1  Why Should I Trust This Guide?

Barb could hardly believe that she’d reached this point. Divorce had been the furthest thing from her mind, something others faced, not something she’d ever expected to face. Yet now, divorce loomed, seemingly unavoidably. And all she knew about divorce was secondhand, mostly horror stories she’d heard from friends. She knew she needed help. But the pit in her stomach told her that first, she needed information. She needed to know what she faced so that she could face it effectively, with courage if not also with poise and aplomb.

Help

If you’re facing divorce, you probably already know that you need help. Depending on your situation, you may need the help of a lawyer, caseworker, referee, judge, and several friends. You may need the help of a neighbor to watch the house, your co-worker to cover your job, and your parents to pick up the kids. You may need the help of a counselor to keep your head straight, a police officer to protect you and the kids, and a boss to forgive you for being absent-minded at work. You may need the help of a sibling to reassure you that you’re not the devil and a pastor or priest to remind you that you’re not a saint. You may need to borrow a friend’s fishing pole and cottage to recover your sanity or another friend’s shoulder on which to lean and arm on which to cry. Just don’t expect to face divorce alone. You can’t and won’t. Let others help you, while staying clear of those who would hurt you more than help.

Information

You also need information, one way or another. Better to get that information up front rather than have it surprise you later on. And better yet to get that information from ones who know rather than ones who don’t know. Yes, individuals who have been through divorce can tell you a little about the process. The information they share may indeed help. But the information that individuals who have been through a divorce share is based on their own unique experience, when every divorce is unique. No two divorces are exactly alike, while divorces can also differ vastly in their causes, courses, and outcomes. So, sure, listen to friends and acquaintances who share their own individual experiences with divorce. But take anyone’s individual experience with a grain of salt. Even they will tell you that their experience differed from the experience of others and was in its own way unique.

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2  What Is Marriage?

As she struggled her way into and through her divorce, Denise began to realize that not only hadn’t she really understood what divorce is. She hadn’t really understood her own marriage. Denise knew that she’d been about as naive as anyone else going into marriage. That’s part of the wonder of it, she figured. Everyone going into marriage has a lot to learn, a lot to which to adjust. Denise guessed that she’d seen marriage as pretty much that: two people moving in together, expecting to continue to live together for the rest of their lives assuming things worked out, and each needing to adjust. But now, looking back through the mist and confusion of her divorce, Denise could see that marriage was a whole lot more than just living together and working things out. If it weren’t so much more, then her divorce wouldn’t have felt the way it did.

Definition

It sounds odd, but to deal with divorce as well as one can, one really does need to have a good understanding of what marriage is first. If you don’t think so, then no problem. Skip this chapter. But a little thought about what marriage is may reveal some helpful things to you. You may see from a better understanding of marriage how you can save your marriage or, conversely, why you need to take the steps that you must take in a divorce. The steps of a divorce may make more sense to you, so that you can anticipate them and participate in them, better prepared and more meaningfully. You’ll have marriage regrets. Everyone does. Everyone wishes they could do some things over again, better the second time, and do some other things not at all. But let’s not add divorce regrets, too. The reason why people go through a divorce is because of what a marriage means. Otherwise, if marriage meant nothing, separating couples would just go their own ways. Why go through a divorce if you don’t have to do so?

Decision

A better reason to start a guide on divorce by answering the question of what is marriage, is because that question looms over every divorce. The very thought of divorce implies a decision that the marriage may be over. What is it, though, that is over? What is this marriage thing that one side or the other, or both sides, can decide is over? For something to be over, one must have some sense of what it is. Give some thought to what you believe is over. If it’s only the naive, wondrous feeling with which many marriages blissfully begin, then maybe the only thing that is over is something that generally passes for everyone, for their own good and the good of the marriage. In any case, consider how you, or if your spouse is the party seeking divorce then how your spouse, reached the decision of considering or pursuing a divorce. What was that you or your spouse decided was over? Or to put it another way, how did your relationship together not reflect what you considered to be a marriage? 

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3  What Is Divorce?

Darnell couldn’t believe that it had come to this: he and his wife looked to be divorcing. He hadn’t imagined it in a million years, as much as he had loved his wife, and she had loved him. He still couldn’t understand it, never would understand it. It still felt like a bad dream. Yet he also couldn’t see a way out of it, and it appeared his wife couldn’t either. They talked about how they were going to go about it, but neither of them really had a clear idea of what divorce was or what getting one entailed.

