FREQUENTLY ASKED QUESTIONS AND ANSWERS 1. Do you need a Lawyer? 2. Do you really want a divorce? 3. Grounds for divorce. 4. Residency requirements. 5. Getting Organized. 6. How do spouses hide assets? 7. How the courts divide assets and obligations. 8. Dividing property by agreement. 9. How to deal with specific assets. 10. Alimony. 11. Child custody. 12. Visitation. 13. Child support. 14. Preparing and filing your divorce documents. 15. Post-divorce Checklist. ==================================================================== 1. Do you need a Lawyer? Your divorce will legally resolve important rights and obligations concerning 1) financial support, 2) division of property, and 3) custody and visitation of your children. You may need a lawyer to prepare these forms if: 1. Your divorce is contested. These forms will work best if there is agreement regarding a quick and friendly divorce. A contested divorce will usually require the services of an attorney, as you and your spouse will be litigating whether you are entitled to a divorce as a matter of law. 2. You have minor children. If you do, you will have to resolve very important issues including child support, custody and visitation rights. 3. You expect future support from your spouse. In this case you may need an attorney to negotiate equitable support levels, as well as make the obligation binding. 4. You have extensive and/or joint property. If you divorce is nothing more than deciding who gets the dogs and furniture, you will most likely not need an attorney. But serious issues such as retirement funds, 401K and pension funds, or extensive property will more than likely require an attorney to negotiate distribution of these assets.2. Do You really want a divorce? Before you start divorce proceedings, make certain you want a divorce. No marriage is without its occasional problems. There are a number of things you can do to assure yourself that you are making the correct decision: 1. Don’t act hastily. Make sure you have given your problems adequate time to work themselves out. 2. Seek professional help. Maybe a psychologist or marriage counselor can help you and your spouse improve your relationship. 3. Try a separation. This could be an interim step before jumping right into a divorce. You and you spouse could live apart for a set time before you make a final decision. 3. Grounds for divorce. You must satisfy the legal requirements of you state to obtain a divorce. This is because each state has “legal grounds” that it considers to be justification for the divorce. Therefore, just because you or your spouse want a divorce does not mean you will automatically get it. Most states today recognize “no fault” divorces. This means you can obtain a divorce quicker and with less legal proceedings. Check the grounds for divorce by reviewing the form provided in this packet on requirements for divorce in your state. 4. Residency Requirements To obtain a divorce in any state you must meet that state’s residency requirements. That means you must have lived in the state and/or county where you file for a minimum amount of time first. Check the residency requirements for you state by reviewing the form provided in this packet on your state’s requirements. 5. Getting Organized. Divorce can be quite complicated financially and legally depending upon the wealth of the couple and if children are involved. To resolve your financial matters fairly, you and your advisors need your complete financial and legal picture. Organize and have ready: * Deeds and mortgages on real estate * Life insurance policies * All bank and savings accounts * Last will and testaments * Pre-nuptial agreements * Leases* Prior divorce decrees * Prior lawsuits and judgments * Tax returns * Tax refunds due * Contracts * Credit card accounts * Inventory or all personal assets * Titles and registration on boats, planes, autos or other vehicles * Ownership interests in any family or other businesses * Stocks and other assets * Certificates of deposit * Money market funds * Options to acquire property * Safe deposit box inventory * Unsecured loans (i.e. -car loans) * Art, jewelry, antiques * IRA, Keogh, 401K or other retirement accounts * Revocable trusts * Savings Bonds * Accounts Receivable * Investment real estate 6. How do spouses hide assets? There are several ways one or both spouses in a divorce can play “hide and seek” with property: 1. Transferring assets to offshore havens or secret accounts. 2. Camouflage ownership. This could entail “selling” an interest in a business or asset to a close friend or family member where little or no actual money transfers hands. 3. Delay receiving income until after the divorce goes through. 7. How the courts divide assets and obligations. 1. Equitable Distribution. In an equitable distribution state the court “equitably divides” the marital property. The court considers the length of time of the marriage, the couples’ age, health, occupations, skills, employment and conduct. All property acquired during the marriage is “marital property” and all property owned before the marriage is “non-marital property.” The following are equitable distribution states: Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, NorthDakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia and Wyoming. 2. Community Property. Community property state, in contrast, require equal division of the community property in the event of divorce. This includes property acquire during and before the marriage. The following are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. The only property not included in the final distribution is: 1. Property that each spouse owned individually before the marriage and retained separately in his or her name; and 2. Property that each spouse separately received as a gift or inheritance. 8. Dividing property by agreement. This kits assumes that you and your spouse will reach agreement on the division of marital assets and liabilities and there will thus be no need for the court to divide the property. If you have minimal property, you and your spouse may simply divide it up with no formality. If you have more substantial assets, you will want a written agreement. Judges in uncontested divorces nearly always go along with the property agreement of the spouses if it is generally fair and the judge is convinced the agreement was entered into freely by each spouse. In negotiating your agreement, be guided by how the court is likely to divide your property if you cannot reach agreement: 1. The court will order an equal division of property and liabilities when: -Both spouses have adequate earning ability -There are no minor children -The spouse had near-equivalent wealth before the marriage. 2. The court will award more property (and fewer debts) to the spouse who has:-Less earning ability -Poorer health or other circumstances -Custody of the minor children 9. How to deal with specific assets. 