Divorce Litigation

1.Can you use a lawyer and alternative dispute resolution, or ADR, in a divorce?

Yes, contrary to tabloid media journalism regarding celebrity divorces, the vast majority of divorce cases are resolved through alternative dispute resolutions, through methods such as mediation, negotiation, and arbitration.  In many instances, having a divorce lawyer present to represent exclusively your interests during these proceedings is essential and greatly reduces an individual’s stress level.  Additionally, the rise no-fault divorces among state laws have also made avoiding conventional litigation entirely possible in virtually all instances of divorce.

2.What is the difference between separation and divorce?

Legally speaking, separation means one partner is currently not cohabitating with their spouse for any number of reasons, though both parties are still technically married.  Divorce would be the actual, formal, and legally binding dissolution of a marriage in the eyes of the courts.  In the past, some states have mandated separation periods before dissolving marriages through divorce, however, the recent trend of rapid no-fault divorce proceedings has allowed this customary action to all but become a part of history.

3.What is an annulment?  Does it differ from a divorce?

An annulment is a legal declaration announcing that a marriage in fact never existed, due to the fact that the marriage was legally invalid.  In the past due to stigmas surrounding divorce, annulments were much more common than they are today, and in many instances, annulments are rarely sought today.  In a divorce, the marriage is given solid, legal backing and has existed; however, the union between the two spouses is dissolved.  In cases of annulments, the courts declare that no union ever existed due to an illegal or invalid request for marriage in the first place.

4.Can an individual prevent their spouse from divorcing them?

Legally speaking, no individual can pursue any legal action that would, in the eyes of the law, be able to stop a divorce proceeding from occurring along the lines of one spouse’s wishes.  In many instances, no-fault divorces have left the avenue open for anyone to remove themselves from a marriage they do not want to be a part of in very little or no time, with minimal legal action.

5.During a divorce, what child custody arrangement is considered best?

All divorces present unique circumstances and needs involving children that cannot be always addressed easily or clearly, however, the court system maintains the stance that all child custody arrangements must be made with “the best interests of the child” as a priority.  The consideration and conclusion of what exactly constitutes the best interests of a child, however, is a tough legal question that  a divorce lawyer can help their clients assess.

6.What is spousal support in a divorce case?

In essence, spousal support is the transfer of assets from one spouse to another during or following a divorce proceeding.  This process and payment award may also be referred to as divorce alimony, spousal maintenance, or spousal support.  A number of mitigating factors and agreements may culminate in spousal support payment mandates or awards, and a divorce attorney can help any client address these issues right away.

7.What about distribution of debts accrued during a marriage?

In the same manner that assets can be divided in a divorce case, married couples accruing debt during their marriage are also responsible for equitably repaying these debt obligations.  Though a number of reasons may be present for the debt obligations, only a divorce court judge can finalize the equitable distribution of debt obligations that may be in contention between two parties.

8.How do prenuptial agreements play into divorce cases?

For anyone, having prenuptial agreements in place prior to a marriage is a well-informed idea, much like having a will prepared will before one passes away.  This being said, if the prenuptial agreement was made in a legally binding fashion, witnessed, made under no duress, and not forged in any manner, the provisions in such agreements stand firm.  Consulting a divorce lawyer for drawing up prenuptial agreements in essential, as these documents providing a lasting sphere of influence well into the future and through any possible phase of divorce.

9.Can you divorce without the assistance of a lawyer?

Yes, it is possible, however, the decision is not recommended, even in the most amicable of divorce proceedings.  Individuals considering avoiding the cost of using a lawyer during a divorce proceeding are thinking very shortsightedly when it comes to these matters.  The interaction of a divorce lawyer in your divorce case could possibly save you a vast sum of money in equitably distribution of asset negotiations, child support arrangements, alimony agreements, and in distribution of outstanding debt obligations.  Also, keep in mind that your divorcing partner will most likely come represented by legal counsel as well, leaving you defenseless in any divorce proceeding without a lawyer of your own.

10.Are Social Security Benefits factored into divorce negotiations?

According to federal statute, social security benefits are not typically included in the division of assets at the time of divorce. This is due to the very nature of social security, as being paid to individuals, rather than couples themselves.  The administration does factor in the presence of dependents and spouses in these figures, however, according to federal legal statutes; these numbers should not be included in any form of division of assets or earnings.  They may, however, be considered during child support arrangements at times.

Such calculations are built into the process of calculating an individual’s social security benefit. If credit is given at the time of the divorce for a difference in social security benefits, and then again at the time social security is payable, division of these benefits will be made twice.

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