Divorce law covers a wide range of legal issues that begin when a couple decides to divorce and end when the judge hands them the divorce decree and judgment of dissolution. Divorce is a long, never-pleasant procedure that requires patience, understanding, and often a good family lawyer.
Some divorces don't need the services of a family law attorney every step of the way. If you and your spouse have no children and few assets between you, you can file a summary dissolution yourselves. Even then, having an attorney review your paperwork is advisable. But you and your spouse won't spend hours in court.
For those with children or complex property division, the services of an experienced divorce lawyer are a must. Read on to learn more about divorce law and what you'll need for your divorce settlement.
Components of Divorce
Divorce is the legal process of ending the marital relationship. During your marriage, you and your spouse acquired property, made money, paid debts, and supported one another. The divorce process unwinds that relationship and returns parties to a more or less equal status.
A majority of states follow “common-law" or equitable division. This means the judge attempts to divide assets fairly according to use and payment. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are community property states, meaning the court divides marital assets 50/50 between the parties.
For instance, suppose you and your spouse purchased a pickup truck during your marriage. Your spouse made all the payments, and you just drove it around. In an equitable division state, your spouse may get to keep the truck, depending on how the rest of the marital assets are handled. In a community property state, you may have to sell the truck and split the proceeds.
Other things that your attorney and the court deal with during a divorce case include:
- Division of assets: All property acquired during marriage is “marital property," including money, real property, and some debt. Unless you and your spouse have a prenuptial agreement stating otherwise, the court has to divide this according to state law.
- Child custody: Parents must make a parenting plan and visitation schedule for the judge's approval. Custody plans must be as close to 50/50 as possible unless there are good reasons for alternative arrangements.
- Child support: Both parents contribute to the minor child's support based on the time spent with the child. States have calculations used for determining each parent's contribution.
- Alimony: Also known as “spousal support" or “spousal maintenance," this monthly payment to help a spouse transition out of marriage is becoming rare in divorce proceedings. Many states now limit alimony to marriages of long duration (more than 10 years) or specific circumstances (such as a spouse who needs education to reenter the job market).
Courts are looking for the best outcome in a divorce, not perfection. If minor children are involved, the best interest of the child will always outweigh the needs or wants of the parents. For instance, even if equity would grant one spouse the family home, a judge may award it to the custodial spouse. This way, the child can continue to live there and attend school. A good divorce lawyer will prepare their client for this outcome.
Do You Need Legal Representation?
Getting a divorce is expensive by itself. You're losing half your property already. Do you really need to pay an attorney?
You should consider the pros and cons of legal representation carefully. If your spouse has an attorney, you may need to retain your own. You should have someone who can talk to your spouse's attorney on your behalf.
Although a simple divorce can be a do-it-yourself process, you should have your documents reviewed by a divorce attorney before court filing. This prevents errors that may lead to them getting sent back, leading to costly delays. If you're unsure about hiring an attorney, look for lawyers offering free initial consultations.
Other places you may need representation include:
- Divorce mediation: Almost all family law courts require the parties to attend divorce mediation before issuing the divorce decree. Mediation involves the parties meeting with a neutral third party to discuss the settlement agreement. The mediator may be an attorney, but they cannot give legal advice or tell you if the settlement is in everyone's best interests. You should have an attorney review your agreement before signing.
- Legal separation: Some spouses cannot stay together, but for legal or religious reasons, they cannot divorce. Legal separation lets them divide their property and live apart while remaining legally married. Legal separation involves more than living in different houses. You will need an experienced divorce attorney to ensure the paperwork is correct.
- Collaborative divorce: This takes the divorce out of court but follows all the procedures. Attorneys and clients agree to follow legal procedures like discovery without court orders. If there are disagreements about the production of evidence, the attorneys work it out between themselves rather than going to court. Since both sides must have an attorney and a good attorney-client relationship, you must have a lawyer for this procedure.
Where To Find a Divorce Lawyer
Attorney fees in a divorce cannot be contingency fees (as they can be in personal injury cases). It's a conflict of interest for your spouse's lawyer to represent both of you in a divorce unless you both agree. If you need legal assistance for a divorce and cannot afford a lawyer, try a legal aid clinic or the state bar association for referrals to low-cost family law attorneys near you.
If you need a divorce lawyer in your area, FindLaw's lawyer referral search can help.