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Divorce Q&A

Here are some common questions regarding divorce. Please find lawyers on our website and contact to discuss your specific concerns with an attorney.

What are the differences between: divorce, dissolution of marriage, legal separation, and annulment?

Dissolution of marriage, or divorce, is a legal proceeding to end a marital relationship.

A legal separation involves the same procedures as a divorce, but remarriage to another person is prohibited. When an annulment is granted, the judge is saying that your marriage is void; or, legally, the marriage never existed.

What is required for a divorce to be granted?

In US, a divorce will be granted if one party alleges that there has been an irretrievable breakdown of the marital relationship.

Do I qualify for an Annulment?

You must prove either that the marriage is void or voidable. Most people, however, do not qualify for an annulment. You may be able to get an annulment if: (1) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity and the other party, at the time the marriage was solemnized, did not know of the incapacity; (2) because of the influence of alcohol, drugs, or other incapacitating substances; (3) because consent of either was obtained by force or fraud and there was no subsequent voluntary cohabitation of the parties; (4) a party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party at the time the marriage was solemnized did not know of the incapacity; or (5) a party was less than 18 years-old without parental consent or 16 years-old with parental consent.

If there are children involved, it will usually be in their best interests to stay in the family home.

Will I have to pay (or will I receive) alimony/ maintenance?

Maintenance (or alimony) is a monetary payment on a regular basis from one spouse to the other during or following a divorce. Whether maintenance is awarded depends on the facts of each case, such as the length of the marriage, the standard of living enjoyed during their time together, the relative incomes of the parties and their respective needs, the emotional and physical health of the parties, etc. The payments may be made for a period of time or may be paid indefinitely following the divorce.

What usually happens with the family home?

If the home was purchased during the marriage and mortgage payments are made out of the incomes of one or both spouses, the home is considered to be owned equally by each spouse. If there are children involved, it will usually be in their best interests to stay in the family home. The court prefers to award possession of the home to the custodial parent. If the home was purchased before or from funds belonging to only one spouse, such as inheritance funds, the home may be partially non-marital property and not part of the court’s calculation of the division of assets.

How are the bills and property divided?

If you and your spouse cannot agree on how to make the division, the court has broad power to divide marital property “equitably” or fairly. The court may consider many factors in distributing property and in determining liability for debt repayments such as earning ability, child custody, physical and emotional health of the parties, and the length of the marriage. The value of marital assets, such as a family business or pension plan, will be divided by the court if the parties cannot agree on the division.

As part of the divorce decree, my ex-spouse said he/she would pay the credit card debt. Do I still have a legal obligation to those creditors?

Your ex-spouse may be in contempt of court for disobeying a court order. However, if you are jointly liable to a creditor, your ex-spouse’s contempt of court will not excuse your non-payment. Your contract with the creditor exists notwithstanding and you are still responsible even if your ex-spouse fails to pay.

 

What if we cannot come to an agreement?

Sometimes court litigation is the only path to resolution. At such times, it is important to retain an experienced attorney with strong advocacy skills, not only in the relevant areas of the law, but in the courtroom as well.

What is Collaborative Law?

Collaborative Law is an alternative form of dispute resolution. Collaborative law attorneys seek to arrive at mutually agreeable solutions without having to resort to litigation.

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