Divorce Lawyers Directory Blog

The payment of maintenance, sometimes referred to as spousal support or alimony, is entirely up to the discretion of the courts in most states. Unlike child support, which is mandated by statute as to the amount (based on a specific percentage of each parent's income), spousal support may be granted or denied at the judge's discretion, and the amount of this payment is not fixed based on statutory laws.

Years ago, before most states enacted Equitable Distribution laws, a spouse could be granted alimony based on a disparity of incomes between each party, and based on the financial needs and accustomed standard of living achieved during the marriage. If spousal support was granted, it would last for the life of the needy party, or until his or her remarriage.

Before 1980, spousal support would be denied, as a matter of law, in the event a divorce
was granted on grounds against the needy party. For example, if a wife, who never worked, were found to be guilty of cruelty or adultery, she would be barred by law from ever collecting spousal support, no matter how egregious the conduct of the husband was during the marriage.

In the early 1980s, most states rectified this inequity by establishing Equitable Distribution laws. Today, most states grant spousal support according to genuine need. It is designed to be rehabilitative in nature in order to provide the needy spouse sufficient time to complete an education (or re-education) so that he or she may be able to return to the workforce and earn a decent living. Therefore, spousal support is generally limited to a short period of time, depending on the duration and circumstances of the marriage.

It is not uncommon for spousal support to only last for one year when the marriage was short. For a longer marriage, spousal support may last for as long as five years. The presence of young pre-school children at home is often a factor in determining spousal support, since the custodial parent may need to stay home with the children for a number of years.

In situations where the couple filed for divorce after a very long marriage, a spouse who stayed at home for many years and who is beyond the age where he or she could reasonably retrain for employment might be granted lifetime spousal support. Regardless, marital fault will no longer disqualify you from receiving spousal support; it is determined on the basis of need.

The court will consider the following factors when determining the amount and duration of spousal support:

• Income disparity between each party
  
• The lifestyle and needs of the "poorer" spouse
  
• The ability of the "wealthier" spouse to support him/herself after paying maintenance
  
• The ability of the needy spouse to gain or regain full employment
  
• The duration of the marriage
  

Of course, you do not have to leave this issue up to the courts. You and your estranged spouse can negotiate these issues with the help of your divorce lawyer. This will save you a great deal of time, aggravation, and legal expenses.

One of the most common questions asked by couples about to enter into a marriage is, "Do we need a prenuptial agreement?" Unfortunately, the answer to this question is very vague: "It depends."

First, let's talk about the typical situation where a prenuptial agreement is not necessary. When both partners are at relatively the same stage in life, a prenuptial agreement is generally not important. The same life stage can be defined as:

• Both people are marrying for the first time
  
• Neither has any children from a prior relationship
  
• Both have similar incomes
  
• Neither party has acquired any significant assets
  

A prenuptial agreement is necessary in situations where there is a disparity in assets or wealth between the marrying parties, or where one or both parties has children and wants to ensure that his or her wealth goes to the children.

In a typical prenuptial agreement, one or both parties agree to give up certain property rights that would be bestowed upon that party by law as a result of marriage. A prenuptial agreement allows each party to be able to dictate where his or her wealth will be distributed in the event of an untimely end to the marriage, whether through death or divorce.

The marrying couple can agree to just about anything in a prenuptial agreement. It can be unfair or imbalanced, as long as it is not unconscionable. In order to ensure that a prenuptial agreement will be upheld in court, both parties must have equal representation in the negotiation and execution of the agreement, and the agreement must contain as an exhibit a comprehensive financial statement of each party.

These agreements are highly technical documents, and it is important to have an experienced matrimonial law attorney draft it. Also, it is important to never sign a prenuptial agreement without having it reviewed by your attorney.

Years ago, ownership of title to property was the determining factor as to which spouse would receive the property after a divorce. For example, if the marital residence was purchased during the marriage but only one spouse was listed on the title to the property, that spouse would always receive the house in the divorce, regardless of which spouse contributed the money to purchase the home. Similarly, a bank account, pension account, 401K plan, or business that was titled in one spouse's name would be awarded to that spouse in its entirety.

During the 1970's and 1980's, the philosophy of "marriage as an economic partnership" began to develop. As a result, many states passed legislation modifying divorce laws so that title would no longer be the determining factor in the distribution of marital property during a divorce.

Today, in most states where Equitable Distribution is the law, property is defined in one of two ways:

• Marital property
  
• Separate property
  

Any property acquired during the marriage, regardless of who holds the title, is considered marital property. The only exceptions to this are:

• Gifts
  
• Inheritances
  
• Personal injury awards
  

The above exceptions as well as any property or assets acquired prior to the marriage and kept separate (not co-mingled) are considered separate property.

Some assets can be partly marital and partly separate. For example, if a husband was enrolled in his employer's pension plan for 5 years prior to the marriage and then for 20 years during the marriage, then 80% of the pension would be considered marital property and 20% would be considered separate property. The 20% would be distributed to the titled spouse, while the 80% would be distributed equally to each party.

Equitable Distribution does not necessarily require equal distribution. For example, if a business was established during the marriage but was worked exclusively by one spouse, the value of the business does not necessarily have to be split equally. If the husband worked the business with no contributions from the wife, the court can look to the wife's other contributions to the marriage (i.e. homemaking, child rearing, entertaining clients) and determine an "equitable" percentage of the business to award to the wife. That percentage will often be less than half.

Normally, assets such as homes, cars, boats, bank accounts, pensions, IRAs, 401Ks, and other forms of savings and investments will be distributed equally. Businesses where there is unequal active participation of each spouse will generally be distributed unequally, similarly to businesses where only one spouse participated.