1. The family house. In a divorce with minor children, the family home is nearly always awarded to the spouse with custody. But, this does not mean the custodial parent gets to keep the house permanently, and sometimes will need to vacate the house when the children reach that state’s age of majority. Otherwise, you and you spouse may agree to 1) sell the house now and split the proceeds, or 2) have one spouse buy out the interest of the other. 2. Pension and profit-sharing plans. These include assets such as social security, IRA’s, Keoghs, 401K plans, tax sheltered annuities, employees stock options (ESOP’s) and self-employed person’s individual retirement accounts. Social security benefits are never considered marital property or community property and are not subject to division in divorce. However, you are entitled to social security survivor benefits if you marriage lasted at least ten years. (Caution: if you are approaching your tenth anniversary, let your divorce occur after you anniversary date so that you do not needlessly lose these and possibly other social security benefits). Stock option profit-sharing plans and other pension plans are normally considered marital property and are subject to division no matter which spouse accrued the benefits. Military disability benefits are not considered marital property subject to division. There is a requirement that the parties by married for at least ten years for you to share in any military retirement benefits that have accrued during the marriage. While veteran benefits cannot be given to the other spouse, a divorce court can take these benefits into account for purposes of making a fair and equitable division of other property or for establishing alimony. 3. Professional Licenser. Academic diplomas and professional licenses may be considered marital assets, especially when one spouse helped put the other through school. 10. Alimony. A court will consider alimony when: 1. It was a long marriage. (2-3 years is not considered a long marriage). 2. When the wife spent her years at home raising the children. 3. When the wife must remain home to properly care for the children. 4. When the wife is ill, unemployable or has no special skills. 5. When the husband has high earnings or earnings potential. 11. Child Custody. The most emotional part of your divorce will involved the custody decision. In the past there has been a strong presumption for custody by the mother. Fathers, in the past, could only hope for custody by showing the court that the mother was somehow unfit to care for the children. In more recent years, courts now seem to look at “what’s in the best interest of the children” when deciding upon the custodial parent. In recent years the concept of shared or joint custody has also gained popularity. This means that both parents have an equal say in the upbringing of the child, that is, they share legal custody, although one spouse may continue to have sole physical custody. 12. Visitation. Related to the issue of custody is the issue of visitation. The parent denied physical custody of the child has the right to reasonable visitation of the child. The only exception is if the parent is abusive or behaves in a way that can be harmful to the child. The frequency and duration of visitation must be carefully worked out with your spouse. Remember that while you and your spouse may agree upon visitation and custody, this is always subject to review by the court. 13. Child Support.In awarding support, the court will consider: 1. The number of children and their ages. 2. Whether the custodial spouse has any earning ability. 3. The health or special needs of the children. 4. The income of both spouses. 5. The assets and wealth of both spouses. 6. The financial obligations of both spouses. 14. Preparing and filing your divorce documents. These documents can best be used if both spouses can agree upon the terms of the divorce. The more disagreement there is about issues such as division of assets and custody of children, there will be an increasing need to involve a lawyer. Also, the more complex the marital assets are, a lawyer may be needed for tax purposes. Finally, if the divorce deteriorates into a hostile situation, one or both spouses may resort to getting a lawyer. Whether or not the parties can agree, the first step is to fill out the Complaint (also called Petition for Divorce) and file this document with the Clerk of Court in the county where you live (or intend to file). Each state sets its own procedures for starting and processing divorce cases. Counties within a state may also adopt slightly different procedures. Accordingly, while this kit gives you the information and forms needed to prepare your divorce papers in compliance with the rules of most states, there may be specific requirements you must follow in your state. As a starting point, review the form provided in this packet about your state’s residency requirements and grounds for divorce. Also, you must check with the Clerk of Court in the county where you live (or intend to file) to see if you need any additional forms, or to learn the exact requirements for filing you initial court papers. Usually the Clerk of Court will have a prepared form that lists: 1. The requirements for filing, 2. How to file, and 3. The court process that will follow. Finally, if any of your questions cannot be answered or if you experience difficulty in filling out the forms either because (1) your asset or child custody issues are too complex, (2) your spouse is being difficult, (3) the court process is too complex for you to understand, or (4) you are just not sure what to do next, you will need to consider obtaining an attorney to help you finalize your divorce. An attorney will usually charge less if you have already prepared the forms yourself, if the divorce is uncontested, if there are very little assets to distribute, or if there are no children involved. Eventually, after you initiate the process by filing for divorce, you will have your day in court. You will need to bring all documents to the hearing. If your case is uncontested, it should only take a few minutes. If it is contested, it will involve a longer proceeding.Your divorce decree will make you a single person again. You will be free to live your life without interference from you spouse except for those obligations in your divorce agreement or court decree. Several states require that you wait a period of time before you can marry again. 15. Post-Divorce Checklist. Once divorced, there are some basic steps you and your ex-spouse should follow: 1. Keep a certified copy of your divorce in a safe place. 2. Exchange any personal and household property at that time. 3. Close any remaining joint checking or other accounts. 4. Close all joint credit card accounts. 5. Change title on any cars, boats or other vehicles as agreed to in the divorce. 6. Change insurance policies as needed. 7. Convey any real estate as agreed to in the divorce. 8. Decide who will pay taxes for that year, as well as if each spouse will file a separate tax return. 9. Change your last will and testament as needed.