Family Law

Beyond the considerable emotional pain, the end of a marriage is legally complex. This page reviews alternatives to divorce and failing these, the procedures for obtaining a divorce. Consult a lawyer if your marriage is ending. You will need sound professional advice to determine child custody, financial support, and make a fair division of the property of the marriage.

ALTERNATIVES TO DIVORCE
Depending on your circumstances, you may wish to consider alternatives to divorce: marriage counseling, annulment or separation. Many couples try counseling from a marriage counselor, social worker or psychotherapist as an alternative to divorce. Such counselors are trained to help couples resolve differences. The counselor may be able to help you and your spouse learn communication skills and a better understanding of one another to prevent your marriage from failing. Marriage counseling can be useful when couples find their problems have begun to affect their compatibility with each other. Counseling may also keep a relationship with your spouse from worsening even if divorce is unavoidable.

An annulment is a court ruling that a marriage was never legally valid. A marriage can only be annulled if there was a serious defect at the time of the marriage ceremony. In most states, marriages can be annulled if one of the parties was under age at the time of the marriage, if a spouse could not consummate the marriage, if consent was obtained fraudulently, or if the marriage was bigamous or incestuous. People also may seek annulments for religious reasons or because marriage caused a party to lose spousal support from an earlier marriage. Issues of child custody or property division may also be addressed by the court as part of the proceeding.

If you and your spouse separate, it is best to enter into a separation agreement or obtain a court order of separation. A separation agreement is a contract between you and your spouse that can provide for spousal support, child custody, visitation rights, and a division of the property acquired during the marriage. The agreement can be enforced by courts if a party does not comply. If the parties later divorce, it may be included in the divorce judgment.

If the parties cannot agree to a separation agreement, your lawyer may recommend that you obtain a court ordered separation. This requires a lawsuit. In some states, you must prove certain grounds similar to those for divorce. The court may decide issues of child custody, visitation rights, support and property division as part of the separation agreement, the annulment, or as we shall see, in divorce.

GROUNDS FOR DIVORCE
Common grounds for a fault divorce are adultery, bigamy, cruelty, desertion, incest and insanity. In addition, many states have adopted "no fault" divorce laws that allow divorce without showing that one spouse was at fault. In no fault states, a divorce can frequently be obtained because of incompatibility or irreconcilable differences or if spouses live apart for a period of time often a year.

In certain circumstances, a fault divorce may offer a better legal strategy for you. Your lawyer can guide you on the best way to proceed.

DIVORCE PROCEDURE
Divorces may be uncontested or contested. An uncontested divorce can be granted when the parties agree on all issues such as child custody, support and property division. It may involve the filing of papers at the courthouse and, perhaps, a brief appearance before a judge.

A contested divorce, where the parties cannot agree to terms, resembles a standard lawsuit with a trial before a judge.

In some states, mediation is part of divorce procedure for spouses who cannot agree on the terms of a divorce. Mediators are used in place of judges to resolve disputes on matters like child custody, visitation, and property settlements. You and your spouse can meet with the mediator to discuss the issues and work out an agreement acceptable to both of you. Lawyers and judges are usually not present during mediation sessions and formal legal procedures do not apply. A judge will decide the issues if you are unable to resolve them through mediation.

After the judge grants a divorce, you may have to wait a short period before remarrying. The waiting period ranges from one day to one year after the judge's approval of the divorce depending on the state.

SPOUSAL AND CHILD SUPPORT
Spousal support is called alimony or maintenance in some states. Either you or your spouse may be entitled to spousal support depending on your income and property, your standard of living, your financial needs, and the circumstances leading to the divorce. If you and your spouse are unable to agree on support, a judge will decide who should pay it, how much is to be paid, and how long it will continue. The judge may award spousal support until the receiving spouse is self supporting or until death or remarriage.

You and your spouse are both responsible for the support of your children. If you cannot agree on child support, the court will apportion the responsibility based on custody, your incomes, financial resources and other obligations.

DIVIDING PROPERTY AND DEBTS
States have their own provisions for dividing property at divorce. Many divide only property acquired during the marriage; some states include property, which a spouse owned before the marriage or received as a gift during the marriage. If you and your spouse are unable to agree on whom gets what, the court will divide the property based on various factors. The court may consider the contributions of each spouse to the property, the contributions of each spouse to child care and homemaking, the financial resources and needs of each spouse, and the income and career potential of each spouse. Your lawyer can help you obtain a fair division of property and help you avoid overlooking valuable assets such as pension rights.

You and your spouse can assign responsibility for your debts in a separation agreement. If you are unable to agree on a division of responsibility, the court will probably apportion them in accordance with the same kinds of considerations used to divide the property of your marriage. Your lawyer can help you obtain compensation from spouses for failure to pay debts that are their responsibility.

