What is the difference between a regular traditional divorce and divorce mediation or collaborative divorce?

February 16, 2009
By Lauren Williams

It is important to realize that there is generally only one legal system in each state; so, to say that there is more than one process is a bit of an exaggeration. The difference that people are referring to is that divorce mediation or collaboration is intended to transform a contested divorce into an uncontested divorce. Contested simply means that the husband and wife do not agree on one or more issues, whether it is a disagreement as to how marital assets should be divided or what custody and visitation should be. If the husband and wife do agree on all issues, then their divorce is considered to be uncontested.

Mediation involves the husband and wife meeting with a neutral third party, who may or may not be an attorney, who tries to help the couple find common ground and reach an agreement on the issues that must be decided in their divorce. Remember it is impossible for the mediator to provide you with unbiased legal advice because the mediator is trying to force an agreement. This can be particularly problematic when the mediator is an attorney, providing what may appear to be legal advice and spinning things in one direction or another to get an agreement. Remember, if you do reach an agreement the mediator can say the process was successful, however, that agreement may be one sided.

Obviously the most common problem with mediation or collaboration is that the husband and wife may spend considerable time and money to go through the mediation process and still not reach an agreement. Another frequent problem occurs when the spouses do reach an agreement through mediation and then one or both of them later consults with an attorney, realizes the deal is unfair, and then backs out. At that point the whole agreement usually goes out the window. Once one party backs out of one aspect of the agreement it can often have a cascading effect resulting in a disagreement on many more issues. This can actually make the divorce process more heated as the other party may resent their spouses decision to back out of the deal.

Another problem with mediation is that often the relationship dynamic between the spouses can create an uneven playing field. Remember, the mediator is simply trying to get the spouses to reach an agreement and is not really there to represent or advise either party.

An additional issue may be that, if the spouses have not yet consulted with an attorney, they may be unaware as to what their legal rights and responsibilities are and what the states laws would normally favor. This is usually the reason why, when a spouse consults an attorney after mediation, they may back out of the mediator’s arrangement. Their attorney may advise them that the agreement the mediator worked out is not in their favor.

In most states each party will be advised to consult an attorney prior to finalizing any agreement, so it is unlikely that the parties will go through the whole process without eventually meeting with an attorney. In addition, for the divorce to be finalized, the spouses must appear before a court of law in their state and, if the agreement is too one sided, the judge may raise issues with it. It is important to note, however, that you cannot always rely on a judge to point out that your agreement is unfair. Many courts are processing so many divorces that, if an attorney does not represent you, it is possible your case may not get the attention from the court that it deserves.

If you are considering divorce you should realize there is no substitute for having an attorney advise you of what your rights and responsibilities are under the law. If you do enter into an agreement and then later realize that you made a bad deal, you might be stuck with it.

How do I legally change my name back to my maiden name after divorce?

February 16, 2009
By Lauren Williams

Each state has a legal process for undergoing a name change. This requires that a legal action to change your name be filed with the court and it can be a cumbersome and time-consuming process. Luckily, marriage and divorce are exceptions to that process.

If a wife wants to take her husband’s name upon marriage it should be shown on their marriage license or certificate, depending on the state. This is important because you will generally need a document showing the name change in order change or renew your drivers license, passport and other identifying documents.

When divorcing your must specify that you are changing your name back to your maiden name at the time of divorce and it must be shown in the court order granting your divorce. Your attorney can guide you through this part of the process in your state. If the final court order does not show that you have elected to change your name, you may be unable to change your driver’s license and other documents. This is because, if it is not in the court order, you will have no official record of the change. If you fail to change your name at the time of divorce you may need to then go through the normal name change process in your state, which will be much more time consuming and costly.

Common Law Marriages

February 3, 2009
By Lauren Williams

Most states have done away with common law marriage. Today, only a handful of states still recognize common law marriage. In general terms, common law marriage requires that the couple assume that they are married and hold themselves out as man and wife publicly and professedly.

Additional Requirements

This definition protects, to a certain degree, fraudulent claims of common law marriage. Often, there is even a requirement of marital cohabitation which provides additional objective evidence of a common law marriage. Many jurisdictions will contain a statute that prevents a “wife” from purporting a common law marriage after her “husband” has died in order to claim a share of the deceased husband’s estate.

