FAQ

DIVORCE

Why do I need a divorce attorney?

Each divorce has its own unique outcome and an experienced attorney will be able to guide you successfully through the entire divorce proceedings. Attorney J Thomas Salata has the experience, objectivity, specialized knowledge and education practicing family law in Alpharetta that is needed to represent you during the divorce process.

What is the process for obtaining a divorce?

Every state has its own laws for obtaining a divorce, or dissolution of marriage as it is called in some states. Like many other types of civil process, the legal process is somewhat similar in all states. The first step, in any divorce, is that one spouse or both spouses make a decision to initiate a termination of their marriage. Arriving at this decision is different for each individual. While generally not considered part of the legal process per se, how this decision is made may have significant legal consequences. Persons making this decision should consult first with a trusted attorney, a marriage counselor, a financial consultant, and/or any other trusted third party, before taking this often-drastic step.

At first, the legal process may seem complicated and confusing, but usually follows a rational and reasoned course. All issues to be decided, if taken individually, are typically resolved by taking the time to give each some careful consideration, investigation, and objectivity.

The normal issues to be decided in a divorce are how property is divided, how debts are divided, and, between parties with children, how legal and physical custody will be arranged and setting a visitation schedule. Other issues that may arise when children are involved are child support, and medical and childcare expenses. In longer-term marriages, the issue of spousal support may be addressed, and the terms of any prenuptial agreement will be analyzed. Those able to maintain objectivity and detachment while sorting through these issues often find the divorce process can actually help them move on in their lives without the battle scars some receive during their divorce process.

How is property divided in a divorce?

All states provide for a more-or-less equitable, but not necessarily equal, division of marital property. Marital property includes the parties' incomes, acquired during the course of the marriage. Those states with community property laws set forth in more specific detail precisely what property is considered community property and thus, available for division, and, what property is considered separate property and thus, not available for division. Once community property is identifies, some community property states mandate an equal division of the property. Others apply the same principles as those states that use the equitable division of property model.

If the parties are able to come to a mutual agreement, the decision of who gets what property in either type of state is, of course, up to the parties, but usually with approval by the court. Despite lore to the contrary, most divorcing couples are able to negotiate a fair and equitable division of the property without resort to a court's decision-making process. However, for those unable to come up with a mutually agreed upon division of property, most state law provides a list of factors that courts consider in making a final. Generally among these factors are:

  • Length of the Marriage
  • Age and Health of the Spouses
  • Contribution of each spouse to the acquisition of property
  • Contribution of one spouse to the education or training of the other
  • Custodial provisions for children of the marriage
  • Whether either of the spouses will be awarded spousal support
  • Present and potential earning power of each spouse
  • The total economic circumstances of the spouses
  • The existence of any pre- or post-marital agreement between the spouses

How are debt and other liabilities and obligations divided in a divorce?

Debt division is considered part of the property division process. In community property states, liabilities, like assets, that are brought into the marriage belong to the spouse who incurred them. In equitable distribution of property states, the debt, like the property, is divided equitably between the parties. If the debt is secured debt, the general rule is that the value of the encumbered asset is reduced by the amount of the debt in determining division. For instance, this often happens in the case of family cars. For many divorcing couples, each spouse has a vehicle, but one may be a paid-for clunker worth relatively little with no car payment. The other may be a late model car worth well over $10,000, but with a loan balance equal to its present value. Despite the fact that the vehicles may have very different gross values, the net value for them is equal.

A very common problem for couples in our current economy is that they have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This situation poses a complicated issue for debt division. In cases such as these, the advice of a financial consultant, or even a bankruptcy attorney, could be very helpful to the parties.

As with other property issues, if the parties cannot come to a fair and equitable division of debt on their own, state laws typically provide a rationale for courts to follow in making debt division decisions.

How is alimony, or spousal support or maintenance determined?

All state divorce laws address the issue of whether, and for how long, one spouse shall be required to make support payments to the other spouse after termination of their marriage. In cases involving equitable division of property, one of the usual factors for division of property is whether one spouse will pay support to the other. On the other hand, when determining spousal support, or maintenance, as it is known in some states, one of the factors to be considered is the division of property.

In community property states, the division of property between the parties is not necessarily a factor to be considered in the determination of support, but their prior standard of living and the relative economic status of the two parties are relevant factors. In the so-called equitable distribution property states, other factors to be considered are much the same as the factors to be considered by the court in the division of property, such as:

  • Length of the Marriage
  • The extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse
  • The presence of young children in the home
  • Employment opportunities available to the spouse requesting support

Ironically enough, though spousal support may be a highly contentious issue in divorce, many couples are mutually able to make fair and reasonable support agreements as well. And, generally, at the end of a short-term marriage, in the absence of extraordinary circumstances, neither party is likely to end up with an award of spousal support.

Can a divorce decree be changed?

As the answers to legal questions often do, the answer to this question usually generates a set of additional questions, such as:

  • Who wants the order modified?
    In almost all cases in which someone other than a party to the divorce wishes to change the divorce decree the answer is no. Thus, the question should be, can the divorce decree be changed upon the request of a party to the divorce. This leads to more questions.
  • What part of the order does the party want to modify?
    If the modification has to do with property division, in most states, the answer is again no, unless there is evidence that the original decree was based on significantly incorrect information. In this event, states provide procedures for correction of the order based on the newly revealed information. Since states generally require that the parties provide full disclosure of assets and liabilities, if the incorrect information was intentionally provided in order to conceal assets, the court may also impose significant penalties.

If, on the other hand, the desired modification involves other issues, child support, spousal support, child custody and visitation, the next question is typically:

  • Has there been a significant change in circumstances since the entry of the decree that warrants a change?
  • In child custody matters, a number of different factors can come into play so that the court may find there is a significant change in circumstances justifying modification. Some states require an even higher standard for modification of the decree in the first two years of an order simply to help insure that parents do not keep disrupting their children's lives by dragging the other parent back to court.
  • In child support and spousal support matters, the answer again depends on the question of whether there has been a significant change in circumstances to warrant the change. If so, the court may modify its original decree.

How is Annulment or Legal Separation Different from Divorce?

An annulment is a court proceeding that dissolves a marriage. An annulment legally makes it so that the marriage never existed. A legal separation involves a court issued judgment for division of all property, child custody and visitation, as well as arrangement for support payments. The marriage is not dissolved as in a divorce.