TAX CONSIDERATIONS
A divorce has important tax consequences. Custody can affect your taxes, including your right to claim head of household status, dependent exemptions, and child care credit. Support payments may be taxable or deductible. The property division may also affect your taxes. Your lawyer can advise you about the tax aspects of divorce.

YOUR LAWYER
You should consult a lawyer if your marriage seems to be ending. Your lawyer can advise you about your rights to custody, property and support. Your lawyer can also prepare a separation agreement, assure that timely steps are taken to obtain a divorce and advise you when unexpected problems arise. Your lawyer can also seek protection if your spouse threatens to assault or harass you, take your children in violation of custody or visitation rights, or hide property belonging to the marriage.

CONCLUSION
Divorce is emotionally and financially complex. It is important to see a lawyer to protect your rights and your future. Your lawyer may help you to save your marriage by referring you to a marriage counselor. If divorce is unavoidable, your lawyer can help you take the steps to end the marriage and advise you about obtaining custody of your children, support and a fair division of property.

Useful documents for a divorce.

This is a list of documents that may be needed during your dissolution of marriage proceeding. Complete information regarding the assets and income of both spouses is absolutely required to determine the amount of spousal or child support that a court may order, as well as to resolve property issues. By providing us with the information and documents listed below, you will save yourself unnecessary delay in the proceeding, as well as unwanted legal expenses. In addition, possession of these documents will aid in preventing your spouse from dissipating or secreting any assets.

Please read this list thoroughly and assemble as many of these documents as you can, since many of them may be required in the immediate future and it may take you a while to collect them.

You should make a list of any documents that you believe exist but are presently unable to obtain. For example, if your spouse currently is in possession of prior income tax records, this information should be given to our office. We will then attempt to obtain those documents for you.

The following documents should be gathered by you and be available for inspection and copying upon request.

1. FINANCIAL AFFIDAVIT. This affidavit is required by the Maryland Rules of Civil Procedure in cases where alimony or child support is sought. I have enclosed a copy of this form, along with instructions for its preparation.

2. ESTIMATED TAXES. Collect estimated tax returns; W-2, 1099, and K-1 Forms; payroll stubs; and all other evidence of income since the filing of your last return.

3. INCOME TAX RETURNS. Include personal, corporate, partnership, joint venture, or other income tax returns, state and federal, including W-2, 1099, and K-1 forms from the date of your marriage to the present year.

4. PERSONAL PROPERTY TAX RETURNS. Gather returns filed in Florida or anywhere else from the date of your marriage to the present.

5. BANKING INFORMATION. Include all monthly bank statements, passbooks, check stubs or registers, deposit slips, cancelled checks, bank charge notices on personal and business accounts, certificates of deposit, and money management and retirement account records. You should include all records for any account maintained during your marriage by you or your spouse. Therefore, include all bank documents for individual and joint accounts, those in which you acted in the capacity of a guardian or trustee, and any record of an account in which you have a legal or equitable interest.

6. FINANCIAL STATEMENTS. Be prepared to furnish financial statements submitted to banks, lending institutions, or any other person or entities, which were prepared by or on you or your spouse's behalf at any time during the last five (5) years.

7. LOAN APPLICATIONS. Collect loan applications and statements of loan accounts for all loans applied for, whether approved or not, for the period of the last five (5) years.

8. BROKER'S STATEMENTS. Provide all statements of account from securities and commodities brokers. The records should cover any account or transaction for the last five (5) years.

9. STOCKS, BONDS, AND MUTUAL FUNDS. Include certificates or other evidence of ownership held individually, jointly, or as a trustee or guardian.

10. STOCK OPTIONS. Gather all records pertaining to stock options held in any corporation or other entity, exercised or not exercised.

11. PENSION. Provide documentation of any pension, profit sharing, deferred compensation, or retirement plan owned by you or your spouse, or by a corporation in which you or your spouse have been an owner or a participant during your marriage. Documentation of any such plan must be given, whether or not you are fully, partially, or not vested at the present date.

12. WILLS AND TRUST AGREEMENTS. Include a copy of any will, codicil, or trust agreement executed by you or in which you have a present or contingent interest. Include those in which you are named a beneficiary, trustee, executor, or guardian. Be prepared to provide documentation of those from which benefits have been received, are being received, or will be received, and which are or were in existence during the past five (5) years. Be prepared to send all records of declaration of trust and minute books for all trusts to which you are a party, including the certificates, if any, indicating such interest and copies of all statements, receipts, disbursements, investments, and other transactions.

13. LIFE INSURANCE. Be prepared to provide a coy of any life insurance policy or certificates of life insurance currently in existence, insuring your life or the life of your spouse or the life of any other person in which you are named either as a primary or contingent beneficiary.

