BASICS OF DIVORCE
In an Uncontested Divorce issues are agreed on by the parties, documents are drafted, both parties sign them in front of a notary and they are submitted to the court with the court cost and no party is served by the sheriff or other process server. Occasionally the other party may hire their own attorney to represent them in working out an agreement. Sometimes both parties will agree to go to mediation.
A Contested Divorce is where one party (Plaintiff) has an attorney draft documents and file them with the court and has the other party (Defendant) served by the sheriff or other process server with notice of the case by way of a summons. Occasionally the Plaintiff or Defendant may need to file emergency motions for matters concerning temporary custody, support, use of residence or vehicle. The Defendant then would usually hire an attorney and that attorney would file an answer to the complaint and attend any emergency hearings. The judge would rule on any temporary emergency matters generally and set a trial and pre-trial date. The attorneys would generally file various motions to get information from the other party commonly called Discovery motions. These motions can be in the form of “Motions for Discovery, Interrogatories, Request for production of documents, Depositions, Request for admissions etc”. Generally after all the information is gathered through these motions the attorneys may send offers to settle to each other. If the parties are unable to settle the case at the pre-trial conference the judge will set the case for trial and after the trial the judge will issue an order concerning all issues in the divorce including but not limited to child custody, child support, child visitation, personal property division, real property division, alimony, retirement benefits etc. The judge could also require the parties to attend mediation before having a trial.
WILL AN UNCONTESTED DIVORCE WORK FOR ME?
When it comes right down to it probably 90% of divorces are settled without trial. Many Divorce’s will be contested at first, both parties hiring lawyers and fighting it out. However most of the time through this process time passes and the issues are worked out or the parties just get tired of fighting and high legal fees. I have seen contested divorce’s take years.
People begin contested divorce cases for many reasons. Please look at what I consider to be the main ones.
- One party is mad/hurt and wants to hurt the other spouse.
- The parties are unable to come to an agreement because they cant agree on what is fair.
- One party is not acting rationally and will not agree on much of anything.
- One party is hiding assets or will not disclose what the assetts are and because of this an agreement can not be made.
I will now try to pick these apart to help you answer the question ” Will an uncontested divorce work for me”?
Try to answer this question concerning dealing with a hurt/mad spouse. Do you think hiring a lawyer will get them to the emotional point that they can accept the end of the marriage and settle matters. Do you think the other spouse is more interested in hurting you by having a contested case than they are in saving money by having an uncontested one. Do you think over time they will cool off and settle the case and do you want to wait that long. You could also try mediation.
Try to answer this question. If dealing with the situation where you cant agree on what is fair consider the following. Child support in Alabama is pretty much a mathamatical equation. If the dispute is over the amount of child support it can be resolved easily once the other spouse learns of the law concerning child support. They can learn this from you after I have educated you on the applicable law or from a lawyer they consult.
If the dispute is over the marital home, their are many ways to resolve this, in fact too many to discuss here see the home section. If the dispute is over Alimony read that section also. If the dispute is over a retirement account see that section. It can usually be resolved if both parties are rational people. If the dispute is over personal property consider making a list with a heading husband, one that says wife and one that says property and take turns picking items and adding them to the husband and wife side and you will probably be happier with that than what a judge would likely do. A judge will divide it how they see fit or order it sold . Neither party may like the way the judge divides it. You could also try mediation.
Try to answer this question. If dealing with the situation where one party is not acting rationally and wont agree on anything, the real question to answer is why are they doing that ? Can this be resolved? Well I really dont know, it depends. Will time fix it and can you wait. Would a session with a therapist fix it and do you want to go. If you want to start an uncontested case, have us draw up a divorce agreement and send it to your spouse we would be happy to help. You could then see if they respond with a rational counter offer and go from their. If it must be changed to a contested case later thiscan be easily done by paying the difference between a contested and uncontested case. You could also try mediation.
If dealing with the situation where one party is hiding/not disclosing assetts you can explain to them that if they continue it will cost both of you more money because you will find the assetts through the discovery process . If this does not work Iwould be glad to take your contested case if you wish.
In an uncontested case the attorney can only represent one party. The attorney can negotiate a settelement with the other spouse if they do not have an attorney, but they cant give the other side legal advice. If the other spouse has an attorney they would negotiate only with the other spouses attorney.
I hope this will help you determine if an uncontested divorce will work for you. If you wish to discuss the matter further please call.
WHAT CAN BE DONE WITH THE HOUSE?
Real estate can be dealt with in so many different ways. I won’t attempt to list every possible option, therefore I am listing what I consider to be the most common in an effort to help you begin to think about the possibilities. The possibilities are really almost endless we will be glad to assist you in coming to a solution.
- The parties jointly or one party individually owns real estate located at Address_1, City, State Zip. The Wife/Husband shall be solely responsible for and assume and pay, as the same matures the mortgage indebtedness if any on
said residence and shall indemnify and hold the other party harmless from said mortgage indebtedness. The Wife /Husband shall convey if the property is held jointly her /his ownership interest of the real estate to the other party by appropriate
- The Wife and Husband jointly own real estate located at Address_1, City, State Zip. The Wife /Husband and child(ren) shall live in the home until the first of the following occurrences:1. The spouse who is living in the home dies. 2. The spouse who is living in the home remarries. 3. Child support is no longer payable to the spouse with physical custody of the child(ren). 4. The spouse who is living in the home elects to move. If any of the above occurs, the real estate shall be placed on the market and sold with the money divided, with the Wife receiving ____% and the Husband receiving ____ %. Until such time as the real estate sells, the Wife/ Husband shall be responsible for and pay the mortgage payment, taxes and insurance due on the realty. Until such time as the real estate sells, the Wife/ Husband shall be responsible for providing routine maintenance and upkeep. The cost of reasonable and necessary major repairs such as structural, heating cooling, roofing and the like, shall be paid equally (50-50) by the parties.