As a result of Equitable Distribution laws, couples entering a marriage should consider a prenuptial agreement, especially in situations where there has been an unequal accumulation of assets prior to the marriage.

The concept of child support stems from the principle that it is the duty of both parents to adequately support and provide for their children according to their means and ability. Frequently, the issue of child support is one of the central focal points in a divorce case.

Several decades ago, child support was entirely subject to the discretion of the court, and the results were inconsistent across the country. States, counties, and individual judges within the same judicial districts differed drastically in the way in which they awarded child support. No one knew what to expect in any particular case.

However, this changed in the 1980's, when every state passed legislation following a federal model Child Support Standards Act. The child support statutes enacted by each state were nearly identical, ensuring that child support awards would be consistent throughout the country.

The new uniform child support statutes are based on the premise that both parents must support their children in proportion to their respective incomes. While the non-custodial parent will always be required to pay child support in a fixed, stated percentage to the custodial parent, theoretically the custodial parent will likewise be expected to utilize the same percentage of his or her income toward the support of the children. Typically, state child support laws regulate child support based on a percentage of gross income.

For example, in the state of New York, the non-custodial parent will pay:

• 17% of gross income for the support of one child
  
• 25% for the support of two children
  
• 29% for the support of three children
  
• 35% for the support of four or more children
  

While these percentages may vary slightly from state to state, all states mandate roughly similar percentages to this. It is important to consult your divorce lawyer to find out the exact percentages in your state.

The above-stated percentages are mandatory and are usually referred to as "basic child support." In addition to basic child support, both parents are also required to contribute to "extras" or "add-ons" in proportion to their respective incomes. These "extras" include:

• Unreimbursed medical expenses
  
• Educational expenses
  
• Prescription drugs
  
• Dental expenses
  
• Extra-curricular activities
  
• Child care expenses
  

The apportionment of these "extras" is based on relative income, so that if one parent earns $100,000 and the other parent earns $50,000, the ratio of the apportionment would be 2:1. If their incomes are equal, then the split is 50/50.

The majority of states require child support to be paid until the child is 18. However, there are a few states that require it until age 21.

Co-parenting enables children to reap the benefits of being raised by both parents in the event of a divorce. The archaic belief that custody should be awarded to the mother is no longer viewed as the standard by the courts. Today, it is widely acknowledged that fathers are just as qualified to raise children as mothers. Therefore, to benefit the children and save the divorcing couple thousands of dollars in litigation fees, many divorce lawyers encourage their clients to settle custody issues by agreeing to joint custody, or co-parenting.

Frequently, co-parenting plans will divide the time children spend with each parent relatively equally, providing each parent an opportunity to raise their children and enjoy spending large amounts of time with them as they grow up.

In order for a co-parenting arrangement to work, certain factors must exist:

• Both parents must live close to each other, either in the same school district or close enough so that the children may be easily transported to school from either parent's house. This will also allow children to participate in extra-curricular activities and enjoy social time with their friends, regardless of which home they are staying in.
  
• Both parents must be able to agree on important parenting decisions concerning schooling, extra-curricular activities, religious training and upbringing, and medical care. Both parents must be willing to attend parent/teacher conferences, sporting events, and other school sponsored events. Parents must also be able to agree on disciplinary measures when necessary.
  
• Holidays and school vacation time will generally be shared, where appropriate, or alternated from year to year.
  
• Each parent must provide financial support proportional to his or her income. Since co-parenting arrangements generally provide each parent with relatively equal time with the children, time shouldn't be a major factor in allocating child support.
  

Ultimately, the people who benefit most from a co-parenting arrangement are your children. They will receive all of the emotional and intellectual support that each parent can provide, which can be a salvation for them in the midst of a traumatic divorce.

Divorce mediation is an alternative to a traditional divorce that is becoming a very popular way for couples to settle their marital dispute. It offers couples a way to retain complete control over their divorce while resolving all disputes in an amicable way.

Mediation works best for couples who have a desire to maintain a positive post-divorce relationship, and who are able to communicate and work together well enough to reach an amicable solution to their dispute.

The mediator is a neutral party who is approved by both spouses. He will help both couples work together to resolve all of the major points of the divorce. The mediator does not have the authority to make any decisions in this process. His role is just to facilitate the discussion between both spouses.

Divorce doesn't have to bleed you dry of your life savings, but it can if you go to trial and engage in a bitter and protracted divorce proceeding. In mediation, the two people who know their own personal situation best can plan out their future without the adversarial process of a traditional divorce.

The result of a successful mediation is a better divorce agreement that is beneficial to both parties. The mediator knows the law and will help guide the couple into an agreement that will be approved by the court. Mediation will also take much less time and cost much less money than a traditional divorce.

Mediation can work out all facets of a divorce agreement, including child custody, child support, spousal support, and distribution of marital assets.

Just about every jurisdiction in the country now views marriage as, among other things, an economic partnership. Furthermore, New York is the only state that has not already adopted no-fault divorce in one form or another. So why even worry about the issue of marital fault?

Getting bogged down in issues of marital fault serves no productive purpose in your divorce proceeding. It is wasteful of your marital assets, and raises the level of acrimony in your divorce action.

Instead, you should spend your time and resources focusing on financial and child custody issues. A skilled divorce lawyer can guide you through the complexities of division of marital property, spousal and child support, custody and shared parenting, and preparing for a future living in separate households. These are the important issues in a divorce. Harping on who is at fault does not help you resolve them, and it delays your ability to move on with your life.

In this day and age, it is important to resolve the issue of "fault" as quickly as possible so that the real issues at stake can be tackled directly and solved intelligently. If your lawyer spends too much time talking about the issue of fault, you may want to consider different representation. With proper legal guidance, your divorce can be achieved quickly and without bankrupting your marital estate.