FAQs and Terminology

Legal Encyclopedia Table Of Contents
Prenuptial Agreements -- An Overview

Republished with Permission 2009 Nolo.
by Shae Irving & Katherine E. Stoner, Attorney-Mediator
What you need to know if you're considering a prenuptial, or premarital, agreement.
A prenuptial agreement ("prenup" for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person's property rights will be after the marriage.

Terminology

In some states, a prenuptial agreement is known as an "antenuptial agreement," or in more modern terms, a "premarital agreement." Sometimes the word "contract" is substituted for "agreement," as in "prenuptial contract." An agreement made during marriage, rather than before, is known as a "postnuptial," "postmarital," or "marital" agreement.

Who Needs a Prenup?

Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy Fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here are some reasons that some people want a prenup: Pass separate property to children from prior marriages. A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.

Clarify financial rights. Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.

Avoid arguments in case of divorce. Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony. (A few states won't allow a spouse to give up the right to alimony, however, and, in most others, a waiver of alimony will be scrutinized heavily and won't be enforced if the spouse who is giving up alimony didn't have a lawyer.)

Get protection from debts. Prenups can also be used to protect spouses from each other's debts, and they may address a multitude of other issues as well.

If You Don't Make a Prenup

If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.

Under the law, marriage is considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:

  • share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
  • incur debts during marriage that the other spouse may have to pay for, and
  • share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.

If these laws -- called marital property, divorce, and probate laws -- aren't to your liking, it's time to think about a prenup, which in most cases lets you decide for yourselves how your property should be handled.

Making a Valid Prenup

As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups.

As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.

However, because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, which we recommend, you'll want to have separate lawyers review it and at least briefly advise you about it -- otherwise a court is much more likely to question its validity.

How to Draft Your Own Prenup

Before you visit a lawyer, you can begin drafting your own prenuptial agreement.

Nolo's Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Attorney-Mediator Katherine E. Stoner and Shae Irving, J.D., shows you how to create a draft agreement yourselves, to bring to separate lawyers for review. It provides worksheets to help you and your Fiancé determine what your prenup should cover and clauses for preparing an agreement that suits your needs, as well as lots of examples and samples to make your job easier.

The book can also be useful for same-sex couples in California, where domestic partnership gives partners many of the rights and responsibilities of marriage, and pre-partnership agreements serve the same purpose as a prenup. Prenups for Partners: Essential Agreements for California Domestic Partners, by Attorney-Mediator Katherine E. Stoner, explains how to use the book to create a valid pre-partnership agreement.

Divorce and Children: Helping Kids Deal With the Effects

Republished with Permission 2009 Nolo.
How to ease the pain of divorce for your children -- young and old.
Divorcing parents want to reduce the impact on their children, whether the children are young or already adults. The best way to do this is to recognize how the divorce is likely to affect your children, and then take steps to alleviate their pain and uncertainty.

How Divorce Affects Children

Researchers have filled volumes studying and analyzing the effect of divorce on children. Studies examining the children of divorce have found that most suffer a sense of loss that can manifest in many different ways, depending on the children's ages and unique personalities, as well as on how parents handle the divorce themselves.

Younger children may regress in areas such as sleeping and toilet training, or throw more tantrums. School-age and teenage children may show symptoms of depression, rebel against discipline, or change their eating and sleeping habits.

Recent research has shown that adult children of divorce have higher divorce rates than adults with parents in stable marriages -- and even those who remain married report they are have less trust for their spouses than people whose parents have remained married.

As a parent, you can take an active role in easing your children's pain and reducing negative feelings and behaviors.

How to Help Your Children Cope with Divorce

The single most important way that you can help your kids during a divorce is to have a cooperative relationship with your ex and keep conflicts to a minimum. Especially if your kids are still young, it's important to reassure them repeatedly that you both love them, that the divorce was not their fault, and that they will always have two parents. It's also crucial to provide your kids with the practical information they'll want to know, like who will be driving them to school and where they will sleep.