- The Wife and Husband together and jointly own real estate located at Address_1, City, State Zip. The realty shall be placed on the market and sold, with the money divided, with _____% to the Wife and ____% to the Husband. Before the sale, the Wife /Husband shall be responsible for and pay the mortgage payment, taxes and insurance due on the realty. The Wife /Husband shall live there before the sale. Time Limit Clause In the event the real estate remains unsold after ______ months from the _____ day of ___________ , 2003, either party shall have the right to obtain judicial sale upon appropriate petition.
- The Wife and Husband together own real estate located at Address_1, City, State Zip. The Wife /Husband shall convey her/ his ownership of the real estate to the Wife/ Husband by appropriate deed and for that the Wife/ Husband shall pay to theWife /Husband the sum of $___ Dollars . The Wife/ Husband shall assume and pay any and all money owed on the real estate.
WHAT CAN BE DONE WITH THE VEHICLES?
The possibilities for vehicles are more limited. I would say the most common options would be the following. 1. Title will be transfered to one party and the party recieving title to the vehicle shall make the payments on the vehicle and hold the other harmless from said payments. 2. One party will transfer their intrest in the vehicle to the other party free of debt. 3. One party will transfer their intrest in the vehicle to the other party and make the payments on the vehicle for x period of time or until the note is paid.
WHAT CAN BE DONE WITH HOUSEHOLD ITEMS?
If a party is having difficulty they may consider the following helpful. Consider making a list with a heading husband, one that says wife and one that says property and take turns picking items and adding them to the husband and wife side and you will probably be happier with that than what a judge would likely do. A judge will divide it how they see fit or order it sold . Neither party may like the way the judge divides it.
WHAT ABOUT RETIREMENT PLANS?
Many options are avaliable concerning retirement plans, here are some of them.
- In a long marriage if one party has a retirement plan and the other does not the parties could agree on what the retirement plan is worth. The party with the plan could pay the other party x amount of money over a certain period of time to release any claim to the retirement.
- The parties could agree to have a QUADRO developed to divide the retirement. A QUADRO or Qualified Domestic Relations Order is a court order wherby the retirement is split in two and the pention agency will then send a check to each spouse monthly for the duration of the retirement. Each pention/retirement agency usually has specific guidelines concerning what must be in these orders. This is why we charge an additional fee to draft them. As you might imagine there can be tax concerns with QUADROs. Please consult your tax advisor for information.
WHAT ABOUT ALIMONY?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will often award alimony, at least temporarily.
Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinninghusbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouseswere accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he orshe can be self-sufficient. If one spouse is unable to get a good-paying job, however, due perhaps to health or advanced age, the support award may be permanent.
The amount and duration of alimony depends on several factors, including:
- The length of the marriage;
- The age of each spouse;
- The health of each spouse;
- The ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties’ minor children, if any;
- The income of the primary breadwinner; and
- Standard of living the parties enjoyed during the marriage.
WHAT TO DO ABOUT DEBT?
Options avaliable for debt are more limited. The parties can agree to each pay their own debt and hold the other harmless. One spouse can agree to pay certain debts of the other spouse within a certain period of time.
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HOW IS CHILD SUPPORT DETERMINED?
Child support is one of the few things in divorce that is relatively certain. For the majority of divorces involving minor children, child support is a straightforward application of a formula that is entirely a creature of statute. Alabama uses a model called “income shares” to figure child support. The formula turns on the following factors:
- The combined gross income of the mother and the father.
- Each parents gross income as a percentage of the combined gross income.
- Any pre-existing obligation to pay child support or alimony.
- The number of children under 19 generally.
- The amount paid for work-related child care.
- The amount paid for health insurance for the children, and the party responsible for paying it.
HOW IS CHILD SUPPORT PAID?
Child support is usually paid by the child support payment being automatically deducted from the payors paycheck by means of an income withoulding order. If the payor is self employed the payor can send the child suppport to the court or agency designated by the court to distribute child support located in Montgomery and the court/ designated agency will forward it to the spouse due to recieve it.
WHAT IF MY SPOUSE DOES NOT PAY?
If your spouse does not pay a motion can be filed tohold them in contempt for nonpayment. The judge could jail them for contempt as a means to motivate them to pay.
HOW IS CHILD SUPPORT MODIFIED?
Either parent can force child support to be recalculated at any time, but change will occur only if the recalculation results in a change in the calculated child support of 10% or more. The way to force the recalculation is to file a Petition to Modify, which requires payment of the filing fee applicable in the county where the petition is filed.
WHO WILL GET CUSTODY OF THE CHILDREN?
A court gives the “best interests of the child” the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:
The child’s age, gender, mental and physical health the mental and physical health of the parents the lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse. The love and emotional ties between the parent and the child, as well as the parent’s ability to give the child guidance the parent’s ability to provide the child with food, shelter, clothing and medical care the child’s established living pattern (school, home, community, religious institution). The quality of the schools attended by the children the child’s preference, if the child is above a certain age (usually about 12), and the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child’s primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.
HOW IS VISITATION HANDLED?
Generally in most divorce agreements we will have a standard visitation schedule in them. We will ask the client to make any changes they would like and if the parties agree we will incorporate them into the agreement. The parties can ultimately do what they wish as long as they agree. The visitation schedule is helpful when the parties do not agree by giving them something to go by. This will often prevent them from having to go back to court to litigate the matter.This applies to uncontested cases only. If the case is tried the judge will usually have their own visitation schedule inserted into their orders. Below you will find a copy of the one we usually have as the default visitation schedule.