Atlanta Divorce Lawyer
FREQUENTLY ASKED QUESTIONS
35 DIVORCE FAQ's
1. Q. What is marriage?
A. Traditionally marriage is a civil contract that exists between two people of the opposite sex. In the past, marriage was considered to be between people of opposite genders. However, the times are changing, and same sex marriages are now being considered in some states. Only in very few states are same sex marriages actually legal. To be "capable of contracting", both persons typically must be of age (18), or have consent from a parent. Different states have different statutes on the "legal age" for marrying. The individuals must be unmarried and not divorced within the past six months.
2. Q. What is common law marriage?
A. Common law marriage is only allowed in a small number of states. In a common law marriage, the individuals do not have a marriage ceremony and never obtained a marriage license to get married. Basically, a common law marriage requires an arrangement between the people (of opposite sexes) to act as husband and wife. This agreement can either be made by conduct or by words. The people involved must represent themselves (act in a way to appear to be married) to others as being married. For example, if they use the same name, call each other husband and wife, have children together, open joint bank accounts, and live at the same residence, all of these "indicia" of being married may be sufficient.
3. Q. What is a divorce?
A. A divorce is the term used for the legal termination of a marriage. When requesting a divorce, each spouse is required to state a reason for wanting to terminate the marriage. This happens when filing divorce papers in court, and reasons given are referred to as grounds for divorce. If a couple is "common law" married, they must get a formal divorce to end the "relationship."
4. Q. What is an annulment?
A. An annulment is basically the process of voiding a contract of marriage. With an annulment, the contract of marriage is treated as if it never happened. Usually, an annulment can only happen if the marriage contract suffers from some type of defect. Some of these defects could include no parental consent for an underage party, an individual lacking the mental capacity to understand the contract, or "fraud in the inducement" of the marriage contract. In any case, an annulment can only be granted to the innocent party. There are no "no fault" annulments.
5. Q. What is a legal separation?
A. Legal separation is a status of the court where the individuals remain married but divorce-like actions are taken by the court. For instance, the court sets the rights and liabilities for each party in regard to property, debts, child custody, child support, child visitation, and alimony. Sometimes, legal separation is referred to as "separate maintenance". The action of legal separation cannot be later changed into the status of divorce, and if a divorce is later desired, then new legal action would have to be taken.
6. Q. Do you have to get a divorce in court?
A. Marriage is a legal bond, and if a person desires a divorce, he or she has to get the courts involved. The court will be used to issue a summons against the other individual involved, and then, the person seeking the divorce will have to appear in court to give evidence. Typically, if the case is not defended, a divorce can be a relatively easy process. A divorce can be quick and uncomplicated; however, this is usually not the case when children are involved or when there are disputes over property.
7. Q. How long does a divorce normally take?
A. Every divorce is different, which means the circumstances are different for everyone, so the time for each divorce will vary. First, most states require that the parties be "residents" of the state. (See FAQ 27). Each state sets its own minimum "waiting period" for a divorce to go from filing to a final decree of divorce. Typically, a divorce will take anywhere from 30 days to a couple of years. When a judge signs the divorce decree, then the divorce is officially final. In some states, the individuals involved may not marry again until 6 months after the decree has been signed.
8. Q. What are some good questions to ask a divorce attorney before choosing which one to hire?
A. Before hiring a divorce attorney, there are some questions you should ask him or her to help you decide if this is the best lawyer for you and your case.
1. How much experience do you have with my type of case?
2. What kinds of resolutions can my case have?
3. How long do you think it will take before my case is resolved?
4. What is your fee, how much do I pay up front, and how often will I be billed?
5. How much do you think this entire process will cost me?
6. How often will I be in contact with you? Your staff?
7. Will anyone else be working on this case with you?
8. Are you going to try to settle my case, or are you going to take my case to trial?
9. Which approach will be better for my case (mediation or arbitration)?
10. Will any unexpected cost be involved?
9. Q. How do divorce attorney fee structures work?
A. Most divorce attorneys tend to charge by the hour. Some attorneys get an "up front" deposit for fees to be drawn from, or for expenses. Some other types of fees that lawyers commonly charge include flat fees, contingent fees, or fees based upon "performance." Usually, these other types of fees will not be present with a divorce case. The hourly rate will usually depend on the attorney's experience, but some other factors include operating expenses and where the practice is located. Also, a good, experienced attorney will probably be able to give you an estimate of how much your case will cost. If you are charged a flat fee, be sure to ask what this fee covers.
