Delaware Divorce Attorneys

A divorce resolves the following:

Child custody. You must decide who has the legal authority to make decisions about healthcare and education, as well as who the children will live with and when. Child support. The state has a formula for calculating child support that is used in most cases. The formula is based on how each parent’s income and the number of children they have. Other expenses will be used, such as health insurance, child care expenses, and others.

Division of marital property. This is property you acquired jointly while married. A court will presume that all property acquired during your marriage is marital property unless you convince the judge that it is your separate property. Division of marital debts. Debts obtained during the marriage that benefit the couple are presumptively marital debts.

Alimony. Alimony helps mitigate against the economic unfairness of a divorce. For example, one spouse might pay money to help the other get a college degree and work experience so that he or she can become self-sufficient. Alimony can be temporary or, in rare cases, permanent.

Helpfully, you and your spouse can reach an agreement on all of these issues. So long as your agreements regarding child custody and child support are in the best interests of your children, the judge will usually approve it.

You can start by trying to reach an agreement with your spouse. Before beginning discussions, however, spend some time thinking about what you want. You will be more satisfied with your divorce if you have a clear idea of how you want to exit your marriage.

For example, you might know that you need to go back to college to get your degree so that you can support yourself. You might also know that you want the children to live with you during the school year and that you also want to stay in the family home. By knowing what you want, you can enter into discussions with your spouse in a more confident manner. When spouses are unprepared, they can find negotiation a difficult experience.

To negotiate, carve out some time where you and your spouse can meet to talk. When you explain what you want, offer well thought-out reasons in support. For example, “I think the children should be with me during the school year because you travel a lot at that time” is a compelling reason. Remember not to use your children as pawns in a game where you try to “get back” at your spouse, since no one wins in those situations.

Also listen to what your spouse wants with an open mind. Negotiating involves compromise, and if you are unwilling to compromise then negotiations will break down.

If you need help, contact a mediator. You can find one by searching online, calling your local bar association, or stopping into the courthouse and asking. Mediators can help nudge each side to compromise so you can avoid a contested divorce.

An uncontested divorce is much cheaper than a contested divorce. If you and your spouse agree on all key issues, you might only need to pay for the filing fee. You can type up your own marital settlement agreement and sign it.

However, some couples benefit from mediation, which could cost you $50-200 an hour. In mediation, a third person helps you and your spouse hash out your disagreements and offers constructive feedback for resolving disputes. Mediation is usually cheaper than a contested divorce, but it could still cost a couple thousand dollars, depending on how far apart you and your spouse are when you start.

A full, contested divorce can easily cost $10,000—and often much more. The largest expense will be attorneys’ fees. Divorce attorneys bill by the hour, with more experienced attorneys charging more.

In addition to attorneys’ fees, you might also need to pay for:

• A private investigator, who can collect evidence for you
• A forensic accountant, who can try to find assets your spouse has hidden from you
• A psychological evaluation, if one is ordered by the court, to help with child custody issues
• Fees related to depositions

Because so much is at stake in a contested divorce, it is unrealistic to handle it on your own. It is also very difficult to undo a divorce decree, so you need qualified legal counsel in your corner from the start.

It depends. If you can reach agreement on all issues, you can have an uncontested divorce. An uncontested divorce might take a few months from start to finish. You will submit a marital separation agreement to the judge, who will look it over. Judges usually approve your own agreement, though they will carefully scrutinize anything involving children to determine if your agreement is in your child’s best interests.

However, if you disagree on any issues like child custody, child support, alimony, or the division of property or debts, then you will have a contested divorce. Contested divorces can take a year or more to resolve.

In a contested divorce, there is a lengthy fact-finding phase called discovery, in which you request information from your spouse and turn over requested information. Discovery can take months, especially if your spouse does not want to turn over documents. After discovery, you and your lawyer must prepare for trial, where a judge will make decisions about who receives what.

Also, if either you or your spouse is unhappy with the judge’s decision, then you might bring an appeal to a higher court. Appeals roughly take another year from start to finish. As you can see, seeking an uncontested divorce is usually much faster, though sometimes it is not possible.

It depends. Like marital property, marital debts are also divided during divorce. Generally, a marital debt is any debt incurred for the benefit of the married couple.

Ohio law is silent on how judges are supposed to divide marital debts. However, judges usually use one of four approaches:

• The debt is divided equally, right down the middle.
• The debt is divided proportionate to each spouse’s income. If Sally makes twice as much as John, she might get twice as many marital debts.
• The debt is assigned to the account owner. For example, if John’s name is on the credit card, the credit card debt is his.
• The debt is assigned to the person who incurred the debt.

These are dramatically different approaches, and individuals going through a divorce could end up with mammoth debts they were not counting on when they filed to dissolve their marriages. You should meet with a qualified Ohio divorce attorney to plan how you want to approach the debt issue.

Sometimes, disputes also crop up with respect to paying back the debt. For example, the judge might have assigned a debt solely to your spouse, yet your name is still on the loan documents. Creditors can still come after you for non-payment. If this situation arises, you should speak to a divorce attorney.

