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Common Divorce Questions

Q: How long does it take to get a divorce?

A: There is a mandatory 60-day waiting period between the time the other party is served with the Petition for Dissolution of Marriage and when the Court can sign the Final Decree. That means the least amount of time it could take, if the parties agree on everything in advance, is about 75 to 90 days. If the parties cannot come to an agreement on all of the issues, the case must go to trial so that the judge can make decisions on the issues the parties could not agree on, it will take between five and nine months to complete the case.

Q: What is the difference between joint and sole custody?

A: Joint and sole custody refer to “legal” custody, which means decision-making. Joint custody means that both parties have to agree on major decisions involving the child(ren), such as changing schools, nonemergency medical care, extracurricular activities, counseling programs, etc. It also means that the parties have equal rights to go to school conferences, obtain school and medical records, etc. Joint and sole custody have nothing to do with where the child(ren) reside(s) and how much time they spend with the other parent. That is called residence and parenting time. The residence and parenting time schedule is determined by what is in the “child’s best interest.” Generally, in determining which parent the child(ren) should live with primarily, the Court would have to consider which parent has been providing most of the care for the child(ren) during the marriage, the parents’ work schedules, the child(ren)’s wishes, depending on their age, and whether there has been any domestic violence or substance abuse problems for either party. The Court wants both parties to consider the best interests of the child(ren) and to come to an agreement both parties can live with. The child(ren) is/are not a prize to be fought over.

Q: My spouse wants spousal maintenance. Will he/she get it?

A: Generally, if one spouse has been a stay-at-home spouse or has worked part time or at low-paying jobs and cannot or will not be able to meet their reasonable needs on their own after divorce, they are entitled to an award of spousal maintenance. Also, if he/she contributed to the education of the other party, has to stay home to care for a very young or disabled child, has been married for a long time, or is older and cannot go out and start a career, then he/she might be entitled to spousal maintenance. If a party is entitled, the court has to determine the amount and duration. One main factor is the ability of the higher earner to meet his/her reasonable needs after divorce and still help the other party. Reasonable needs are determined by the lifestyle the parties had during the marriage.

Q: How much does a divorce or another action like paternity cases or modification of custody/parenting time orders cost?

A: The cost can vary widely depending on the type of matter. For matters in which the parties have a complete agreement (uncontested matters), we can prepare complete document packets that the parties can sign and file themselves. For example, a Consent Decree of Dissolution packet for cases with children is generally $995.00, and without children is $795.00. The parties pay their own filing fees. For a contested matter (no agreement in advance on all of the issues), the cost could be as little as $800.00 for a child support modification to $4,500 to $8,000 for a divorce that has to go all the way to trial. Every case is different so it is hard to give an estimate without talking about the facts of the case.

Q: I bought the house we live in prior to the marriage. Does my spouse have any interest in the house, if it’s still in my name?

A: Generally, if the house is still in your name you own it. However, if payments were made toward the mortgage during the marriage from income earned by either or both of you during the marriage, the community gains an interest in the equity in the home and the other party is entitled to half of that “community equitable interest.” The facts of every case are different, so you need to consult with an attorney regarding your set of facts.

Q: I inherited some money. Does my spouse get any of it?

A: Generally, property acquired through inheritance is the separate property of the party receiving it and it is not divided in a divorce. How it is dealt with after receipt can make a difference. If the money is kept in a separate account and never combined with money earned during the marriage by either or both parties, it will remain the separate property of the recipient. If the money is put in a separate account and combined with community money, it may still be separate if it can be traced. That would generally require an accountant to determine what part of the account is separate and what part is community. If inherited funds are used to pay community debts there is a presumption of a gift to the community, which may be overcome with the proper evidence. As with many aspects of divorce, the specific facts of each case are important.

Q: Does my spouse have an interest in my retirement?

A: Retirements, 401(k)s, IRAs, pensions, stock options, deferred comp and any other similar assets earned during the marriage belong to the community and are divided at the time of divorce. If a party earned some of the retirement prior to marriage and some during the marriage, the part earned prior to the marriage is separate and the part earned during the marriage is community.

Q: How is child support determined?

A: Child support is determined by application of the child support guidelines. The variables are the parties’ gross monthly incomes; the number of children and their ages; the cost for health, dental and vision insurance; the cost for day care; and the parenting time schedule. These numbers go into a formula and the support amount is determined. Generally, whatever the guidelines determine is the support amount. Deviations are allowed, but are rare.