10. Q. Can we both use the same attorney when going through a divorce?
A. One attorney cannot ethically represent both individuals involved in a divorce case. This is usually because a divorce or legal separation action involves two people with complete conflicts of interest. An attorney can represent one spouse and the other can go unrepresented; however, this usually gives an advantage to the spouse who is being represented.
11. Q. What is the difference between a divorce and a legal separation?
A. Basically, the procedures for a divorce and a legal separation are the same. The same actions are taken for both, and the cases are filed in the same way and go through the court system in the same way. In the end, for both divorce and legal separation, judgments will be entered that divide assets and debts. The judgment determines the financial obligations for each party, and will establish the placement and custody rights for children involved. A legal separation is different from a divorce in a few ways. First, if you get a legal separation then you cannot remarry anyone until you actually get a divorce. Furthermore, in some state, after the divorce, you must wait 6 months or longer to remarry. Also, if you want to get back together with your spouse, then you just dismiss the legal separation. If you are divorced and want a reconciliation, then you would have to get remarried. Getting remarried cancels the divorce agreement and settlement.
12. Q. How does the court usually divide property in a divorce case?
A. In some states, there is a presumption in divorce cases that all assets are divided equally. In others, no such presumption exists. In most cases property accumulated during the marriage is also divided equally, but there are some exceptions to this rule. If the property was inherited or was a gift to a particular party, then the piece usually will not be split as long as the property is not mixed with marital assets. Or, if one of the individuals owned a piece of property before the marriage, then the court would not have the discretion to divide the property.
13. Q. What does the term "maintenance" mean, and how will it be determined?
A. Maintenance, commonly called alimony, is a form of spousal support. Maintenance is different for every case, and it is based on a number of factors. The major factors include the length of the marriage and the difference in income between the two parties. For example, if a couple has been married for a number of years and one spouse makes a considerably larger salary, then it is likely that the court system will order the higher paid party to pay maintenance to the other. The court will then determine how much is to be paid and how long the payments will go on.
14. Q. Do I need an attorney if I want to file for a divorce?
A. No, a divorce attorney is not needed when simply filing for a divorce. However, if your divorce is complicated (such as involving children or the division of substantial assets or property) then it is in your best interest to hire the best divorce attorney you can find (for your local jurisdiction) in order to have your case carried out in the most beneficial way. A divorce will involve a number of complex issues, and since a divorce is final, it is good to have an attorney's advice before you enter into any agreement that may be a problem to your long-term interests.
15. Q. What are the first steps taken in court for a divorce or a legal separation?
A. The first step when trying to attempt a divorce or a legal separation is filing a Summons and Petition. A Summons is a legal document that will notify the other individual involved, and it will tell them about their responsibility to respond back to the document. Then, the Petition is designed to asserting your claims against the other party in the divorce, and outlines what you will be requesting from the court. Other documents will then be issued, and these include an "Order to Show Cause" and an Affidavit if Support. The Order to Show Cause (sometimes called a "Rule Nisi") provides notice of a hearing to determine the issues involved. Then, the Affidavit is signed by the spouse who has filed for the action, and it may ask the court to grant various types of temporary relief. These documents are then given to the other party involved, and served as divorce or legal separation papers. Then, the rest of the procedure (such as waiting periods, percentage of salary for child support, etc.) will depend on the state or county in which the documents are being filed.
16. Q. What is the difference between an annulment and a divorce?
A. Both are procedures that dissolve a marriage. An annulment treats the marriage contract as if it never happened, and sometimes people desire an annulment to avoid the stigma attached to the word "divorce." Others prefer to have an annulment because it is easier to remarry in their church. Grounds for an annulment will vary some from state to state. Annulments usually take place only after a few weeks or months following the marriage ceremony, and typically there are no assets or debts to split and no children are involved. Long-term marriage annulments do sometimes occur, and the courts often split up assets, as they would in a divorce. Certain religions may be more tolerant of annulments then divorces. Children from an annulled marriage are not considered to be illegitimate.
