Legal Process

2021 Legal Process Page

DIVORCE FACT Approximately 5% of divorce cases go to trial. This means that 95% of cases are settled with both spouses cooperating with each other, individual or mutual attorneys, mediators or other methods.

Details: DMK Editorial; Legal Process; 06 June 2021; Hits: 1068

There are numerous ways to divorce. It will be important to know each option available in your state in order to choose the right divorce plan for you and your spouse. We have listed several methods below. This list may have options not offered in your state. It may also not include options available in your state. It's important to discuss state laws with a local attorney as they pertain to your specific circumstances.

DMK Knowledge

Is there a way to change my Divorce Decree?

Modification

In some cases a modification can be requested based on one or more consistent, material changes in circumstances and/or the best interest of the child(ren) (e.g. job loss or transfer, chronic illness, changes in financial situation, etc.)

In most states, to initiate the process, a motion to modify would be filed in the same court that issued the Final Judgement of Divorce (Divorce Decree).

There are state specific guidelines as to what qualifies for a possible modification and what terms of the judgement may be modified. If both parties are in agreement and the court feels sufficient time has passed since the original order was established, the modification is relatively straight-forward. A judge must still approve the request for modification. If both parties are not in agreement, the case is more complicated costly and time consuming.

Modifications are usually for spousal or child support, custody/visitation. Most often, the courts will not modify the terms of the decree regarding marital property division. In some states, exceptions may be possible (e.g. both parties are in agreement to modify those terms, the decree includes the possibility of modification of those terms) but a judge must still approve the request.

A request may not be approved if it has been filed to soon after the date of the original order and/or the terms were established in a settlement agreement rather than by a judge.

The law is complicated

As always, state laws vary as do individual cases; consult a local attorney for details and/or the local courts for filing instructions.

Appeal

An appeal is specific to wrongdoing rather than changes in current circumstances.

One should consult with a local attorney for clarification of permissible grounds in his/her state and further understanding of the laws as they pertain to his/her reason(s) to overturn the court order (e.g. the court made an error when applying the law to the case or there's new evidence).

In most states there is a limited time period (anywhere between 30-90 days - state specific) to appeal. It’s uncommon to win an appeal of a divorce judgement that’s been fully executed by both spouses and approved by the court. This is especially true if the terms were established in a settlement agreement between both spouses.

KNOT Fact

Every 13 seconds, someone in the United States files for divorce.

REFERENCE: PEW RESEARCH CENTER & THE CDC.

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Legal Process Facts

1. Debts incurred during a marriage are usually considered marital debts.

2. Responsibility for marital debts is allocated according to the property division laws of the state.

3. If you earn a higher income and/or have lower living expenses the court may consider you to assume a higher portion of the marital debt.

4. Interrogatories are written questions the spouse must answer in writing, under oath.

5. Depositions are when a spouse or party must answer questions under oath before a court reporter.

6. Many times depositions are requested when there are suspected hidden assets.

7. When one spouse’s legal team requests the other spouse to produce documents like bank statements, tax returns, financial documents or otherwise it is known as a request or notice for the production of documents.

8. Subpoena orders a witness to appear before a court or at a deposition.

9. Requests for inspection is when a spouse is in possession of some asset or financial documentation relevant to the settlement and the other spouse has reason to review or otherwise inspect or have access to them.

10. Hiding assets can have criminal and civil consequences.

11. It is very expensive and complicated to appeal your Final Judgement of Divorce (Divorce Decree). There usually must be compelling circumstances specific to legal error, abuse of discretion and/or fraud. Most have a low chance of success. There are often time limits to file an appeal.

12. Formal Modifications to your Judgement of Divorce (Divorce Decree) may be made and are generally straight forward when both spouses agree. A Petition to Modify must still be filed and the modification must be granted by a judge. If both spouses do not agree, then the spouse seeking the modification would need to demonstrate to the court a convincing and on-going change of circumstances (e.g. loss of job, job transfer, medical event) as a reason to seek the modification. If you and your spouse agreed to a Settlement Agreement, the court usually will expect a reasonable amount of time to have passed in order for there to have been significant changes to induce the Petition to Modify.

Divorce and Tax Tips

1. According to the congressional revenue act, TCJA (Tax Cuts and Job Act of 2017), signed into law by former President Donald Trump, you may no longer deduct alimony payments as established in divorce or separation agreements, executed or modified after Dec 31, 2018. Consequently, recipients of alimony established in these agreements will not need to report alimony as taxable income.

2. If your spouse is uncooperative in regard to filing your current tax return, in most cases you should file separately despite a pending divorce.

3. You can amend two separate returns later, but you can not amend the joint return to two single returns.

4. To file jointly you must be married up to and including the last day of the year even when living apart. The last day of the tax year is December 31.

5. You can file under the single filing status if you are legally separated, single or your marriage has been annulled by December 31 and be eligible for head of household status

6. Signing a joint tax return holds you and your spouse jointly and severally liable for any taxes due on that return. This includes tax not correctly reported and found later by way of audit and/or assessment.

7. If you receive a tax refund on a joint return, the money could be considered marital property and be divided according to the division of property.

8. Your children must live with you at least half the year in order for you to claim head of household status on your tax return.

9. Only one parent is allowed to claim the child tax credit. IRS tax rules determine which parent will be the one qualified to do so, but often it is the one with the majority physical custody. In some cases, you and your spouse can negotiate to share the credit by alternating years or by selecting different credits for each dependent.

10. If you are married and in the process of divorcing, you can file under married filing separately or married filing jointly. You may not file as single.

11. Legal fees from a divorce are usually not deductible. However, you may deduct legal fees that were paid to establish or collect alimony.

12. If you change your name when divorcing, remember to contact the Social Security Administration and get a corrected card. Otherwise, your next tax return will probably be rejected and, if applicable, your tax return delayed if your name on your tax forms isn't the same as the name on your social security card.

13. According to the IRS, if you have a capital gain from the sale of your primary residence, you may qualify for a deduction of $250,000 if your filing status is single or up to $500,000 if you file a joint return with your spouse. More information can be found in Topic No. 701 Sale of Your Home on www.irs.gov.