- How Long Will it Take me to get a Divorce?
- Who Will get Custody of our Children?
- If I am not Married to my Child’s Mother, can I Still get Custody or Visitation?
- Do my Bills Matter to the Amount of Child Support I Must pay?
- Will I Have to Move out of our House?
- What Happens to our Property?
- Who Will pay our Bills While we are Divorcing?
- Do I get Alimony if my Spouse has Committed Adultery?
- When can I Date Again?
- Can a Grandparent or Other Relative get Custody of a Child?
- Is my Spouse Entitled to a Share of my Company Retirement Benefits?
- Is my Spouse Entitled to a Share of my Social Security benefits?
- How Does the Firm Charge for its Services?
In the case of a no fault divorce, the law requires that parties live separate and apart for 180 or 365 days depending on whether you and your spouse have minor children born of the marriage. Procedural rules impose additional delays as does the schedule of the individual judge to whom your case is allotted. Once parties have lived separate and apart for the requisite period of time, a case can take anywhere from 30 days to several months to finalize.
Physical custody of your children and the right to make important decisions about them can be the subject of an agreement – if you and your spouse can agree. If you cannot agree, a judge will make the decision based on the children’s best interests.
Yes, if you can establish that you are the child’s father and if you can prove that the child’s best interests will be served if you have custodial or visitation rights.
No. Child support is calculated based on the gross monthly income of both parents. In truly exceptional cases, a court may depart from the table used to figure child support. A parent’s ordinary cost of living does not justify a departure from the table.
Divorce requires that you and your spouse live “separate and apart” for a specific period of time. This means someone must leave the family home. If the two of you cannot agree, courts have the power to assign the family home to one spouse to the exclusion of the other pending the division of marital property. Your circumstances (e.g. minor children, years lived in the home) determine whether that person should be you or your spouse.
In most cases, property acquired during marriage is community property. Each spouse owns an undivided one-half of each asset. Divorce ends the community property regime and makes the spouses ordinary co-owners. Co-owners have the right to demand a partition of co-owned property. They may do so by agreement or ask that a court divide it. Pending a partition, there are rules that govern which spouse may possess and use marital assets.
Both you and your spouse continue to be liable for community debts during and after a divorce. In most cases, the person whose interests are at stake (e.g. the person living in the family home) takes the initiative and pays the debt. If you use your separate property to pay a community debt, you may be entitled to reimbursement for part of the payment.
Before divorce, spouses may be entitled to interim support. Interim support does not depend on fault. Even a spouse who has committed adultery may be entitled to receive it. Final spousal support may be awarded to a spouse who is “without fault” in the break-up of the marriage. However, one spouse’s adultery does not negate the other spouse’s “fault”. If you were at fault in the break-up of the marriage, your spouse’s adultery does not entitle you to final support.
Once a petition for divorce is filed, dating and even having sex with another person does not constitute fault in the break-up of the marriage for final spousal support purposes. You may wish to refrain from such relationships for other reasons, however. For example, such relationships may make your spouse angry and bitter and more difficult to deal with during important negotiations about child custody, support, and property.
A person other than a parent may be able to obtain legal custody of a child. That person must be able to prove that the child’s welfare is so seriously threatened by continuing to live with the parents that it is necessary that he or she live with another relative. For example, evidence of physical abuse or neglect due to drug use may support a demand for custody by a non-parent. Disagreements over parenting styles or lifestyle choices are generally not actionable.
Although there are exceptions, if you or your employer made contributions to an account such as a 401K during your marriage, those contributions and interest earned on them are probably community property. Similarly, if you earned credits toward a pension during your marriage, part of that pension is probably community property. The partition of retirement benefits upon divorce is complicated and often has tax consequences.
The law does not allow you or your spouse to make a direct claim against Social Security for benefits attributable to community earnings except in accordance with federal law. Your spouse may be entitled to a credit for the community’s contributions to your Social Security benefits, but the rules applicable to this claim are complex and should be discussed with your attorney.
“A lawyer’s time and advice are his stock in trade.” A. Lincoln.
Mr. Cosenza generally charges for his time and advice by the hour. In some cases such as uncontested divorces with no requests for incidental relief (e.g. child or spousal support), Mr. Cosenza may charge a flat fee. All clients must pay an initial retainer. All clients must sign a fee agreement. Itemized statements of services rendered and costs advanced are sent to clients on a monthly basis.