DIVORCE

+ What happens after a divorce is filed?

Discovery

A divorce, like any other lawsuit, seeks to have an impartial person resolve all the issues upon which you disagree. After a divorce is filed, therefore, much of the focus is on gathering information to prove to this person (the judge) that your version of the events of the marriage is correct and that the property division, custody allocation, etc. should be decided the way you propose. This is done through the “discovery” process. Each party can use various techniques: written questions, document requests, and oral interrogation (deposition) to obtain the documents and other information necessary to prove his/her case to the judge. Discovery can be done from the opposing party and from third parties in order to obtain information. Remember that just because you believe you know something doesn’t mean that the judge knows it. Facts that you want the judge to find as true must either be admitted by the other spouse or proven by you.

Temporary Orders

Often, there are issues in a divorce action that must be determined quickly and cannot wait months for a trial.

If, for example, the parties are separated, living in different homes, and each one states that they want to have the children live with them Monday through Friday, this is a matter than often cannot wait. If one party does not have money to hire a lawyer, but the other party is very well off, that also needs to be dealt with quickly. The same is true if one party lives with the children but has no source of income other than the opposing party. The Court will not leave the children not knowing where to live, or a party and/or the children in poverty until the end of the case. Such questions are dealt with by way of “Temporary Orders.” Either party can apply for a temporary order of the court by submitting a written “motion” to the court asking the court to do make some arrangement temporarily. That “motion” is sent to the other party in advance of the hearing, and a hearing date will be assigned, at which time the Court will hear orally from both parties and consider the “motion” and other evidence submitted.

Pre-trial and Trial

After the evidence-gathering period (the “discovery period”) is ended (often the Court will determine a specific discovery period based upon the complexity of the issues), there will be a pre-trial, at which time the judge attempts to help the parties settle their remaining differences. At that time, all relevant information will have been gathered, so the parties or their counsel can speak knowledgeably about what can and cannot be proven. If the remaining contested issues are not settled on or before the pre-trial, a trial date will be scheduled.

Trial

Trial is the final stage in any case that is not completely settled. Witnesses are called by the parties to the courtroom and questioned in the presence of the judge and the other spouse. The judge considers all the documents submitted at trial and all the witness testimony (including that of both spouses) and renders a decision, sometimes months after trial.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ How does the Court divide our property?

Here, the states vary greatly; and there are many classes of property that can be divided.

You need to find out two things: (1) what is the method your state uses to divide property, and (2) what does your state say is included in the divisible property. Some states are “equitable division states,” meaning they do not divide property “equally,” but “equitably,” in accordance with certain factors. In some states, for example, if one spouse has aged parents who are quite wealthy, that spouse might receive less in a property division because there is a reasonable opportunity for that spouse to inherit a great sum soon. Likewise, in an equitable division state, if one spouse is infirm and cannot work or is much older than the other, that spouse may be eligible for a greater share of assets. Other states have rules that any assets acquired during the marriage are divided equally, while assets acquired prior to marriage are separate property of the spouse who acquired them.

Some states exclude inheritances from marital property; others do not.

Most states do have rules that include pensions and other retirement assets. Pensions can be divided such that the spouse who did not earn the pension through employment can participate in the payout nonetheless. Military pensions may be treated differently.

If one spouse owns a business, that business is usually valued by a professional business appraiser, and the amount determined to be the value of the business is marital property that can be divided.

Money in trust for a spouse might or might not be divisible in a divorce. The matter often has to do with how much discretion that trustee has been given by the trust document to distribute money to the beneficiary. If the beneficiary could, perhaps, take nothing because the trustee decides to distribute all the funds to the other beneficiaries, then the trust is not likely to be considered a marital asset. In general, there must be an enforceable right to the funds in order that they be considered marital assets. If, for example, the beneficiary spouse is to receive funds upon the death of another person, according to the trust, then this is an enforceable right, and the trust would be marital property. How much the trust is worth, however, will still be open to question, since it may be years before any funds are distributed.

In equitable division states, it seems to be the rule that the longer the marriage, the more the Court tends to divide the assets equally, no matter where they came from. In short marriages, the court tends to give back to the parties what they brought to the marriage.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What happens to our debt?

In a divorce, the court divides not only the assets, but also the debt, without regard to whose name is on the credit card or loan. If debts were incurred for vacations that both people attended, that is marital. If, however, there is a debt incurred for a car that one spouse is keeping, that spouse should take on the debt. If there is a large gambling debt on a credit card, that will likely be taken by the person who incurred it, unless the gambling was a longstanding custom in the marriage that both parties knew about and concurred in. In such a case, the “innocent spouse,” may nevertheless be ordered to take on some of the debt.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ Can I sell property or transfer or cash in investments after a divorce is filed? What if my spouse does this?

Once a divorce is filed and served upon the opposing spouse, some jurisdictions forbid the liquidation of personal assets, except perhaps to hire a lawyer and pay ordinary living expenses. Some jurisdictions have no such prohibition, so such an order must be requested by a party. If you believe your spouse is possessed of substantial assets that might be sent to a foreign country or given to another family member to avoid being distributed in the divorce, you may want to approach the court quickly and obtain an order restraining the use of assets.

