WHERE TO START

Ponder long. Ponder hard…

So the rational question to follow, I think it’s time for divorce or my spouse has decided it’s time is, where do I start? Or what’s next?

Each state has its own laws, procedures, forms and fees.

Be sure to check your specific state’s policies so that you have all the required information, forms and documents for filing for divorce.

Not meeting the requirements can cause undue stress and delay. There may be multiple ways to find your state’s requirements for filing for divorce.

Search online for your

1. state’s law library

2. state’s family court portal

3. state’s court clerk

4. state’s court website

Another question that you may have is, will marital assets be divided equally 50/50? That depends on your state. The other notable part of that is not only are assets divided but so is the debt!

Assets and debt division are called “community property” and are also dependent upon which state you live in.

FORBES offers a more in depth look into

1. defining community property

2. defining assets

3. and list which states are community property states

There are 2 methods for dividing marital assets.

We just mentioned community property.

The other is equitable distribution which focuses on a “fair” divide of assets that includes multiple factors including if there was:

1. children

2. length of marriage

3. pre-nup

4. standard of living etc…

FORBES also has more in depth info on equitable distribution.

JUSTIA has more info defining the difference between community property and equitable distribution.

WHAT IF MY SPOUSE IS FORCING ME OUT or KICKING ME OUT OF THE HOUSE?!

You do NOT have to leave your home unless ordered by a judge!

Your spouse CAN NOT force you to leave the marital home (if you own the home with your spouse or regardless of who purchased the house if purchased during the marriage). YOU HAVE EQUAL RIGHTS TO THE HOME.

    Ex - “My spouse said I must leave in 30 days.”

No no NOT ok! In a non-community property state (equitable distribution state) if you leave the marital home it may be used as a negative against you by the judge.

Your spouse may try to claim what’s called abandonment against you and possibly leaving them with the higher possiblility of being awarded the house.

An Abandonment charge may be awarded also if you “leave” your child(ren) behind (which may be seen in a negative light by the judge and seen as your unwillingness or ability to take care of your child(ren) and/or not assisting in maintaining home expenses.

IF you voluntarily leave you may need legal representation to collect evidence to support your reason(s) to the judge for leaving.

By no means should you have to stay especially if feeling unsafe.

• HG has more in depth info on your rights when moving out of the marital home.

• CONTACT US if needing more information about intimidation or coercion from a spouse to leave the marital home.

• Click Domestic Violence if you think it may be applicable to your marriage and needing more info about the types of abuse.

VOLUNTARILY LEAVING

To speak further about voluntarily leaving the marital home keep in mind whether a community property state or equitable distribution state, leaving the home may present challenges during the divorce process if you do not have an amicable relationship with your soon to be ex.

When voluntarily leaving there is a possibility your spouse may not let you back in whether changing the locks or other methods. You may want to consider making sure to take all or as many of your belongings, documents, paperwork etc. that may be needed as part of your divorce paperwork upon your initial departure. If needing to gain re-access or re-entry and being prohibited from doing so you may be able to ask the court to intervene.

If feeling unsafe when voluntarily leaving consider having family or friends help you. Depending on your city or county you may want to contact your local police department or Sheriff’s county office to ask for a police escort OR “civil standby” for the purpose of safely collecting your belongings.

You may need to schedule this type of request in advance if applicable.

Some police departments may not have the resources for a police escort request but it is still worth the ask. If they are not able to be physically present ask if they can be provided with your address and be in your neighborhood or the area if they would be needing to arrive if there is trouble.

Make sure to seek professional counsel or advice on the subject matter when considering voluntarily leaving.

• Law office of Bryan Fagan (TX) has more in depth info on what to do if your spouse kicks you out of the house.

3 WAYS TO GO ABOUT GETTING DIVORCED

There are a few ways to the path and end goal of divorce.

1. DIY “do it yourself” divorce

2. Mediation

3. Divorce attorney

DIY “do it yourself” divorce. As mentioned above, involves an uncontested divorce meaning that both parties (exes) agree to all the terms of the divorce or aren’t fighting (contesting) over the terms. The terms are decisions on custody of children, assets or money and not trying to stop the divorce from happening.

DIY is the cheapest and most “cost effective” of the 3 options.

All you need to do is find out your states laws and requirements for filing. Fill out the required forms and pay the fees. Fees vary by state, costing as low as $80 and upwards of $450+.

Some requirements for an uncontested filing may include:

    • jurisdiction - state residency may determine which state court will oversee the dissolution or ending of your marriage.

Law Info has more info on understanding jurisdiction

    • residency - depending on your state you must live in the state for a certain time frame before filing

Divorce.net has info by state on residency requirements

If you have minor children or adult child with disabilities your paperwork must include a parenting plan that maps out:

    • child support

    • custody arrangement

    • visitation

Read the article titled “10 Things You Should Include in Your Parenting Plan” by The Modern Family Law Firm

• CUSTODY X CHANGE is a platform in which you can create your own parenting plan or custody agreement for how your child(ren) will be cared for. They offer a step-by-step guide.

• click pricing for more information

If you cannot agree on the terms then you will not be able to file an uncontested divorce and will have to go through mediation and/or court where the court makes a determination.