End

Just as marriage needs a clear definition, the clearer the better to understand and endure divorce, divorce also needs a definition, the better to endure and understand it. Yes, divorce spells the end of a marriage. That much is true. Divorce, thousands of years old in the Jewish and later Christian tradition that the West embraced, is the legal process through which spouses end a marriage. Divorce is also, to a degree, a social and ceremonial process. The weeks and months that a divorce commonly takes, and the many interactions that the separating spouses will have with one another and with family, friends, and acquaintances over the divorce, serve to adjust family and other relationships. Everyone gradually learns to take on new social roles, adapting to the marriage’s looming absence. And the brief pro-con hearing at the end of an uncontested divorce, or the much longer bench trial resolving contested issues, plays a ceremonial role. The court hearing marks a clear, public, and formal end to the marriage, as the judge announces from the bench that the marriage is over and that the judge is signing the order so declaring.

Relationship

But don’t mistake divorce as necessarily meaning the end of a relationship between the former spouses. In the technical sense, divorce is only the legal termination of a marriage, through a court process designed for an orderly separation of the parties’ marital interests and affairs. Divorce is not necessarily anything more nor else. Oh, sure, divorce may mean the end of any intimacy and, along with that end, any deep commitment to one another to the exclusion of others. Yes, that is what divorce signals to other potential suitors. One doesn’t court a married person. One may court a divorced person. Recently divorced individuals may have no interest in thinking again of dating, courting, and remarriage. Yet the end of one marriage inevitably opens the possibility of another marriage, at least from the law’s perspective and from the perspective of many in society. Remember, the broad goal of divorce is to make two healthy households out of one unhealthy household. And healthy households can involve new relationships. But divorce doesn’t necessarily end all relationships between former spouses.

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4  What Are Grounds for Divorce?

Rose had spoken quietly with her best friend on a couple of occasions, sharing that she was thinking of divorcing her husband of ten years. At first, her friend had just listened sympathetically. She was aware that Rose hadn’t been happy in the marriage for years. But Rose was taken aback when her friend had soon asked if Rose had grounds for divorce. Wasn’t that old fashioned? Couldn’t you divorce these days simply if you were unhappy? Rose didn’t know how to answer her friend’s question about grounds for divorce. But Rose had a nagging suspicion that whether she needed legal grounds for a divorce or not, others besides her friend would probably be asking the same question.

No Fault

Most people seem to be aware that couples getting a divorce used to need grounds for divorce but don’t need grounds so much anymore. When famous Hollywood couples of the past faced rumors of a pending divorce, the tabloids would speculate as to which of them would accept the fault to admit the statutory divorce grounds, typically abuse, adultery, or neglect. Law and society wanted a reason for the divorce, grounded in the wrong that one spouse committed against the other. But everyone knew that the pleading could in any one case be more to satisfy convention than to establish a fact. If law and society demanded grounds, then divorcing couples would give grounds to them, manufactured or not. Yet then came the no-fault divorce revolution, beginning around the time of the late-1960’s sexual revolution. It took a few decades, three in fact, before all fifty states offered divorce without a stated grounds nested in one spouse’s or the other spouse’s fault. The spouses only needed to claim the marriage’s breakdown.

Fault

Some states, though, retained or restored a fault option. In those states, the parties may, if they wish, avoid addressing one another’s fault and still get a divorce by testifying to a breakdown in the marriage. But in states retaining or restoring a fault option, divorcing spouses have the choice of going ahead with the accusations, whether of adultery, abuse, neglect, abandonment, or a similarly serious marital wrong. Why, you might ask, get into it? Why not keep it all private? The answer depends on the parties and their values, needs, and community. Individuals rightly uphold their values and stand on commitments, including commitments to marriage. When instead a marriage ends, those individuals may want to establish for their own satisfaction or reputation that they remained committed to the ideal, but the other’s fault ruptured the ideal so badly that the marriage had to end. Divorce doesn’t have to get ugly. Sometimes, the ugly stuff might better remain between the divorcing spouses, especially when the ugliness is roughly equal. But when awful wrongs end a marriage, it may help the wronged spouse and that spouse’s reputation and relationships to disclose it publicly. Grounds for divorce can thus matter both personally and socially.

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5  How Can I Avoid Divorce?

Felicia felt awful about her marriage. Of course, she felt that her husband was largely to blame. But she didn’t really care about assigning blame. She just wanted it over. Or actually, Felicia wanted her marriage fixed or cured. She just didn’t believe that fixing, healing, or curing her marriage was possible. And if it was possible, Felicia had no idea how to go about it.

