The basics of a divorce

By Tim Bailey

No one wants to think about the subject of divorce, but statistics show that half of married couples will end their marriage in divorce. If you are contemplating the journey down this road, a few facts may help you in your decision to proceed.

Marriage and divorce are not private acts, rather, they are legal acts...governed by rules set up by the state. The purpose of this article is to provide a very basic overview on the subject of divorce by answering six of the most commonly asked question about the big "D."

1. Should I get a Divorce?
Easily the most commonly asked question and the only question for which the law offers little guidance. This is a deeply personal question and one that I as a divorce attorney try not to answer for my clients. I suggest you rephrase the question to, "Is the marriage irretrievably broken?" If the answer is "yes" than divorce is probably the answer.

2. Do I need a lawyer?
If there is a minor child involved, absolutely "yes." If the marriage is a long-term duration of more than 15 years, the answer is again "yes." If the parties cannot agree on how the marital assets and liabilities should be distributed, "yes." If the marriage is of duration of less than 15 years, there are no minor children and the parties have mutually agreed on how the assets and liabilities should be divided, then it is not imperative to involve lawyers. Most states have set up simplified procedures using printed forms available at the courthouse to help people secure a divorce without having to use lawyers.

3. How long does it take to get divorced?
This depends on the level of agreement between the parties on all issues. If the parties agree on everything (custody of children, visitation rules, what to do with the house and furniture, who pays the bills, what about alimony, etc., etc.), the divorce can be completed with 30 days. If there is a high level of disagreement on the issues, the whole matter can take as long as 18 months to 2 years. There is no reason a divorce case should ever take longer than 2 years to complete. The average length of a divorce case involving minor children is 9 months, less if no minor children.

4. How much does it cost?
The court-filing fee is usually in the neighborhood of $200. If no lawyers are involved, a divorce is not expensive to secure. However, there is no getting around the fact that lawyers are expensive and most divorces involve lawyers. Most divorce lawyers will require an initial retainer ranging anywhere from $1,000 to $5,000 depending upon the facts of your case. Lawyers are paid for their services on a time basis, usually in the area of $200 to $300 per hour. The specific terms of agreement you enter into with your lawyer are subject to negotiation and are not fixed by law. Since lawyers bill by the hour, the longer the divorce proceedings the more the expense. Keep in mind that the judge in the divorce case always has the discretion to require one of the parties to pay all or at least a portion of the fees incurred by the other party if there is a sizable discrepancy in the incomes of the two parties.

5. Who is going to get custody of the children?
Public policy favors the concept that a minor child should have frequent contact with both parents after the divorce. However, the court still must address the child's primary place of residence if the parties are unable to resolve this critical issue on their won. In order to answer this question, the court will apply the best interest of the child test. No presumptions exist in favor of the mother or father. This is easily the most important issue involved in any divorce case dealing with children and that is why the court strongly encourages the parties to resolve the issue on their own and not ask the judge to answer the question for them.

6. What about alimony?
First it is important to understand that the purpose of alimony is not to punish, rather it is to allow the payee spouse to be maintained in the style he/she has grown accustomed during the marriage. The two most important factors in determining if alimony is appropriate are duration of marriage and discrepancy in financial situations. Not often will a court award alimony falling a short-term marriage and almost never if the relative financial situations of the two parties remains the same following the divorce.

There are two types of alimony, rehabilitative and permanent. Rehabilitative alimony presupposes a potential for self-support that was not lost during the marriage. Rehabilitative alimony serves as an incentive for self-sufficiency and is usually awarded for a period of time between 6 months and 3 years. The length of time depends upon the facts to the case. The amount is calculated in light of the payee's needs and the payer's ability to pay. Permanent alimony is an amount of money to be paid regularly until the payee dies or remarries. Permanent alimony is appropriate when a party has demonstrated that he/she will be unable to become self-supporting in the future.

Tim Bailey is a divorce attorney based in Pompano Beach, Fla. Tim is also the father of four.