But the proof is in the pudding. To provide them with the assurances they need, you will have to be a model of maturity. Here are some tips on how to do this: Process, don't vent. You don't have to hide the fact that you are stressed or that the divorce brings up difficult feelings for you. It's fine to talk about those things in general ways, without burdening the kids with the details. In fact, airing some of these feelings and encouraging the children to reciprocate by sharing their own feelings may help them lose some of the fear and anger they may harbor about the divorce.

Even years after the divorce, make sure you are available to listen to your kids express their feelings whenever they want to talk. As they grow and develop, they may need new information or want to express differing perspectives. Depending on their ages and personalities, you may need to encourage them to continue to talk about their feelings about the divorce.

Keep children out of the middle. If the children are teens or even adults when you divorce, be especially careful not to drag them into the fray by confiding too many details or enlisting them as negotiators in your divorce. Be sure to address any nagging issues directly with your ex-spouse -- either alone or with the help of a mediator -- rather than using the kids as messengers or sounding boards.

Keep free of venom. Don't express bitterness towards your ex -- and don't in any way imply that your former spouse isn't a good parent or that your kids are wrong to want a relationship with their other parent. Instead, continue to support and foster their relationship in every way you can so that the kids can be free of guilt and ambivalence.

Establish new traditions. Remember that it isn't only young children who may feel a sense of loss around holidays and special times. Many adult children become angry and confused about losing family rituals (even if they once groused about them). Be flexible in establishing new traditions, especially around holidays and celebrations of special events, such as birthdays. Be sensitive about incorporating new individuals into family groupings, and look for fun activities to help relieve stress and encourage building or rebuilding relationships.

Be vigilant. Divorce is stressful for kids of any age. Even if your child has generally had a positive spin on things, keep an eye out for rough patches. Arrange for counseling or encourage your children to seek help if you see serious signs of emotional fragility.

If Your Children Are Young

If you have young children, your post-separation life will involve coordination and cooperation as parents. It's a good idea to anticipate parenting issues by spelling out guidelines and ground rules in a written parenting plan that goes beyond the cursory custody terms that might have been spelled out in a divorce agreement.

A parenting plan for young children of divorcing parents can cover:

  • responsibility for medical and dental care
  • the times your children spend with each of you
  • holiday arrangements
  • how to handle schooling, discipline, and extracurricular activities, and
  • other specific issues that likely to come up, especially related to child-rearing.

If you and your ex-spouse are stuck about how to proceed with a parenting plan, consider using mediation to help work out the details. You can prepare for mediation by first assessing your children's needs and considering how each of you can best meet them. This is especially important if you will use court-sponsored mediation, which usually limits the time available for working things out.

If Your Children Are Adults

Even adult children may face thorny issues when parents divorce, particularly concerning the changed relationship they will have with each parent. Just like younger kids, adult children often go through a sort of grieving process when their parents divorce -- complete with anger, confusion, and despair.

Foster sibling bonding. One unexpected phenomenon related to divorce is that it often brings adult children emotionally closer to one another, even if they were not close as younger children. Do what you can to foster such relationships -- and resist the temptation to view them as threatening or divisive. Realize that your children, with their shared past and experiences, are often natural sources of comfort and support for one another.

Encourage them to seek support from outsiders. The overwhelming emotion adult children report when they learn their parents are divorcing is loneliness. Support groups in which they can talk with those experiencing similar feelings may be especially helpful in easing this pain. A number of such groups operate online.

For more advice on helping your children deal with divorce -- before you file, during the divorce, and after -- get Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo).

Alimony: What You Need to Know Before Divorce

Republished with Permission 2009 Nolo.
by Roderic Duncan
Learn what alimony is and how it works.
If you're facing a divorce, you'll have to face reality: Alimony payments (monthly support payments one divorced spouse pays the other) are alive and well in the American divorce system. And if you earn substantially more money than a spouse to whom you have been married for several years, there is a good chance you will be ordered to pay some alimony. On the other hand, alimony generally isn't awarded for short marriages or where you and your spouse earn close to the same amount.