Cost

A very wise clinical psychologist says that divorce is a high-cost solution. You should understand the high cost part. Divorce divides, disrupts, and hurts. Divorce has emotional, psychological, spiritual, familial, reputational, and vocational costs, and other costs if that list is not long enough. Divorce’s high costs come in part because one or the other of you may not be at all reasonable in the process. Spite is frankly a goal for many divorcing spouses, to destroy the other for the next twenty years. One way to avoid divorce is thus to count the high cost. Don’t see divorce as an easy solution. It’s generally not easy but instead hard. If you’re seeking a path of least resistance, don’t see divorce as that path. Count the cost, and not just to you but to your spouse, children if any, extended family, and community. You may ultimately be better off divorced, in one way or another, but if so, getting there can still be costly. Life offers many greener pastures. Reaching them, though, may make them far less green once you get there. You don’t get many chances at intimate relationships, maybe only one, sometimes even none. Count the one you have as a treasure.

Ambiguity

The same wise psychologist adds that divorce is a high-cost solution with low resolution. Low resolution means that divorce is hard to see clearly, hard to grasp. It’s squishy, nebulous, uncertain. You go in seeing it one way but come out seeing it a different way. And years later, you see it yet another way again. Divorce is definitive only in its definition, as the legal process to end a marriage. Divorce is not definitive in its cause, rationale, justification, or necessity. Spouses begin divorce proceedings and then call them off. See the voluntary dismissal form among the other forms at the end of this guide. Spouses begin and conclude divorce proceedings, live apart for a while, and then remarry. And then sometimes divorce again. Don’t do that, if you can possibly avoid it. A divorce proceeding is not the way to find out if you’d be better off remaining married. Try your very best to work things out in advance, one way or another. Proceed with a divorce only if you are sure that divorce is the right course, and right in the sense of the only reasonable, responsible, safe, and sensible course. Don’t let divorce’s low resolution, vague, and fuzzy contours lull you into pursuing it when you have other options.

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6  What Is Separation?

Bill wasn’t happy at all about it. He just felt he had little choice when his wife asked him to move out of the house... for a little while, she had said. What did a little while mean, though? Was their marriage over? Bill had asked his wife, who had answered only that they could just treat it as a separation. She had added to see how it goes. But what was he supposed to do while they were separated? And what was she doing? It all felt like a bad dream to Bill.

Definition

Separation has both legal and social meanings. The social aspect of separation is just what it sounds like: the separated spouses are living apart. In this instance, though, to say that a couple is separated means that they are living apart by choice rather than due to circumstances, such as a job or military assignment. They’re still married, but something, presumably some kind of internal strain in the relationship, has them living apart. Neither has filed for divorce. They might be on their way toward divorce, but who knows? They might instead be on their way back together. Yet separation also has a legal meaning, explained further below, in which the spouses living apart recognize various obligations to support one another under their separate living circumstances. In both its social and legal form, separation is a sort of halfway house, either toward divorce or toward reconciliation. One study indicates, though, that nearly four out of five couples who separate eventually go on to divorce. Only a little more than one in five separated couples resume living together long term, as a married couple.

Duration

Separation does not offer any specific timeline other than ones that the separated spouses themselves adopt or impose. Spouses could, in theory, remain separated indefinitely. Some do. They remain married but living apart for years, even for decades. One study found that the average first separation for married couples lasted four years, which seems like a long time. In fact, long separations apparently distort that figure. One out of about fourteen couples separating remain separated for over a decade. The same study reported that most couples initially separating remain separated for under one year. If one looks only at those couples who moved on to divorce, the average separation lasted three years, still a long time. If one looks only at the reuniters, the average separation lasted just two years. Significantly, among the thousands of couples studied, none reunited after a separation of over three years. That last figure may be the most important. Apparently, separation has, for the vast majority of couples if not all couples, a point of no return. Separation doesn’t necessarily mean eventually divorcing. But separation for a long period may mean never getting back together.

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7  How Does One Start a Divorce?

Rita and her husband had been separated for around six months before they finally agreed that they were not getting back together. They even agreed that they should divorce, making it as easy on one another as they could manage. But neither Rita nor her husband had any specific idea of how to proceed with the divorce. Did they need to do something together? Or did one of them have to get the divorce started and the other one to respond?

Parties

Spouses start a divorce proceeding with one of them filing the divorce case in their state civil courts. Divorce proceedings assume a degree of opposition. That is, the civil courts hearing divorce cases require one spouse to be on one side and the other spouse to be on the other side. There is no filing together. One spouse files as the plaintiff, naming the other spouse as the defendant. The case name then puts the little signifier versus between the two spouses, as in Plaintiff Jane Doe v. Defendant John Doe, making clear enough the naturally adversarial nature of divorce cases. When spouses agree to divorce, they must in the usual case decide which one will be the filing party, or plaintiff, and which one will be the responding party, or defendant. If both want to be the plaintiff suing for divorce, they may find themselves in a race to the courthouse. It happens. Only one gets to file for divorce, although the other may counterclaim for divorce in the same case.

