Common Questions Answered
WHAT ARE PLEADINGS?
From time to time you hear us use the word ?pleadings?. This is nothing more than a legal phrase for declarations and other legal documents that are filed with the court. Lawyers customarily use words like this to simplify communication between themselves and the court, forgetting that clients often do not know what we are talking about. When in doubt about a legal term, make sure you ask.
WHAT IS COMMUNITY PROPERTY?
Community property is that property, or any portion thereof, acquired during the marriage from the salary or efforts of either spouse. In addition, it can include separate property that has been converted to community property by oral or written agreement between the parties. Community property can include debts, which are really ?negative assets.?
Almost anything of value that was acquired in this manner is subject to division by the court including such things as cash value of life insurance, antiques, collections and pension benefits. It does not matter that the item was purchased with the earnings of one spouse, was collected by a spouse, or has emotional value to that spouse.
WILL COMMUNITY PROPERY BE SOLD AND DIVIDED?
Clients often believe that everything must be sold in order for it to be divided equally. This is often a threat made by one spouse to the other. In fact, that is rare. In almost all cases, the court will value each asset and debt and make an award so that the net equity awarded to each party is approximately equal. It is unusual that the court would deny an asset to either party so long as there are enough assets or funds available to equalize division.
WHAT IS SEPARATE PROPERTY?
Separate property is that property you or your spouse owned before the marriage which has not been changed into community property, such as by agreement, plus property that was acquired during the marriage by gift or inheritance. Separate property also includes the rents, profits and increases in value of that owned property. In general, any earnings or debts incurred after the date of separation are also separate property obligations. Separate property is almost always awarded to the party who received the gift or inheritance, or who owned that asset prior to marriage. One recurring problem is that separate property may sometimes acquire a community character, such as when a car owned prior to the marriage is paid for with money earned after marriage.
WHAT HEARINGS WILL THERE BE?
In most dissolution cases that are not quickly settled, there are several types of hearings. The most common hearings are Order to Show Cause hearings, Review Hearings, Case Classification Conferences, Case Management Conferences, Mandatory Settlement Conferences and Trial.
Orders to Show Cause (OSC?s) are set when a pleading is filed with the court to ask for temporary orders, or to modify existing order. There is not usually any testimony at these hearings. At the initial hearing the Judge will make temporary orders designed to protect the parties and their assets until trial, which will be many months later. The Judge can order support, temporary custody, interim attorney?s fees and the temporary use of property (such as a house or car), and other restraining orders. In theory these orders are not binding on the trial judge. However, as a practical matter they will strongly affect the outcome. Review hearings are set to follow up on matters addressed at the previous Order to Show Cause hearings.
Case Classification Conferences (CCC?s) and Case Management Conferences (CMC?s) are hearings set by the Court. We are limited to how many times we can reschedule these hearings. The purpose of these hearings is to appear before the Judge to discuss the status of the case and what steps we are taking to reach a resolution.
Mandatory Settlement Conferences (MSC?s) are court appointed either by request or by order. At these hearings all parties must appear. A Settlement Conference Judge will be appointed for you, who will tell you how the case would settle if it were heard that day. Since trial is costly, most clients choose to settle on this date.
A Trial is the final stage, though not always necessary. At the time of trial the Judge decides such issues as permanent or long term support, child custody and visitation, and the final property division.
WHEN WILL YOU BE DIVORCED?
You are actually divorced and free to remarry ONLY after the Judgment has been entered for your case. A copy of the Judgment will be mailed to you when we receive it from the court. The Judgment will specify the exact date when the dissolution of your marriage is final. Do not remarry until you have the signed and conformed Judgment in hand. The minimum time period for entry of the Judgment is 6 months after the date the Respondent was served with the original Petition and Summons. It often takes longer, since the Judgment is usually delayed until all issues are resolved. If it is important to be divorced before a full resolution of the issues, but after the expiration of the six months, please contact us to determine what the options are.
MUST THERE BE A TRIAL?
No formal trial is necessary when an agreement has been reached between the parties. Normally, 95% of the cases are settled at the Mandatory Settlement Conference, if not before.
HOW MUCH CHILD SUPPORT WILL BE ORDERED?
Child support is now governed by statewide guidelines and can only be calculated accurately by using complicated computer programs. We use those programs in the office. The main issue calculating child support is to determine the actual income of the parties. For full time employees with regular income this can be fairly predictable. Dealing with part time work, overtime, unusual expenses and self-employment income requires additional expertise.
WHAT ARE THE STANDARDS FOR AWARDING SUPPORT?