17. Q. What are some grounds for an annulment?
A. In most states, two reasons a couple could get an annulment are "misrepresentation" and "fraud." An example of this would be if one party failed to tell the other of his or her inability to conceive children, or one failed to tell the other that he or she was actually married to someone else. "Concealment" is another grounds for seeking an annulment. This would be if a partner hid the fact that he or she had an addiction to drugs, alcohol, or if the person concealed the fact that he or she was a convicted felon. Also, refusal or the inability to "consummate the marriage" (have sex) is a reason a couple could want to get an annulment. A misunderstanding is also grounds for an annulment. For instance, like one partner wanting to have children and the other one not wanting children.
18. Q. What are the four different kinds of separations?
A. The four types of separations include trial separation, living apart, permanent separation, and legal separation. Many of these actually sound very similar. A trial separation is when the couple decides to live in different places for a test period. Couples who do this are trying to decide whether or not to become separated permanently. Living apart is when the parties reside in different dwellings. These parties might not have any desire to get back together. Permanent separation is when a couple decides to split up, and this often follows a trial separation. Legal separation is when the court rules on the division of property, child support, child custody, visitation, and alimony, but does not grant a divorce. Again, some religions sanction (discipline or punish) parties "of the faith" who divorce. Hence, a separation may be more acceptable.
19. Q. What does "no fault" divorce mean?
A. A "no fault" divorce is where the spouse seeking the divorce does not have to prove that the other partner did something wrong. Basically, all states now allow for a divorce no matter who is a fault. Up until about thirty-five years ago, most states required that "fault" be shown by the complaining party. In a "fault divorce," the individual must state a reason that is recognized by his or her state. If the couple simply does not get along then the reason for divorce could be "incompatibility", "irreconcilable differences", or "irremediable breakdown of the marriage" (basically "no fault" divorce). However, you need to check with your state if you wish to have a "no fault" divorce because close to a dozen states say that the couple must live apart for a period of months or even years before they can obtain a "no fault" divorce. With a "fault" divorce, the waiting period is often shorter.
20. Q. What is a "fault" divorce, and what are some of the grounds for a "fault" divorce?
A. 15 states allow for the person seeking a divorce to either choose between a no fault divorce or a fault divorce. Many will choose a fault divorce because they do not want to wait out the period of separation that the state requires for a no fault divorce. Another reason for a fault divorce is that the individual who filed for the divorce might receive a greater share of the marital property or more alimony (or, if the other party is at fault, alimony may be barred). Some of the grounds for a fault divorce include adultery, cruelty (inflicting unnecessary emotional or physical pain), abandonment for a certain length of time, prison confinement for a certain number of years, or the inability to engage in sexual intercourse.
21. Q. What happens if both individuals are at fault in a fault divorce?
A. Usually, when both spouses are found to be at fault, a doctrine, called a "comparative rectitude", will be granted by the court. This document means that when both parties have shown grounds for a divorce, then the spouse least at fault will be entitled to the divorce. This was not an option forty years ago. Then, if both spouses were at fault then neither was entitled to the divorce. This later led to the concept of comparative rectitude, because it was considered absurd to not let a couple get a divorce.
22. Q. Can a spouse prevent the courts from granting a divorce?
A. It basically depends on what type of divorce the other spouse is asking for. A no fault divorce cannot be stopped by the other individual. If the spouse not seeking the divorce objects to the other spouse's request for a divorce, then that in itself is grounds for an irreconcilable difference. A "fault" divorce, on the other hand, can be challenged by the spouse not seeking the divorce. The individual will have to go to court to prove that he or she is actually not at fault. If proven, then the "fault" divorce could be defeated.
23. Q. What are some other defenses to a divorce?
A. Some other defenses that can be used in a divorce include collusion, condonation, connivance, and provocation. Collusion is where spouses agree to say that one was at fault for the divorce when really no one was at fault. The couple decides to do this in order to avoid the long period of separation time required for a no fault divorce. Later, one spouse may change his or her mind and no loner want the divorce. Then he or she might allege collusion as a defense. Condonation is when, for example, a wife sues her husband for divorce because of his adultery, when all along she knew he was committing the act, and she really did not challenge his behavior. If she "took him back," and they had sexual relations again, the spouse who permitted the reconciliation can't still maintain adultery as a ground for divorce. This means she condoned his behavior, but then later tried to use the reason against him to win the divorce. The husband could then use condonation as a defense. Connivance is when on spouse sets up the other to "entrap" the other into some sort of wrongdoing. For example, if a wife invites her spouse's mistress to their house, and then leaves to go on a trip for a few days. If she sues for a divorce on these grounds, then the husband could use connivance as his defense. Provocation is the enticing of one spouse to do a certain act. If a husband abandons his wife and she sues, then the husband might defend the suit on the grounds that the wife provoked the abandonment.