Alignment

The alignment of the parties, plaintiff and defendant, can make some difference. The plaintiff may get to choose the county in which to file. The plaintiff gets to be the first one to allege what happened and what needs to happen. If the divorce case goes to trial, which only a small percentage of cases generally do, the plaintiff is generally the first one to present the evidence to the trial judge. If the judge permits oral opening statements, the plaintiff is the first one to do so. If the judge permits oral closing argument, the plaintiff is again the first one to do so and traditionally is also the last to argue in any rebuttal. Sometimes, the first to go in anything has an advantage. Which spouse is the one suing for divorce can also affect social attitudes and interpretations. A spouse opposing divorce would presumably prefer not to be the one suing for divorce. Yet a spouse seeking divorce because of abuse or adultery might want to be the one suing for divorce. You be the judge in your case. Just be aware of alignment issues.

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8  Do I Need an Attorney?

More than anything, Jessica felt alone. Sure, her decision or realization that she was getting divorced hurt. It also made her feel sad, even depressed. She could tell that she was dragging around, not wanting to go on with her day. But more than anything, Jessica felt like she had no one on her side, no one standing with her who understood what she was going through and would help her with it. Jessica had a friend who’d handled her own divorce and said she’d help her do the same. But Jessica knew that she wasn’t up to handling her own divorce. She needed help.

Attorneys

The prior chapter reveals the technical steps spouses must follow to start their divorce. The way, though, that spouses often get started with their divorce is to contact an attorney. As indicated in an earlier chapter, attorneys must represent only one spouse in a divorce. The attorney would have too serious of a conflict of interest to represent both. Some attorneys in restorative practice may serve in the role of a mediator to help both spouses come to an agreement over divorce, after which the parties may proceed with the agreed-upon divorce while unrepresented. But that arrangement is unusual and not widely available. Generally, one spouse or the other retains an attorney to get the divorce started, unless they decide that they’re up to handling their divorce alone. 

Unrepresented

Be cautious going it alone, representing yourself without an attorney. The stakes in a divorce can be very high, especially if children are involved or the parties have substantial marital property, substantial earnings, or the prospects for substantial earnings. A no-children, no-assets divorce can be relatively simple, but even there, the spouses may have debts to pay or a pension to divide, or may have earned a degree or acquired a business interest in the marriage that could produce substantial future earnings. Valuing assets, preparing the special qualified domestic relations order (QDRO) required to divide a pension or retirement accounts, assigning debts, and ensuring their payment can all take an attorney’s knowledge and skills. Judges can’t help you much. They certainly can’t represent either party or give legal advice, and they don’t generally prepare court papers other than, sometimes, their own opinions and orders. Don’t cost yourself a fortune and substantial delay and frustration, trying to save yourself a modest attorney’s fee.

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9  How Do I Prepare for Divorce?

Ruth wished that she had prepared better for her divorce. She had decided to divorce and then met with and retained an attorney before doing anything else. Ruth had approved when the attorney said that they could go ahead and file and serve the divorce complaint immediately. Ruth hadn’t realized until later that she could and should have taken some steps to prepare for divorce before launching into it with the filing and service of the divorce complaint. Why hadn’t anyone told her?

Preparation

If you know divorce is coming, either by your choice or your spouse’s choice with advance notice to you, then you may be able to do a few things to make it go better for you. You also have a few things that you should not do, lest you make more problems for yourself than you already have in going through a divorce. Prepare, if you can. A little preparation can go a long way toward making the divorce process more manageable, especially in the early stages when things can get a little crazy.

Mental

Prepare yourself mentally, if you can. Don’t be naive about your coming divorce. Things may go reasonably well, but a lot of times they don’t go as well as they could and should. You and your spouse may intend to be reasonable throughout your divorce. But intentions are one thing, while emotions are another. And then again, you may already suspect that your spouse is going to make it hard on you or that you, in your own way, may make it hard on both of you. So, expect things to be hard, emotional, and uncertain. Reduce other mental and emotional stressors, if you can. Take a break from your educational program, if you’re in one. Arrange for some extra time off work, if you’re employed. If you can avoid it for a time, don’t take on other new or extra things like overtime work, work travel, or caring for elderly parents. Ask others to pick up the slack until your divorce is over or well in hand. You’ll make it up to them later.

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10  What Interim Orders Can I Get?

