| Questions |
Answers |
1. |
What is the difference between legal custody
and physical custody? |
Legal custody usually
refers to the legal rights the parents have towards the
children while
physical custody refers to where the children live.
|
2. |
What are the requirements for a parenting plan? |
A parenting plan details schedules
and decision
making processes for your children, post-divorce. Some
states require this
plan with joint custody. |
3. |
When do children get to decide where they want to live? |
This may be state-specific; however,
many states do not allow a child to ever designate where
they want to live.
The policy behind such laws is that it is an unfair burden
to place upon a child. |
4. |
How is child support calculated? |
Both parents are responsible to support
their children and most states have a table from which
support is calculated,
usually based upon gross monthly income. The amount, however,
differs from state to state, depending on the cost of living
in that state based upon gross monthly income of each parent. |
5. |
How are child support and visitation linked together? |
Visitation, or parenting time, is
usually not linked to child support. In fact, some states
specifically provide
that denying one is not a basis to deny the other. |
6. |
What does a spouse have to do to deserve alimony? |
Alimony, sometimes called spousal
support, is not typically "deserved".
It is awarded to allow both spouses to have a similar
standard of living. Some states may award alimony based
upon fault, though that becomes a slippery slope, since
there is usually enough mud to go around. |
7. |
Which parent gets to claim the children as tax exemptions
on their income tax return? |
The IRS Code governs the award of tax
exemptions. However, individual states may also have laws
on this issue
that apply. Generally, the IRS allows the parent who has
custody or who has the child the majority of the year to
claim the child. State laws may have other criteria, like
the relative amount of child support paid by each parent,
or the relative benefit received by the parents. |
8. |
What assets does the law allow a person to keep and which
ones have to be shared or separated with the other spouse? |
Generally, the assets to be divided
are those accumulated during the marriage. However, in
a community property state,
it may include all property owned by the spouses at the
time they choose to divorce. Some states exclude property
inherited or gifted during the marriage, but that may depend
on how separate the property has been kept since that time. |
9. |
How does the unemployed spouse obtain health insurance? |
Health insurance for an unemployed
spouse is often an expense not counted on in the new
budget. Options may include a COBRA policy through the
employed spouse's employer, Medicaid, or a separate
policy. |
10. |
When is an inheritance part of marital property? |
An inheritance may become part of
the marital property to be divided if it has been commingled
with the marital
assets. It also may depend on if you live in a community
property state and what has happened to the property since
you inherited it. |
11. |
How do spouses divide a business one or both of them
owned during the marriage? |
A business that was created during
the marriage is usually a marital asset; however, dividing
the business
or buying one partner out is not always feasible, especially
if it is small business. These are very fact specific issues
which may depend on how much work and/or cash each partner
to the marriage invested in the business, though not necessarily. |
12. |
How are debts allocated and what happens when the one
assigned to pay the debt stops paying? |
The division of debts can be done
any number of ways, sometimes assigning the debt to go
with the property it
encumbers, sometimes dividing the debts equally, sometimes
assigning all the debt to the traditional wage earner in
the family. However, the important thing to remember is
that the creditor of the debt is often not bound by the
divorce decree, and may seek payment from you, even if
your ex-spouse is ordered to pay in the divorce. Your remedy
would be to come back to divorce court. |
13. |
What can a spouse do to protect their credit rating? |
Your credit rating is a frequent
casualty of divorce. Many divorces have a "hold
harmless" clause that allows you to bring an ex-spouse
back to court if his or her actions damage your credit,
but some courts are more diligent about this than others. |
14. |
What rules govern the children, property and debts after
the divorce is filed but before it is final? |
Most courts provide a way for temporary
orders to be entered at the beginning of a divorce to create
rules
under which to operate while the divorce is pending. These
vary widely by state and may have a significant impact
of your final divorce terms. |
15. |
How does a divorce affect estate planning, wills and
trusts, already completed? |
If your estate planning has been completed,
a divorce will almost always require amending those documents,
including
your life insurance. Usually a divorce terminates your
ex-spouse as beneficiary on a life insurance policy, but
does not automatically do so in all estate planning documents. |
