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; 22 December 2020; Hits: 707

It's important to speak with an attorney in your residing state for guidance relevant to the specific laws and process. Some states require a separation period and/or couples therapy before the process can be completed. Also, depending if your state is a Community Property or Equitable Distribution state, you may also proceed differently. DMK has put together a general process of events, types of divorce and legal guide to provide you an idea of what to expect during the process.

Collaborative

Not offered in all states.

Each spouse hires his/her own attorney to represent each in the divorce process.

The attorneys do not go to court to litigate the divorce, but negotiate the terms of the divorce to include: alimony, child support, custody & property distribution.

Usually this type of divorce is more affordable than other options such as divorce litigation.

Mediated

Not offered in all states.

A mediator will work with each spouse to resolve the negotiations related to the settlement to include, but not limited to: support, custody, asset and debt allocation and other terms of the settlement agreement.

Often, when spouses wish to avoid court or further legal expenses and their attorney's have reached an impasse, they are referred to a mediator.

The couple can hire a mediator independently or one can be appointed by a court or referred by an attorney.

Both spouses share a mutual attorney or a mediator to manage the negotiations of the divorce settlement but does not provide resolution like a judge.

In some states the mediator is not required to be licensed, mandated by any governing board or have formal training.

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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.

Divorce and Tax Tips

1. If your spouse is uncooperative in regard to filing your current tax return; you should file separately despite a pending divorce.

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

3. 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.

4. 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

5. 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.

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

7. 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.

8. 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.

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

10. According to the new law TCJA (Tax Cuts and Jobs Acts), you may no longer deduct alimony payments as established in divorce or separation agreements as executed or modified after Dec 31, 2018. Consequently, recipients of alimony established in these agreements will not need to report alimony as taxable income.