Michelle was well aware that her husband was a bully. He’d never directly harmed her, but he’d made frequent veiled threats, and she’d heard of him harming others. When she confirmed one of his many suspected affairs, she resolved to leave him. Michelle wasn’t worried about where she’d go or what she would do. She knew she’d be fine, once their marriage was over. But she worried a lot about what he might do to her, her things, and her interests in the process of divorce, before they were through with one another.

Bullies

Bullies, individuals who use force, threats, and manipulation to coerce their selfish ends, are out there. They’re not just in the trades, business, and the professions. They’re in marriages and divorces, too. Indeed, bullying within a marriage is a cause of divorce. A spouse who does not respect the other spouse, and then turns their coercion on the other spouse to try to gain even more than a marriage already offers, inevitably diminishes the marriage and destroys its greater objects. A bully in marriage may be an even worse bully in divorce. Indeed, a separation and impending divorce can turn some spouses who to that point had maintained basic decorum through the marriage toward bullying or other abusive behavior. The broken human spirit can be a dangerous, destructive, and ugly thing. Separation and divorce can make it even uglier.

Connivers

Connivers and swindlers are out there, too, not just in the commercial and charitable world but in marriages and divorces, too. Deception in a marriage can take all forms, from concealing pornography, sexual affairs, drug or alcohol abuse, and other private degradations, to misrepresenting financial transactions, assets, and accomplishments, depleting marital and retirement accounts on gambling, and concealing sexual diseases and other embarrassing, dangerous, and debilitating health conditions. A deceiver in marriage may well be an even bolder deceiver in divorce. 

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11  Who Gets the Children?

When David’s wife shared her unequivocal plans for divorce, his mind went immediately to their minor children. Who would get the children? What would be their custody and parenting time arrangement? David knew the tendency of judges to regard mothers as the primary caregiver for young children and to regard fathers as the primary provider. He understood why judges exhibited those tendencies. But David also knew, as he believed that judges knew, that every family is a little bit different and that some families differ a lot. And he believed that his family was one of those different families. David didn’t believe that his wife was interested in being the primary custodian for their children. Nor did David believe that she would be the better custodian between the two of them. He was ready for the custody fight, if that’s what his wife’s announced divorce meant. And he knew he would soon find out.

Custody

Custody battles are things of legend and lore. No one really needs a reminder that custody battles in divorce proceedings can be fierce, tooth-and-nail, knock-down-drag-out affairs. Sometimes, the battles are in earnest, each spouse reasonably believing that they are the better custodian, in the best interests of the children. And many of those cases are truly close calls, where the custody decision could go either way, without depriving the children of a suitable custodial arrangement. Other times, though, only one spouse really, truly, deeply, and honestly believes that they are the best, right, and only suitable custodian. Yet the other spouse may claim to be equally as committed to gaining custody of the children, not because they believe it to be best for the children but because of ulterior motives. Those dynamics are what make custody battles so challenging.

Motives

Motives for claiming physical custody of minor children can indeed extend well beyond the best interests of the children. When a spouse knows it’s best that the children reside with the other spouse, they may still claim custody in an effort to avoid paying child support. For some spouses, child custody is more about the money than the welfare of the kids, or it can appear that way. Custodial parents do not pay child support. Custodial parents typically receive child support from the non-custodial parent based on relative incomes, the number of children, and related factors, as the next chapter further explains. For other spouses, a claim for child custody is a leverage point to gain concessions from the other spouse on property division or other matters more important to that spouse than the welfare of the kids, or so it can appear. And for some spouses, a claim for child custody is a weapon with which to worry and injure the other spouse over the fact or circumstances of the divorce and the differences that caused it. Know your motives and your spouse’s motives, and then choose and advocate for the right motives, which, as you know well, has everything to do with the best interests of your children.

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12  How Much Is Child Support?

Peter pretty much agreed that his wife should have custody of their two young children. He hadn’t really wanted a divorce, but on the other hand, he was fine with it when he learned that his wife was leaving him. He knew he hadn’t been all that good to her, and he knew even more so that she hadn’t been very good to him. But she was a good mom to their two kids, and Peter knew he couldn’t handle them without her. Yet paying child support for two kids for the next ten or fifteen years frightened Peter. He didn’t know how he was going to survive in his own place while paying child support, when his paychecks barely covered things as it was, with the whole family in one place.

