Episode 25 – Making Law Easy Show – Key Tips When Preparing for a Divorce
Posted on July 9, 2008
Filed Under Pittsburgh Legal Matters
Episode 25 – Making Law Easy Show – Key Tips When Preparing for a Divorce Hello everyone. Welcome again to another edition to the Making Law Easy Show. Today we’re talking about key tips when preparing or encountering a divorce. And I’m pleased to have with us an attorney who has handled quite a few divorce cases over the last 5 or 10 years. Steve thanks for joining us. Steve helps us with divorce cases at 1-2-3 Law Group. Glad to have you on the show Steve. Nice to be here Karl. Thanks for getting in contact with me. OK. Why don’t we start right off. How do you get started with a divorce process. Well of course the first step is the clients, and that they have to decide that that is the thing that they want to do next is get a divorce and I recognize of course that that is a very difficult decision for them to make. That’s a personal decision. But of course the next step would be contacting an attorney and sitting down with that attorney and reviewing the situation. Reviewing the different aspects that may be particular to that case, that individual client’s case, and reviewing what that client might expect as far as a result. Then on the other end, I mean that’s when you’re starting off planning. I mean there’s always two sides to a story. And on the flip side, what do you do if you are served with divorce papers. Well if you’re served with divorce papers, you really do need to contact a divorce attorney immediately. There are time limits that you have to respond to a divorce. The divorce will proceed on whether you choose to participate or not, and of course the court can make decisions that are very very important to that person. And they’ll make them whether you choose to participate or not. So you really do need to contact an attorney that can review the case. See what the other side is claiming. What they’re trying to achieve. What the divorce attorney can achieve for this particular client. What issues do a divorce case typically include. Well in its simplest form a divorce can be just a dissolution of a marriage. Two people that don’t want to be married anymore. The court will issue basically a piece of paper, of course it’s a court order that dissolves the marriage and declares that they are not married anymore. That’s the most simply form of a divorce. But of course what goes along with a divorce can be several other issues. It could include equitable distribution, support, child support, spousal support, alimony, and custody and various other issues that can arise during this difficult process. Two phrases you hear quite a bit are fault divorce and no fault divorce. What’s the difference between them. Well most divorces that are granted are granted as no fault divorces. The difference between a no fault divorce and a fault divorce is simply that whether one party is at fault or not. In a full divorce filing the plaintiff would claim that the other party is to blame for the dissolution of the marriage. For instance the other party may have committed adultery or may have been abusive or something along those lines. Most divorces however are granted as no fault divorces. The significance of filing for a fault divorce is that if the court wants to have a hearing on whether one party was at fault or not and to find that that other party was at fault, it could benefit our client in that the division of the property would be more in their favor since they of course are not at fault. In terms of filing, does it matter who files for divorce first. Or is it really starting the clock. That is a common question. And a lot of people think well my spouse is threatening to file. I better file first. You know that makes me look like I’m the innocent person, and my husband’s at fault. And the courts don’t really look at it that way. It does not really matter who files first. The court will evaluate any claims from either party and rules accordingly. In this process are you going to have to go to court and have a trial. Is there sort of getting sworn in and appear in court situation or can you do this more amicably. Well that again is often a concern that many clients have. They’re nervous about having to go to court. Of course other clients want to go to court. Cases can go either way on this. I’ve handled many divorce cases where the client never sees the inside of the courtroom. Typically in those types of cases what happens is one of the other parties files the divorce. The parties through their attorneys will exchange information. The attorneys are either side will evaluate the case, negotiate a settlement. And if a settlement is reached you never have to go into the courtroom. You never have to deal with a judge. You never have to offer any testimony and the court will simply grant the divorce and incorporate the settlement agreement and that will conclude your case. In cases where for whatever reason the parties could not agree or if one party will not participate, often you do have to go to court to a series of hearings. And the court will have to rules on those issues. Those are more common in support. Support cases do often generally go to court although they’re usually short hearings. As far as protracted trials on divorce, those are usually rare and we can usually avoid them, and they create legal costs for them, by entering into an agreement that both parties can live with. There are a lot of components in divorce. Often times if there are children, you have custody issues. One spouse works and the other doesn’t. They make different amounts of money. You have support, alimony. How do those pieces all fit together. Well, that depends on the client. And every case is different. And we handle every case differently. Some people may, some couples may have really no assets, no children, and have been married for a very short time. And those cases usually can be handled very inexpensively and rather quickly, especially if both parties agree to the divorce. And we would simply file a complaint for divorce just asking for the divorce. Now in other cases where perhaps there are children, custody can become an issue and often we file