It isn't uncommon to not know what to ask a divorce attorney during the first interview. After all, divorce isn't something we do routinely (at least for most). So, we put together a list of the big questions to get you started.
While the answers aren't absolute since divorce laws vary by state, we provided questions with general answers meant to be verified by an attorney in the state where your divorce is filed.
10. How long does a typical divorce take?
In some states, if all the terms are already agreed upon before hiring an attorney, a divorce could be completed as quickly as 60-90 days.
Divorces where spouses: have yet to establish a separation and/or settlement agreement, require alternative dispute resolution, plan to go to trial or utilize a collaborative practice method may take anywhere from 60 days to multiple years.
Some other common holdups could be (but not exclusive to) an overscheduled court docket, separation period requirements, other state requirements and pregnancy.
These delays are not inclusive of every scenario, but the key in this answer is that divorces where both spouses are already in agreement prior to the initialization of the legal divorce, or shortly thereafter, always move faster than those that are not.
9. Can a spouse be awarded more than half of the couple's assets?
The most relevant fact pertaining to this question is whether the divorce is filed in a Community Property State or Equitable Distribution State because each classification determines how the state views ownership and distribution in divorce cases.
However, in most states, a judge has the power to rule outside of the typical interpretation of state laws. Hiring a local attorney who has experience of bringing cases before specific judges in the Circuit for which your divorce will be filed will be helpful if your case goes to trial. He/she will be able to provide advice as to how these judges typically rule in cases like yours.
Another key element is whether the assets in question are separate- or marital assets. Generally, separate assets are those acquired before the couple was married and are not included in the division of debts and assets.
8. Does a spouse's separate assets have a bearing on how marital assets are divided?
A judge may consider one spouse's separate assets, gifts during marriage (to one spouse only) and/or irrevocable trusts that are not part of the allocation of marital debts and assets when making his/her decision regarding the allocation of marital assets and debts.
This may result in the less advantaged spouse (one with less separate assets) being awarded more than an equal division of the marital estate and/or what some may think fair in Equitable Distribution states (if the judge only considered marital assets in his/her decision-making process).
7. Can a spouse sue another for adultery?
This depends on the state in which the divorce is filed. Some states are "no-fault" states whereas only one ground exists, an Irretrievable Breakdown of Marriage.
However, one spouse's behavior during the marriage may be considered and may affect the outcome on that basis.
Otherwise, the answer is, yes, in states where adultery is a ground for divorce; it can be listed on the Petition for Divorce as a ground for divorce. But the Respondent usually has 30 days to respond to the Petition and can contest any ground listed.
Even if your state is a no-fault state, consult a legal professional or contact the circuit clerk to determine if fault-based divorces are still an option.
6. Does the Respondent to a divorce lawsuit need to be served with their divorce papers or can the Petitioning spouse just give him/her the divorce papers?
Again, this is based on the state and Circuit in which the divorce is filed. In many cases, an attorney can file a Waiver of Service if the couple wishes to avoid one spouse having the other served.
Otherwise, a sheriff or process server will deliver the bad news. A sheriff is much less expensive but may take longer and occur at a time or place that is less than ideal. A process server will typically serve the papers according to the petitioner requests (where and when).
An attorney can usually arrange any of these scenarios.
5. Can a spouse leave the state with his children before the divorce is final?
Depending on the circumstances (such as vacation), in most cases, yes. But effective communication with the other parent and the vacationing spouse's attorney is obviously a good idea.
Usually, parents cannot permanently move children from their residence without the courts' permission (or in some cases, at all).
This issue is incredibly important, so make sure you talk to an attorney or refer to your local courts' website for details about state and local laws.
4. Can a spouse move his/her divorce to her residing state instead of his/her spouse's residing state?
Unless his/her state has jurisdiction over the parties to the action, the couple's children reside in his/her state- most divorces will remain in the state in which the case was filed. However, it may be possible to move the divorce to a different county within the state where the divorce was filed. An attorney in both states state should be consulted.
3. Can moving in with someone before a spouse is divorced affect the outcome?
Living with other people, to include those with whom they have a physical relationship after separation, can affect a spouse's divorce.
If a physical relationship began prior to the couple's separation and other evidence/witnesses are brought before the court, in demonstrating a spouse's adulterous behavior during the marriage, there may be an impact on the judge's decision to include the division of the marital estate and/or support.
Also, regardless of a physical relationship, a judge usually considers the shared household expenses (often lower when one spouse lives with someone else, instead of alone) and may award less support to a spouse with a live-in or require more support from a spouse with a live-in to be paid to the other spouse living alone.
Finally, since most cases in the US are settled outside of court, upsetting a soon-to-be ex with a new live-in girlfriend or boyfriend may be one of the dumbest strategies in the history of mankind when negotiating a settlement.
2. How will child support be determined?
Both parents are responsible for child support, so adjustments are usually made according to specifics related to the couple's finances, each spouse's earnings and details related to the children. Most states have child support guidelines that, along with the specifics listed above, are the basis to establish support.
However, any amount can be established in a Parenting Agreement negotiated outside of court. Otherwise, the courts issue support in the best interest of the child(ren) but usually begin their basis of judgement utilizing the state's guidelines and process of determination listed above.
Most states' court websites and/or local Circuit Courts websites will have information related to the child support guidelines.
1. Do both parents get a custody schedule that gives each parent equal time with their children?
A judge is not concerned with what's fair, equal, or necessarily easier on the parents' wants, needs and personal schedules. He/she is only concerned with what is in the children's best interest. If that means keeping them on a schedule in that they are less negatively impacted but leaving one parent with visitation for only 25% of the week, in most cases, so be it.
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