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Dealing With Division
Just Another Lawsuit
Before divorce, the law in most jurisdictions treats husband and wife as one person: The Marital Unit.
After divorce, the law treats them as if they were never married.
They become separate persons once again.
Divorce ends an adventure that started with joy and hope. Nonetheless, it is sometimes necessary to divorce when two people no longer support each other emotionally and can no longer endure living together sharing their mutual responsibilities as husband and wife and, where children are involved, as parents.
Divorce is all about getting the court to assign responsibilities between the parties and, if there are under-age children, providing protection and emotional nourishment for the offspring of the marriage.
It is potentially a simple process … except where lawyers get involved and complicate the issues so they can make more money from their clients!
Divorce is agonizing but simple when seen as explained in this class.
When children are involved, the agony can be very painful … not only for the parents but for the children as well who no longer have a single home with both parents present to love and nurture them.
This class will help get you through the process with the least amount of pain and anguish, give you the best possible outcome under unavoidably painful circumstances, and leave you with the least hard feelings when it’s over.
The Divorce Process
Divorce (in Latin a vinculo matrimonii) results in dissolving that union and thereafter treating both persons as if they were never married in the first place.
In most cases, however, each retains certain responsibilities to the other that can last for many years … yet they are no longer treated as united in law.
Each is free to pursue his or her life as if they’d never met … so long as those “certain responsibilities” are faithfully fulfilled.
The responsibilities may include any or all of the following:
- Divorce and Division of Assets
- Child Support
- Child Custody
Each of these and how to deal with them is covered in this class
In each cases (if the divorce is handled properly, as explained more fully in this class) the partners’ ongoing obligations will be enforced by court orders.
Violation of those court orders exposes the violator to possible civil and/or criminal contempt proceedings … even possible jail time. You will learn how to enforce the court orders against violators.
In all jurisdictions these days, the forms for obtaining a divorce are standardized and are, usually, available from the court clerk at no charge.
They can include:
- Divorce by Agreement – No Children
- Divorce by Agreement – With Children
- Contested Divorce – No Children
- Contested Divorce – With Children
The names above describe the circumstances where each is required. Different names for the forms may prevail where your divorce is filed, but the principal remains the same. There are four divorce circumstances.
Note: In some cases forms won’t exactly fit circumstances, and the parties may have to modify the standard forms to provide for the exceptions. More on this later.
Divorce by Agreement
These are, of course, the simplest and least painful proceedings, since the parties fill out the necessary forms
- Consenting to divorce
- Reporting their respective financial circumstances (assets & debts)
- Agreeing who is financially responsible for what
- Agreeing who gets what part of the assets
- Agreeing who must pay what part of the liabilities
- And, if there are children born to the marriage:
- agreeing who shall have custody,
- agreeing how the parties’ respective visitation with the children will be scheduled and conducted,
- agreeing who will pay child support, when and how much.
If the terms agreed to by the parties are accepted by the court, an Order is entered on the court record requiring the parties to comply with their respective agreed obligations and declaring the marital union dissolved.
That Order should also state something to the effect, “This Court reserves jurisdiction to enter such other and further orders as may be necessary to achieve justice.” Otherwise, once the Order is signed, the case is closed, and the court officially loses jurisdiction. All orders ending a marriage should include this language or something similar, so the court reserves jurisdiction over the parties to enforce its order. (This is also a good idea in other types of cases where the court needs to retain its power to see that the parties do what the court’s orders require.)
There generally is not much more to a divorce by agreement.
- The parties agree to all necessary terms
- The court enters an order approving the agreement
- The court reserves jurisdiction to enforce its order
The problems come after divorce by agreement (just as they do with contested divorces) when one or the other party decides to thumb his or her nose at the court’s Order. This, of course, opens a whole new can of worms, requiring the agrieved parties to go back to the judge for further orders compelling the violating party to fulfill his or her obligations upon penalty of contempt.
- Paying the marital debts
- Settling outstanding tax issues
- Transferring cash or property by deed or bill of sale
- Visiting or taking custody of children as ordered by the court
- Paying child support
- Paying alimony, if alimony was agreed to by the parties
These cases make lawyers rich.
Clever lawyers can cause contested divorces to drag on for years, while the lawyers create problems between the parties so they can keep the billable hour clock ticking as long as possible.
In most cases, however, the parties can get around the greed of lawyers and agree, rather than fighting tooth and nail while spending tens of thousands on unnecessary legal fees to their respective lawyers.