a count for custody that’s included in the divorce complaint. There’s support that could be added to a divorce complaint. There’s request for alimony, either alimony during the litigation or alimony to be paid for some period of time after the conclusion of the case. Then there’s also other situations where we would file counts to protect a person’s property. For instance things dealing with health insurance. Or if one spouse is not paying their bills and if it’s our client we certainly would file a count. It can be included in the divorce complaint asking the court to resolve those issues. You talked about something that sounded pretty simply if both sides are contesting. How long does a simple divorce take, and compare that to one with kids and alimony and support. If I have a client who comes to me and they discussed this with their spouse and their spouse is in general agreement. There’s not much to fight over if anything. We file the divorce complaint. 90 days from when the other person is served the divorce complaint the court allows us to request that the divorce decree be granted. So it can be granted in a matter of 90 days or so. Of course that’s divorce in its most simple form, when both parties agree and there’s very little fighting. When we have cases involving custody, custody can continue even after the divorce is completed. When we have divorce where there are a number of assets, perhaps complicated assets such as retirement funds, pension plans, stock portfolios. Those do take some time to analyze, and to evaluate those types of cases can take a year or longer. In a case where the other party does not wish to get a divorce, they can in some cases delay the final granting of the divorce for approximately two years. However even in those cases there is legal work that needs to be accomplished during that time so that when the two year period ends we are ready and we can proceed with the divorce case. There’s a term that people mention sometimes, a common law marriage. Does that apply in Pennsylvania at all. A common law marriage is a very common question I get from many people. People feel that they’ve been together with their girlfriend or boyfriend for quite a long time and somehow that automatically turns into a marriage and what I get from people often well I’ve been together with my paramour for several years does the law automatically consider us husband and wife now. And it does not. The way to get married is to get a marriage certificate quite simply. Now prior to 2005, the law did recognize common law marriages. So in some cases, they can still exist, if you entered into a common law marriage prior to 2005. However, simply living with your boyfriend or girlfriend does not turn your relationship into a marriage. Very often the court will look in those situations as how you held yourself out to other people. Did you refer to the other person as your husband or wife. Did you file joint income taxes together. Did you perhaps have some sort of ceremony, although not a legal ceremony, some sort of ceremony declaring to the world that you were husband and wife. So that is some things that the court does look at. Well that will make lots of boyfriends and girlfriends happy to hear that. I’m sure it will. What if you’re spouse won’t consent to the divorce. You may have touched on that earlier. Is that where is just takes two years. You can delay it for up to two years. Well very often the other side will say that they’re not going to consent to the divorce. However once the process starts we certainly can request information from the other side. There are hearings that occur. We can ask for alimony or other support payments while the divorce case is pending. Certainly custody matters, child support matters would continue whether they wish to participate or not. And what typically happens is as time goes by, in a very short time, the other party will take part in the litigation and hopefully we can reach some sort of settlement that both parties are agreeable to. If the other party just flat out refuses to agree to a divorce or agree to any kind of settlement on any of the issues, they can drag it out for a period of time. Of course the courts are not going to force anybody to stay married if they don’t want to. But basically, I guess you can call it a waiting period, that the other party if they refuse to grant the divorce to drag this out for a period of up to two years. That two year period case will proceed and the other party really is powerless to stop that. But as I said in most cases we are working these issues out and the case will proceed and wrap up well before that two year period. Well let’s get to the last area which is the property and assets. What does an equitable distribution mean. Equitable distribution is the means by which the court will look at the marital assets of a couple and divide them. In some states, for instance California, they’re called community property estates, and regardless of the situation that the couple may be in, they will, the courts in California for instances will split the marital assets equally, and that can be done in very short order. Pennsylvania does not do that. Pennsylvania will look at the marital assets and divide them on what is fair according to the court. Marital assets are any assets that were accumulated during the marriage. The day you got married until the day you separated. The court will, first the attorneys actually will inventory those assets and attempt to identify them and of course the attorneys and certainly I would attempt to resolve this without going to court with dividing the assets in a way that the parties can accept. If not the court will divide the assets in a way that the court feels is equitable. Not necessarily 50/50. Although many cases do work out that the assets are divided 50/50, not always. If one party is able to earn a lot more money than the party that makes less money may be awarded a greater percentage of the marital estate because the spouse earning more money will be able to earn that money back, and they’ll be on a more equal footing there. Certainly if one spouse has an education and for instance our client perhaps did not have an advanced degree or something, the