If alimony is ordered, you will generally have to pay a specified amount each month until:

  • a date set by a judge several years in the future
  • your former spouse remarries
  • your children no longer need a full-time parent at home
  • a judge determines that after a reasonable period of time, your spouse has not made a sufficient effort to become at least partially self-supporting
  • some other significant event -- such as retirement -- occurs, convincing a judge to modify the amount paid, or one of you dies.

As with most issues in your divorce, you and your spouse can agree to the amount and length of time alimony will be paid. But if you can't agree, a court will set the terms for you. Unfortunately, having a court make the decision means there will be a trial, and that can cost you a lot of time and money.

If you expect to pay alimony. The fact you have to pay alimony -- also known in some states as "spousal support" or "maintenance" -- to your ex-spouse doesn't amount to a finding that you are a bad person. Consider it part of the cost of entering a marriage that you probably thought would last until death parted you, but -- for reasons you didn't anticipate -- didn't. Alimony has been the law for more than 100 years, and while it is ordered somewhat less frequently these days, there is no sign that courts are going to stop making alimony orders for good.

If you expect to receive alimony. The question of whether you qualify for alimony is usually resolved by looking at your capacity to earn -- which is not necessarily what you are earning at the time you go to court -- how much your spouse earns, and your standard of living during the marriage.

You might also be required to make some changes in your life and work. For example, if you have a part-time job that doesn't pay well, you may be required to attempt to find full-time employment in a better-paid field. Experts called vocational evaluators are sometimes hired to report to the court on the job prospects for a spouse who hasn't been fully employed for a while. The evaluator will administer vocational tests and then shop your credentials with potential employers.

If your spouse refuses to pay. Finally, if you secure an alimony order but your spouse refuses to make the required payments, take immediate legal action to enforce the order through a "contempt" proceeding or an "earnings assignment order." Orders to pay monthly alimony have the same force as any other court order and, if handled properly, can be enforced with the very real possibility of obtaining regular payments. If necessary, a court may jail a reluctant payor to show that it means business.

To learn more about alimony and other issues arising in divorce, get Nolo's Essential Guide to Divorce, by attorney Emily Doskow (Nolo).

Types of Child Custody

Republished with Permission 2009 Nolo.
Learn the difference between legal custody, physical custody, sole custody, and joint custody.
Physical Custody
Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.

Legal Custody
Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.

If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you -- which may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.

If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.

Sole Custody
One parent can have either sole legal custody or sole physical custody of a child. Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.

It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.

Joint Custody
Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:

  • joint legal custody
  • joint physical custody (where the children spend a significant portion of time with each parent), or
  • joint legal and physical custody.

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

Joint Custody Arrangements
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:

  • alternating months, years, or six-month periods, or
  • spending weekends and holidays with one parent, while spending weekdays with the other.

There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is called "bird's nest custody."

Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.

There are, of course, disadvantages:

  • Children must be shuttled around.
  • Parental noncooperation or ill will can have seriously negative effects on children.
  • Maintaining two homes for the children can be expensive.

If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.

For more information on child custody arrangements, see Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn't Last, by Mimi E. Lyster.

Parenting Agreements

Republished with Permission 2009 Nolo.

Practical steps to help you create a workable parenting plan with your child's other parent.

If you are divorcing and you have kids, the most important task ahead of you is to make an agreement with your spouse about custody and visitation. No matter how angry you may be or how difficult your communication with your spouse is, put your children first and do everything you can to make decisions together with your spouse, rather than letting a judge or court evaluator make them for you. This means keeping an open mind and getting whatever professional help you might need -- from a therapist, a custody evaluator, or a family mediator.

What Is a Parenting Agreement?
A written parenting agreement or parenting plan is helpful in setting the stage for a successful post-divorce relationship. Just the process of creating an agreement allows you and your future ex-spouse to discuss most or all of the issues that will come up during your children's lives. In addition, if, after you create and sign an agreement, the other parent continuously breaks the agreement, you will have proof that he or she originally agreed to the agreement in writing.