The difficulties with contested divorces are the same problems that crop up after divorce by agreement, but with a different, usually nasty slant:
- Payment of debts … arguing over who owes what to whom and who is or should be responsible to pay
- Arranging visitation with children (if children involved) and controlling that visitation when one or the other parties refuses to comply
- Determining which parent should have primary or even sole custody of any children (if children involved)
- Fighting over how much child support is owed by the non-custodial parent, to whom it should be paid, and how it should be calculated
- Disputes over the amount of alimony (if any) that should be paid by one or the other party, how long the alimony should be paid, even if alimony should continue after the other party remarries or moves in with and has the support of a “significant other” capable of providing all or some of the other party’s needs
All these arguments are won or lost depending on how persistently and tactically the parties use discovery to put the related facts on the court’s record as admissible evidence.
Discovery, Discovery, Discovery
For either party to “win” when marriage fails, the best outcome always results from persistent, tactical use of the discovery process:
- Request for production of documents proving assets, liabilites, present and future projected incomes of the respective parties
- Subpoenas for bank and other business records of non-parties
- Interrogatories to determine changes in the other party’s life that should affect alimony, child support, or division of marital assets
- Depositions subpoena duces tecum requiring the other party and/or non-parties (other persons) to appear with documents to answer questions under oath as to the other party’s circumstances that might affect alimony, child support, or division of marital assets
- Request for admissions to require the other party to admit errors in his or her reports to the court, changes in living conditions, changes in employment and income, etc.
Contested divorces become bitterly contested discovery battles.
If lawyers are involved on either side, the battles can be drawn out to such an unnecessary extent that both parties are drained to the bone financially. In many cases, when one of the parties is no longer able to pay his or her legal fees, the lawyer will quit in the middle of the battle, having gotten all the money it was possible to get and leaving the now destitute party to fight alone … without funds to pay alimony and/or child support ordered by the court. Sad but true. Believe me.
Motions to Compel Discovery
Motions to compel discovery should and must be filed immediately when the other side refuses to respond in good faith.
No punches should be pulled.
Demand your right to discover ALL facts “reasonably leading to the discovery of admissible evidence”, even if the facts you seek are not, in themselves, admissible. (This is all explained in the Discovery of Evidence class and the class on compelling evidence in the MAIN MENU.)
Where lawyers are involved, the “enemy” is often the opposing party’s lawyer (or even your own lawyer) not the other spouse who usually has no idea why the case is dragging on and on and on or even how to avoid discovery requests in bad faith.
File motions to compel discovery immediately when the other side is not forthcoming with good faith responses. Set your motions for hearing as quickly as possible. File supporting memoranda (explained elsewhere in the course) and be prepared with citations to controlling appellate court decisions to force the court to order appropriate responses.
If, after your opponent fails to respond to your discovery in good faith after being ordered to respond, file a Motion for an Order to Show Cause why they should not be held in contempt for violating the court order, and set it for hearing immediately! Support this motion with a memorandum citing controlling appellate court opinions that control your trial judge.
If after a show cause hearing your opponent still does not respond in good faith, file a Motion for Contempt and set it for hearing at once! This usually gets people moving, because it can result in jail time for the other party. [All explained in the “Compelling Evidence” class in the MAIN MENU.]
Always remember (as stated elsewhere in this course) a document, fact, or thing sought by the discovery process need not itself be admissible evidence at trial, if it is “reasonably likely to lead to the discovery of evidence that will be admissible”.
Don’t fall for the typical response to discovery, “Objection. Inadmissible.”
If what you seek with your discovery tools is “reasonably likely to lead to the discovery of evidence that will be admissible at trial” … evidence that could reasonably help you win whatever you are going for, then you have a right to get it using your discovery tools in every state and federal court.
Never forget, however, that:
- Your motions to compel must be clear and to the point
- Your citations to appellate decisions must be relevant
- You must have absolute assurance that a transcript of all that’s said at the hearing will be available after the hearing and in writing, in case your motion fails to gain the court’s approval and you must appeal
Marital Property v. Non-Marital Property
Everything you own before you marry is yours (in most jurisdictions).
Such property is called “non-marital property”.
Everything you acquire after you marry belongs to you both (in most jurisdictions). In fact, to be more precise, the law considers all such property acquired after the marriage as “belonging to the marital unit”, no matter which spouse “earned” it. The asset belongs not to one or the other nor even in equal shares. Marital assets are treated as being owned wholly and completely by the marriage itself, i.e, jointly by both parties to the union simultaneously.
