Family Law F.A.Q.
FREQUENTLY ASKED QUESTIONS
What is the difference between a divorce (aka dissolution) and a legal separation?
In general, a Decree of Dissolution terminates a marriage (a divorce), whereas a Decree of Legal Separation does not terminate a marriage, but creates legal duties and obligations upon the parties. Some individuals may choose to initially file for a legal separation which may later convert to a dissolution.
Does a legal separation prevent a divorce decree in the future?
Generally, a legal separation, which is either by a decree or agreement of the parties, will not prevent the court from entering a dissolution in the future. However, the parties’ may be required to wait for a period of time before a legal separation can be converted to a dissolution.
Is a legal separation required before a divorce decree can be granted?
No, a party may initially file for either a legal separation or initiate a divorce proceeding.
How will a prenuptial or a postnuptial agreement affect a dissolution?
Prenuptial and postnuptial agreements are contracts which have been entered into prior or just after marriage. These agreements must be reviewed to determine how they will affect the division of assets and debts. Unless the terms of the agreement are “unconscionable” or there is a substantial change in circumstances, the courts are generally precluded from modifying the terms of the agreement.
Am I entitled to spousal maintenance (alimony)?
Spousal maintenance is based on a number of factors: 1) The financial resources of the party seeking support; 2) The time necessary to acquire educational training; 3) The standard of living during the marriage; 4) The duration of the marriage; 5) The age, physical and emotional condition, and financial obligations of the spouse; and 6) The ability of the spouse to meet the needs of the party seeking support.
The court will not consider misconduct of either party when ordering spousal maintenance.
Will the court evenly divide all assets of the marital community?
The court will make a just and equitable division of all property after considering all the relative factors of the marital community, including 1) The nature and extent of the community property; 2) The nature and extent of the separate property; 3) The duration of the marriage; and 4) The economic circumstances of each spouse or domestic partner.
Essentially, the court can make a division of the assets as they deem appropriate, given the economic circumstances of each party, the future earning potential, as well as considering the housing needs of the children. Because the statute is vague, the court has broad discretion to make a disproportionate award of property. In the event the family home is occupied by the parent residing with the children a majority of the time, the court may consider the housing needs of the children and make a disproportionate award based on those considerations, among others.
How does the court determine what is community property, and what is separate property?
Separate property is property that is acquired prior to marriage, or inherited or received as a personal gift during the marriage. However, the inheritance or personal gift must be kept separate from community assets during the marriage.
Community property is property or assets that are acquired during the course of the marriage. The “character” of property can be confusing when there is a mix of separate and community property. For example, an individual may have purchased a home prior to marriage. For purposes of the property division, the value of the home at the time of marriage will be considered separate property. However, any increase in the value of the home during the marriage, would be considered community property.