupled up, or in a rush to do so.
Society is much more accepting of singles than even a decade ago, when solo restaurant diners often got the hairy eyeball.
"There are more than 30 million people living alone in this country today," Falk says. "That's a lot of people, and there are a lot of opportunities for social connection. There are possibilities to pick up new friends and enter different kinds of groups that have to do with your interests. The social dimension after a divorce can be very rich."
7. Consider a transitional relationships.
This isn't about rebounding. It's about considering dating (once you feel ready) outside your comfort zone -- someone who's not your type -- without thinking that it has to head toward a permanent relationship.
"For example, maybe you've always dated people from a certain socioeconomic background," Alberti says. "Or perhaps you always preferred sensitive musicians, or athletes, or the quiet, shy type. Turn your usual preferences inside out and stretch your dating horizons a bit."
8. Embrace your new roles.
Especially if you were coupled up for a long time, your partner probably handled certain aspects of life while you managed others. Now it's all up to you. And it's not likely to go perfectly, but that's OK.
"If your partner was always the one responsible for the money -- earning it, managing it, investing it -- suddenly you have a whole new realm of learning and responsibility," Alberti says. "Dealing with those can give you confidence in your own ability."
You don't have to figure it all out yourself. Look for help.
"Even if you make mistakes, like paying too much for a car, you can learn from that experience," Alberti says. "Mistakes give you life skills and teach you that you can handle being alone."
Making Joint Custody Work After a Separation or Divorce:
Co-parenting amicably with your ex can give your children stability and close relationships with both parents—but it's rarely easy. Putting aside relationship issues to co-parent agreeably can be fraught with stress. Despite the many challenges, though, it is possible to develop a cordial working relationship with your ex for the sake of your children. With these tips, you can remain calm, stay consistent, and avoid or resolve conflict with your ex and make joint custody work.
Co-parenting after a separation or divorce:
Joint custody arrangements, especially after an acrimonious split, can be exhausting and infuriating. It can be extremely difficult to get past the painful history you may have with your ex and overcome any built-up resentment. Making shared decisions, interacting with each another at drop-offs, or just speaking to a person you’d rather forget all about can seem like impossible tasks. But while it’s true that co-parenting isn’t an easy solution, it is the best way to ensure your children’s needs are met and they are able to retain close relationships with both parents.
It may be helpful to start thinking of your relationship with your ex as a completely new one—one that is entirely about the well-being of your children, and not about either of you. Your marriage may be over, but your family is not; doing what is best for your kids is your most important priority. The first step to being a mature, responsible co-parent is to always put your children's needs ahead of your own.
Co-parenting is the best option for your children:
Through your parenting partnership, your kids should recognize that they are more important than the conflict that ended the marriage—and understand that your love for them will prevail despite changing circumstances. Kids whose divorced parents have a cooperative relationship:
- Feel secure.
- When confident of the love of both parents, kids adjust more quickly and easily to divorce and have better self-esteem.
- Benefit from consistency.
- Co-parenting fosters similar rules, discipline, and rewards between households, so children know what to expect, and what’s expected of them.
- Better understand problem solving.
- Children who see their parents continuing to work together are more likely to learn how to effectively and peacefully solve problems themselves.
- Have a healthy example to follow.
- By cooperating with the other parent, you are establishing a life pattern your children can carry into the future.
Co-parenting tips for divorced parents: Setting hurt and anger aside:
The key to co-parenting is to focus on your children—and your children only. Yes, this can be very difficult. It means that your own emotions—any anger, resentment, or hurt—must take a back seat to the needs of your children. Admittedly, setting aside such strong feelings may be the hardest part of learning to work cooperatively with your ex, but it’s also perhaps the most vital. Co-parenting is not about your feelings, or those of your ex-spouse, but rather about your child’s happiness, stability, and future well-being.
Separating feelings from behavior.
It’s okay to be hurt and angry, but your feelings don’t have to dictate your behavior. Instead, let what’s best for your kids—you working cooperatively with the other parent—motivate your actions.
- Get your feelings out somewhere else.
