Family Court Decision on a Divorce

An appellate division of the New Jersey Superior Court ruled that alimony may be ignored in specific cases such as that of Fattore v Fattore. Courtesy of the NJ Law Journal

What happens after a divorce? It depends. Many of the most important decisions surrounding divorce are determined by a judge. Even when the parties have agreed on certain matters, they must still present these before the judge for a seal of approval. The judge’s decisions form a vital part of the divorce records to be kept by the court as a public record.

What Are the Initial Steps in a Divorce?

• Filing a Petition: The initial step in a divorce is filing a petition. One spouse (the petitioner) initiates the process by filing a divorce petition with the local court clerk. This petition typically includes information about the marriage, such as property, debts, children, and the reason for the divorce.
• Temporary Orders: If required, the petitioner may request temporary orders for child custody, child support, or spousal support. These are typically put in place during the divorce process.
• Service of Process: The respondent (other spouse) must be officially notified of the divorce proceedings. This is called the service of process, and it must be done according to the rules in the specific state.
• Response: The respondent may file a response, either agreeing to the divorce or contesting some aspects of it.
• Negotiation: Both parties may enter into negotiations to settle matters like property division, alimony, and child support.
• Mediation or Trial: If the couple can't agree on all issues, they may be sent to mediation or the issues may be settled in trial.
• Finalizing the Divorce: Once all issues are resolved, the court will issue the final divorce decree, which officially ends the marriage.

How Are Divorce Papers Served?

• The service of divorce papers must be done according to the laws of the state where the divorce is filed. The common methods include:
• Personal Service: Often conducted by a sheriff, process server, or unbiased third party, who hand-delivers the papers to the respondent.
• Certified Mail: Sending the papers through certified mail with a return receipt.
• Publication: If the respondent cannot be found, some states allow service by publication, where the divorce notice is published in a local newspaper.
• Service by Notice and Acknowledgment of Receipt: Sending the papers with a notice and request for the respondent to acknowledge receipt.
• The person who serves the papers must provide proof of service to the court.

Can Divorce Proceedings Be Stopped?

Yes, divorce proceedings can be stopped if both parties agree. If the petitioner wishes to halt the proceedings, they may request a dismissal from the court. If the respondent has already filed an answer, both parties must agree to the dismissal. In some states, if the couple reconciles, they can file a motion to dismiss, ending the divorce proceedings.

What Are the Legal Grounds for Divorce?

In the United States, legal grounds for divorce can be broadly categorized into fault and no-fault grounds.

No-Fault Divorce: Most states allow for no-fault divorce, where neither spouse is legally required to prove that the other spouse did something wrong. Grounds may include "irreconcilable differences" or "incompatibility."

Fault Divorce: In some states, one spouse can allege and prove fault, such as:

• Adultery
• Cruelty or physical abuse
• Abandonment or desertion
• Substance abuse
• Incarceration for a certain length of time
• Legal Separation: Some states require a period of legal separation before a divorce can be filed.
• Mutual Consent: Some jurisdictions allow for divorce by mutual consent where both parties agree to the divorce.

During divorce proceedings, the parties involved may have to present information and evidence to sway the judge one way or the other with regards to crucial decisions that will form the essence of the couple’s relationship after their marriage is officially and legally dissolved. Such decisions may include:

1. Alimony/spousal support
2. Child custody and parenting plan
3. Child support
4. Property distribution

These decisions are often contained in the final divorce decree which is the pronouncement of the judge on all the legally binding and enforceable decisions that have been made as a conclusion of the divorce proceedings.

Blake Taylor and her support women at the court hearing for an action filed against her ex-husband for failure and delay in payment alimony. Courtesy of the Tampa Bay Times

ALIMONY

The obligation for payment of alimony or spousal support is usually borne by one former spouse who is considered to be in a better financial position than the other. It is aimed at providing some financial stability to the receiving spouse such that they can maintain a fairly normal lifestyle after the divorce. Not all divorced spouses have to pay or receive alimony. Instead, it is determined on a case-by-case basis. Certain matters may be weighed to determine if spousal maintenance is applicable such as whether the receiving spouse may not be able to meet up with financial obligations on their own after the divorce because they put their careers on hold to raise children, had low or no earnings or had contributed to the success of their spouse during the marriage.

The parties may agree on the terms of their alimony or leave it to the judge to decide. In either case, each spouse is required to fully disclose their financial situation to the other at the beginning of the divorce process, including their assets, liabilities, and their net worth.

How is Alimony Calculated?

It is difficult to ascertain the exact amount a spouse may be awarded in the form of spousal support. Many states’ laws do not provide a guideline for reaching an exact figure, although in Texas, there is a limit to the amount the law allows a judge to award as spousal support. A spouse in Texas cannot be obligated to pay more than 20% of their income or any amount exceeding $5000 (whichever is less) as monthly spousal maintenance.