FORBES - Divorce Papers & Forms has info on the most important papers and forms needed and how to file.

Mediation

Mediation is voluntary unless ordered by the judge.

IF you and your soon to be ex spouse agree, you would need to find a mediator. A mediator is a neutral figure and professional, who could be a lawyer, who is the “middle man or woman” that acts as a facilitator to help keep the focus on “fairness” as defined by you and your soon to be ex spouse.

It is private and confidential meaning there is no public record of what is discussed or how you determine the outcome.

The cost of mediation is “cheaper” than going to trial and also can be completed a lot quicker than going to court since the soon to be exes negotiates the timeline of completion.

According to Forbes…"During divorce mediation, the mediator guides couples in addressing all the issues associated with divorce, including asset division, custody arrangements and spousal and child support.”

source: Forbes

NOLO has a step by step explanation of what mediation is, who should and should not do mediation, how the process works and how to start. They also have a directory of lawyers by type and location.

NOLO’s directory may not be an all inclusive list.

(DISCLAIMER - please check our disclaimer page (Eek!…The “D” word!”) for more info on external sites/hyperlinks that have lawyer directories)

Mediation as an option allows for more control over the outcome as determined by you and your soon to be ex and not the court.

Divorce attorney

This type of attorney specializes in family law. They work for and on the behalf of their clients individual needs and desires. This can be the most stressful option as temperments can definitely tested. The longest of the 3 options, traditional divorce can take up to 2 yrs or more to finalize especially if the terms of the divorce cannot be agreed upon and if you have children.

If you are just starting your divorce process and using an attorney be sure to find a qualified experienced divorce attorney to help you understand more about the process and requirements for your state. Keep in mind a judge may order mediation before going to trial.

Don’t be afraid to “shop” around for the right attorney. Like with your clothes or shoes, your attorney needs to be a good fit for you. Attorneys have their own methods and personalities so make sure they FIT with YOUR personality and needs.

When using an attorney, the court decides the outcome.

Can I just ask some questions - to an attorney?

Some lawyers may offer a free consultation where it’s an opportunity for you to not only see if they are a good fit but ask questions or legal advice. Asking questions can help you understand your options and rights especially as it pertains to child custody.

Keep in mind not all lawyers offer the option of a free consultation.

This would also be a great time to ask about the attorney’s hourly rate and other fees for services if you are considering having them represent you.

Do lawyers offer a limited or cheaper scope of services?

Some attorneys may offer what’s called “Limited Scope Representation” or “Unbundling” which is assistance with some (limited) aspects of your case. This means that you would be self-representing (this is called pro-se) and handling ALL other aspects of your case.

This option can possibly help you save money while getting the guidance you need because divorce is a very complex process.

WHY WOULD MY DIVORCE TAKE SO LONG??

As mentioned before, divorce finalization can take up to 1 - 2yrs+ due to the type of filing meaning the divorce was filed by self (pro-se) or “DIY,” mediation or court via an attorney.

Depending on your state, there may be a waiting period before you can finalize your divorce after you file your Original Petition for Divorce (if you filed first). In Texas for instance there is a 60 day waiting period called a “cooling-off period.”

Divorce is a major decision and some state courts want to give you “time to think things through.” Some people will file and then change their minds. For that reason and for some couples this time is beneficial and a good thing for those that need it.

There may be some exceptions that waive your state’s “cooling-off period.”

• VIOLENCE - if your soon to be ex has been convicted of violence against you or other members of your family

• RESTRAINING OR PROTECTIVE ORDERS - an active order (which is filed at a courthouse) prohibits your ex from harassing or physically coming near you or other members of your family

For more info on Protective Orders and Legal Resources click NATIONAL DOMESTIC VIOLENCE HOTLINE 

COURT FEES

Divorce can be costly financially and have various fees associated with it. Part of those costs are court fees.

Below you will find a list and definitions for some of the different types of fees.

1. filing fee - you pay the court to start your case: If you did not file for divorce (your spouse did), you DO NOT have to pay a filing fee.

2. service fee - you pay the sheriff or process server to deliver(serve) your spouse with divorce papers

3. mediation fee - depending on your state and if you have children, you pay a mediator to help you and your soon to be ex spouse determine an agreement on custody, assets, etc..

4. appeal fee - if you feel the judge assigned to your case made any mistakes on your case you can ask a higher court to review and look into the matter

Most states do not require court fees for domestic violence or in cases of child custody or child support

Check with the court clerk for a complete list of fees so you can prepare and be aware of the total cost for your case.

IF YOU CAN NOT AFFORD COURT FEES…

• If you HAVE a lawyer - have them request your court fees be waived

• If you DO NOT HAVE a lawyer - check to see if the court has a “fee waiver request” form for you to fill out to ask the judge to waive any court fees

• If it is a financial hardship for you to pay an extra expense such as court fees or if you are receiving any Government assistance programs ex. food stamps, welfare, SSI…depending on your state you may be able to get partial or all court fees waived.

HELLO DIVORCE has an article on how to get your court fees waived that also includes links to 10 states fee waiver forms. Be sure to double check with your state court clerk regarding the correct form.

Click DIVORCE GLOSSARY for understanding more about terms (used in court or throughout the divorce process) and definitions.