- Never vent to your child. Friends, therapists, or even a loving pet can all make good listeners when you need to get negative feelings off your chest. Exercise can also be a healthy outlet for letting off steam.
- Stay kid-focused.
- If you feel angry or resentful, try to remember why you need to act with purpose and grace: your child’s best interests are at stake. If your anger feels overwhelming, looking at a photograph of your child may help you calm down.
- Use your body.
- Consciously putting your shoulders down, breathing evenly and deeply, and standing erect can keep you distracted from your anger, and can have a relaxing effect.
Children in the middle.
You may never completely lose all of your resentment or bitterness about your break up, but what you can do is compartmentalize those feelings and remind yourself that they are your issues, not your child's. Resolve to keep your issues with your ex away from your children.
- Never use kids as messengers.
- When you have your child tell the other parent something for you, it puts him or her in the center of your conflict. The goal is to keep your child out of your relationship issues, so call or email your ex yourself.
- Keep your issues to yourself.
- Never say negative things about your ex to your children, or make them feel like they have to choose. Your child has a right to a relationship with his or her other parent that is free of your influence.
Co-parenting tips for divorced parents: Communicating with your ex:
Relieving stress in the moment—no matter who you’re dealing with.
It may seem impossible to stay calm when dealing with a difficult ex-spouse who’s hurt you in the past or has a real knack for pushing your buttons. But by practicing quick stress relief techniques, you can learn to stay in control when the pressure builds.
Peaceful, consistent, and purposeful communication with your ex is essential to the success of co-parenting—even though it may seem absolutely impossible.
It all begins with your mindset. Think about communication with your ex as having the highest purpose: your child’s well-being.
Before contact with your ex, ask yourself how your talk will affect your child, and resolve to conduct yourself with dignity. Make your child the focal point of every discussion you have with your ex-partner.
Communication with your ex is likely to be a tough task. Remember that it isn’t always necessary to meet your ex in person—speaking over the phone or exchanging texts or emails is fine for the majority of conversations. The goal is to establish conflict-free communication, so see which type of contact works best for you. Whether talking via email, phone, or in person, the following methods can help you initiate and maintain effective communication:
- Set a business-like tone.
- Approach the relationship with your ex as a business partnership where your “business” is your children’s well-being. Speak or write to your ex as you would a colleague—with cordiality, respect, and neutrality. Relax and talk slowly.
- Make requests.
- Instead of making statements, which can be misinterpreted as demands, try framing as much as you can as requests. Requests can begin "Would you be willing to…?" or “Can we try…?”
- Communicating with maturity starts with listening. Even if you end up disagreeing with the other parent, you should at least be able to convey to your ex that you’ve understood his or her point of view. And listening does not signify approval, so you won’t lose anything by allowing your ex to voice his or her opinions.
- Show restraint.
- Keep in mind that communicating with one another is going to be necessary for the length of your children's entire childhood—if not longer. You can train yourself to not overreact to your ex, and over time you can become numb to the buttons he or she tries to push.
- Commit to meeting/talking consistently. Frequent communication with your ex will convey the message to your children that you and their other parent are a united front. This may be extremely difficult in the early stages of your divorce or separation.
- Keep conversations kid-focused.
- You can control the content of your communication. Never let a discussion with your ex-partner digress into a conversation about your needs or his/her needs; it should always be about your child's needs only.
Improving the relationship with your ex.
If you are truly ready to rebuild trust after a separation or divorce, be sincere about your efforts. Remember your children’s best interests as you move forward to improve your relationship.
- Ask his or her opinion.
- This fairly simple technique can effectively jump-start positive communications between you and your ex. Take an issue that you don't feel strongly about, and ask for your ex's input, showing that you value his or her input.
- When you’re sorry about something, take the time to apologize sincerely—even if the incident happened a long time ago. Apologizing can be very powerful in moving your relationship away from being adversaries.
- Chill out.
- If a special outing with your ex is going to cut into your time with your child by an hour, graciously let it be. Remember that it’s all about what is best for your child; plus, when you show flexibility, your ex is more likely to be flexible with you.