What belongs to one equally belongs to the the other, and neither has a right to treat such property or asset as its own without consent of the other.
For example, marital property includes a home or business acquired by the parties after marriage and all income received after marriage (though in many jurisdictions an inheritance or devise by will of a decedent is not considered marital property).
If one party wins the lottery, that is marital property, even though only one spouse purchased the magic ticket.
All marital property is subject to division by the court in such proportions as the court deems in the interest of justice (and, where children are involved, in the best interest of the minor children).
If you own a home before you marry, the value of the home as of the date of the marriage is non-marital property (in many jurisdictions). In other words that pre-marriage value of the property belongs to you and you alone. But, all increase in the value of the property after marriage is considered marital property subject to division as the court may decree.
If you own a business or interest in a business before you marry, the value of that business as of the date of the marriage is non-marital property (in many jurisdictions). But any increase in the value of the business after marriage and all income you receive from the business after marriage is marital property subject to division.
All money you place in a joint account with your spouse (no matter where the money came from) becomes marital property, whether the money was yours before marriage or not. Once it goes in a joint account it becomes marital property subject to the court’s equitable division.
There are various differences from one jurisdiction to another, and you will want to familiarize yourself with those differences but, in general, ownership of non-marital property is not affected by a divorce, whereas all marital property is divisible by the court to be apportioned between the respective parties as the court sees fit.
All jurisdictions known to Jurisdictionary® compute the amount of child support owed by a non-custodial parent (the one with whom the child or children is not living) according to a schedule based on the respective incomes or assets available to the respective parties.
In some states the amount is determined by statute and computed from a chart showing the respective incomes or assets available to both parties and the amount owed by the non-custodial party.
It should be understood that this is not money intended for use by the custodial parent for anything other than the child or children’s benefit!
It is not for the ex-spouse’s food, clothing, medical, dental, or entertainment needs, etc. It is not intended in any way to benefit the custodial parent other than to assist with support of the child or children, which may include a portion of rent, portion of utilities, portion of grocery costs, etc.
The reality of the foregoing is missed by 99% of parents paying child support. The money is paid to the ex-spouse (or indirectly to the ex-spouse through the court registry) and the ex-spouse uses the money however he or she wishes to use it … sometimes leaving a child without proper clothing, insufficient school supplies, need for medical or dental treatment, minimal food, and so forth. Your imagination may be your guide.
If you are paying child support, you have a right (indeed a duty to your child or children) to use the court to force your ex-spouse to spend your child support dollars on the child and not on the whims and wishes of the ex-spouse. You do this the same way you do most everything else in court. You use your discovery tools to prove the abuse and file motions for orders to put an end to the abuse. NOTE: This is all-too-rarely done, but it is your right and duty to do it when your ex-spouse is using your child support money to buy a new car, jewelry, trips, and other things that do not benefit your child or children.
Child support can be paid directly to the custodial parent, in which case it should always be paid by check or other method by which one can later prove, if necessary, that the amount was paid, the check tendered to and cashed by the custodial parent.
Child support should never be paid in cash, unless the custodial parent provides a signed written receipt showing the amount, the date received, and that the amount was accepted as “child support” and not for any other reason.
Similarly, child support should never be “paid” with stuff (such as groceries, clothing, a new bicycle, and such like), because even if the custodial parent provides a signed receipt, showing value of stuff and date received, the court may treat all such stuff as a “gift”.
Child support is money … money intended to be used exclusively by the custodial parent solely for the child’s needs!
Anything else is not child support.
If you suspect your ex-spouse is using “child support” money for his or her personal benefit, immediately use your discovery power to obtain evidence of such and immediately file a motion with the court to either modify the amount you are paying or direct the custodial parent to use the money solely for the child or children’s exclusivebenefit.
You may even succeed with a Motion for an Order requiring the custodial parent to file monthly reports showing how the money is being spent for the child or children’s benefit and not to enhance the lifestyle of your ex-spouse.
For example, using child support payments to take the children to Disneyland may be acceptable, but no part of that money should be used to buy the custodial parent’s ticket to the park or ice cream.
Know what child support payments are for and what the custodial parent’s responsibilities are in regard thereto.
Normally, child support payments cease when the child reaches the age of maturity or ceases to reside with the other parent, however in some cases (as where a child has unique health or educational needs) the court may require the non-custodial parent to continue making payments years after the child is an adult … but never after the adult child is able to support himself or herself without assistance.