24. Q. Are defenses used often in a fault divorce?
A. Defenses are risky and rarely used in a fault divorce. One reason is that proving a defense might require witnesses. Also, trials are very time-consuming and expensive. Another reason is that usually, your efforts will come to nothing. Typically, the court will grant the divorce because the courts do not want to force people to stay married if they do not want to be. It may be better to save your time and money not to defend a fault divorce case, absent substantial financial issues, or a custody dispute that cannot be resolved.
25. Q. Does one have to live in the same state that they are seeking a divorce in?
A. Every state requires the individual seeking the divorce to be a resident of the state. Usually, the spouse has to have lived in the state for a certain period of time. Every state is different and the time frame will vary. It could be thirty days to one year. You must be able to prove that you have lived in the state for the specified length of time. South Dakota and Washington are exceptions; they do not specify a period of time that one has to live in the state before seeking a divorce.
26. Q. Can a spouse move to another state or country, and then file for a divorce?
A. Yes, this is possible if that individual lives in the state for the required length of time. The divorce will be valid even if the other spouse lives in another state or country. The decisions the court makes about the case may not be valid unless the spouse who does not live in the state either consented to the jurisdiction of the court, or is legally "subject to" the divorce court's "power" over the divorce.
27. Q. What is the duration of residency, in order to obtain a divorce, for each state?
A. Alabama 6 months or 180 days
Alaska 30 days
Arizona 90 days
Arkansas 60 days
California 6 months or 180 days
Colorado 90 days
Connecticut 12 months or 1 year
Delaware 6 months or 180 days
Florida 6 months or 180 days
Georgia 6 months or 180 days
Hawaii 6 months or 180 days
Idaho 6 weeks
Illinois 90 days
Indiana 6 months or 180 days
Iowa 12 months or 1 year
Kansas 60 days
Kentucky 6 months or 180 days
Louisiana 6 months or 180 days
Maine 6 months or 180 days
Maryland 12 months or 1 year
Massachusetts 12 months or 1 year
Michigan 6 months or 180 days
Minnesota 6 months or 180 days
Mississippi 6 months or 180 days
Missouri 90 days
Montana 90 days
Nebraska 12 months or 1 year
Nevada 6 weeks
New Hampshire 12 months or 1 year
New Jersey 12 months or 1 year
New Mexico 6 months or 180 days
New York 12 months or 1 year
North Carolina 6 months or 180 days
North Dakota 6 months or 180 days
Ohio 6 months or 180 days
Oklahoma 6 months or 180 days
Oregon 6 months or 180 days
Pennsylvania 6 months or 180 days
Rhode Island 12 months or 1 year
South Carolina 12 months or 1 year
South Dakota no statutory provision
Tennessee 6 moths or 180 days
Texas 6 months or 180 days
Utah 90 days
Vermont 6 months or 180 days
Virginia 6 months or 180 days
Washington no statutory provision
West Virginia 12 months or 1 year
Wisconsin 6 months or 180 days
Wyoming 60 days
28. Q. What is a family court, and how does it help speed up the divorce process?
A. Divorces can take a long time to resolve, and many can take a couple months. Basically, every case is different. However, when going through a divorce, many decisions (like ones involving children and property) need to be resolved quickly. You do not have to wait a long time for these issues to be resolved. Usually, when a couple separates, their main issues are not resolved in a full-scale trial. Instead, the problems are resolved in a hearing before a judge. In many states, the hearings are held in a special court called a "family court." The family court's hearing is less formal and less intimidating than the standard court hearing. The hearing are very fast, usually you only have a few minutes to talk, so know exactly what you want and what you want to say before going to the hearing.
