Common Divorce Questions
What issues can be resolved in a divorce?
Divorce is strictly a legal process. Only legal issues can be resolved. What a divorce cannot do is punish one party or place blame.
How long will the divorce process take?
At the beginning of a divorce, it is hard to predict how long it will take. Your attorney can better judge length after the case is underway. Some factors that affect length are:
- The number and complexity of contested issues
- The parties’ ability to work together
- The court’s calendar
- The lawyer representing the other party
The case begins when your divorce complaint is filed with the court. Your spouse has 28 days after receiving the complaint to respond by filing an “answer.” If an answer is filed, the case is contested. If no answer is filed, the case is uncontested. In contested cases, a status conference is held about four months after the complaint is filed. A pretrial conference is held two to three months after that. If an agreement can be reached, the matter may be finalized. If not, a trial is scheduled. After the trial is held, the court makes a written decision. This can take about a year.
What will the divorce cost?
There is no charge for attorneys’ fees if you remain financially eligible and are represented by CLAS. However, there are other financial costs. Filing a case requires a deposit with the court. If you don’t have funds for the deposit, a poverty affidavit can postpone payment until your case is completed. There also may be costs to properly prepare the evidence for your final divorce hearing. There may be costs for property valuation, discovery, court reporters, transcripts, a guardian ad litem, supervised visits, or pension evaluation.
What do I do about custody, visitation, property, and other issues while the divorce is proceeding?
There may be a hearing to decide important issues while your divorce is in process. A magistrate issues a written decision called a temporary order. The temporary order remains in effect until modified or the case ends. The temporary orders are not permanent. They may be different than the court’s final decision.
Is there an alternative to going to trial?
One alternative is to reach a settlement agreement. If you and your spouse can decide most of the issues in the divorce, it can make the court trial shorter. Your attorney can assist you in negotiating a settlement. Do not sign anything without your lawyer present.
Is what I tell my attorney confidential?
Yes. Confidentiality is essential for honesty and openness and is necessary for success in your divorce. Your attorney is prohibited from telling other people what you have told him or her.
May I bring someone with me to meetings with my attorney?
Your divorce is unique. It will be different from other people’s divorces. Bringing third parties such as a friend, neighbor or another family member into your meetings with your attorney is not encouraged. Your discussions with your lawyer may not remain confidential if another person is at the meeting. If your spouse finds out, the third party can be legally required testify about what you told the lawyer.
How will our property be divided?
By law, the property will be divided equitably. Before the property is divided it must be identified, valued, and classified as marital or separate. Some factors that the court will use in determining property distribution are the duration of the marriage, the property and debts of the spouses, the cost of sale, tax consequences, and any division made by a separate agreement.
Who will have to pay our debts?
Debt is treated similarly to the property. Before it is allocated, it must be identified, valued, and classified. The creditor is not a party to your divorce. If both you and your spouse signed for the debt, the creditor may collect from either of you regardless of whom the court orders to pay the debt.
Will spousal support be ordered?
There is no guarantee or right to spousal support. Unless your spouse agrees to pay you support, the judge decides whether spousal support is appropriate. The decision to award spousal support depends on the relative needs and resources of the parties. Some factors that the court will use in determining spousal support are the income of the parties, the parties earning ability, age, physical, mental, and emotional strength, retirement benefits, duration of the marriage, standard of living, education and tax consequences.
Who will get custody of my children?
The court prefers for parents to create their own plan for custody and parenting time (visitation). If you and your spouse cannot develop a plan, the court will use a set of factors to determine what is in the best interest of the children. These factors include the wishes of the parents, the mental and physical health of all parties, whether a parent has been convicted of abuse or neglect of the child or domestic violence and the ability of the parents to get along. The question is not who is the better parent but what is in the best interest of the children. Every judge sees the standard “best interest of the child” differently.
How do courts decide parenting time?
The best parenting time (visitation) schedule is your own plan. However, if you and your spouse cannot agree, most courts have a standard schedule. If there are objections to this schedule because of special circumstances (travel time, work schedules), or problems (substance abuse, mental illness, violence), you may present specific facts in a scheduled hearing stating why this parenting time is not in the best interest of your child.
How much child support will be ordered?
The court will make an order of support for the children based on a formula provided by law. The formula includes factors such as the gross income of the parents, the cost of healthcare and childcare, and the number of children.
Do I have to keep my husband’s name after the divorce?
The law allows you to decide to keep your married name or to change it to any name you had before.
How should I file my tax return?
Beware of signing a joint tax return. When you sign a joint tax return, you become jointly responsible for any errors or inaccuracies on the return and for outstanding liability. Consult your attorney about how you should file your taxes while in the divorce process.
Will dating while my divorce is pending affect the outcome?
Dating while your divorce is pending may create problems for you. If custody is at issue, evidence of your dating or involving a third person with your children is bad for your case and may result in the loss of custody. Dating is not recommended. However, if you do decide to date, you must fully inform your attorney about your decision and the people you are dating. Your attorney will discuss with you the possible consequences of your actions.
This article is meant to give you general information and not to give you specific legal advice.
Prepared by Community Legal Aid Services, Inc. Updated May 2012.