Divorce
Approximately fifty percent of all married
adults in the United States end up divorced.
A large percentage of those couples remarry,
and then get divorced a second time.
For better or worse, divorce has become
so popular in American culture as to
require special expertise among lawyers
who handle these kinds of cases.
It is not enough to simply know the
grounds for divorce. A skilled matrimonial
lawyer must now appreciate the various
kinds of divorce, property distribution
laws, child custody and visitation rights,
alimony, maintenance and spousal support,
insurance issues, real estate issues,
taxes and inheritance laws, and domestic
violence and abuse issues. Indeed, in
many divorce cases these days, expertise
is required in many complicated areas—such
as knowing how to investigate the whereabouts
of hidden money, or knowing how to divide
pensions and retirement benefits between
two parties.
Divorce is sometimes referred to as
dissolution of marriage. Depending on
what state you live in, a divorce action
is generally started by filing a complaint
for divorce, a petition for dissolution
of marriage, or some variation on those
terms. Some states recognize alternatives
to divorce. For example, New Jersey recognizes
a “divorce from bed and board,” as
distinguished from a divorce from the “bonds
of matrimony.” It is important
that you and your lawyer determine exactly
what kind of divorce you want. Some states
have only one or two grounds for divorce,
while other states have numerous grounds
for divorce.
Grounds for divorce fall
into “fault grounds” and “no-fault
grounds.” In a divorce based on
fault grounds, one spouse is accusing
the other spouse of some fault, such
as adultery, desertion, or cruelty. In
a no-fault divorce, it is usually only
necessary to demonstrate that the parties
have been separated for some prescribed
period of time. Many states permit divorces
where one of the spouses has communicated
a serious crime resulting in a lengthy
jail sentence. Likewise, where a party
has become institutionalized for mental
illness, or has become habitually addicted
to drugs or alcohol for a certain requisite
time period, the spouse may be eligible
for a divorce.
Different kinds of personal
misbehavior or abusive conduct may qualify
for divorce as well. Pennsylvania, for
example, allows divorces based on “indignities” as
well as “cruel and barbarous treatment.” New
York refers to “cruel and inhumane
treatment,” while New Jersey simply
calls it “extreme cruelty.” Each
of these fault grounds, however, requires
certain factual elements and pleadings.
Once a divorce action is filed in court,
efforts will be made by lawyers and by
court officials to get the case settled.
The parties will be asked to confer,
through their attorneys, in an effort
to reach a settlement. They may also
be required to attend certain mediation
programs at the courthouse, or elsewhere,
in an effort to resolve their case. Often,
a case manager or law secretary is assigned
to the divorce case by the judge, in
order to manage the progress of the case
and to inquire about settlement possibilities
as the case moves through the system.
Most cases are settled when the parties
agree to draft a written agreement capturing
all of the terms and conditions to which
they have agreed. These agreements are
generally referred to as property settlement
agreements or marital settlement agreements.
They may address the distribution of
every item of property, the payment of
money, the division of bank accounts,
retirement funds, and other financial
resources, custody, visitation and support
for the children, alimony, taxes, including
tax exemptions and child tax credits,
who pays attorneys fees, what issues
are being waived, and relinquished, and
any number of other special concerns.
Usually, when parties prepare a settlement
agreement and sign it, the judge will
not read it word-for-word or decide if
it meets with his or her approval. Rather,
the judge will inquire whether the parties
each understood what they were doing,
whether they entered into the settlement
agreement freely and voluntarily, whether
they understand they are waiving their
right to a trial on all of the issues
of the divorce, and whether they wish
to be legally bound by the settlement
agreement as if it were the court’s
order. Assuming that the agreement has
been reached voluntarily, and that each
of the parties has made an informed waiver
of their legal rights, then the court
will approve the settlement agreement
and adopt it as the final judgment of
divorce.
If parties are unable to settle their
divorce case, then they will be required
to prepare for trial. Generally, divorce
cases are presented only to a judge (without
a jury). Going to trial could be very
time-consuming and potentially expensive.
Not only must you pay your lawyer for
his time in court, but it is often necessary
to engage the services of one or more
expert witnesses to testify at the trial.
Additional time will be spent preparing
for trial and often preparing necessary
documents after trial. Matrimonial trials
are quite complicated and very risky,
and you should never go to trial without
an experienced attorney by your side.
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