Co-parenting tips for divorced parents: Parenting as a team.
Parenting is full of decisions you’ll have to make with your ex, whether you like each another or not. Cooperating and communicating without blow-ups or bickering makes decision-making far easier on everybody. If you shoot for consistency, geniality, and teamwork with your ex, the details of child-rearing decisions tend to fall into place.
Aim for consistency.
It’s healthy for children to be exposed to different perspectives and to learn to be flexible, but they also need to know they’re living under the same basic set of expectations at each home. Aiming for consistency between your home and your ex’s avoids confusion for your children.
- Rules don’t have to be exactly the same between two households, but if you and your ex-spouse establish generally consistent guidelines, your kids won’t have to bounce back and forth between two radically different disciplinary environments. Important lifestyle rules like homework issues, curfews, and off-limit activities should be followed in both households.
- Try to follow similar systems of consequences for broken rules, even if the infraction didn’t happen under your roof. So, if your kids have lost TV privileges while at your ex’s house, follow through with the restriction. The same can be done for rewarding good behavior.
- Where you can, aim for some consistency in your children’s schedules. Making meals, homework, and bedtimes similar can go a long way toward your child’s adjustment to having two homes.
Major decisions need to be made by both you and your ex. Being open, honest, and straightforward about important issues is crucial to both your relationship with your ex and your children’s well-being.
- Medical needs.
- Effective co-parenting can help parents focus on the best medical care for the child, and can help reduce anxiety for everyone. Whether you decide to designate one parent to communicate primarily with health care professionals or attend medical appointments together, keep one another in the loop.
- School plays a major role in maintaining a stable environment for your kids, so be sure to let them know about changes in your child’s living situation. Speak with your ex ahead of time about class schedules, extra-curricular activities, and parent-teacher conferences, and be polite to him or her at school or sports events.
- Financial issues.
- The cost of maintaining two separate households can strain your attempts to be effective co-parents. Set a realistic budget and keep accurate records for shared expenses. Be gracious if your ex provides opportunities for your children that you cannot provide.
As you co-parent, you and your ex are bound to disagree over certain issues. Keep the following in mind as you try to come to consensus with your ex.
- Respect can go a long way.
- Simple manners are often neglected between co-parents, even though they should be the foundation for co-parenting. Being considerate and respectful includes letting your ex know about school events, being flexible about your schedule when possible, and taking his or her opinion seriously.
- Keep talking.
- It might sound tedious, but if you disagree about something important, you will need to continue to communicate about the topic. Never discuss your differences of opinions with or in front of your child. If you still can’t agree, you may need to talk to a third party, like a therapist or mediator.
- Don’t sweat the small stuff.
- If you disagree about important issues like a medical surgery or choice of school for your child, by all means keep the discussion going. But if you want your child in bed by 7:30 and your ex says 8:00, try to let it go and save your energy for the bigger issues.
- Yes, you will need to come around to your ex spouse’s point of view as often as he or she comes around to yours. It may not always be your first choice, but compromise allows you both to “win” and makes both of you more likely to be flexible in the future.
Co-parenting tips for divorced parents:
Making transitions easier.
The actual move from one household to another, whether it happens every few days or just on weekends, can be a very hard time for children. Transitions represent a major change in your children's reality. Every reunion with one parent is also a separation with the other; each “hello” is also a “goodbye.” In joint custody arrangements, transition time is inevitable, but there are many things you can do to help make exchanges and transitions easier, both when your children leave and return.
When your child leaves.
As kids prepare to leave your house for your ex’s, try to stay positive and deliver them on time. You can use the following strategies to help make transitions easier:
- Help children anticipate change.
- Remind kids they’ll be leaving for the other parent’s house a day or two before the visit.
- Pack in advance.
- Depending on their age, help children pack their bags well before they leave so that they don’t forget anything they’ll miss. Encourage packing familiar reminders like a special stuffed toy or photograph.
- Always drop off—never pick up the child on "switch day."