Who Qualifies For Alimony?

Every state in the United States legislates on family matters relating to its residents, and some state laws on marriage and divorce issues such as alimony, are modeled after the Uniform Marriage and Divorce Act (UMDA), which proposes that the court may consider certain factors in determining the term of an award for spousal support such as:

• The length of the marriage: A longer marriage in many states often translates to a more significant award and courts often deny alimony to persons married for less than 3 years with no biological or adopted children under school age. In States like California, the Judge may consider how long a couple was married to determine the length of time for which their former spouse is entitled to alimony. Texas family code is more time-specific and the judge is required to limit alimony to the reasonably shortest possible time within the duration allowed.
• A spouse will be obligated to pay alimony for a period of 5 years if the marriage lasted for a period less than 10 years, and alimony was ordered by the court because the paying spouse committed family violence. If the marriage lasted between 10 and 20 years, the spouse is entitled to alimony for a period of 5 years, 7 years if the marriage lasted between 20 to 30 years and 10 years if the marriage lasted longer than 30 years.
• Present and future earning capacity of both parties: When calculating the amount payable as alimony, the court will consider the actual earnings of the spouses as well as their future ability to earn an income. However, some states consider future earnings too speculative to base the decision of the amount of spousal maintenance on, and rather focus on the actual earnings of the spouses. In Texas, spousal support may be denied a spouse who has not diligently sought employment or developed necessary skills to support themselves. An ex-spouse with marketable skills and education which may contribute to their ability to sufficiently provide for themselves may likely receive minimal spousal support for a shorter duration of time considered reasonable for them to become self-supporting after the marriage if they were financially dependent on their spouse while married.
• Property distribution during divorce: The court will consider the distribution of the family assets and debts and separate property each of the ex-spouses may own in determining the amount of alimony or whether or not to award alimony. A party who may need support meeting their day to day needs even after property distribution may be more likely to be awarded alimony than a party whose share of the family property is more liquid or cash based.
• Age and health of both parties: The court may consider the age and health condition of a spouse to determine the amount to award as alimony. An older spouse who may have difficulty returning to work or finding gainful employment or who suffers from an ailment or injury that would hinder their ability to pay their medical bills or fend for themselves may be awarded an amount higher than a healthy spouse may be entitled to, if at all.

A man in El Dorado County was arrested after failing to make more than $600,000 in child support payments. Child support is one of the more important aspects of a divorce or separation. Courtesy of CBS Sacramento

Other factors the judge may consider may include, the composition of the family (which of the spouses is likely to have primary custody of the children), estimated needs of the spouses compared with their income, the ability of the supporting spouse to pay, their standard of living while they were married and such related factors. The court in many States that have adopted the no-fault divorce system, are prevented from determining alimony on the basis of the misconduct of the other spouse.

How Long Does Alimony Last?

Many states favor and award temporary alimony over permanent alimony, that is spousal support for a set time or rehabilitative alimony paid until the other party can reasonably find a footing financially post-divorce. Alimony is not designed to enrich one spouse at the detriment of the other so the factors for payment of alimony are often strictly analyzed before the courts make a decision.

In community property states such as Washington, Texas, New Mexico and Idaho it is agreed that the spouses equally own all assets and debts acquired during a marriage, it is therefore assumed that both spouses are in the same financial situation after the divorce and neither of them should be entitled to temporary or permanent alimony. Rehabilitative alimony is allowed but rarely awarded in community property states and usually set at a very low amount for a short duration of time.

Child Custody and Parenting Plan

The decision on where children below 18 will live after the divorce of their parents is a crucial one and the court will always act in the best interest of the children and make decisions or approve agreements that reflect this. The courts would usually work with the parents to determine a parenting plan; which parent will have custody of the children, when, what type of custody would each parent have, who would have the authority to make legal decisions regarding the children, etc.

There are two main types of child custody-one is sole which one parent has full physical charge of the child and makes legal decisions on behalf of the child. The non-custodial parent may have court-approved visitation and depending on the arrangement be able to make some input into legal decisions for the minor.

In the second type, custody is shared with the other parent. In New York, joint custody does not always reflect the amount of time spent with one parent or the other but the ability of both parents to make legal decisions and inputs in the important matters relating to the child. Both parties must agree to joint custody in New York, the court cannot impose joint custody on the former spouses. If the parties cannot agree or the issue of child abuse or neglect has been raised against both parents, the court may appoint a guardian ad litem (now known as the attorney for the child) whose sole responsibility is to act in the best interest of the child before the court and provide the court with information that will foster the decision on the custody of the child.