29. Q. What is a temporary order?
A. A temporary order is an order from a judge regarding divorce-like matters, even though a formal divorce may not yet have been filed (or service on the other party). An example of this would be when a husband leaves his wife, and she has no money for food, or to take care or her children. If the spouse in need files for a temporary order, the request will be put on a faster track, and the hearing will be "expedited," maybe within a few days. There are many types of temporary orders, and all of them may take place before the divorce action has been filed. Spouses can ask for a temporary order to restrain a spouse from coming near or having contact with the other party. Temporary orders can establish child custody, child visitation arrangements, child support payments, attorney's fees, and alimony payments. A temporary order can also be set up so one spouse does not sell valuable assets before the divorce, or one can be set up to give possession of the family home or car to one of the parties. The temporary orders are valid until the spouses arrive at their own long-term settlement through the divorce process.
30. Q. What is some good advice regarding children and child custody at the beginning of a divorce?
A. First, be "civil" with each other around the children. They can be greatly damaged by improper actions and behavior in their presence. At the beginning of a divorce process, or when one spouse moves out of the house, it is best to visit court on that day or the soonest day possible. The reason for this would be to resolve any very important issues such as children and child custody. If the children are in your care, then you should immediately file for child custody and child support. This is actually a precaution so that you will be awarded the proper amount of child support, and the court will recognize that the children are in your care. By doing this, you will most likely be awarded child custody at the very beginning of your case. Also, by taking this action, your spouse cannot successfully claim that the children had been kidnapped. The court would dismiss this claim if you provide the proof that you did file for custody and child support.
31. Q. What is the best way to go about a divorce when not using a lawyer?
A. As we all know, sometimes divorces can be a long and tormenting process, but now many states are actually making it easier for a couple to divorce without having a lawyer involved. When the parties TRULY agree on all issues, divorces can be simpler and more successful than most people tend to think. If you can work your "issues" out on your own, an attorney may not be needed by either party. However, where assets of significant value are involved, or child custody issues, both parties may need attorneys.
32. Q. What is the best action to take if the divorce involves possible violent behavior from the other spouse?
A. It is possible that a divorce could cause one party to behave very badly or very violently. Every case is different, but if you fear your spouse might harm you, your children, or your property, then it is best to take the appropriate actions. These actions include moving to a safer location and getting a temporary restraining order to keep the individual away from you and your children, except as permitted by the court. It will also be best to close joint bank accounts and credit card accounts. Remember that you should only take these actions if it is very necessary. Otherwise, these actions, if not called for, will probably cause bad feelings and, you might lose the chance to resolve issues "amicably."
33. Q. When would it be necessary to hire a lawyer for a divorce case?
A. There are many reasons why a lawyer might be hired in a divorce case. You would need a lawyer if there is any child abuse, spousal abuse, or sexual abuse involved in the relationship. Having a lawyer would help you get the best arrangements in order to protect yourself and your children. It is also best to hire a lawyer when the other spouse involved has already hired an attorney. This is especially true when the case was many financial issues involved. Also, it is good to hire a lawyer, when the other spouse already has one, so that you will not be put at a disadvantage. You can ask the judge for an adjournment (postponement) so that you will have some time to hire a good divorce attorney.
34. Q. What should I do if I cannot afford a good divorce attorney?
A. If you find that you will not have enough money to hire a good divorce lawyer, then you should contact your local legal aid office. If their offices find that you are financially qualify for their services, then a lawyer will discuss the legal aspects of your case with you. This person might also help you with legal questions throughout the divorce proceedings. Sometimes this person might actually agree to take your case for little or no charge, but this is only if the legal aid attorney's caseload permits it. Ask about the pro bono program. The legal aid office is in charge of the pro bono program, and it consists of private lawyers who take cases from legal aid for free, or for a small cost. If you do not qualify for help from the legal aid office, then your best bet is to shop around for a lawyer who can work with your budget and a payment plan. In most states, legal statutes exist that permit a person in financial need to REQUEST that the court make the other party (spouse) pay all or part of the fee.
35. Q. Who are some other people, besides lawyers, that can help with a divorce case?
A. There are many types of people you might want to contact in order to get help with your divorce case. If you are having problems regarding property, hire one or more appraisers to tell you how much your business, home, stocks, bonds, or land is worth. A child custody evaluator would be a good person to contact if you need help forming custody and visitation arrangements that will best suit the needs of your family. Also, if you need to know the standard guidelines for child support or alimony payments, you can look up state formulas either in law books or using some type of software or on-line service.