Deborah had trusted her husband to work with the attorney to handle their divorce. Now, her husband had left her an eight-page legal document titled judgment of divorce, saying she should read and sign it. It’s first few words said something about each party consulting their own attorney. But Deborah hadn’t consulted anyone, so she wasn’t sure she could sign it. And the further she got into reading it, the more her eyes glazed over. Then, Deborah remembered that a divorced friend had told her that she knew a good divorce attorney. Deborah figured maybe she’d better give the attorney a call.

Judgment

Courts generally end their cases with a public document signed by the judge and filed by the clerk called a judgment. Judgments resolve all claims in a case, one way or the other. In a divorce case, the judgment should address each claim or counterclaim the divorcing spouses raised, whether finding in one party’s favor, the other party’s favor, splitting the difference in a compromise result, or simply dismissing the claim as not worthy of decision. The judgment in a case signals the parties and the world that the matter is over, at least initially, subject to any post-judgment appeals or enforcement. A divorce judgment is no different in that respect. Your divorce judgment should signal the end of your marriage, save for any later wrangling over carrying out the judgment’s terms.

Drafting

In most divorce cases, the parties and their attorneys are responsible for drafting the judgment. If the parties are unrepresented, one party or the other may find a form judgment to fill out, from a courthouse self-help center or online. If the parties have attorneys, one of the attorneys will prepare a draft judgment for that attorney’s client to approve and to circulate to the other attorney for attorney and client review and approval. The judgment should be consistent with the parties’ negotiated resolution. If the judge had to rule on issues after hearings or a trial, the judgment should also be consistent with those judicial rulings. The judgment may pass back and forth between clients and attorneys until all believe that the judgment meets their agreement and any judicial rulings.

Execution

Once the parties and their attorneys have the judgment of divorce in acceptable form, its execution depends on its negotiation. If the judge imposed the judgment because the parties were unable to agree, the attorneys may sign the judgment approved as to form only to present to the judge for the judge’s signature. If, instead, the parties agreed to the judgment’s terms, then the attorneys will title it a consent judgment of divorce, and the parties will sign it before presenting it to the judge for the judge’s signature. The attorneys who represented the parties and prepared the judgment may also sign the judgment in their representative capacity. The signing doesn’t have to be ceremonial. The parties or attorneys may circulate the judgment back and forth by mail or courier until all have signed.

Entry

Getting the judge to sign the judgment of divorce may require a brief hearing, if the judge has not already held a divorce trial taking the necessary testimony as to the marriage’s breakdown. As previously explained, judgments of divorce generally require one of the spouses to testify that the marriage is irretrievably broken, without reasonable likelihood of repair. The brief hearing at which the judge will sign the judgment is to hear that testimony. Only one spouse needs to attend and testify, although sometimes both spouses attend to witness the brief formality. The judge will state on the record that the judge has signed the judgment, after which the judicial secretary will deliver the signed judgment to the court clerk for filing in the public court record. The parties or their attorneys can then get certified copies of the judgment from the court clerk for whatever they need to do to carry out the judgment, such as to remove names from deeds or accounts.

Divorce

The first material issue that a divorce judgment usually addresses is to terminate the marriage. The judgment may recite the required language about the marriage’s irretrievable breakdown before it declares the marriage terminated. The parties can then use a certified copy of the judgment to show any authority or other interested party that they are no longer married. That’s the first point and purpose of a judgment of divorce, to declare the parties no longer married, freeing them to enter a second marriage if they wish.

Names

In the same section on the marriage’s termination, the judgment of divorce may address name changes. Parties who changed their name when marrying, to reflect the union, may elect to change their name back to their maiden name or to take another name. Adults with the mental capacity and competence may generally change their name through a brief court proceeding at any time, as long as the name change is not to defraud or for other illegal purposes. A divorced spouse could wait to change the spouse’s name at a later date, in a brief separate proceeding, if unsure whether to change the name at the moment of the divorce. But why wait, if you’re going to do it? Unless maintaining an identity as the parent of minor children with the same last name is a consideration, or the spouse who adopted a new name on marriage just likes the new name rather than the old one, it’s simpler to restore a maiden name in the divorce judgment, if that’s your preference and intention. Of course, restoring a maiden name at divorce will require reversing all the other name changes one made at marriage, such as on a driver’s license, Social Security card, and bank accounts. You may judge which course you prefer. The choice is up to you, not the court or the spouse you are divorcing.