- It’s a good idea to avoid "taking" your child from the other parent so that you don’t risk interrupting or curtailing a special moment. Drop off your child at the other parent’s house instead.
When your child returns.
The beginning of your children’s return to your home can be awkward or even rocky. You can try the following to help your child adjust:
- Keep things low-key.
- When children first enter your home, try to have some down time together—read a book or do some other quiet activity.
- Double up.
- To make packing simpler and make kids feel more comfortable when they are at the other parent's house, have kids keep certain basics—toothbrush, hairbrush, pajamas—at both houses.
- Allow the child space.
- Children often need a little time to adjust to the transition. If they seem to need some space, do something else nearby. In time, things will get back to normal.
- Establish a special routine.
- Play a game or serve the same special meal each time your child returns. Kids thrive on routine—if they know exactly what to expect when they return to you it can help the transition.
Dealing with visitation refusal.
Sometimes kids refuse to leave one parent to be with the other. Although this can be a difficult situation, it is also common for children in joint custody.
- Find the cause.
- The problem may be one that is easy to resolve, like paying more attention to your child, making a change in discipline style, or having more toys or other entertainment. Or it may be that an emotional reason is at hand, such as conflict or misunderstanding. Talk to your child about his or her refusal.
- Go with the flow.
- Whether you have detected the reason for the refusal or not, try to give your child the space and time that he or she obviously needs. It may have nothing to do with you at all. And take heart: most cases of visitation refusal are temporary.
- Talk to your ex.
- A heart-to-heart with your ex about the refusal may be challenging and emotional, but can help you figure out what the problem is. Try to be sensitive and understanding to your ex as you discuss this touchy subject.
Children and Divorce.
Helping Kids Cope with Separation and Divorce:
For children, divorce can be stressful, sad, and confusing. At any age, kids may feel uncertain or angry at the prospect of mom and dad splitting up. As a parent, you can make the process and its effects less painful for your children. Helping your kids cope with divorce means providing stability in your home and attending to your children's needs with a reassuring, positive attitude. It won't be a seamless process, but these tips can help your children cope.
Helping children cope with divorce: Supporting your child through a divorce:
As a parent, it’s normal to feel uncertain about how to give your children the right support through your divorce or separation. It may be uncharted territory, but you can successfully navigate this unsettling time—and help your kids emerge from it feeling loved, confident, and strong.
There are many ways you can help your kids adjust to separation or divorce. Your patience, reassurance, and listening ear can minimize tension as children learn to cope with new circumstances. By providing routines kids can rely on, you remind children they can count on you for stability, structure, and care. And if you can maintain a working relationship with your ex, you can help kids avoid the stress that comes with watching parents in conflict. Such a transitional time can’t be without some measure of hardship, but you can powerfully reduce your children’s pain by making their well-being your top priority.
What I need from my mom and dad:
A child’s list of wants:
- I need both of you to stay involved in my life. Please write letters, make phone calls, and ask me lots of questions. When you don’t stay involved, I feel like I’m not important and that you don’t really love me.
- Please stop fighting and work hard to get along with each other. Try to agree on matters related to me. When you fight about me, I think that I did something wrong and I feel guilty.
- I want to love you both and enjoy the time that I spend with each of you. Please support me and the time that I spend with each of you. If you act jealous or upset, I feel like I need to take sides and love one parent more than the other.
- Please communicate directly with my other parent so that I don’t have to send messages back and forth.
- When talking about my other parent, please say only nice things, or don’t say anything at all. When you say mean, unkind things about my other parent, I feel like you are expecting me to take your side.
- Please remember that I want both of you to be a part of my life. I count on my mom and dad to raise me, to teach me what is important, and to help me when I have problems.
Helping children cope with divorce: What to tell your kids:
When it comes to telling your kids about your divorce, many parents freeze up. Make the conversation a little easier on both yourself and your children by preparing significantly before you sit down to talk. If you can anticipate tough questions, deal with your own anxieties ahead of time, and plan carefully what you’ll be telling them, you will be better equipped to help your children handle the news.
What to say and how to say it.
