Q: What is an uncontested divorce?
An uncontested divorce is one in which the parties reach their own settlement rather than going to trial and letting the Court decide the issues for them. Most people find that an uncontested divorce is advantageous for a variety of reasons. The process tends to be faster and less expensive when the divorce is uncontested. The parties maintain control over their futures by reaching their own decisions. A decree is not imposed on them by the Court after a trial. The parties are also better able to maintain (or reestablish) a civil relationship if they are not involved in lengthy litigation with all of the strategic positioning and polarization that a trial entails. The reduced hostility makes it easier for divorced parents to raise children together.
An uncontested divorce agreement can be accomplished through direct negotiation between the parties, negotiation between their attorneys, or through mediation.
Q: What is a legal separation, and can Divorce Direct handle this procedure for me?
A legal separation is an action which is intended to permit a husband and wife to remain married while living separately. The legal separation agreement specifically establishes each party’s rights regarding custody, visitation, support, and property distribution. A legal separation may be called a limited divorce, a divorce from bed and board, or separate maintenance. Such a procedure is available in most, but not all states.
A few states require that a legal separation be obtained before a no-fault divorce can be granted. In those states, a legal separation agreement is a part of our divorce package.
A couple may choose to obtain a legal separation instead of a divorce because they have religious objections to divorce, because they believe that a reconciliation is likely, or to protect insurance, pension or other benefits which may be lost upon divorce.
As with a divorce, an action for legal separation can be contested or uncontested. Divorce Direct can provide document packages for uncontested legal separations.
Q: Why doesn’t Divorce Direct become involved in contested divorces or legal separations?
Any action in Court is likely to involve complex issues and technical rules of evidence and procedure. While many people do choose to handle such matters themselves, it is our belief that contested divorces should be handled by an attorney. Divorce litigation is frequently a high stakes game. Your future or your children’s future may be at issue. Experienced legal assistance is usually necessary.
If your spouse is represented by an attorney, if you are involved in an abusive relationship, if your divorce involves financial issues which you do not understand, or if you do not agree on any major issue, consult an attorney.
DivorceDirect is here to help with the relatively simple divorce wherein the parties are able to reach their own decisions. We do not provide the legal advice which a contested matter demands.
Q: I understand that Divorce Direct can not provide legal advice. Where can I go for help?
Experienced family law attorneys are the best source of divorce related advice. Alternatives include mediators, therapists and psychologists who are experienced in the field. These sources are especially useful because they can work with both of you. Under most circumstances, a lawyer can not do so.
It may be helpful for you to speak with divorced friends to learn what worked for them, and what did not. If children are involved, it is especially helpful to talk to divorced parents to learn what they did to help their children through the process and beyond. In many areas you will find divorce related support and discussion groups by checking with schools, mental health centers, pediatricians, and libraries.
There is also a large selection of divorce related books available through all of the usual sources.
Q: What issues need to be considered as we discuss our divorce or legal separation settlement?
Almost every divorce requires that decisions be made regarding real and personal property distribution, distribution of debt, health insurance, and tax issues. Where children are involved, there are also custody and support decisions to be made.
DivorceDirect’s questionnaire will help you to identify and focus on the important issues associated with your specific situation.
Q: How are child custody and visitation issues decided?
As with any other divorce related issues, child custody can be resolved by agreement between the parties, or by court order after a contested hearing.
Because children are involved, the courts tend to scrutinize child custody agreements more closely than other agreements. However, most courts feel that parental decisions should be honored unless they are clearly contrary to the children’s best interest because the parents are deemed to be in the best position to understand their children’s needs.
In a contested situation, the children are often represented by a Guardian ad Litem who conducts an investigation and makes custody recommendations to the court. As a general rule, the court then hears evidence at trial pertaining to, among other factors, the parenting skills of each parent, the bond between the children and each parent, the bond among the children, and the ability of each parent to recognize the importance of the other parent to the children. If the children are of an appropriate age to be consulted, their wishes are important as well. Any given case may present a variety of other factors which are necessary to a proper judicial determination of custody.
In an uncontested situation, the parents should consider the same factors in reaching custody decisions.
Q: What is Joint legal custody?
Joint legal custody is a legal doctrine which affirms in both of a child’s parents the right to remain involved in the important decisions concerning their child’s health, education, and welfare. An award of joint legal custody should serve to reassure a noncustodial parent that he or she will remain as an important presence in the child’s life.
Many states presume that joint legal custody is in the child’s best interest. In those states, the court must award joint legal or make a specific finding that joint legal custody would be detrimental to the child. A denial of joint legal custody might be based on a finding that spousal or child abuse has occurred or on a finding that the parties have such extreme communication problems that they can not work together for the benefit of their children.
Joint legal custody does not mean that a child will share his or her time equally between the parents.
Q: How does physical custody work?
Physical custody is exactly what it sounds like. A child resides with his or her physical custodian. In an uncontested situation, the court will usually approve shared physical custody arrangements which divide the child’s time with the parents roughly equally. It is unusual for a court to award joint physical custody in a contested situation.
Q: How is child support determined?
Every state has child support guidelines which determine the amount of child support to be paid. For more information, please go to the Child Support Resources section.
Q: How are retirement funds divided?
Distribution of retirement funds requires special attention so that the tax advantages associated with such funds will not be inadvertently lost.
A Qualified Domestic Relations Order, or QDRO, is a document which transfers a share of retirement funds from the spouse participating in the retirement plan to the nonparticipating spouse. A QDRO is intended to transfer the agreed upon portion of the fund to the nonparticipating spouse while protecting the tax benefits which make these funds such attractive investments.
Typically, QDROs are drafted after the divorce has been concluded. The QDRO must be approved by the fund administrator, signed by the parties, and entered by the Court as an order. The order is then registered with the plan administrator.
If your situation requires a distribution of assets through a QDRO, contact the pension or retirement plan administrator for plan requirements and forms. Most administrators have these forms available for their members, and they are happy to help with the completion and registration of QDROs.