Children

The next section of a divorce judgment may deal with any minor children of the marriage. If the parties have no minor children and the wife is not pregnant, the judgment should recite so. If the parties have minor children, then the judgment will ordinarily decide physical and legal custody, parenting time, and child support. The judgment often incorporates the interim order reflecting those terms, sometimes with adjustments. But if the parties have negotiated a different arrangement, or if a hearing or trial reached a different conclusion, then the judgment should reflect it. The judgment will likely require both parties to keep the children enrolled on any health-insurance plan available to them through their employment. The judgment may include administrative provisions regarding support payments, changes in the children’s residence, trips out of state for the children, and other matters.

Support

A next section of the judgment of divorce will address spousal support. If the judgment does not award spousal support, it should state so. If the judgment awards spousal support, the judgment should say to whom, in what amount, on what schedule (typically monthly), and for what duration. The judgment may provide for grounds on which the stated spousal support would terminate, such as on the receiving spouse’s remarriage or the death or disability of the payor spouse. The judgment may provide for securing the support obligation with life insurance on the payor spouse. 

Property

A next section of the judgment of divorce will address the division of property between the spouses. The judgment may itemize property awarded to each spouse or may refer to and incorporate an attached schedule of property reflecting the division. Often, the judgment will briefly describe and award to one or the other of the parties their larger items, including the marital home, second homes, other real property, vehicles, boats, business interests, and checking, savings, brokerage, and retirement accounts. The judgment may then recite that the parties have already divided their other, smaller items of lesser value and that the judgment awards those items to the party currently possessing them. As to real property, the judgment may direct the preparation, execution, and recording of deeds consistent with the judgment. The judgment may have similar language authorizing and requiring the parties to execute titles, account agreements, and other documents to carry out the award of other forms of property. As to retirement accounts, the judgment should direct the preparation and execution of qualified domestic relations orders (QDROs) for any award affecting those accounts.

Debt

The property-division section of the judgment of divorce or a subsequent section should also address the division and assignment of the parties’ debts. The judgment should list each debt and clearly identify which party is responsible for its payment. The judgment usually requires that party to indemnify and repay the other party if the creditor forces the other party to pay it. The judgment will likely recite that any debts not named in the judgment are the obligation of the spouse incurring the debt, in case the judgment has missed any debts. The judgment may also recite that any debts arising after the filing of the divorce complaint or the date the parties reached agreement on a division of property and debts are the sole responsibility of the party incurring the debt.

Taxes

A next section of the judgment of divorce may address income taxes. The judgment may, for instance, say whether the parties will file tax returns jointly or separately for the prior or current year. The judgment may also say which spouse owes the income tax obligations not already paid through withholding. The judgment may also say which spouse receives what portion of any tax refunds for the prior year, current year, and subsequent years. Parties are generally free to treat tax refunds as they negotiate and wish, although IRS rules may determine the tax-filing statuses available to the divorcing couple, before, during, or after the divorce. Get qualified tax-preparation counsel.

Insurance

A next section of the judgment of divorce may terminate beneficiary rights in life insurance, annuities, accounts, and other contracts requiring beneficiary designations, in favor of the other spouse. Divorcing spouses have been notorious for forgetting that they had one or more such policies, contracts, or accounts designating their now-former spouse as beneficiary, only to have their survivors see the policy, contract, or account proceeds go to the former spouse on the other spouse’s demise, when the other spouse would surely have changed beneficiaries had they remembered. State laws have addressed the issue by requiring recitals in judgments of divorce terminating beneficiary designations in favor of the other spouse, unless expressly stated otherwise in the judgment. 

Key Points

• A judgment of divorce decides all issues, concluding the case.

• Parties and attorneys typically draft the judgment for judge signature.

• The judgment reflects negotiated agreements and judicial rulings.

• Parties may sign a consent judgment reflecting their agreement.

• The judge signs the judgment, making it final and official.

• The court clerk enters the judgment in the case’s public record.

• Parties may obtain certified copies of the judgment to carry it out.

• The judgment terminates the marriage and makes any name changes.

• The judgment determines child custody, support, and parenting time.

• The judgment determines spousal support and divides property.

• The judgment assigns responsibility for debt and requires indemnity.

• The judgment may assign tax obligations and refunds.

• The judgment terminates beneficiary designations unless expressed.

Read Chapter 19.