If no divorce has been filed yet, taking a sum of money from the joint bank accounts, even a very substantial sum, may be reasonable, especially if this money is necessary for you to live until the court can make a decision on support. If money is removed from joint accounts, you should deposit those funds in a separate account so the use of the funds can be disclosed and tracked.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ Is there a rule concerning payment for health insurance for my spouse and children?

It seems universal that the court wants to see that children of a marriage have health insurance. If one person has such insurance from employment, that spouse will generally be required to keep it in place for the benefit of the child during and after the divorce.

If there is a “family plan” in place, the Court usually orders that the spouse continues to be covered as well, both during and after the divorce. Most states have “continuation” statutes for health insurance so that insurers must continue the coverage for the divorced spouse if the Court orders it. This does not apply to so-called “self-insured” plans. You need to check with your plan administrator carefully to see what the company policy is concerning health insurance.

Generally, courts will not require one spouse to cover the other after the divorce if there is no company plan available. If the divorce becomes final without there being a company plan in place, new employers will not permit the coverage of the ex-spouse. It is the “continuation” of such a plan existing while you were married that is generally mandated. If one spouse, after the divorce, is sufficiently wealthy, however, there can be an order to cover the other spouse, even if this means buying a separate policy.

When the employee who is covered by an employee policy remarries, there is often an opportunity for the ex-spouse to continue on the other spouse’s insurance plan by the addition of a rider or separate plan, but at a reduced cost. Often, the non-employee spouse will have to pay the freight for that coverage. When the non-employee spouse remarries, he/she will be off the policy of the ex-spouse.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What if I have a dispute with my lawyer or feel my lawyer is not doing a good job?

Lawyers are not like ordinary business people with whom you have a transaction. They have a very special duty to their clients to diligently pursue their claims and defenses within the bounds of the law and to not take any actions that may jeopardize the client’s legal position. They are required to communicate with you in a timely manner and keep everything that you communicate confidential, whether those communications are oral, in writing, through documents provided, etc.

If you feel your lawyer is not doing a diligent job or not communicating with you in a manner that you understand or in a timely manner, you have the right to change lawyers. You have a right to the return of your file promptly so that you can provide it to another lawyer. The only portion of your file that must be returned to you, however, is the portion you have paid for. If depositions were taken, but you did not pay the fee for those or the stenographic costs, those transcripts are not required to be returned, in general.

Your lawyer cannot represent both you and your spouse simultaneously, even if your divorce is uncontested. If your lawyer did represent you and your spouse while you were married to give you tax advice, for example, even years ago, that might be a reason to disqualify that lawyer from representing your spouse now. That would apply even more so if that lawyer talked with you concerning a possible divorce and then was hired by your spouse. Such a matter as the disqualification of a lawyer will have to be taken up with the judge.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ Can I modify my previous divorce judgment?

Usually, child support, health insurance, and other child-related provisions are modifiable upon a showing of a substantial change in circumstances of one or the other parties. Usually, the division of property is not modifiable, and alimony (spousal support) may or may not be modifiable, depending upon the particular provisions of your divorce.

Modification requires a separate court filing, and ultimately, pre-trial and trial, if one or more issues cannot be settled.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What if my spouse does not obey the temporary orders of the court or the judgment of divorce?

If a spouse does not obey the orders of the court, then the other spouse can file for contempt. This is usually a separate action where the papers are filed and then served upon the other spouse, with a hearing date set separately from the divorce. If a required payment is not made, if child support or alimony is in arrears, or if parenting time is denied, for example, contempt may be brought. One should request to be reimbursed for counsel fees and the costs associated with the contempt, as no court proceeding would have been necessary but for the failure to abide by the lawful court order. Usually, a “clear and unequivocal” order is required for contempt, along with an equally “clear and undoubted disobedience,” so if a payment is to be made by one spouse, but there is no due date in the Court order, a contempt will usually not stand. A contempt will also will not be available to force one spouse to see his/her children according to the parenting arrangement. If a parent continues to be a no-show at times ordered or agreed upon for parenting time, the more appropriate route is to change the schedule through court order, rather than to bring a contempt.

If you have joint legal custody and your spouse refuses to communicate with you or makes major decisions without your input, you can file a contempt case as well. Joint legal custody carries with it an obligation to confer and make joint decisions.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What is the procedure for obtaining a divorce?

In most states, there are generally two procedures: one for an “uncontested” divorce, and one for a “contested” divorce. If the parties are in full agreement about all the terms of their divorce, they can file “uncontested,” meaning they submit their written agreement, financial statements, and certain other documents. They will then be required to appear once for a hearing in which the judge ensures that the agreement was signed voluntarily, is fair, and contains reasonable provisions for the protection of the child, including, among other things, health insurance.

If one or more issues (for example, custody, division of property, or the parenting plan) is in dispute, the case is “contested.” The parties can submit a partial agreement for divorce either sooner or later, but the contested issues will be finally determined by the Court at trial.

If there were contested issues when the divorce began, but those contested issues were all resolved during the case, the divorce can again become uncontested. All issues are either settled by agreement or go to trial, where witnesses testify.

- Jerome L. Aaron, Attorney at Law, Massachusetts