Factors you should consider in writing your agreement include:

  • custody and living arrangements
  • visitation
  • financial issues
  • education
  • medical care
  • religious training
  • holidays.
  • Gather Documents

Before you try to negotiate with the other parent or seek the help of any professional in developing a parenting agreement, it makes sense to collect and review all relevant documents. If you're in the midst of a divorce, or if you've already been involved in custody proceedings, these might include:

  • court documents you have filed or received, such as a "summons," "petition," "complaint," "response," "answer," "declaration," or "affidavit"
  • correspondence from an attorney, counselor, mediator, or court official regarding your separation, divorce, paternity, child support, custody, or visitation
  • court orders regarding a legal separation, divorce, paternity declaration, or award of custody
  • previously mediated, arbitrated or negotiated agreements between you and the other parent
  • documents dissolving your religious marriage, or describing your marital status and your options according to your religious denomination, and
  • reports, letters, or evaluations from school officials, counselors, therapists, or others who have an insight into your children.

You won't necessarily need all of these documents to develop a parenting plan. Nevertheless, having them can help expedite matters, especially if you are going through a legal separation or divorce. For example, if you or the other parent have already initiated a court proceeding, you may have a deadline for submitting your parenting agreement.

Carefully read the documents you gather. If you need help in finding or understanding any of them, an attorney, court clerk, paralegal, marriage counselor, or mediator might be useful. Some of these folks might also be able to help you work with your spouse.

Resources for Creating a Parenting Agreement

You might consider using a family law mediator to help you work out a parenting plan that's in everyone's best interests.

In addition, Nolo publishes a helpful book called Child Custody: Building Parenting Agreements That Work, by Mimi E. Lyster, that shows you how to build your own custody and visitation agreement.

Mediation: What Kinds of Cases Can Be Mediated?

Republished with Permission 2009 Nolo.

Mediation can be used for most civil (noncriminal) disputes, and is sometimes available even when courts are not.

Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.

Although there are hundreds of thousands of laws on the books, many types of common disputes simply do not raise a legal claim that you can take to court. Disputes between family members, employees, or neighbors are sometimes of this type. Fortunately, mediation is available even when courts are not.

For example, a suburban homeowner might find that the formal legal system offers no realistic way to deal with his neighbor's overly bright driveway lights that shine in his bedroom window. The neighbors could mediate the disagreement, however. Mediation gives the participants an opportunity to raise and discuss any issues they might wish to hash out. For example, it might turn out that the neighbor lit his driveway because the homeowner's dog went on his lawn, or because the homeowner's tree was encroaching on his property. Because mediation can handle any number of outstanding gripes or issues, it offers a way to discuss (and solve) the problems underlying a dispute -- and create a truly lasting peace.

No Fault Divorce Vs. Fault Divorce FAQ

Republished with Permission 2009 Nolo.

You can get a no fault divorce in any state, but you may want to understand the fault grounds for divorce as well.
What's Below:

  • What is a "no fault" divorce?
  • What is a "fault" divorce?
  • Can a spouse successfully prevent a court from granting a divorce?
  • Do I have to live in a state to get a divorce there?
  • Can an out-of-state divorce be enforced?
  • What is a "no fault" divorce?

"No fault" divorce describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong. All states allow no fault divorces.

To get a no fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In some states, however, the couple must live apart for a period of months or years before they can obtain a no fault divorce.

What is a "fault" divorce?

A fault divorce may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault. Only some states allow fault divorces.

The traditional fault grounds are:

  • cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce adultery
  • desertion for a specified length of time
  • confinement in prison for a set number of years, and
  • physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And, in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

What if both spouses are at fault? When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.

Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.

Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.

Collusion. If a couple lives in a state where no fault divorce requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion, because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.

But these defenses are rarely used -- for a couple of practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be.

Do I have to live in a state to get a divorce there?

All states require a spouse to be a resident of the state -- often for at least six months and sometimes for as long as one year -- before filing for a divorce there. Someone who files for divorce must offer proof that he or she has resided there for the required length of time. Only three states -- Alaska, South Dakota, and Washington -- have no statutory requirement for resident status. In other words, being a resident at the time you file is enough.

If you think that your spouse may file for divorce in another state, it may be prudent to spend the money up front and file first -- in your home state. Rarely is a divorce settled in one court appearance, and, if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, must be filed in the original state. This could keep you traveling out of state for years to come, especially if you have children with your spouse.

