Posted by DivorceLine in What is a Divorce Decree?
Your final decree of divorce is the court’s formal order granting a termination of your marriage. If your case goes to trial and the judge issues a judgment, the judgment is confirmed when the decree is signed and dated by the judge and court clerk.
Understanding Your Divorce Decree:
Most divorce decrees will cover the following five issues:
1) Alimony
Question: How Do The Courts Determine Alimony? What do the courts take into consideration when determining if alimony and whether or not it is paid?
Answer: Ability to Pay:
The first consideration when settling a spouse’s alimony obligation would be the ability to pay alimony. The court looks at the spouses gross income and reduces it by subtracting all mandatory deductions to come up with the net income.
Mandatory deductions are things like income taxes, social security and health care. The courts do not consider things such as union dues or work related social dues as mandatory and will not deduct them from the gross salary. The courts put a higher priority on support payments than voluntary debts and would rather see voluntary debt not paid than have a spouse go without adequate support.
Ability to Earn:
Both spouses ability to earn is taken into consideration when it comes to alimony. The courts not only consider what a spouse actually earns but also considers what the potential for earning is.
Ability to Self – Support:
Whether or not a spouse has marketable skills and is able to work outside the home is something else the courts take into consideration. Having custody of pre – school aged children and no access to daycare could make it impossible for a spouse to work outside the home.
The ability to be self – support differs from actually being self – supporting. If a spouse has marketable skills but refuses to look for work, the court is likely to limit the amount of alimony and the length of alimony.
In many states, no alimony is awarded if both spouses are able to support themselves. If one spouse was dependent on the other during the duration of the marriage, that spouse is often awarded alimony for a rehabilitative period. This could be a time period lasting anywhere from several months to several years.
If a spouse becomes self – supporting before the end of the court ordered support period the paying spouse can petition for the courts to terminate the alimony. In, however, the spouse is unable to become self – supporting during the allotted time he/she may also petition the courts for an extension of alimony. In some states this can only be done to keep the spouse from going on welfare.
Standard of Living During Marriage:
When a court sets alimony, it often considers the standard of living during the marriage and tries to maintain this standard for both spouses where possible. Maintenance of a standard of living is more of a goal when it comes to alimony, than a guarantee.
Length of Marriage:
If a marriage is relatively short and there are no children, the courts often refuse to award alimony. If there are children under school age, however, the courts often award alimony to the spouse who is given physical custody. Most courts feel that a child under school age is better served by having a full time parent at home.
Tax Consequences of the Alimony:
For federal income tax purposes, alimony paid under a written court order is deductible by the spouse who pays and is taxable to the recipient of the alimony. Child support, on the other hand, is tax – free to the recipient and not deductible by the spouse who pays.
Debts:
At the time of divorce, the court allocates debt incurred during the marriage between the spouses based on who benefits most from the asset that came with the debt. If the court orders a spouse to pay a large portion o the marital debts, it often reduces the amount of alimony that the spouse is ordered to pay.
Professional Degree of License:
Courts will not only take into consideration the amount of financial support given during a marriage but, also the amount of emotional support. If a spouse worked and supported the other spouse through school, some states will take this into consideration. The spouse could ask for and receive compensation in the form of alimony for all the years he/she worked why the other was in school.
2. Property Division
Question: How Does The Court Determine If Property is Marital Or Non-Marital Property?
Answer:
The courts have no authority over non – marital property. So, the first thing the court has to do is determine whether they have authority over property. Generally speaking, all property acquired by either spouse before the marriage is considered non – marital property. All property acquired after the marriage is considered property of the marriage or marital property. If the property is marital property then the court must “equitably” divide the property.
Property is presumed to be marital property with the following exceptions:
• Property acquired by gift, legacy or descent.
• Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
• Property acquired by a spouse after a Judgment of Legal Separation.
• Property excluded by valid agreement of the parties.
• Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
• Property acquired before the marriage.
When marital and non – marital property has been combined the process of determining marital property can be quite complicated. For example, what happens when one spouse uses non – marital property to buy a house with the other spouse? What happens when one spouse inherits money and that money is put in a joint bank account?
If a court decides that property is marital property then the court must determine how to “equitably” split the property. State laws differ on the meaning of “equitable” and most states do not consider “equitable” to mean equal.
When dividing marital property most states will consider some or all of the following:
• The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
• The dissipation by each spouse of the marital or non-marital property.
• The value of the property assigned to each spouse.
• The duration of the marriage.
• The economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live in the home for a reasonable period, to the spouse having custody of the children.
• Any obligation and rights arising from a prior marriage of either party.
• Any post – nuptial agreement of the parties.
• The age, health, occupation, amount and sources of income, vocational skills, marketable skills, estate, liabilities, and needs of each of the parties.
• The custodial needs of any children.
• The reasonable opportunity of each spouse for future acquisition of capital assets and income, the tax consequences of the property division upon the respective economic circumstances of the parties.
It is important that you hire an attorney who is familiar with your state’s laws and how your particular court jurisdiction normally handles property distribution in order to help you resolve this very complicated issue.
3. Custody
Legal Custody:
When a parent has legal custody, that parent has the right to make any decisions regarding the needs of the child. The parent can make all decisions about education, health care and religion with consultation of the other parent. In most states, the courts will award joint legal custody so that both parents can retain their legal rights as far as any decisions made about or for their child.