Obligation

The obligation to pay child support arises when the parent no longer has custody of the minor children for whom the parent pays the support. When children are in the home, a parent must devote income to their care. A parent can get into serious trouble for neglecting the care of the parent’s own children, not just with protective services but even with law enforcement, leading to criminal charges. A parent’s support obligation continues under court orders awarding child custody to the other parent. Indeed, the support obligation becomes much clearer, right down to the amount and timing of the support payments. If you have custody of your minor children during or after a divorce, you shouldn’t expect to pay child support because you’re already committed to devoting your income to your children’s care. But if you lose custody, you’ll very likely face a support obligation if at all able to pay it.

Ability

While the first condition to having to pay child support is to be the non-custodial parent, a second condition is that you have the ability to pay support. The ability to pay support typically arises out of employment earnings. Your paycheck proves your ability to pay. It doesn’t matter the nature of your employment, whether in the trades, business, government, the nonprofit sector, education, or a profession. It doesn’t matter if your employment is seasonal, full time, part time, hourly, salaried, or by the job. It doesn’t matter whether an individual, corporation, or agency employs you, if you are self-employed, or even if your income is passive rather than earned, such as from dividends, interest, or rental properties. If you are able to earn an income, the divorce court is likely to require you to pay a portion of those earnings in child support.

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13  Who Pays Spousal Support? 

Violet had known that she and her husband had grown apart. But she hadn’t expected divorce. Violet had been their homemaker all their adult lives, from when her husband finished college and went through graduate school, all the way through his professional career, while she raised their kids. As soon as they were empty nesters, Violet knew that their marriage had lost its way, but again, she hardly expected divorce. What was she now going to do, with divorce looming? And how was she going to support herself?

Definition

Spousal support, formerly known as alimony, involves periodic payments one spouse makes to the other after divorce, often monthly, for as long as the receiving spouse needs to adjust to the loss of the other’s income and means. Spousal support presumes an imbalance between the earnings of each spouse. Spousal support is most common in divorces in which one spouse has a substantial income out of a secure career or profitable business, while the other spouse is a homemaker without paid employment or with only part-time work earning a modest income. The spouse receiving the support must usually demonstrate an inability to make ends meet without the other spouse’s support. If, instead, the spouse claiming support has an income sufficient to maintain a household or a valuable degree, skill, and available job and career, the court is unlikely to order spousal support, except in special instances or for a brief period to adjust to the loss of the other spouse’s income.

Children

Spousal support isn’t child support. Spouses with no children between them or with only adult children who no longer need their support may still pay and receive spousal support. A spouse with custody of the couple’s minor children and receiving child support may also receive spousal support, although the child support can have the effect of supporting the custodial spouse, may diminish or eliminate the need for spousal support, and may significantly decrease the likelihood of receiving spousal support. Younger spouses with minor children also have shorter marriages and are generally more able than elderly spouses to adapt to the divorce, gain employment, or remarry, eliminating the need for long-term spousal support. Child support without additional spousal support is thus more common than the custodial spouse receiving both child support and spousal support. In theory, child support and spousal support reflect different needs. In practice, though, one form of support can address or satisfy the need for the other form of support.

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14  How Do We Divide Property?

Danielle and her husband had a lot of stuff. She had her stuff, and he had his stuff, but they also had a lot of stuff together. Their decision to divorce had been hard, but they each had a lot of friends, and she knew they’d both be in new relationships in a hurry. And they each had good jobs and careers, so Danielle knew they wouldn’t be fighting over alimony. They also didn’t have much in savings, just each their own retirement accounts, which weren’t even that big. The one thing Danielle could see them fighting about was dividing their stuff. And she didn’t look forward to that fight.

Property

The division of marital property is a big deal in some divorces. For younger couples with fewer assets, divorce is often almost entirely about the children. Property division is an afterthought, if it’s a thought at all. If the young couple has no children, their concerns might focus a little on vehicles, furniture, school loans, and credit-card balances. But those relatively modest property interests can have a way of sorting themselves out. Property division begins to get more complex, though, with the purchase of a home. Dividing things can get significantly more challenging once the couple builds a business or professional practice, accumulates substantial retirement or brokerage accounts, or acquires a second home or income properties. As the amount of property, measured in value and variety, increases, the challenge of dividing property in a divorce increases.

Division

A divorce proceeding must generally divide property, assigning it to one spouse or the other in the judgment of divorce. Parties can retain joint property after a divorce. They sometimes do, especially if the property is a business they built together in which they each intend to remain active. Divorcing spouses sometimes also retain the marital home for a time after divorce, addressed in the next chapter. Retaining joint property interests after the divorce tends to keep the former spouses interacting to some degree. That post-divorce interaction can be either healthy or unhealthy. Most divorcing spouses prefer to make a clean break of it. Hence the necessity for a property division.

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15  Who Gets the Home?