Can an out-of-state divorce be enforced?

If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.

However, decisions a court makes regarding property division, alimony, custody, and child support may not be valid unless the court had jurisdiction over the nonresident spouse. The court gets jurisdiction when the nonresident spouse is personally served with the divorce documents (meaning they are delivered into the person's hands), or consents to jurisdiction. A nonresident spouse consents to jurisdiction by showing up at a court date or signing an affidavit of service, acknowledging receipt of the filed legal documents. It can also happen if the nonresident spouse abides by the rulings of the court; for example, by paying court-ordered child support.

If you receive documents from a foreign country, you may want to consult an attorney about whether your state court or the foreign court governs the issues. This depends on many factors, such as which particular country is involved, where the parties lived and for how long, and, of course, whether children are involved.

Divorce Mediation FAQ

Republished with Permission 2009 Nolo.

How to create a divorce agreement with the help of a mediator -- without going to court.

What's Below:

  • What is divorce mediation, and how is it different from arbitration?
  • Why is mediation better than going to a lawyer -- or is it?
  • What is the difference between court-ordered mediation and private mediation?
  • How do mediating spouses protect their legal rights?
  • Does the mediator meet with both spouses together or separately?
  • How much does mediation cost?
  • How long does mediation take?
  • How can a divorcing couple find a good mediator?
  • What is divorce mediation, and how is it different from arbitration?

Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn't make any decisions for them.

Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case, just as a judge would. Although the parties can present evidence and make arguments, they have no say in the final decision.

Why is mediation better than going to a lawyer -- or is it?

Using mediation to negotiate a divorce agreement is almost always going to take less time, cost less, and result in a more solid agreement than using a lawyer to take the same case through the courts. When you are going to have an ongoing relationship with your ex-spouse, such as when you have kids together, mediation can help to improve communication and make your future interactions a little bit easier.

For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible -- either because of problems in the relationship (such as domestic violence or substance abuse) or because a spouse is unwilling to mediate. Even if you decide to mediate, you may want to hire a lawyer in a limited capacity to consult with you outside of the mediation. Many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and review the settlement agreement before it is signed.

What is the difference between court-ordered mediation and private mediation?

As its name implies, court-ordered mediation is mediation that is required by the court as a part of a divorce proceeding. In many places, mediation is mandatory when there are custody or visitation issues. In fact, court-ordered mediation usually is limited to child custody and visitation issues, while private mediation often also covers financial issues and property division. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court; private mediation is usually confidential.

How do mediating spouses protect their legal rights?

Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation.

Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement that comes out of the mediation.

Does the mediator meet with both spouses together or separately?

Some mediators prefer to work separately with each spouse, acting as a go-between. Others prefer joint meetings where both spouses are present and communication is more direct. There can be advantages and disadvantages to each approach, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.

How much does mediation cost?

Most mediations involve an hourly or per-session fee, except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at a reduced cost or even for free. The number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will usually be much less costly than adversarial litigation. A divorce mediator in private practice might charge anywhere from $100 to a couple of hundred dollars an hour, depending on where the mediator practices.

How long does mediation take?

Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.

How can a divorcing couple find a good mediator?

Personal referrals are usually the best way to find any professional, including a mediator. But because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research. Using Divorce Mediation, by attorney-mediator Katherine E. Stoner (Nolo), includes chapters on finding and evaluating mediators.

Dividing Property and Debt During Divorce FAQ

Republished with Permission 2009 Nolo.

How property and debts are divided when you get divorced.

What's Below:

  • How are property and debts divided at divorce?
  • How do we distinguish between community and non-community property?
  • Who gets to stay in the house?
  • How are property and debts divided at divorce?

It is common for a divorcing couple to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leaving it to the judge. However, if a couple cannot agree, they can submit their property dispute to the court, which will use state law rules to divide the property.

Courts divide property under one of two basic schemes: community property or equitable distribution. Debts are divided according to the same principles.

Community property. In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico, all property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.

