POINTS OF DISCUSSION FOR YOU AND YOUR SPOUSE
DIVORCE WITHOUT CHILDREN
What assets have you and your spouse accumulated during the marriage?
Make a list of everything and divide equally. If you do not know the value, use approximate garage sale value. Kelly’s Blue Book and Edmunds are both on line to provide values for vehicles.
All 401K’s, IRA’s, pensions, stock options, etc. that are accumulated during the marriage are equally divided regardless of which spouse saved them. However, to divide these assets, a Qualified Domestic Relations Order is typically required. Please call the provider of these accounts to determine if one is required. If so, please note that that is a separate additional cost to prepare the special order that divides these assets.
What debts have you and your spouse accumulated?
Make a list of all debts and divide equally.
You must bear in mind that if a debt is in one spouse’s name, they are legally responsible for that debt regardless of who it is assigned to in a divorce. So, if you have a credit card and your spouse is an authorized user, you are the one legally responsible, not your spouse if your spouse fails to pay the credit card. The court will ineveitably hold the spouse responsible in the family law court if that debt was assigned to them during the divorce, but the reality is this will occur after your credit has been effected, and you have paid additional attorneys fees to go to court and hold them in contempt. It provides greater peace of mind if you and your spouse keep the credit cards in your own names. For any joint credit cards, transfer the balance and close the account. For vehicles with loans, these are more difficult to transfer and many clients are simply unable to separate the debt. Make sure that the monthly loan balance is one that the spouse taking the debt can pay.
Alimony is based on need an ability to pay. So, does either spouse have a need and if so, what is the other spouse’s ability to pay.
Alimony falls into several categories
Bridge The Gap: may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.
Rehabilitative: Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:
1. The redevelopment of previous skills or credentials; or
2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.
(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.
(c) An award of rehabilitative alimony may be modified or terminated in accordance based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.
Durational: Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
Permanent: Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a divorce. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.
The Judge looks at several factors to determine the type of alimony
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.
The length of the marriage is important:
Marriages under 7 years are considered short term.
Marriages between 7 and 17 years are considered moderate term.
Marriages greater than 17 years are considered long term.
The marriage length is determined from the date of marriage until the date of filing.
· EVERYTHING ELSE:
1. Name Change: The Wife can return to her maiden name at no additional charge. Please advise if she wants to do so.
2. Attorney fees: If you and your spouse are dividing the attorney fees, it has to be written in your agreement.
****Bear in mind that when discussing your divorce with your spouse, the Judge has final approval. When the Judge reviews your divorce agreement, if he or she sees something unfair based on the law, he or she will question whether the agreement was made in good faith and may have a separate hearing on it. It is important that your financial affidavit is completed accurately and that both you and your spouse understand the agreement.
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