Child support calculations are somewhat complicated. Generally, child support is based on the number of children and your income, and Ohio has a mathematical formula it uses. Basically, the court will combine both parents’ income, less certain deductions. Based on the income, the judge will determine how much income should be spent supporting the children. This amount can be tweaked by including childcare expenses, health insurance, and other costs. You can use the state’s child support calculator to obtain an estimate of how much you will pay.

Consider this example: a man and woman have one child, who lives with the mother. The father makes $40,000 a year, and the mother makes $20,000. Under the state’s formula, the father will pay roughly $450 a month in child support.

In some situations, the judge will go below or above the guideline amounts. For example, if you have a very high income (over $150,000), then a judge might order you to pay child support above the guideline amount, since your children have a right to enjoy the fruits of your high income even when they are not living with you. If your income is very low (below $6,600), then the judge can also award a lower amount.

The court can. Parents can also come to an agreement themselves on parenting time, just as they can on most issues related to the divorce. However, a judge will still review a parental agreement to see that it is in the child’s best interest, which is the touchstone when dealing with child issues in divorce.

Ohio Revised Code 3109.051 discusses parenting time. Parenting time is awarded to the nonresidential parent if it is in the child’s best interests. The statute encourages frequent and continuing contact between parents and children, and the judge will need to approve a parenting plan as part of the divorce.

To determine parenting time, a court will analyze the following best interest factors:

• A parent’s relationship with the child
• How far apart the parents live from each other
• Each parent’s work schedule, including holidays and vacations
• The child’s school schedule, including holidays and vacations
• Your child’s age
• How adjusted your child is to school, community, and home
• The child’s health and safety
• The mental and physical health of each parent
• The child’s wishes
• Whether either parent has tried to alienate the children from the other parent

Judges also consider each parent’s criminal history, particularly as it relates to abuse or neglect of a child. If you have a criminal history, you should certainly meet with an attorney to discuss how to address it in court.

In Ohio, there are two types of custody: legal and physical. As a parent, you might get one or the other, or both.

Legal custody refers to the ability to make legal decisions for your child regarding education, medical care, and other matters. Often, both parents get legal custody, which means you must consult with your ex-spouse for important matters involving your children.

Physical custody refers to who your children live with. In some situations, physical custody might be divided 50/50, with each parent getting an equal amount of time with the children. But this arrangement often is not realistic, especially if one parent moves away. School age children cannot practicably travel long distances to go to school, so one parent usually is made the residential custodian.

As part of your divorce, you will need to come up with a parenting plan, which will deal with the following in detail:

• The dates the non-residential custodian will have visitation
• How holidays and vacations will be split
• Where the custodial parent will drop off the child and the time
• Where the non-residential parent will drop off the child and the time
• How parents will communicate about visitation
• What happens if the child is sick and cannot otherwise attend visitation

Creating a realistic parenting plan takes a lot of effort and patience, and many clients have benefited from a lawyer’s advice.

You and your spouse can decide how to divide the property. If you can’t agree, then a judge will need to decide these issues. A judge will divide property “equitably,” which does not always mean 50/50.

Before filing for divorce, take an inventory of your marital property. This is not property either one brought into the marriage but instead includes things you bought together. It also might include any property either spouse obtained while married unless it was clearly meant to be only one spouse’s separate property.

After taking stock of what you own, identify what you want. For example, you might want to stay in the family home with the children. Or you might want half of your spouse’s retirement account. Also identify marital property you are happy to give up.

If you cannot reach an agreement, then the court will divide property based on the following factors:

• The length of your marriage
• Each spouse’s assets
• Each spouse’s individual debts
• The nature of the property, such as how easy it is to convert it to cash
• The tax consequences on each spouse
• Whether it is desirable for the spouse with custody to live in the family home
• Any other factor the court finds relevant

Based on this analysis, a court might not divide your property 50/50. For example, a spouse with less separate property and more debts might get more.

Many of our clients wonder who should file for divorce first and whether there is an advantage to be named the Plaintiff (the filer of the documents) or the Defendant (the spouse that would be served with the complaint). A critical issue with filing for divorce is the restraining order that may be put in place if requested by either party.

If you are the party filing the document, you control when the restraining order is put in place and when the assets are frozen. Accordingly, it is appropriate to be proactive in planning when you would like to file for divorce and not be subject to the surprise filing of the other party.

This may happen if the parties are contemplating filing a dissolution and one party is not negotiating in earnest and rather is using that as an opportunity to have a surprise filing in order to obtain a restraining order first. In a case where a marriage is being terminated, the restraining order is an order issued by the court that indicates the parties cannot liquidate assets without the court’s authority while the separation is pending.

Oftentimes, someone who is proactively attempting to separate may attempt to drain a bank account, file for divorce, and restrict the other spouse from utilizing any other assets in their defense of the case or for other purposes. Accordingly, if you are contemplating filing for divorce, it is important to obtain legal counsel to develop a strategy so that you can be proactive in your divorce case.