Divorce

Child Issues

If children were born during the marriage, orders must be entered as to those children. This includes custody, visitation, and child support. 


A divorce decree will include orders for conservatorship (custody), as well as possession and access (visitation), child support and medical support. Even if child support has already been set up through the Office of the Attorney General, your divorce will include child support information.


If a child born during the marriage is not the child of the husband and wife, the child must still be included in the divorce. This does not mean that the husband will have visitation or be required to pay child support for a child that is not his. It simply means that the child must be mentioned, along with the fact that the husband is not the father.

Property Issues

Property includes everything that was accumulated during the marriage, including assets and debts. Anything which is in the possession of either spouse at the time of divorce is presumed to be community property, meaning it belongs to both spouses, and may be divided by the Court. This means the Court may give "your" truck or "your" table to your spouse.


A spouse may prove the property in question is their separate property. Separate property cannot be divided by the Court and cannot be awarded to the other spouse. An example of separate property is any property (including money) which was inherited. It is up to the spouse making the claim of separate property to provide evidence that it is their separate property; the other spouse does not have to prove it is community property.


Property includes tangible items (ex; houses, vehicles, household items), as well as money and debt. 

Uncontested Divorce

An uncontested divorce is one in which both spouses have come to an agreement on ALL issues.  This includes all issues relating to the children of the marriage and division of property.


Uncontested divorces may be handled on a flat fee basis. The exact fee will depend on the specific issues relating to the case.  Some factors which may affect the fee include: 

  • Has child support already been set up through the Office of the Attorney General?
  • Will documents need to be drafted to transfer property (ex: house, vehicles, etc)?
  • Does paternity need to be established for a child born during the marriage where the husband is not the father?
  • Do retirement accounts need to be divided via a Qualified Domestic Relations Order (QDRO)?

In addition to an agreement on all issues, in order to qualify for a flat fee, the other spouse must agree to sign a Waiver of Service.  This means that they sign documents stating they received the divorce filing (Original Petition for Divorce) and do not want to be served. If your spouse will not sign a Waiver of Service, I do not consider your case to be an uncontested divorce, even if you later come to an agreement on all issues.

Contested Divorce

A contested divorce is anything that is not an uncontested divorce.  This does not mean that one spouse wants the divorce and the other spouse does not. This means that if there is a disagreement regarding ANY issue, you have a contested divorce. Most divorces fall into this category because there is at least one issue that the spouses cannot agree on.  That issue may be primary custody of the children, division of retirement or bank accounts, division of debt, or even who gets the toaster oven (yes, this happens). If there is a disagreement on ANY issue, you have a contested divorce.


It's important to note that if one spouse does not want a divorce or does not believe in divorce, a divorce will still be granted. This is simply because the State cannot make a person stay married if they do not want to be married. 

Timeline

One of the most common questions I get is, "How long until I'm divorced?" Unfortunately, I can never give an exact date, but depending on the specific facts of your case, I can give you a general idea.


By law, a divorce cannot be finalized for 60 days. Baring an emergency situation, it generally takes 2-3 business days to file the divorce from the time I am hired. Once the divorce is filed, we count out 60 days. We have those 60 days to get your agreement into a Final Decree of Divorce and secure everyone's signatures. From this point, we lose some control over scheduling. Some courts will require you to go to court to "prove up" your divorce; some courts will allow me to present the divorce decree to the judge for their signature without you being present. Some courts will require that a specific date be set for you and me to appear; other courts will allow us to appear any day that is convenient for us. While generally an uncontested divorce will be completed in 65-70 days, the Court's policies may extend this timeframe. I have no control over a specific courts policies and procedures.


A contested divorce takes much, much longer to finalize, and many more steps must be completed. Once a divorce is filed, the other spouse must be served. If children are involved or if there is any property to protect, your first hearing will be in approximately 2 weeks. At this hearing, the Court will enter temporary orders concerning the children and/or property. The remaining steps to finalize your divorce will vary depending on the specifics of your case, but generally speaking, you case will include discovery, mediation, a pretrial conference, possibly additional hearings for temporary orders.  While an uncontested divorce may be finalized in less than 3 months, it is likely that a contested divorce will take more than a year, and it is not uncommon for it to take 2 years.

Costs

For most people, cost is a very important factor in determining which attorney to hire. The majority of people are also uncomfortable with the open-endedness of attorney fees. You want to know how much it's going to cost, and I understand and respect that. For this reason, I offer flat fees for uncontested divorces. You pay one fee, and I will take care of all the miscellaneous expenses associated with finalizing your case. That way, there are no hidden costs or unexpected bills.


However, providing a final cost for a contested divorce is impossible. The work I do is based on an hourly plus expenses rate. This means you pay me an hourly rate for any work I do on your case, plus cover all expenses, such as court costs.  While this is also the case with an uncontested divorce, the difference is that I know what the expenses and time requirements will be upfront, and my fee is adjusted to reflect. In a contested divorce, however, I have no way of accurately predicting how much time or expenses will be involved. 


If I did quote you a flat fee on a contested divorce, by necessity I would have to take into account all fees and time generally spent on a case all the way through to final trial. For example, I would include the mediator fee, time for preparing for and attending mediation, time for conducting and responding to discovery, and time for preparing for and attending final trial. If we were able to settle your case prior to mediation, you would have paid for work which was not completed -- in this case, anything having to do with mediation and final trial. This is not fair to you.


On the other hand, if I believe we will only have to go to court one time and I charge you for attending 1 hearing, but your spouse (or their attorney) decides to make this process as difficult as possible and fights us at every turn, we may end up having 5 hearings. I would end up doing a significant amount of work without getting paid. This is not fair to me.


With that being said, I can give you a general idea of what to expect cost-wise. You will be required to provide a retainer prior to any work being done on your case. Any expenses and fees will be deducted from that retainer. You will receive an invoice twice a month detailing what was done on your case, what the cost was for each action, and the amount remaining in your retainer account. If your retainer runs out before your case is completed, you will either be asked to provide another (smaller) retainer, or you may be set up with a payment plan. Any money left in your account once your case is completed will be refunded to you, generally within 2 weeks.