What is the divorce process like?
The divorce process varies, but the goals are the same no matter which state you live in. You determine child custody, spousal and child support, and property division. Divorce is a major life change for anyone and it often comes with strong emotions.
Each state has its own laws about how divorce proceedings work, the length of time you must be separated – also known as a waiting or cooling off period – prior to finalizing a divorce, and how property is divided between spouses. Depending on your state’s laws and how complex or contested your divorce becomes, the process can be as quick as a few short months to a year or more. In California, for example, which has a 6-month cooling off period, the average divorce is completed within a year and a half.
Do I need to hire a divorce lawyer?
It is typically not required and some people do choose to represent themselves in a divorce if the split is not contentious or the spouses work with a mediator. This is known as appearing pro se.
In most cases, however, and especially in a difficult divorce, a divorce lawyer at your side is the best way to proceed. A lawyer can help you understand your rights, advocate for your best interests, advocate for the best interests of any minor children, and limit your ex-spouse from taking advantage of you.
Keep in mind that a lawyer is not the same as a mediator. A mediator works with both spouses to come to an agreement, but the mediator does not legally represent either of you. A mediator is neutral and does not advocate for either spouse. Many people who mediate during their divorce still hire a lawyer to advise them on what to ask for in a Divorce Settlement Agreement, and to review any agreements reached before signing.
What is collaborative divorce?
Collaborative divorce is a divorce proceeding where divorcing spouses are willing to work together, and they are confident they can reach a compromise without a judge’s intervention. A collaborative divorce can help save money by not spending time in court with each spouse incurring attorney fees. This process can work well for couples that may share similar goals for the division of property and child custody.
Typically, in a collaborative divorce, an attorney or mediator helps by gathering all the information then laying out various scenarios a court would order. The mediator then asks each spouse how they would modify these situations. Then, everyone works to find a compromise the couple can agree on.
Once you choose collaborative divorce and hire an attorney, however, that attorney may be unable to represent you in court during a contested divorce. This means if you decide the collaborative divorce process does not work, you may be looking to hire a new attorney to go to court for a contested divorce.
What is a contested divorce?
A contested divorce occurs when you and your ex-spouse cannot agree to some or all divorce terms, such as child custody, finances, the house, or more. The process may be complicated, or it may be straightforward if you and your spouse can eventually find a compromise. If a compromise cannot be reached, a judge can be tasked with reviewing the evidence and making decisions regarding the finances and children. During this process, each spouse has the opportunity to contest or object to evidence, and present their side of the story.
Who keeps marital assets or gets custody of the kids?
There is no simple answer to the question of who keeps what assets or retains custody of the children. The answer depends on the state you live in and the circumstances of your divorce.
When it comes to finances, nine states are community property states. This means any assets acquired during your marriage are divided 50/50 between the spouses. The other 41 states are equitable distribution states, which means that a judge can decide to award assets to either spouse according to what they believe is the fairest calculation. The judge will take into account who cares for the children, each spouse’s future income earning potential, and many other factors.
Child support and child custody are determined by state laws and what is in the best interests of the children of your marriage. A judge may give either parent primary custody or may order the parents to share custody, even if it does not always mean a 50/50 split. A judge can order parents to share legal custody, which means making significant decisions for the child, even if the child lives with one parent who has primary physical custody. Child support is determined by a formula in many states, but even here a judge can deviate. An attorney can help you understand what goes into determining these arrangements.
What mistakes should I avoid when going through a difficult divorce?
Emotions can be the toughest part of a divorce. It is important to stay on top of your mental health and schedule sessions with a therapist or counselor, as needed, who can help you process your situation. You might also consider joining a divorce support group. While tempting, you may want to avoid venting to friends and family, and posting on social media because this can hurt your case. Try to keep calm when communicating with your ex-spouse, since text messages, emails, and voicemails can all be presented in court.
Avoid the temptation to empty joint bank accounts. The Financial Affidavit that is typically required as part of the process is likely to result in an accounting and the court ordering you to pay it back. The same goes for running up credit card debt. While you may need to lean on savings and credit cards for a short period of time, keep in mind that you can be held responsible if you overspend.
If you have more questions about a difficult or simple divorce, reach out to a Rocket Lawyer network attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.