Difficult as it may be to do, try to strike an empathetic tone and address the most important points right up front. Give your children the benefit of an honest—but kid-friendly—explanation.
- Tell the truth.
- Your kids are entitled to know why you are getting a divorce, but long-winded reasons may only confuse them. Pick something simple and honest, like “We can’t get along anymore.” You may need to remind your children that while sometimes parents and kids don't always get along, parents and kids don't stop loving each other or get divorced from each other.
- Say “I love you.”
- However simple it may sound, letting your children know that your love for them hasn’t changed is a powerful message. Tell them you’ll still be caring for them in every way, from fixing their breakfast to helping with homework.
- Address changes.
- Preempt your kids’ questions about changes in their lives by acknowledging that some things will be different now, and other things won’t. Let them know that together you can deal with each detail as you go.
It’s vital to be honest with your kids, but without being critical of your spouse. This can be especially difficult when there have been hurtful events, such as infidelity, but with a little diplomacy, you can avoid playing the blame game.
- Present a united front.
- As much as you can, try to agree in advance on an explanation for your separation or divorce—and stick to it.
- Plan your conversations.
- Make plans to talk with your children before any changes in the living arrangements occur. And plan to talk when your spouse is present, if possible.
- Show restraint.
- Be respectful of your spouse when giving the reasons for the separation.
How much information to give.
Especially at the beginning of your separation or divorce, you’ll need to pick and choose how much to tell your children. Think carefully about how certain information will affect them.
- Be age-aware.
- In general, younger children need less detail and will do better with a simple explanation, while older kids may need more information.
- Share logistical information.
- Do tell kids about changes in their living arrangements, school, or activities, but don’t overwhelm them with the details.
- Keep it real.
- No matter how much or how little you decide to tell your kids, remember that the information should be truthful above all else.
Helping children cope with divorce:
Listen and reassure:
Support your children by helping them express emotions, and commit to truly listening to these feelings without getting defensive. Your next job is reassurance—assuaging fears, straightening misunderstandings, and showing your unconditional love. The bottom line: kids need to know that your divorce isn’t their fault.
Help kids express feelings.
For kids, divorce can feel like loss: the loss of a parent, the loss of the life they know. You can help your children grieve and adjust to new circumstances by supporting their feelings.
- Encourage your child to share their feelings and really listen to them. They may be feeling sadness, loss or frustration about things you may not have expected.
- Help them find words for their feelings.
- It’s normal for children to have difficulty expressing their feelings. You can help them by noticing their moods and encouraging them to talk.
- Let them be honest.
- Children might be reluctant to share their true feelings for fear of hurting you. Let them know that whatever they say is okay. If they aren’t able to share their honest feelings, they will have a harder time working through them.
- Acknowledge their feelings.
- You may not be able to fix their problems or change their sadness to happiness, but it is important for you to acknowledge their feelings rather than dismissing them. You can also inspire trust by showing that you understand.
Clearing up misunderstandings.
Many kids believe that they had something to do with the divorce, recalling times they argued with their parents, received poor grades, or got in trouble. You can help your kids let go of this misconception.
- Set the record straight.
- Repeat why you decided to get a divorce. Sometimes hearing the real reason for your decision can help.
- Be patient.
- Kids may seem to “get it” one day and be unsure the next. Treat your child’s confusion or misunderstandings with patience.
- As often as you need to, remind your children that both parents will continue to love them and that they are not responsible for the divorce.
Give reassurance and love.
Children have a remarkable ability to heal when given the support and love they need. Your words, actions, and ability to remain consistent are all important tools to reassure your children of your unchanging love.
- Both parents will be there.
- Let your kids know that even though the physical circumstances of the family unit will change, they can continue to have healthy, loving relationships with both of their parents.
- It’ll be okay.
- Tell kids that things won’t always be easy, but that they will work out. Knowing it’ll be all right can provide incentive for your kids to give a new situation a chance.
- Physical closeness—in the form of hugs, pats on the shoulder, or simple proximity—has a powerful way of reassuring your child of your love.
- Be honest.