14. GENERAL INSURANCE. Include copies of all insurance policies, including, but not limited to, annuities, health, accident, casualty, disability, motor vehicles of any kind, property liability, including contents insurance in which you or your spouse are or have been named insured for the last five (5) years.

15. OUTSTANDING DEBTS. Provide documentation with regard to all personal and business debts owed by you, whether secured or unsecured, including personal loans, or lawsuits now pending in any court. The evidence of indebtedness should indicate the name of the creditors, the date each debt was incurred, the purpose for which it was obtained, whether it is secured or unsecured, the original amount, and the current balance.

16. OUTSTANDING LOANS AND RECEIVABLES. Include any documents that reflect all personal and business receivables and loans owed to you, whether secured or unsecured, including personal loans or lawsuits now pending in any court. The documentation should state the name of the debtors, the date each debt was incurred, the original amount, whether it is secured or unsecured, and the current balance.

17. CASH RECEIPTS BOOKS. Include all cash receipt books, evidence of budgets, and cash projections with regard to you and your family's financial status.

18. REAL PROPERTY. Compile a list of all real property owned by you and your spouse, including an estimate of the value of each property. Send any deeds, closing statements, tax bills, appraisals, mortgages, security agreements, leases, and any documentation with regard to monthly payments and present principal, and interest balances. Document all real property that you or your spouse own as a sole owner, joint owner, fiduciary, trust beneficiary, whether vested or contingent, partner, limited partner, shareholder, joint ventures, or mortgagee. Include documentation of any property in which you had such an interest during any of the years of marriage. Provide documentation of the contributions of you and your spouse toward the acquisition of any real property.

19. SALE AND OPTION AGREEMENTS. Be prepared to provide a copy of any sale and option agreement regarding any real estate owned by you or your spouse individually, jointly, through another person or entity, or as a trustee or guardian.

20. PERSONAL PROPERTY. Provide all documents, invoices, contracts, sales receipts, and appraisals with regard to all personal property owned by you or your spouse, individually, jointly, as trustee or guardian, or through any other person or entity during the terms of your marriage.

21. MOTOR VEHICLES. Provide any purchase orders, contracts, financing agreements, invoices, appraisals, lease agreements, registrations, payment books, and titles to all motor vehicles owned by you or your spouse, individually or jointly, at any time during the last five (5) years. Such vehicles include aircraft, boats, automobiles, or any other motor-or-engine-propelled vehicle.

22. CORPORATE INTERESTS. Gather records indicating any kind of ownership interest in any corporation, whether foreign or domestic, that you or your spouse have held during the past five (5) years.

23. PARTNERSHIP AND JOINT VENTURE AGREEMENTS. Gather any partnership and joint venture agreements to which you or your spouse have been a party during the marriage.

24. EMPLOYMENT. Be prepared to provide all documentation of employment compensation and expenses during the term of the marriage. Such records include documentation of wages, salaries, bonuses, commissions, raises, promotions, and expense accounts. Include records of compensation owing to you but to be paid at a future date.

25. FRINGE BENEFITS. Provide all records evidencing any benefits available to you or your spouse from any business entity. Such benefits include the use of an automobile, company-sponsored travel, entertainment, and reimbursement for educational and living expenses.

26. EMPLOYMENT CONTRACTS. Provide any employment contract under which you or your spouse are performing services or under which someone is indebted to either you or your spouse for services already rendered. Include any such contract to which you or your spouse were a party during the past five (5) years. If the contract was oral, provide a written description of its terms.

27. BUSINESS RECORDS. If you are self-employed, a partner, or own more than 10 percent of the outstanding capital stock of any corporation, please be prepared to produce the documents requested in Paragraphs (6), (8), (13), (14), (15), and (26) for that entity.

28. CHARGE ACCOUNTS. Gather all documentation for any charge account controlled or authorized by you or your spouse. Include documentation of an account whether it is for your business or personal use. Include all statements and receipts received by either of you in connection with the use of such charge accounts. In addition, provide a list of those business where either you or your spouse are or have been authorized to charge purchases to the account of another person or entity, as well as any billing statement from that business. The documentation should cover the last five (5) years.

29. MEMBERSHIPS. Be prepared to provide a copy of any membership card or document identifying participation rights in any country club, key club, private club, association, or fraternal group. Include a copy of any monthly statement from such association that has been sent to you during the last five (5) years.

30. GIFTS. Include all records pertaining to gifts of any kind made to you or your spouse, or by you or your spouse, to any person or entity. In addition, send all records of any transfer of personal property, by sale, gift, or otherwise, during the marriage.

31. CHARITABLE CONTRIBUTIONS. Compile all receipts, cancelled checks, or other tangible evidence of charitable donations made by you or your spouse.

32. MEDICAL AND DENTAL EXPENSES. Compile all bills, prescriptions, evaluations, and receipts with regard to any medical and dental treatment that you or your spouse have received during the past five (5) years.