Clear and Convincing

In addition, the evidence of a common law marriage often has to be “clear and convincing.” Elements involved in determining common law marriage include that there is no agreement to be husband and wife in writing but that there is a marriage based on the evidence that the couple lived as husband and wife for many years. Evidence can include testimony from family members, friends, acquaintances and others that they were reputed to be married. Habit and repute often will be enough to support a finding of common law marriage.

Impediment Test

Often a test of common law marriage will be the impediment test. Under these cases, if there is an impediment to a couple getting married, like one of them cannot get divorced for whatever reason, and the couple still decides to live as husband and wife for many years. If, subsequently, the spouse does get divorced and the couple living together remains living as though they were husband and wife after the impediment has been removed, they couple may have a valid common law marriage.

Variations from State-to-State

The law can get rather complex from state to state, so if you need more information regarding common law marriage, check with an attorney licensed in your state with knowledge of matrimonial law so he or she can inform you specifically regarding your issue or question. For example, if a couple begins to reside together in a state where common law marriage is not recognized and then they subsequently move to a state that does, what effect does that have on their marital status. The same issues arise if they couple resided in a common law state for years and then moves to a state that does not recognize common law marriage. These are important issues through which an attorney will be able to help guide you.

Alimony & Spousal Support

February 3, 2009
By Lauren Williams

Alimony, or in some states spousal support, can be generally defined as one spouse providing temporary or permanent financial support to his or her ex-spouse in order to help that ex-spouse maintain, as nearly as possible, the standard of living he or she enjoyed during marriage.

Alimony and Fault

Although virtually all of the previous obligations, duties and responsibilities that are part of being married end with the divorce, the financial obligation to the ex-spouse often continues. Most states today take the approach that alimony not be influenced by fault. For example, if a wife committed adultery which led to divorce, the adultery would not be a reason to deny alimony to her. However, in some states, the fault standard will influence any alimony decision made by the court.

Modern Trend

There seems to be a trend towards alimony not being awarded, being awarded for short period of time and/or in smaller amounts than years past. This may be due to the fact that there are more opportunities in the workplace, generally speaking, than there has been historically. In addition, some jurisdictions are awarding more property during the property division part of a divorce instead of awarding alimony.

Alimony and Children

Furthermore, alimony may be ordered if the ex-wife has custody of children born during the marriage and the child custody amount is not sufficient to provide for the ex-wife’s and children’s well-being. In addition, alimony also serves to prevent the ex-spouse receiving support from becoming indigent and dependent upon the state for assistance.

Other Factors

Factors included in deciding on alimony include the court’s discretion to determine if it would be suitable under that case’s particular circumstances, the Defendant’s ability to pay, the Plaintiff’s needs, duration limits, reimbursement, fault, and how the alimony payments are to be made.

For more information on how alimony is handled in your state, please contact an attorney licensed in your state who handles matrimonial cases.

Separation Agreements

January 14, 2009
By Lauren Williams

A separation agreement allows a husband and wife to agree on all of the same issues that would need to be decided upon divorce, including maintenance or alimony, division of marital property, child custody and child support. In most states a separation agreement must be entered into voluntarily, however, in some states a legal action can be taken in Court to obtain a separation.

Although some states will enforce a verbal separation agreement, most states require that it be in writing and a few states require that the signatures be notarized for the agreement to be enforceable. In addition several states require the couple to actually separate (begin living apart) at the time, or just before, the separation agreement is created in order for it to be enforceable.

All states encourage couples to work out their marital issues amicably. For this reason separation agreements are encouraged and will, for the most part, be upheld by a Court. That said there are certain reasons a separation agreement will be subject to challenge by either the court or a spouse who later changes their mind. If a separation agreement is to be challenged, it is generally easier for a Court to reject or modify the agreement if the challenge comes before the agreement is approved by the Court or incorporated into a divorce decree. Once a Court approves a separation agreement that Court is likely to be more reluctant to allow any challenge to the agreement.