- When kids raise concerns or anxieties, respond truthfully. If you don’t know the answer, say gently that you aren’t sure right now, but you’ll find out and it will be okay.
Helping children cope with divorce:
Provide stability and structure.
While it’s good for kids to learn to be flexible, adjusting to many new things at once can be very difficult. Help your kids adjust to change by providing as much stability and structure as possible in their daily lives.
Remember that establishing structure and continuity doesn’t mean that you need rigid schedules or that mom and dad’s routines need to be exactly the same. But creating some regular routines at each household and consistently communicating to your children what to expect will provide your kids with a sense of calm and stability.
The comfort of routines.
The benefit of schedules and organization for younger children is widely recognized, but many people don’t realize that older children appreciate routine, as well. Kids feel safer and more secure when they know what to expect next. Knowing that, even when they switch homes, dinnertime is followed by a bath and then homework, for example, can set a child’s mind at ease.
Maintaining routine also means continuing to observe rules, rewards, and discipline with your children. Resist the temptation to spoil kids during a divorce by not enforcing limits or allowing them to break rules.
Helping children cope with divorce: Take care of yourself.
The first safety instruction for an airplane emergency is to put the oxygen mask on yourself before you put it on your child. The take-home message: take care of yourself so that you can be there for your kids.
Your own recovery.
If you are able to be calm and emotionally present, your kids will feel more at ease. The following are steps you can take toward improving your own well-being and outlook:
- Exercise often and eat a healthy diet.
- Exercise relieves the pent-up stress and frustration that are commonplace with divorce. And although cooking for one can be difficult, eating healthfully will make you feel better, inside and out—so skip the fast food.
- See friends often.
- It may be tempting to hole up and not see friends and family who will inevitably ask about the divorce—but the reality is that you need the distraction. Ask friends to avoid the topic; they’ll understand.
- Keep a journal.
- Writing down your feelings, thoughts, and moods can help you release tension, sadness, and anger. As time passes, you can look back on just how far you’ve come.
You’ll need support.
At the very least, divorce is complicated and stressful—and can be devastating without support.
- Lean on friends.
- Talk to friends or a support group about your bitterness, anger, frustration—whatever the feeling may be—so you don’t take it out on your kids.
- Never vent negative feelings to your child. Whatever you do, do not use your child to talk it out like you would with a friend.
- Keep laughing.
- Try to inject humor and play into your life and the lives of your children as much as you can; it can relieve stress and give you all a break from sadness and anger.
- See a therapist.
- If you are feeling intense anger, fear, grief, shame, or guilt, find a professional to help you work through those feelings.
Helping children cope with divorce:
Work with your ex.
Struggling to make joint custody work?
Conflict between parents—separated or not—can be very damaging for kids. It’s crucial to avoid putting your children in the middle of your fights, or making them feel like they have to choose between you.
Rules of thumb.
Remember that your goal is to avoid lasting stress and pain for your children. The following tips can save them a lot of heartache.
- Take it somewhere else.
- Never argue in front of your children, whether it’s in person or over the phone. Ask your ex to talk another time, or drop the conversation altogether.
- Use tact.
- Refrain from talking with your children about details of their other parent’s behavior. It’s the oldest rule in the book: if you don’t have anything nice to say, don’t say anything at all.
- Be nice.
- Be polite in your interactions with your ex-spouse. This not only sets a good example for your kids but can also cause your ex to be gracious in response.
- Look on the bright side.
- Choose to focus on the strengths of all family members. Encourage children to do the same.
- Work on it.
- Make it a priority to develop an amicable relationship with your ex-spouse as soon as possible. Watching you be friendly can reassure children and teach problem-solving skills as well.
The big picture.
If you find yourself, time after time, locked in battle with your ex over the details of parenting, try to step back and remember the bigger purpose at hand.
- Relationship with both parents.
- What’s best for your kids in the long run? Having a good relationship with both of their parents throughout their lives.
- The long view.
- If you can keep long-term goals—your children’s physical and mental health, your independence—in mind, you may be able to avoid disagreements about daily details. Think ahead in order to stay calm.