The law has established only vague guidelines for spousal support (alimony). Unfortunately the broad latitude provided by the law, when applied by different Judges with varying attitudes, can produce quite different results in cases with similar factual situations. Generally speaking, spousal support is based on the reasonable needs of the wife as those needs relate to the husband?s ability to pay. The factors most relevant to establishing the amount of support are as follows:
- A comparison of the financial position of each of the parties before and after the dissolution.
- Each spouse?s ability to work, and his or her potential earnings considered in light of age, training, and likelihood of employment.
- The reasonable needs of each spouse due him or her in the style of life to which he or she is accustomed, considering his or her age and health, subject to the other spouse?s ability to pay.
- The nature of the assets awarded to each spouse with their actual and reasonable income potential.
- Whether the party has made reasonable efforts to find suitable work consistent with his or her age, ability and health, and whether the party has made a genuine and conscientious effort to establish at least partial self-support.
- The income tax consequences of spousal support to both the payer and the payee.
- The relative financial ability of a spouse to pay, based on his or her financial condition, resources, ability to ear and actual earnings with due consideration given to income tax premiums and retirement conditions.
- Other valid support obligations of either spouse to his or her lawful dependents.
- The duration of the marriage.
Temporary spousal support is usually based solely on the respective earnings of the parties and their special needs or expenses. Although this may appear to unfairly benefit the spouse who was unemployed at the date of separation, but could not work, Judges have routinely avoided court orders requiring that a party return to work immediately if money is otherwise available to provide support. These factors, while somewhat applicable at the initial Order to Show Cause hearing, are of far greater concern at the time of trial.
WHEN IS SUPPORT DUE?
The commencement date of the support is usually set forth in the Court?s order. The payments are due on the date stated, in advance, and cover the following 30-day period. If the Judge does not specify a starting date, the initial payment is generally due the day the order is made.
MAY SUPPORT BE MODIFIED?
Support can be modified upon a proper showing of significant change in you or your spouse?s financial circumstances, unless you specifically agree otherwise or the court specifically ordered otherwise.
SHOULD I KEEP RECORDS OF SUPPORT PAYMENTS?
YES! It is very important to keep a notebook with the following columns: Date Due, Amount, Date Paid, Arrearages, Check #. No payment should be made or accepted in cash since there is always a disagreement later about whether the payment was made. No matter what happened, such disagreement creates animosity and unnecessary expense. Our Judges will generally give no credit for payments allegedly made in cash, but significant litigation expenses can be incurred over these issues. In my experience, it is usually cheaper to be accurate about all payments made or received than to attempt to gain an advantage. This makes good records very important.
IS SUPPORT TAXABLE?
Child support is neither taxable to the recipient nor deductible by the payer. Spousal support or unallocated family support, under a written agreement or court order is usually deductible by the payer and taxable to the recipient. There are certain tricky conditions relating to deductibility that apply in a few cases that will be discussed with you as the need arises. Family support may be non-deductible if not phrased properly in the court order.
WHAT SHOULD I DO IF SUPPORT IS NOT PAID?
Please contact me if a support payment is not received or cannot be paid within ten (10) days of the due date.
DOES LIVING WITH A BOYFRIEND/GIRLFRIEND AFFECT MY RIGHT TO RECEIVE SPOUSAL SUPPORT?
If a spouse is receiving modifiable spousal support and cohabitating with an unrelated adult of the opposite sex, the law now presumes that the party?s financial need for support has changed, and perhaps support could be reduced or terminated. As a practical matter, most Judges substantially reduce support when this occurs, even though the law does not require that they do so.
ARE ATTORNEY FEES DEDUCTIBLE?
Attorney?s fees are generally NOT deductible for income tax purposes; unless the fees were actually paid by you and some portion of the legal services were incurred to obtain taxable income, such as spousal support. There are a few other situations in which they may be deductible. I am not a tax expert and do not give tax advice. You should check with a qualified CPA who specializes in tax work.
WHAT EFFECT DOES RECONCILIATION HAVE ON PREVIOUSLY MADE ORDERS?
Reconciliation may effectively nullify all orders made. To avoid potential problems it is important for you to seek my advise before considering reconciliation with your spouse.
WHAT EFFECT WOULD REMARRIAGE HAVE ON THE ASSETS RECEIVED FROM THIS DIVORCE?
If you consider remarrying after a divorce in which you were awarded substantial assets, it is imperative that you consult me to protect those assets against future division if there is a subsequent divorce.
We hope this will answer some of your initial questions. If at any time there is something you need explained to you please do not hesitate to contact the office and talk to one of my staff members who are more than happy to assist you.