Every parent of a minor child has a common law right to enjoy at least a degree of fellowship time with his or her child … either by scheduled visitation or custody … no exceptions!
When one parent is imprisoned, is convicted of a serious felony, is shown to abuse drugs or alcohol, or is in some other way shown to present a risk to the safety of the child, the court may deny contact between the parent and the minor child, however what the court should do is order supervised visitations so the child is not deprived of all contact with his parent.
Once a child becomes an adult (or reaches a certain age that differs from state-to-state) it is up to the child to decide if he or she wishes contact with either parent. No court has power to control parental contact once a child becomes an adult.
Most States have adopted the “Uniform Child Custody Jurisdiction and Enforcement Act”, also known as the UCCJEA or simply “Child Custody Act”.
Know and memorize this law as adopted in your state!
The UCCJEA may differ slightly from state to state, however it is the law that must be enforced by the court in all cases.
You should be intimately familiar with this law.
For example, if you live in Florida, you can Google® “Florida Uniform Child Custody Act” to get a complete copy of the act. The same if you live in other states.
- Get it.
- Read it.
- Understand it.
- Cite controlling appellate court opinions that reference it.
- Rely upon it.
It is your official guide to understand your rights and those of your child or children.
- Get it.
- Read it.
- Understand it.
- Cite related appellate court opinions.
- Rely upon it.
There are two primary aspects of the Act you should keep in mind:
- Best interest of the child or children
- Right of parent to move the court for custody change orders
Child’s Best Interest
Never does the Act apply for the benefit of either parent, except to the extent that benefitting a parent in one way or another is in the “best interest of the child or children”.
This is the golden rule of child custody.
The only thing that matters in child custody cases is what is in the best interest of the children.
The best interests of the parents mean nothing in child support proceedings except as those interests may impact the “best interest of the children”.
It is, therefore, a foolish mistake for a parent to insist that some provision of a custody order is “inconvenient” or “unduly burdensome” to him or her. The law does not care what is inconvenient or burdensome to either of the parents except where a change to the order would be in the best interest of the child or children.
It’s not even enough to be “in the interest” of the child or children.
The order must be in the best interest of the child or children … i.e., what is best for the child, without compromises for the convenience of either parent.
Keep this forever in mind.
If you tell the court it is “inconvenient” for you to pick up your child from school on Thursday afternoons and return the child to your ex-spouse Sunday afternoon, be certain you make clear on the record that the inconvenience is not in the best interest of the child. The law doesn’t care about your inconvenience, and the judge should not be allowed to take your convenience (or the convenience of your ex-spouse) into consideration when entering a child custody order.
When it comes to custody of children, the court is not interested in the convenience or burden placed on either parent.
The only thing the court is allowed to consider is the best interest of the child or children.
For this reason, when arguing in court over custody, never mention your own convenience or burdens (financial or otherwise), because that will only work against you! Always emphasize the best interest of the child and how your motion or other proceeding is solely motivated by your sincere wish to improve circumstances that will enhance the child’s welfare, i.e., the child’s “best interest” … not yours! This puts you in the best light possible, showing your concern is for the child and not for yourself.
Suppose your ex-spouse has primary custody of your child but lives in a neighborhood where street shootings are common and multiple murders have occurred in the past year. Suppose further that you live in a part of town (or a different town) where shootings and murder are uncommon. If the court follows the Act, it should enter an Order granting primary or even sole custody of the child to you (usually with some provision for the other parent to have occasional visits with the child, perhaps supervised if the circumstances warrant).
Custody orders are never permanent!
If at the conclusion of a divorce the court enters a custody order that seems unfair or unwise, do not despair.
Custody orders are never permanent.
At any time the circumstances of either parent change in some significant way, the courthouse doors are open for a Motion to Amend Custody.
The conditions where this might happen are too numerous to list here, but a few examples will prove the point.
- Primary custodial parent is imprisoned
- Primary custodial parent is shown to be abusing drugs or alcohol
- Primary custodial parent is failing to keep the child’s residence clean and free from anything that might affect the child’s health or welfare
- Primary custodial parent is permitting dangerous or unsavory characters to visit or reside with the primary custodial parent, presenting a risk to the child’s welfare and social development
- Non-primary custodial parent has a financial windfall and can afford to provide better living conditions for the child
- Non-primary custodial parent is exhonerated of some crime or circumstance that previously caused the court to decide to grant primary or sole custody to the other parent
If any of these or any other “significant changes” occur in the lives of either parent, the court must hear and rule on a Motion for Custody Modification. The court does not have discretion to refuse a hearing unless the alleged “change” is not “significant” within the meaning of the UCCJEA as adopted by your state.