Lack of Consideration and Unfairness

One reason that a separation agreement might be challenged is if it is so one sided as to be overly unfair. Sometimes this can be explained in terms of a lack of consideration, meaning there is nothing in the agreement for one spouse. An overly one-sided agreement is sometimes referred to as unconscionable. A Court is most likely to consider a challenge of this kind if it has a concern that one spouse will become destitute. The state will be worried, if one spouse becomes destitute, because of an overly unfair agreement, that spouse, and potentially the children, may become wards of the state. Thus, depending on the state, the terms of the separation agreement would usually need to be extremely one-sided, leaving almost nothing to one spouse, in order for it to be challenged on this basis.

Duress or Undue Influence

Separation agreements are more susceptible to challenges based on duress than most other types of contractual agreements. This is particularly true if the other spouse was the cause of the duress or exerted an undue influence or control over the other. Usually a claim of duress would go hand-in-hand with a claim of unfairness or unconsionability. Thus the claim of duress may be used to explain why the spouse entered into the one-sided agreement.

Effect of one spouse not having an attorney

If an attorney did not represent the spouse that is claiming duress or unfairness, this will tend to increase that spouses chance of challenging the separation agreement. However, if the agreement adequately provides for the spouse it will usually be upheld, regardless of whether an attorney represented the spouse when the agreement was created.

Misrepresentations and Fraud

One reason that will almost always allow a separation agreement to be challenged is when lies or misleads the other spouse as to a material fact. This often occurs in the context of one spouse understating the amount or value of marital assets. If this is shown to have occurred the separation agreement will almost always be challengeable.

Custody and Child Support

Spouses can use separation agreements to agree, within reason, as to custody, visitation and child support. The Courts encourage spouses reaching an agreement on these issues. However, unlike other provisions a Court is more likely to consider whether the agreement regarding the children is reasonable. Whenever an agreement concerns the children the Court will seek the outcome that is in the best interests of the child or children. Unlike some other provisions, an agreement on child support can always be revisited if circumstances change.

The effect of reconciliation

Reconciliation can occur when a husband and wife separate and then restore their marriage. For it to be considered reconciliation the spouses must generally return to living together as husband and wife, engage in sexual relations and intend to resume married life permanently. Spouses merely living together as an experiment to see if they want to reconcile and/or engaging in sexual relations is not enough.

The effect of reconciliation on a separation agreement will vary from state-to-state. Generally if, after reconciliation, the spouses can, by their words or conduct, rescind a separation agreement. In the common circumstance where a couple separates but never divorces, later reconciles and lives together until one dies, the separation agreement will generally be held invalid.

If a separation agreement required the transfer of property and then the payment of alimony sometimes reconciliation can lead to an unfair result. This is because the property transfer may have occurred prior to reconciliation and thus might not be changed even though, as a result of reconciliation, alimony is no longer required. This could be a significant problem if the reconciliation later fails and the couple decides to split once more.

It is recommended that if a couple that has entered into a separation agreement decides to reconcile, each spouse should consult with an attorney to see how that might effect the agreement.

Prenuptial (Antenuptial) Agreements

January 4, 2009
By Lauren Williams

Prenuptial agreements allow a husband and wife to agree, prior to marriage, how property should be inherited upon death as well as how their property should be divided and what maintenance (alimony), if any, should be paid, if they are divorced.  Read more

Marriage, Defined

January 4, 2009
By Lauren Williams

In the United States, marriage is regulated by civil authorities, meaning the laws of each individual state govern it.  These laws, in general, provide that marriage is a civil contract between the two parties, husband and wife.  So, even though many people are married in a church in a religious ceremony, the religious aspect is secondary to the applicable state law with respect to the marriage.  This is evident in the state’s ability to regulate marriage. Read more

Where Can I File for Divorce

January 4, 2009
By Lauren Williams

As is the case with any court action, there are numerous legal requirements that you should understand if you are contemplating filing for divorce.  Among these requirements are where to file (legally referred to as “jurisdiction”).  It is possible to file an action for divorce and have the action rejected because the jurisdiction is not valid.  Briefly herein will be an explanation of how to determine if the jurisdiction is correct. Read more

Foreign Country Divorces

January 4, 2009
By Lauren Williams

map-mexicoMany people believe that they can go to Mexico, the Dominican Republic, Haiti or another foreign country and obtain a “quickie” divorce without the knowledge or appearance of their spouse.  Depending on your state’s divorce laws, this may or may not be recognized in this country. Read more