court could award our client a greater share of the marital assets simply because they are not able to earn as much money or in order to rehabilitate our client, our client might make more money out of the equity distribution process so they would be enabled to get a degree or increase their earnings capacity. Well are you entitled to property that’s held in your spouse’s name alone. Yes. That’s often another point of confusion for many clients. Many clients will call me and say well I’ve been married for a number of years, and the house is in my husband’s name so I’m not entitled to that. That’s certainly not the case. Marital assets are divided by the court regardless of whose name they are titled in. And the same goes for debt. Debt is treated the same way as assets. And again marital assets or marital debt are any assets or debt that’s accumulated from the day you got married until the day you separated, regardless of whose name that they’re titled in. And that will also include a lot of people who don’t think about this, but if one spouse has a pension plan, that would include that pension plan. I was thinking Steve, we’d ultimately do another show on equitable distribution as well as maybe just solely on alimony just to break it down into segments. There’s a lot to cover on that area I’m sure. What if your spouse and the other spouse have already agreed to the divorce and they have an agreement as to how to split the property. How do you work with someone like that. Well certainly that very often makes the process go much more quickly, and frankly much more inexpensively for the client because if the two parties are not arguing in court all the time they’re going to save a lot of money. I encourage my clients if they are getting along to some extent with their spouse, or if they can communicate with their spouse to sit down and identify their assets together and identify a way that they think they feel is fair as far as splitting up those assets. Decide which person perhaps is going to remain in the house and which one is going to leave. Which person is going to get the car and so forth. But I do caution my clients not to agree to anything until they’ve consulted an attorney because an attorney will be able to identify the assets much more clearly and they certainly might be able to identify assets that the client may not be aware of. For instance pension plans as I’ve just discussed. And get the client much more specific advice on how the courts would be likely to rule or what is a fair ultimate settlement for this matter. So it is important that perhaps if the clients can discuss the matter that they not formally agree to anything without consulting an attorney. OK last question. Can you handle your own divorce. You certainly are permitted to handle your own case in the courts. Many people call me up and ask me for advice about that. I suppose you’re also permitted to perform medical procedures on yourself and to represent yourself at IRS audits. None of those ideas are good ideas. The rules are rather complicated on divorce. If you have a simple divorce it will not likely be very expensive for the attorney’s fees. But an attorney is the one that is going to be aware of different rules and different laws as they related to divorce and can guide you through that process. Very often people think that they can go on the internet and just get the forms and fill them out and those rarely if ever work because Pennsylvania does have very specific forms at its most basic level that need to be completed. Those forms need to be submitted in certain time frames which the client is not going to be aware of. There are certain methods that for instance the divorce complaint has to be served. And if you do any of those steps wrong, the court will not grant your divorce. Also the court and the people who work in the court offices will not generally give you any advice on how to do this. They will just tell you that you’ve done it wrong and that you’re going to have to start from scratch. Also you really need to at least consult a divorce attorney. A divorce attorney can tell you what you might expect in the process and identify marital assets as we touched on before. And really can give you advice on what a fair resolution to this would be. Handling this on your own, once you’ve done it on your own, it’s over. I get calls all the time from people that have been to court where an aspect of their case has been completed or the whole case has been completed and then they’ll call me and ask me what I think. And I may have to tell them that I don’t think that that’s a fair decision or a fair outcome for you; however, there’s nothing that I can do about it because you’ve represented yourself on this and now the case is over. So some of those online options that sometimes pop up, no fault divorce, and you lose opportunities for assets. You certainly do. If you file a simple divorce complaint and you may get those forms from a variety of sources, and you file them, you may not realize that once the divorce is granted, you may not be entitled to any assets. You may not be entitled to alimony or support payments. These things need to be filed in a very specific time in a very specific way, in a very specific order, and the court will generally not grant you any exceptions if you do not follow the rules correctly. What the judges will tell you is if you want to represent yourself they will hold you to the same standard as they would hold a licensed and practicing attorney. Well Steve I appreciate your spending some time with us here. This has been very helpful to add another chapter. This 25th podcast that we’ve recorded on all areas of law that people encounter, across a very wide spectrum. So thank you for joining us. It’s been my pleasure Karl. If anyone wants to see the whole library, you can find it at www.makinglaweasy.com. We’ve got a section related to our podcasts on our website. If you have any specific questions or would like to contact Steve or 1-2-3 Law Group call us at 1.877.7.123.LAW. Thanks for joining another issue of the Making Law Easy Show and I look forward to talking to you on more shows in the future.
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