10 Basic Questions You May Have Before Getting Divorced

  1. What is a contested divorce?

A contested divorce is when you and your spouse do not agree upon the terms of divorce, such as how to divide property, how debt will be paid, custody of children and parenting issues. Because the spouses cannot reach an agreement, one of you will file a legal action for divorce and the court is officially engaged in the divorce process. This means that for all issues that are in disagreement between the spouses, a judge will be asked to make the decision for the family. In most cases, a contested divorce takes much longer to resolve than a uncontested divorce.

  1. What is an uncontested divorce?

An uncontested divorce means that the spouses have a full agreement regarding all issues in the divorce, such as division of property and debt, spousal and child support, as well as custody and parenting matters regarding the children. Usually the terms are created as a result of cooperation between the spouses, which may include working with a neutral mediator or collaborative lawyers. Some spouses work jointly to frame the agreed issues and retain a lawyer to draft an agreement. In essence, the parties are able to create a full agreement regarding how the parties will live after getting divorced, how they will split property, and how the unemancipated children will be supported and raised.

  1. What are the pros and cons to divorce mediation vs. divorce litigation?

Mediation is a process that may save the parties substantial time, money and emotional trauma, because the mediation process employs one neutral facilitator to help the parties communicate and agree upon all issues. Generally, mediation is a confidential process that allows for the spouses to work together, with the assistant of a neutral professional in order to determine the best outcome for their family. Although attorneys generally are not included in the mediation meetings, both parties can retain their own attorney to assist them in understanding the process and reviewing matters to be resolved, so that there is a clear understanding of any agreements and their future ramifications. However, mediation is only successful if both parties are willing to work hard toward agreement. Otherwise, this process is not binding and either party may quit the mediation process and engage in litigation at any time.

Litigation is when the parties have opposing viewpoints on some or all of the issues, such as division of property, payment of debt, custody and parenting arrangements. A divorce that is litigated may take more time as it requires a judge to intervene and make decisions for the parties since they cannot create agreements for themselves.

  1. What is considered marital property?

Each state has a different definition of what constitutes marital property. In general, marital property is all property owned by the spouses jointly and some property that may be owned individually by one party but acquired during the marriage or brought into the marriage and commingled as marital property. It consists of all possessions and interests acquired by the couple during their marriage, from real estate to debts. This can include certain intangible items of economic value such as stock options, lottery winnings etc. In some states, it can include premarital property brought into the marriage.

  1. How does the Court divide marital property?

Generally, there are two schools of thought on division of marital property. Some states, such as California, are considered “Community Property” States. This means that all property acquired during the marriage is subject to an equal division. In other states, such as Massachusetts, the focus is on “Equitable Division”, which may or may not mean an equal division. Therefore, equitable division states divide property equitably, which could be 50/50% or a disproportionate (i.e. unequal) division in favor of one spouse over the other.

  1. Will I be entitled to a portion of my spouse’s retirement?

Most states include all assets, including retirement accounts that may be in only one spouse’s name, but considered part of the asset division for both spouses in a divorce. For example, Massachusetts law takes a rather broad view of what assets may be divisible in a divorce. It’s basically a “one pot” theory, where everything is thrown into the pot and subject to distribution. That includes a spouse’s retirement. One is not necessarily “entitled” to a portion of the spouse’s retirement, but a retirement plan is considered marital property that will be reviewed and considered for division.

  1. What is alimony?

Alimony is spousal support that continues after the marriage ends. For purposes of income tax returns, Alimony is deductible to the spouse who pays it and included as income for the spouse that receives it. Each state addresses spousal support differently, so it is important to review the laws of you state. For example, in Massachusetts, alimony is need based and not based on entitlement or right. It can either be a lump sum, a stream of continuous payments, or assignments of assets. Many states have enacted alimony statues that provide guidance for a formula for calculating the amount of alimony to be paid and the amount of time a spouse may have to pay /receive alimony.

  1. What is child support?

In general, child support is money paid by one parent to the other parent on behalf of the children. Each state addresses the amount and duration of child support differently, so it is important that you check with your state. In general, the amount of child support paid annually is tax free income to the recipient parent and not a deduction on tax returns for the payor parent.

  1. If I pay child support, can I claim my child as a dependency exemption on my tax return?

Generally, the parent who has physical custody of the child has the right to claim the dependency exemption for the child. However, either by agreement of the parents (if they file separate tax returns) or by court order, the non-custodial parent may claim the child as a dependency exemption. Internal Revenue Service form 8332 must be signed by the custodial parent relinquishing the right of the dependency exemption to the non-custodial parent and the non-custodial parent must include this form with their tax return.

  1. What does child custody mean?

In general, a parent has custody of a minor child if that minor child primarily lives with that parent. Some states distinguish between legal custody and physical custody. In general, legal custody is when a parent or both parents, if legal custody is shared, is responsible for making legal decisions for the minor child, such as medical, educational and religious matters. Physical custody is generally defined as the home in which the child primarily resides.

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