Family Law

In a contested divorce, the Court will make decisions regarding the division of property, custody and parenting time, spousal support (alimony) and child support based on the state laws and best interests of any children.

In an uncontested divorce, the parties propose an agreement regarding the division of property, custody and parenting time, spousal support (alimony) and child support, which the Court reviews to verify it is equitable and in the best interests of any children. If a fair agreement can be reached, an uncontested divorce can be a great option. It leaves you with control over the process and, if you have children together, often facilitates more amicable co-parenting after the divorce.

You have the option to represent yourself in your divorce. Numerous forms and resources are available to you through the state where you are getting a divorce. However, it may be advisable to retain an attorney to represent you. This is particularly true if you expect your divorce to be contentious or complex. An attorney serves as an advocate on your behalf and can assist in navigating the procedural difficulties you may encounter representing yourself, prevent delays or errors, and help you achieve fair outcomes. Not insignificantly, a caring, compassionate and competent family law attorney can also mitigate the stress associated with a divorce and help guide you to a position of success post-divorce.

In order to modify a child support obligation, the parties must agree to the change (called a stipulation) and have it approved by the Court, or one of the parents must bring a motion. However, the Court will generally not modify support without a substantial change in circumstances of the parties, which renders the prior support order unfair. Common grounds for modification include:

• A substantial change in a party’s gross income, or in some states, the passage of time and a resulting cost of living adjustment.
• A change in the number of children you support directly or are Court ordered to support.
• A significant change in child care costs.

Spousal maintenance, aka alimony, can be awarded when the Court finds one of the parties is in need of maintenance to continue a standard of living reasonably similar to that enjoyed during the marriage. Generally, the Court must also find that the spouse that is going to receive spousal maintenance contributed to the success of the marriage partnership. Factors such as length of marriage are considered, as well as factors like the earning potential of a spouse. Maintenance can be granted on a permanent basis or temporary basis to provide support to a spouse while they receive training to enter the workforce or establish themselves in a career.

Common factors generally considered by Courts when deciding whether to establish maintenance, in what amount, and for what duration, include:

• The financial resources of the party seeking maintenance, including marital property awarded to the party, and the party’s ability to meet their needs independently;
• The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
• The standard of living established during the marriage;
• The duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outdated and earning capacity thus diminished;
• The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
• The age and physical and emotional condition of the spouse seeking maintenance;
• The ability of the supporting spouse to meet their needs while meeting those of the spouse seeking maintenance; and
• The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.
• The ability of the supporting spouse to provide support.

If a substantial change in circumstances of either party to the divorce occurs after the divorce, the Court may modify the award of maintenance upon the motion of a party. In most states, parties may agree to waive or limit the right of either party to seek a modification. Whether to waive this right is an important strategic decision that should be made in consultation with an attorney.

State laws allow parties to generally bind themselves via premarital agreements with respect to a wide variety of rights and obligations between the parties in the event of separation, divorce, or death. Generally speaking, parties can agree, and a Court will enforce, agreements between themselves as to the division of assets and spousal maintenance. There are some exceptions, such as South Dakota, which will not enforce agreements as to alimony. Parties cannot agree to custody, parenting time or child support post-divorce as those affect the children. Decisions made need to be in the best interests of the children at the time of the divorce.

Most states also permit parties to enter into postnuptial agreements after the parties have married. However, it is common for additional requirements to exist for these to be enforceable, such as both parties being represented by counsel.

Courts review premarital and postmarital agreements and, while generally enforceable, Courts may not enforce if procedurally unfair (such as lack of opportunity for each party to obtain counsel, undue pressure, or a failure to fully disclose the earnings and property of the parties) or substantively unfair at either the time the agreement was entered into or the time of the divorce.

Family law is personal, emotional, and also complex, often involving complicated financial matters with tax implications. When you are faced with a life change involving your family that necessitates you to go before a Court, always consult with an attorney to understand your rights and to help you determine, given your individual facts and circumstances, whether you should be represented by counsel through the process.