- Everyone’s well-being.
- The happiness of your children, yourself, and, yes, even your ex, should be the broad brushstrokes in the big picture of your new lives after divorce.
Helping children cope with divorce:
Know when to seek help.
Some children go through divorce with relatively few problems, while others have a very difficult time. It’s normal for kids to feel a range of difficult emotions, but time, love, and reassurance should help them to heal. If your kids remain overwhelmed, though, you may need to seek professional help.
Normal reactions to separation and divorce.
Although strong feelings can be tough on kids, the following reactions can be considered normal for children.
- Your kids may express their anger, rage, and resentment with you and your spouse for destroying their sense of normalcy.
- It’s natural for children to feel anxious when faced with big changes in their lives.
- Mild depression.
- Sadness about the family’s new situation is normal, and sadness coupled with a sense of hopelessness and helplessness is likely to become a mild form of depression.
It will take some time for your kids to work through their issues about the separation or divorce, but you should see gradual improvement over time .
Red flags for more serious problems:
If things get worse rather than better after several months , it may be a sign that your child is stuck in depression, anxiety, or anger and could use some additional support. Watch for these warning signs of divorce-related depression or anxiety:
- Sleep problems
- Poor concentration
- Trouble at school
- Drug or alcohol abuse
- Self-injury, cutting, or Eating disorders
- Frequent angry or violent outbursts
- Withdrawal from loved ones
- Refusal of loved activities
Discuss these or other divorce-related warning-signs with your child’s doctor, teachers, or consult a child therapist for guidance on coping with specific problems.
If you don't update your will, trust, and beneficiary designations, your ex could inherit everything.
If you’re going through the emotional and financial turmoil of a divorce, estate planning may be the last thing on your mind. But after a divorce, you need to take steps to update your estate plan. If you don’t, then at your death your assets could be distributed in ways that you neither expect nor want—including to your ex-spouse.
Here are three steps you can take to make sure your estate plan reflects your current life and wishes.
1. Revoke your will and make a new one.
Start by revoking your old will (literally tearing it up is the best way) and making a new one. If you don’t already have a will, now’s the time to make one. It isn't difficult; you can make a simple will yourself, with a good software package or online resource, or hire a lawyer. The same is true if you made a living trust while you were married.
A will is where you:
- Leave your property to the people of your choice.
- Name an executor to wrap up your estate when the time comes.
- Nominate a guardian to take care of young children if it’s ever necessary.
All of these choices may be affected by divorce. Let’s look at them one by one.
If you’re like most people, if you made a will while you were married, you left everything to your spouse—probably not the result you want now. It’s best to start fresh with a new will, naming new beneficiaries and alternate beneficiaries, who would inherit if your first choice didn’t outlive you.
In most states, if you get divorced after making a will, any gifts that your will makes to your former spouse are automatically revoked. For example, California law states that dissolution (divorce) or annulment of a marriage revokes any bequests that your will made to your former spouse. (Cal. Probate Code § 6122.) The rest of the will is not affected.
But it’s not a good idea rely on state law. Not every state has a law like California’s, and laws can change. Also, the law doesn’t take effect until you have a final decree of divorce—if you’re still in the divorce process, gifts to your spouse are still valid.
In some states, gifts to relatives of your former spouse are also revoked by divorce. For example, Arizona law revokes gifts in a will made to anyone related to your former spouse by blood, adoption, or affinity (marriage). (Ariz. Rev. Stat. § 14-2804.) If your state has such a law and your will leaves property to your former spouse’s child (your former stepchild), divorce would revoke the gift to the child.
Relying on state law also can create some uncertainty about what happens to the property you left to your former spouse, if state law revokes that provision of your will. The general rule is that the property passes as though your former spouse had died before you did. So if your will named an alternate (contingent) beneficiary for that gift, that beneficiary inherits. If you didn’t name an alternate beneficiary, but did name a “residuary beneficiary,” then that beneficiary inherits. Otherwise the property passes under state law, as if there were no will, to your closest surviving relatives.