Child custody is always and forever solely based on what is in the child or children’s best interest.
When “significant changes” in either of the parent’s circumstances occur that are likely to adjust what is in the best interest of the child or children, the court should grant a Motion for Custody Modification to insure that custody is adjusted to promote the best interests of the child or children.
Before filing a motion for modification of custody, do your homework. File and serve incisive discovery requests, get certified copies of reports from child care services or housing inspectors (for example) so you can prove what you say about the “significant changes”. Be prepared with admissible evidence, not just your independent observations or say-so (which usually count for absolutely nothing in court and get you absolutely nowhere).
What is convenient and advantageous to you matters not at all unless it affects the best interests of the child or children and, as such, it should not even be mentioned because mentioning it only tends to show the court that you have an impermissible, selfish motive for the change you seek.
There is quite a difference between how alimony is treated in different states, but the idea of alimony in all states is to provide assistance and support for a spouse who is unable to continue supporting himself or herself “acceptably” after the divorce and division of assets.
In many states the right to alimony does not “kick in” until the couple has been married for a minimum number of years or there is some other factor that justice requires to be considered under the circumstances.
Suppose a part-time waitress is married to a wildly successful thoracic surgeon who decides to have an affair with his nurse. Prior to the divorce, the part-time waitress has enjoyed living in a nice home, possibly with swimming pool and view of the adjoining golf course. She has an interest in that “way of life” from the law’s point of view. She should not be simply put out on the street to resume her part-time waitressing while the surgeon and his nurse jet off for Cozumel or Belize to enjoy cocktails in his seaside cottage on the beach.
In such cases (depending in part on how long the two were married) the law will protect the ex-wife by ordering the ex-husband to pay her either a lump-sum. temporary, or ongoing periodic alimony for a period that usually depends on changes in their respective circumstances.
Similarly, suppose a man of limited means who aspires to be a famous author marries a woman who runs a successful brokerage house and makes millions every year. At the beginning of their interest in each other, the ex-wife may have wished to support her ex-husbands literary ambitions, even if they were somewhat unrealistic in light of his apparent talent or lack thereof. No problem there. But, if they divorce, the court has power to order the ex-wife to pay the ex-husband either lump-sum, temporary, or permanent alimony so he can get on his own feet without her help or until he is able to support himself.
The variables are uncountable and beyond the scope of this class, yet the principle is always the same.
Where one ex-spouse is in a substantially better position financially than his or her former partner, the court has authority to compel the party with more to assist the party with less.
Since alimony law varies so widely from state-to-state, you should read, memorize, and be prepared to argue:
- Your state’s statutes (divorce is never a federal court issue)
- Appellate court opinions that address alimony and interpret how the applicable statutes should be applied in different fact circumstances
The tendency in many states these days is that alimony be temporary and not permanent. The judicial and legislative thinking behind this movement is that ex-spouses who choose to be part-time waitresses or famous authors without talent should have some obligation, after receiving some temporary alimony assistance, to get their act together and learn how to stand on their own feet.
Where an ex-spouse suffers from a debilitating disease preventing any opportunity to better his or her conditions after divorce, the alimony obligation may be made permanent (with the exception that same will terminate if the disabled person remarries).
There is no state we know of where a remarried ex-spouse may continue to receive court-ordered alimony.
The Rules of Family Court
In each state there may be a separate set of rules for family court cases.
However, in each such state you will find a provision within the family court rules stating that certain, if not all, rules of evidence and certain, if not all, rules of procedure apply generally in family court as they do in other civil cases.
Read the rules:
- Rules of Family Court
- Rules of Evidence
- Rules of Civil Procedure
Be familiar with them and what they allow you to do, as well as what they do not allow you to do.
For example, many family court rules limit attendance at hearings and trials by anyone who has no direct interest in the outcome. Enforce this rule by motions and objections and make your record in case such attendance results in an unjust ruling toward you.
There are also rules limiting the reliability (and thus the admissibility) of the testimony of very young children. These, again, vary widely from state to state and, in some jurisdictions, are left to the discrection of the trial judge. If a trial judge allows an 8 year old, for example, to testify in such a way as to adversely affect your outcome of the proceedings, you may have success on appeal where the appellate court justices may decide the trial judge abused his discretion in allowing such testimony.
As in every case, civil or criminal, the rules are your best friend.
Know them and how to use them to advantage.