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Thursday - November 20, 2008 11:20 AM


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Divorce FAQ's

Frequently Asked Questions

Below are answers to commonly asked questions regarding marital and divorce issues. Should you have additional questions you may contact us.

What is an uncontested divorce?

An uncontested divorce is one that that is settled between the parties prior to a final hearing, generally with a separation agreement.

If I don't want a divorce, will the judge still grant it?

It is rare for a judge not to grant a divorce regardless of the defense raised.

What is a contested divorce?

A contested divorce is one that has not settled all the issues between the parties. If you both have retained lawyers, they can force you to go to court to settle.

What is a value's chart?

A value's chart keeps track of the assets and liabilities each spouse is receiving to determine if their agreement is equitable and fair.

What is a QDRO?

A QDRO stands for Qualified Domestic Relations Order. It is used when splitting retirement and pension plans. A QDRO is a Court order that must be served on or delivered to the plan administrator. Drafting a QDRO requires special knowledge and should be done by a QDRO specialist.

What does joint legal custody mean?

Joint legal custody means that parents must consult with one another on all major decisions affecting their children, such as medical care, religious training, education, and extra-curricular activities. The day to day decisions affecting the children are made by the parent who has physical custody.

My lawyer told me not to talk to my spouse. Should I listen?

No! The worst thing you can do is to stop talking to your spouse. That puts all the control in your lawyer's hands. You won't really know what is going on. The lawyers will decide what you should get instead of you. Issues get misinterpreted, and it will add years onto your divorce. No one knows your spouse better than you do. Keep talking to him/her and try to negotiate as much as you can with them. You will get a lot further.

How do I know I am making the right decision about leaving my marriage?

It is very hard to end a relationship even when you know it is bad for you. A relationship that is bad for you isn't just one that has difficult times, periods of discord or a loss of passion that is inescapable in any relationship. A relationship that is bad for you is a dead end. It is a relationship painfully unattainable. There is no common ground for the two of you to work off of. You are so mismatched and on different wavelengths that you can't communicate, appreciate one another, or enjoy one another's company. You can't seem to emotionally connect. You are already living an emotional divorce. A relationship that is not working is lacking in what you want and need the most. We only get one shot at life. This is not a dress rehearsal. There are certain deal breakers such as ongoing addictions without recovery, continuous adultery, emotional deprivation, emptiness, distance, hatred, contempt, withdrawal, distance, rage, and physical abuse. In your heart of hearts, I think everyone knows what the right decision is for them whether they can admit it to themselves or not.

If the house is in my name only, do I have to divide it with my spouse?

Any assets that are acquired during a marriage are marital property. It does not matter whose name it is in. The only way you can keep the house is if you both mutually agree to do so or you go before a judge, and he/she makes that ruling. A judge could also order you to sell the house and divide the proceeds with a certain percentage going to each party. It is far better if you decide this between yourselves.

What is considered separate property?

Any property owned before the marriage and kept separate is separate property. If you co-mingled it with marital property, it is no longer separate.

How can the legal system hurt me?

It can hurt you badly! Once you retain an attorney, you have lost "power" over your case. Lawyers usually attribute to you what they think you should get. Your lawyer as well as your spouse's lawyer can file motions, and set pre trials without your permission. They also run up costly bills with unnecessary adversarial procedures and paper work. Before you know it, you are out $10,000, and things haven't even gotten started. Lawyers complicate a process that could easily be simplified. Your lawyer could eventually become your greatest obstacle. The legal system is an adversarial system where divorce is treated like war. You and your husband are pitted against one another in a battle conducted by your lawyers. Not only can you suffer extreme financial loss, but you can also get emotionally hurt. Your spouse's lawyer's goal is to make you look bad and your spouse look good to undermine your legal grounds. While the battle ensues, years are marked off your life. You don't want to pay your lawyer more than your marital estate is worth, split your estate with your lawyer or send his/her children to college.

Is splitting things equally always fair?

No. For example, if a homemaker stayed home to raise the children and lost years of earning power and her spouse makes triple what she earns. In this scenario, equal would not be fair. The incomes are too disproportionate. In any situation where the spouses have been married for a long time and one spouse has more assets or earning power than the other, equal is not fair.

What about my divorce will hurt my children the most?

What will hurt your children the most is how you both handle the conflict before, during and after the divorce. The more you hurt one another, the more you will hurt your children. It is also important to work on your style of parenting and meet your children's needs and understand the stages of grief they will go through and be there for them. Children need to feel connected to both parents. At minimum, it is essential for children to have at least one person in their life they feel unconditionally loved and accepted by. This is the best gift you can give your children.

Is mediation a better alternative than the adversarial system?

Yes. Mediation is a process that puts you both at the hub of the wheel, because you are able to maintain control of your divorce. It is a constructive, creative and effective way to solve problems through mutual cooperation and understanding rather than coercion, fear, intimidation and force. It takes a shorter amount of time, saves you emotional suffering and financial loss. The agreement is often one of more quality because it is personally designed to fit the needs of your family.

How will I know if my counselor or lawyer is covering all the bases?

They aren't. No one person can cover all the bases. It is not possible. It is up to you to take an active role in either saving your marriage or getting a divorce and digging for the right information. There is no therapeutic model for counseling marriage and divorce. That is why most counseling fails. Your lawyer is not trained in human relations, mediation, financial planning, or tax ramifications. These factors often create the results you do not want.

Should I just leave?

No. Leaving without discussing it will throw the whole family into a crisis situation. It might be a good idea to get some counseling together or alone. It is important to create a temporary controlled separation plan stating who will pay what, how issues will be handled with the children, who will still do what so everyone in the family will know what to expect until you have your final agreement. This lessens anxiety and worry about how things are going to be taken care of through this difficult transition. Leaving might make it harder to get back in, it will be costly at a time when you need money the most, and your spouse could fault you for abandonment. However, if you feel your emotional and physical well being is compromised, you have no other choice but to leave. It is possible to get a restraining order and have your spouse ordered to vacate the premises.

Is staying in my marriage in the best interests of my children?

No! A toxic marriage poisons your children. Children are like sponges. They absorb negativity. They act out the family's problems and secrets. It is not in the best interests of your children to witness a relationship that is destructive and unloving. What model does that give them for learning how to love? They will go on to create the very thing you have created if they aren't showed a different way. Children of divorce fare better then children from intact homes whose parents are unhappily married.