Ten Questions Frequently Asked About Divorce
Law Offices of
Pacifico M. DeCapua
1. How much will my divorce cost me?
Most family law practitioners, including us, charge for an initial consultation, but each lawyer may decide on a case-by-case basis as he or she wishes. As for the divorce, some lawyers may charge a flat fee, but this is unusual because it is difficult to say with certainty what the total cost will be. We can discuss certain cost parameters and an hourly rate, but your spouse's behavior will have an impact on time and, therefore, cost.
2. How long will it take me to get divorced?
Again, this cannot be predicted with certainty because a lot will depend on the behavior of your spouse (and you, of course). If one or both of you is unreasonable or litigious, the case will take longer. Unfortunately, the behavior of the spouses' lawyers may also lengthen the process. An uncontested divorce could take as little as one month, a contested asset or custody case a year or two.
3. Can my spouse prevent the divorce? Will I have to go to court?
No, your spouse cannot stop the divorce. Divorce is unilateral, i.e., you cannot be compelled to stay married to someone. Your spouse can delay the divorce, however, if determined to be difficult. Also, your divorce probably will not involve a trial. Most divorces settle, as they should. Trials are costly-both in terms of emotions and finances-and should be only a final resort to determine serious disputes.
4. What about custody of the children?
Typically, even today, children remain with the primary caretaker parent, who is usually the mother. However, this is not set in stone, and the court can award custody depending on the "best interest of the child." Getting sole legal custody is difficult and does not automatically convey the right to permanently remove the children from the Commonwealth.
5. What about support for the children and spouse?
Child support is mandated pursuant to the child support guidelines and can be calculated quickly based upon your and your spouse's gross incomes. Alimony can be awarded for any duration, including life, depending on the circumstances. Alimony awards are usually a combination of the needs of the parties and a percentage of the obligor's income. Wage assignments, if the obligor is employed, are now mandatory for child support (unless suspended by the agreement of the recipient) and prevent nonpayment. If payment is in arrears, you can file a complaint for contempt.
6. Can we date during the divorce?
Use common sense and be discreet. If there are no children and you are separated, it probably will not prejudice the court against you, but it may anger your spouse and make negotiations more difficult. If you have children and custody is at issue, do not date if you are the custodial parent, at least in the presence of the children. If you do not have custody but do have visitation, your companion should not be with you when you have the children. Quite frankly, a "significant other"-of either parent-is upsetting to children, particularly in the early stages of separation. Many judges will order that no third-party companion be present when the children are with you.
7. My spouse will try to cheat me financially, so what can you do about it?
We can act quickly to "freeze" known assets on an ex parte basis and restrain your spouse from selling or hiding assets; appraise assets to prevent them from undervaluation; check sources of income from bank records, tax returns, credit card statements and the like; and consider lifestyle and expenditures to impute income. However, if your spouse is very slippery and very determined, discovery will be costly-and still something may slip between the cracks.
8. Can he or she get my inherited property?
Probably not. Particularly if the marriage is short, most judges like to leave family assets with that spouse but may compensate in dividing other assets viewed as "joint." Since all assets, however acquired, whenever acquired and regardless of title are by statute subject to division, do not assume that any asset is safe from division.
9. What happens to our health insurance?
The children will remain covered by present health insurance. The divorced spouse also is covered at no extra cost, until such time as the insured remarries. At that time, the divorced spouse may continue on the plan, but it is usually specified that the additional cost will be paid for by the divorced spouse. However, this statute, G.L. c. 175, § 110I, does not apply if the employer is a self-insurer. In that case, the federal COBRA regulations apply. They provide short-term coverage, usually 18 months, at an immediate and substantial cost to the divorced spouse. (Health insurance is an increasingly important issue: the cost is escalating, and fewer parties have low-cost, continued coverage.) If alimony is awarded, judges must also require that the obligor obtain or reimburse the spouse for the cost of health insurance without reducing the alimony award. G.L. c. 208, § 34.
10. Who will pay for college?
College costs are a troublesome issue, and the answer is far from clear. You may both agree to share the costs in some equitable way, depending on your respective financial circumstances at the time. It is not a good idea to commit yourself to a specific percentage or amount unless the costs are certain and the funds are not in doubt. However, a vague agreement may have to be litigated when the time to pay up arrives. Perhaps the separation agreement could contain language that you and your ex-spouse begin negotiations at the start of the child's junior year in high school to avoid "under the gun" agreements the following year. The court does have authority to enter orders until the child reaches age 23, although what financial arrangements will be ordered varies from judge to judge.
Last modified: April 2, 2013