Physical Custody:
Physical custody means that the child lives with one parent with only visitation to with the other parent. If the child spends an equal amount of time with both parents then the state might award joint physical custody giving parents the right to equal amounts of time with the child.
Sole Custody:
In this case, the parent can have either sole legal custody or sole physical custody or both. Unless it is proven that a parent is unfit, there is a trend in the Family Courts to award custody in a manner that will give the non-custodial parent an opportunity to play a larger role in their child’s life. It is very rare in today’s society for a court to award sole legal custody.
Even when the court orders sole physical custody, the non – custodial parent is able to enjoy ample visitation. In sole physical custody, both parents share equally in any decisions made regarding the child’s needs.
Joint Custody:
Joint custody means that custody of the child is awarded to both parents. It is the same as sole custody and can be awarded as joint legal custody or joint physical custody or both.
Custody issues are confusing because the laws and the language used vary from state to state. The way the final decree reads regarding custody and individual state laws determine the meaning of the wording in your divorce decree. DivorceLine.org is a great start when researching state laws concerning child custody and other divorce laws by state. We would encourage any parent going through a divorce to research your state laws pertaining to custody for a better understanding of what to expect.
4. Visitation
With all the issues that two people face when divorcing, deciding visitation may be used as a bargaining tool. When two parents can’t agree on when each sees the child, the child may feel like the center of a tug-of-war. By dealing with the issues concerning the children separately and following a few simple guidelines, visitation after divorce can and will run smoothly.
a) Access to Both Parents
Children who are forced to grow up without free access to both parents usually have problems that show up later. Agree that the child will not be used as pawn, but will have quality time with both parents.
b) Keep visitation regular and consistent.
Having a schedule in seeing the non-custodial parent gives the child time he/she can depend on regularly. Many parents choose every weekend or every other weekend with the non-custodial parent. Parents may also share custody and the child may stay four days in one home and three in the other. Work this out at the time of the divorce, and don’t withhold visitation when angry over other issues. When a child is not allowed to see both parents, he or she suffers the loss.
c) Be willing to compromise during holidays.
Holidays may be a touchy subject, as families tend to want their children to be a part of their holiday celebrations with grandmothers, grandfathers, and other family. This is an area where compromise is usually necessary. One idea is to agree to shift your holiday celebration to the day before or after, allowing the child to enjoy two celebrations without having to make a choice. Parents can also alternate years for holidays, with one child having the child on Thanksgiving Day for example, while the other parent has Christmas Day.
d) Don’t let distance interfere with visitation.
If the non-custodial parent is going to be living some distance away, make definite arrangements as to when and how the child will visit the other parent. In these cases, longer visits may be in order, such as spring break or summer vacation.
e) Make your child your number one priority.
If it’s your time to visit, don’t let other things in your life interfere. There is nothing sadder than the image of a child sitting with a suitcase staring out the window for the parent who doesn’t show. Keep your visits, even if it means you have to reschedule other things. Make your child your number one priority.
5. Child Support
Question: How is Child Support Calculated?
Child support is the most litigious aspect of a divorce case. Most issues that come up during the divorce process are resolved once and for all by the final decree of divorce but child support and issues surrounding it may go on for years after the divorce is final. Each state has it’s own laws and guidelines on how child support is calculated.
Answer:
All states have a formula established or court rules that determine the amount of child support to be paid. Other issues such as misconduct by the parent or how marital assets are split do not affect the amount paid. State child support guidelines take into consideration the following things:
• The needs of the child.
• The ability of the non – custodial parent to support him or herself.
• The standard of living the child would have enjoyed had the parents not divorced.
• Provisions for any additional children the non – custodial parent may have.
Income Based Calculations:
In some states, child support calculation is based only on the income of the non – custodial parent. In other states both parent’s income is taken into consideration. In Indiana, child support guidelines factor in the income of both parents and assign each a share of the child’s living expenses as set forth by the guidelines. However, Massachusetts’s child support guidelines consider only the income of the non – custodial parent. Guidelines for addressing extraordinary living expenses such as college tuition, daycare and extracurricular activities differ by state.
Refusal to Pay Child Support:
As long as a non – custodial parent remains in the same job non – payment of child support is not an issue because their wages can be garnished. However, if this is not the case and the non – custodial parent refuses to pay child support he/she can be sentenced to jail for contempt of court. There are private and stage agencies set up to help a custodial parent pursue a delinquent non – custodial parent. Government agencies have a variety of enforcement tools as their disposal, including:
• The suspension of the non-paying parent’s driver’s license.
• The revocation of any professional licenses the non-paying parent may hold, such as a medical license or license to practice law.
• Seizure of income tax refunds.
Modification of Child Support Orders
You should never simply refuse to pay child support. If there are legitimate reasons you are unable to pay, you should petition the court for a modification of your child support obligation. As well, a custodial parent can petition the court to modify child support if the they feel they deserve an increase. Grounds for modification may include:
• A reduction in the income of either parent.
• A serious illness or disability of either parent.
• A change in your child’s circumstances such as reaching the age of majority or inheriting money.
• A change in the financial circumstances of either parent.
How to Get Your Divorce Decree:
A final decree of divorce is archived in the vital records office of your courthouse, in the county in which you obtain your divorce. In most situations, the court clerk or your attorney will mail you a copy of your final decree. If this doesn’t happen or you need an extra copy you should write to or go to the court clerk’s office and request a copy.