In certain cases where the need for it arises due to a dispute between the parents in coming to a resolution on child custody, the court may appoint a psychiatrist or a psychologist who is described as a forensic expert and is responsible for submitting their findings from interviews and observation of a child, their parents or other persons who are significant in the child custody battle. The fundamental aim of a parenting plan is to ensure the child is properly protected and insulated from the battle between the parents during or after a divorce especially in situations where they cannot come to an agreement on their own.

In the State of Nebraska, whenever child custody is an issue, the court mandates the parents to attend mediation to resolve their disputes on parenting matters and try to come to an agreement before the trial and present alongside the parenting plan, a child support plan for the financial welfare of the children. The parents are also mandated to attend a co-parenting class approved by the Supreme Court of Nebraska and must present their certificate of completion in court.

In determining child custody, the court may consider:

• The current state of the children, if they are already in a stable home and disrupting that would have a negative effect.
• Relationship of the individual parent with the children and their capability to meet the children’s physical needs (the time they are able to spend with the children), emotional(mental and emotional health and stability of each parent and each of the children while in their custody).
• Evidence of abuse on the children or any other member of their family and household.

The San Diego Department of Child Services offers parents the ‘’PayNearMe’’service as an option for payment of child support through 7 Eleven stores in San Diego County. Courtesy of NBC San Diego

Child Support

Procedures for determining child support differ from state to state so it is often necessary to be familiar with the applicable rules in each state to understand how child support payment is determined. The general rule is that the child receives a financial contribution from both parents for their upkeep and welfare, the same as they would have received if the parents were together.

For instance, child support in Alaska is primarily calculated in line with the parenting plan in accordance with Alaska rules of Civil Procedure. The judge will usually consider the type of child custody adopted by the parents which often translates to where the children often spend their day the night, to decide which parent pays or receives child support and the applicable percentage. The parent with sole physical custody of the children would receive child support from the noncustodial parent regardless of which parent earns more. Where the custody is shared, the amount of child support decreases as parenting time increases.

The percentage adopted is also dependent on the number of children the couple has: 1 child: 20%, 2 children: 27%, 3 children: 33% and 3% for every additional child.

A hypothetical example of child support in Alaska for a non-custodial parent of 3 who earns 8000 per month would look like this:

• $8,000 x 12 (annual income) = $96,000 x 33% = 31,680 ÷ 12 months in child support = $2,640

The amount payable on the same income would be less if the parents share custody, and they may receive child support if they are the custodial parent. Child support continues until children are 18 or 19 years old. If they are in high school or equivalent full-time general education, it ceases once they graduate.

Calculating child support can get quite complicated. Most divorced couples rely on the advice and guidance of a divorce lawyer who also specializes in child custody cases. When consulting with a lawyer, it is very important to provide them with full information and necessary records pertaining to the spouses and their children. Depending on the circumstances of the case, vital records such as birth certificates and divorce decrees may be necessary. A convenient and easy way to obtain such records would be to visit reliable websites like staterecords.org that provide access to such public records. Other states have their applicable regulations on calculating child custody for cases filed in their jurisdiction.

Jeff Bezos and his ex-wife Mackenzie may have one of the most expensive divorces in history because Washington is a community property state. This means property acquired during a marriage is equally owned by both spouses. Courtesy of Vox.com

Property Distribution

Division of property may go quicker and smoother is both spouses are able to agree on what happens their family assets, liabilities and gifts, who takes what and what is excluded from distribution. When the parties cannot agree, the court makes the decision for them based on the applicable State laws.

• Some States are community family property states like Idaho, New Mexico, California, Nevada, Arizona, Wisconsin, Washington, Texas, Louisiana, and (Puerto Rico). This means that family assets, income, debts, and property are considered to be equally owned by both spouses and divided between them equally, while each spouse retains all the assets they personally own outside of the property acquired during the marriage as family property. Each State determines what amounts to family property differently, while inheritance is generally excluded from a family property in some, in others, property inherited during a marriage is considered family property.
• All other states adopt the equitable property distribution system, and the court has discretion in determining what is fair and equitable percentage or share of the family property to bestow on each spouse. It is wiser for both spouses to be forthcoming about their finances and assets to guide the judge in making a decision on what is a family asset and what is separate property. A prenuptial agreement may also play a significant role in enforcing who gets what after the divorce.
• Alaska is the only state which allows the ex-spouses to choose which property distribution method is applicable to them. Both equitable and community property is recognized in the state.

State laws and regulations may change, it is always advisable to consult with a divorce lawyer and do some research online on websites with updated information to get some direction when deciding on filing or going through a divorce.

Finally, the most significant decision the judge gets to make for a couple in a divorce case is the issuance of an order legally terminating the marriage between them. All other decisions follow that one order.