Carla was dead-set on remaining in the marital home through her divorce proceeding and after its end. She didn’t care that the home held some bad memories of their difficult marriage. It was her home, her sanctuary. She had raised their children in the home. Leaving the home would be leaving her cherished memories of those child-raising years. The home fostered her patterns and nurtured her rhythms. If Carla moved, she knew she’d take years to make new patterns and rhythms. And she didn’t want new patterns. She wanted to hold fast to her old patterns, especially in the throes of her divorce.

Property

The residence in which the spouses resided during their marriage, or the marital home, is generally property that divorcing spouses should expect to divide in the divorce judgment. Of course, one doesn’t divide a home. Divorced spouses don’t just each take their own floor or wing of the same home. At least one spouse moves out of the home into a new residence, to form a new household. Indeed, on separation, whether long before or soon before a divorce filing, that is the common pattern: one spouse moves out of the marital home, leaving the other spouse behind in the marital home. That departure leaves hanging the question of who gets the marital home or, if one or the other spouse doesn’t hang onto it, how and when to dispose of the marital home and how to divide the sale proceeds.

Preference

What the spouse who remains in the marital home when the other spouse leaves does, whether to remain in the marital home or to move, too, depends on a range of factors. One factor is, of course, the desire of the spouse to remain in the home. As the above vignette illustrates, some spouses have a fierce desire to remain in the marital home in the event of divorce, whether for their comfort, reassurance, familiarity, convenience, sentiment, or other good reason. Yet affordability can be just as significant of a factor. A spouse may wish dearly to remain in the home but be completely unable to afford its mortgage, taxes, insurance, utilities, and maintenance, within available earnings and spousal support. Married couples grow out of homes, especially when children leave, but also when other circumstances change, including the ability to afford the home within a responsible budget.

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16  How Do We Divide Retirement Plans?

Doug hadn’t wanted a divorce but could see it coming. He was also alright with it, deep down. He knew that his wife would be happier without him around. The only thing about which Doug worried was his retirement account. He had worked so hard and long to build up that account. His wife had worked some, too, but her retirement account wasn’t nearly the size of his account. She had also insisted on keeping her retirement account invested in the lowest-risk bonds, so that her account hadn’t grown nearly to the extent that his account had. What was going to happen to his retirement account in the divorce was really the only thing that concerned him.

Property

State divorce laws across the country vary to some degree, but those laws tend to treat retirement accounts like other property that the parties to a divorce proceeding must classify and divide. A retirement account may be intangible property, reflected only by electronic numbers on a screen. But retirement accounts can be every bit as valuable as tangible personal property like vehicles and technology items, real property like homes and lands, and other intangible property like checking and savings accounts. Spouses plan on retirement accounts to fund household expenses after retirement, along with Social Security retirement benefits and other savings. But they can also cash in retirement accounts early, to pay medical or other critical expenses, or for other reasons, although with certain penalties or tax disadvantages. Retirement accounts are thus much like other assets, explaining why divorce laws can, depending on the circumstances, treat them as marital property divisible in a divorce.

Types

Here in this chapter, retirement account refers to one of the special forms of tax-advantaged accounts Congress recognizes to promote retirement savings. Tax-advantaged retirement accounts can come in several types. For-profit employers may offer employees a 401(k) plan, enabling employees to divert a portion of their pre-tax wage into their 401(k) retirement account. Public schools and charity employers may offer employees a similar 403(b) plan, with the same opportunity to divert a portion of pre-tax wages into their 403(b) plan. Other employees may be able to make Individual Retirement Account (IRA) contributions out of pre-tax wages, into their individually controlled IRA accounts. A Roth IRA contribution allows individuals to make post-tax contributions to an individually controlled Roth IRA account. A married couple may own one, two, or more different retirement accounts of these types between them, established at different times, through different employers or other circumstances, and having values of different amounts.

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17  What About My Prenuptial?

Ruth hadn’t wanted to sign a prenuptial agreement when marrying her second husband after a prior divorce. But like most others who sign prenups, she’d had no real choice. Her second husband wouldn’t have married her if she refused to sign. It was that simple. Ruth had read the prenuptial agreement before signing. Indeed, she did as the prenup suggested, which was to consult her own attorney about it. The attorney, naturally, had warned her that the prenup could significantly limit her rights in a divorce, just as the document recited. Yet she’d signed it anyway. At that moment, what was she going to do? But now, with her second husband broaching the subject of divorce, it looked like she might have to pay for it.