Those potential complications underscore the importance of making a new will. That way, it will be clear about who you want to inherit, and you can name alternates as well.
Name an executor.
If you don’t want your ex-spouse to inherit your property, you probably don’t want him or her in charge of your estate, either. But if you named your spouse as your executor (called your personal representative in some states), it could happen unless you make a new will.
In many states, divorce revokes the appointment of a former spouse to serve as executor of the will or trustee of a trust. The alternate executor, if you named one in your will, would serve instead. Still, don’t count on state law—in your new will, appoint a new executor and an alternate.
Name a guardian for your minor children.
A key reason that many parents of young children make wills is to name a guardian, who would raise their children in the unlikely event neither parent could. If you have kids under 18, that’s probably one reason you want to make a will.
A court will appoint a guardian to care for a child only if both parents are deceased or unfit. (And courts find a parent unfit only if there is a serious and ongoing problem, such as a history of child abuse or addiction.) If you don’t want your ex-spouse to raise your children in the event of your untimely death because you don’t think he or she is a good person or a good parent, it’s probably not something you can prevent.
In your will, however, you can name whomever you choose to serve as guardian, in case both you and the other parent aren’t available. (It is, thankfully, rare for both parents to be unavailable.) If you feel strongly that the other parent shouldn’t have custody of your children, write down your reasons in a letter and attach it to your will. It will at least give the judge something to consider.
2. Update Beneficiary Designations.
As important as your will is, it might now cover some of your most valuable assets. Many assets pass outside of a will, to beneficiaries named on paperwork provided by a bank or insurance company. So be sure to update your beneficiary designations for:
- Life insurance policies
- Retirement accounts such as IRAs and 401(k)s
- Pay-on-death bank accounts
- Transfer-on-death brokerage accounts
To name a new person to inherit these assets, request new documents from your bank, brokerage company, or employer, and submit them as soon as possible.
Don’t assume that state law (or even the terms of a divorce decree) will revoke any earlier designations you made naming your former spouse. Certain “qualified plans,” such as 401(k)s, pensions, and employer-provided life insurance policies, are governed by a federal law called ERISA (the Employee Retirement Income Security Act). And ERISA says that a plan administrator must turn funds over to the beneficiary named in the plan documents—no matter what state law says. So if your former spouse is still the named beneficiary, he or she will inherit unless you change the paperwork.
3. Make New Powers of Attorney.
Powers of attorney—documents that give someone authority to act for you if it’s ever necessary—are a big part of an estate plan. You should have two powers of attorney: one for healthcare (medical decisions), and one for financial matters. If you already have powers of attorney that give your former spouse authority to make decisions on your behalf, revoke them and make new documents.
In order to file for a divorce in Hawaii, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least six months prior to filing for the divorce.
A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby be prohibited the above mentioned requirements.
The divorce should be filed in the judicial district the plaintiff resides or the judicial district the spouses last lived together as a married couple. (Hawaii Statutes - Title 580 - Chapters: 1) The Complaint for Divorce must declare the appropriate Hawaii grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The family court shall decree a divorce from the bond of matrimony upon the application of either party when the court finds:
(1) The marriage is irretrievably broken;
(2) The parties have lived separate and apart under a decree of separation from bed and board entered by any court of competent jurisdiction, the term of separation has expired, and no reconciliation has been effected;
(3) The parties have lived separate and apart for a period of two years or more under a decree of separate maintenance entered by any court of competent jurisdiction, and no reconciliation has been effected; or
(4) The parties have lived separate and apart for a continuous period of two years or more immediately preceding the application, there is no reasonable likelihood that cohabitation will be resumed, and the court is satisfied that, in the particular circumstances of the case, it would not be harsh and oppressive to the defendant or contrary to the public interest to a divorce on this ground on the complaint of the plaintiff. (Hawaii Statutes - Title 580 - Chapters: 41)Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Family Court: This is the Hawaii court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed. Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Hawaii law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Matrimonial Action Information Sheet, Marital Settlement Agreement, Income and Expense Statement, and Appearance and Waiver