Equitable distribution. In all other states, assets and earnings accumulated during marriage are divided equitably (fairly), but not necessarily equally. In practice, often two-thirds of the assets go to the higher-wage earner and one-third to the other spouse.

Division of property does not necessarily mean a physical division. Rather, the court may award each spouse a percentage of the total value of the property. Each spouse will get personal property, assets, and debts whose worth adds up to his or her percentage. (It is illegal for either spouse to hide assets in order to shield them from property division.)

How do we distinguish between community and non-community property?

Very generally, here are the rules for determining what's community property and what isn't:

Community property includes all earnings during marriage and everything acquired with those earnings. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are community property debts.

Separate property of one spouse includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (that is, the pensioner became legally entitled to receive it) before marriage. Property purchased with the separate funds of a spouse remain that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it. If separate property is commingled with community property during the marriage, it may become community property, either in part or entirely, depending on the circumstances. Property purchased with a combination of separate and community funds is part community and part separate property, so long as a spouse is able to show that some separate funds were used. Separate property mixed together with community property generally becomes community property.

Who gets to stay in the house?

If children are involved, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don't have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave.

If, however, you don't have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn't have to. If you and your spouse don't come to a decision, the court will decide for you during divorce proceedings or earlier, if you ask for a temporary order on the issue.

If your spouse changes the locks or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in. When you both own the home, the only time you can get your spouse to leave is if your spouse has committed domestic violence and a judge grants a restraining order.

Whatever you do, do not claim domestic violence has occured just to get your spouse removed from the home. (Some people have resorted to this extreme tactic.) Once a judge realizes this has occurred, the party claiming violence may be asked to vacate the home and the judge may be biased againt him or her during future negotiations. If you believe you are a victim of domestic violence, but are not sure, go to the Yellow Pages and call your local domestic violence hotline.

Child Support Payment FAQ

Republished with Permission 2009 Nolo.

Answers to commonly asked questions about child support payments.

What's Below:

  • Is a father who never married the mother still required to pay child support?
  • Is a stepparent obligated to financially support his or her stepchildren?
  • Do I have to pay child support if my ex keeps me away from my kids?
  • How long must parents support their children?
  • Do fathers have the same right to child support as mothers?
  • Is a father who never married the mother still required to pay child support?

Anyone who's determined to be a child's parent is responsible for supporting the child. Many unmarried fathers acknowledge paternity by signing a voluntary declaration of paternity at the time of the child's birth or soon thereafter; some are determined to be parents after a paternity suit is filed and genetic testing establishes parentage. It's also possible for a man who never married his child's mother to be presumed to be the father if he welcomes the child into his home and openly holds the child out as his own.

Is a stepparent obligated to financially support his or her stepchildren?

No, a stepparent is never obligated to support stepchildren unless the stepparent legally adopts the children.

Do I have to pay child support if my ex keeps me away from my kids?

Yes. Child support should not be confused with custody and visitation. Every parent has an obligation to support his or her children. With one narrow exception, no state allows a parent to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the noncustodial parent's duty to pay child support may be considered temporarily suspended.

No matter what the circumstances, if you believe that your ex is interfering with your visitation rights, the appropriate remedy is to go back to court to have your rights enforced rather than to stop making support payments.

How long must parents support their children?

Parents must support a child until:

  • the child reaches the age of majority (and sometimes longer if the child has special needs or is in college)
  • the child is on active military duty
  • the parents' rights and responsibilities are terminated (for example, when a child is adopted), or
  • the child has been declared emancipated by a court. (Emancipation can occur when a minor has demonstrated freedom from parental control or support and an ability to be self-supporting.)
Do fathers have the same right to child support as mothers?

Yes. If you're a father with custody, you have the right to ask for child support. Each parent has a duty to support his or her children, and that duty doesn't discriminate between genders.

Centrally located on the South Shore in Pembroke and conveniently situated on Route 139, just off Route 3, Law Offices of Susannah L. Brown serves the entire South Shore and all of Southeastern Massachusetts, including: Plymouth County, Barnstable County, Norfolk County, Bristol County, Suffolk County.

Please call us for an appointment today at 781.829.6870. Appointments also available in our Cape Cod office.


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