Prevalence

A prenuptial agreement can significantly affect rights and responsibilities in a divorce. If you have a prenuptial agreement, then read this chapter. If you don’t, then skip this chapter unless you want to learn how prenups work. Ordinarily, it might make sense to begin a guide on divorce with a discussion of prenuptial agreements. But relatively few couples enter into prenuptial agreements before marrying. It used to be only a tiny fraction, although it may now be up to around 15%. Yet even if you signed a prenuptial agreement, it might have little effect on several of the subjects already discussed above, such as protective orders, avoiding divorce, needing attorney representation, filing for divorce, interim orders, and child custody and support. But now let’s take a look together at prenuptial agreements.

Definition

A prenuptial agreement is a contract that the spouses enter into before marrying, addressing their respective rights and responsibilities in the event of a divorce, especially as to a division of property and debts, and the payment of spousal support. People sometimes refer to a prenuptial agreement as a prenup for short. Prenuptial agreements can also go by antenuptial agreements, the two phrases meaning the same thing. Pre- or ante- both refer to before, while nuptial refers to the marriage. See, for example, the antenuptial agreement among the forms at the end of this guide. An antenuptial agreement or prenup is thus an agreement before marriage made between the marrying parties.

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18  What Is in a Judgment of Divorce?

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.

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19  How Do I Enforce a Judgment?

Frank had thought the divorce was over with the entry of their divorce judgment. He hadn’t realized that in a way, the divorce was just beginning. The divorce had been hard. Frank and his wife had a lot of issues, financial and personal, to resolve. But with the divorce judgment’s entry, Frank had expected a reprieve from their haggling. Instead, with the judgment’s entry, other issues suddenly arose. Frank just hoped that those new issues would pass swiftly. Wasn’t the divorce judgment supposed to end the fighting?

Implementation

Judgments of divorce are indeed final. They conclude the divorce case. But divorce judgments are not entirely self-executing. A judgment of divorce instead often requires the parties or their attorneys to carry the judgment’s terms into effect. Implementing the divorce judgment may take days, weeks, or even months of administrative tasks. And if one of the divorced parties doesn’t do their part, the other party must either do it for them through other means or get the court’s help enforcing the judgment. Skilled attorneys try to anticipate implementation issues and ensure that their client can accomplish what their client needs to carry the divorce judgment into effect, without relying on a non-cooperating opposing party. Often, it’s easier to do something yourself than to try to force someone else to do what they should have done. The same is true for judgments of divorce.

Issues

Implementation issues surrounding a judgment of divorce can run the gamut. Anything in the divorce judgment, from child custody, child support, and parenting time, to spousal support, changing title to awarded real or personal property, and properly reallocating accounts, could become a post-divorce issue. So, too, can post-judgment restraints. The conclusion of a divorce proceeding with a judgment ordinarily terminates interim orders, including interim restraints. But if the judgment continued any restraints or imposed new ones, the restrained party may soon violate them after the judgment enters. If you cannot manage post-judgment issues on your own, renew your retainer agreement with your attorney or retain new counsel for help. Don’t win the battle but lose the war. Implement your divorce judgment so that it’s more than merely an impressive piece of paper.

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20  What About Remarriage?

Wilma hadn’t had any idea that she’d be thinking about remarrying so soon after her divorce. Indeed, she’d had no plans whatsoever to remarry, from the moment she first learned that her husband was leaving her. And yet, here she was, with her divorce final, and just a few months later things were looking serious in her dating relationship with another man. Wilma was almost embarrassed to admit to her friends how serious she and her new beau were about their marital prospects. He had been married once before, too, although it had been years since his divorce. So he wasn’t on the rebound, as they say. But Wilma wondered about her own emotions and better intentions.

Deciding

Whether to remarry is a deeply personal decision for the divorced individual. Divorcing or divorced individuals may turn to their closest friends and family members for advice. They may also turn to their pastor, psychologist, therapist, or counselor. Divorcing individuals rarely ask their attorneys for any remarriage advice. Yet the law can have some helpful things to say about dating during a divorce proceeding and remarriage after a divorce. And attorneys do get those questions from their clients when representing them in an ongoing divorce.

Policy

The first thing that the law has to say, or that divorce and marriage laws at least imply, about remarriage is that the law generally favors it. That is, the law generally favors anything that ordinarily promotes human flourishing. Close, intimate, marital relationships can certainly promote human flourishing. Marriage has long been the bedrock of society, necessary not only for the sanctity, safety, and satisfaction of sexual relationships but also for bringing the next generation into the world, nurtured, nourished, educated, and socialized into adulthood, ready to marry to repeat the life cycle. Why would law discourage remarriage? If a first marriage didn’t work out, then perhaps a second marriage will. Law thus presents no disability for a divorced person to remarry. 

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