If you are considering getting a divorce or have been served with divorce papers, then it’s in your best interests to speak with a divorce lawyer.
Every divorce is different and will involve numerous issues. These can include dividing up property and debt, child custody matters, child support, and spousal support. To understand your particular case, the lawyer will need accurate and detailed information from you.
When you have an appointment for a consultation, it’s in your best interest to come prepared so that you can get the most out of your meeting. While every lawyer has their own interview and consultation process, some common questions are asked in a divorce consultation.
Do You Have a Prenuptial or Postnuptial Agreement?
One of the first things your divorce lawyer will want to know is whether you have a prenuptial or postnuptial agreement in place. A prenuptial agreement is negotiated and signed before the marriage occurs; in contrast, postnuptial agreements come into being after the wedding. Both of these are considered “nuptial agreements,” or agreements made in connection with a marriage. They typically dictate what will happen in the event of a divorce:
- How the property and debts will be generally divided
- How the money and investments will be divided
- Who will get the house, the cars, or other specific pieces of property
- Whether there will be spousal support and how much it will be
Nuptial agreements generally cannot include who will have custody of the child(ren) and how much the child support will be.
When properly constructed, prenuptial and postnuptial agreements are considered legal and enforceable. If you have a nuptial agreement, you should bring a copy to your first divorce appointment. Most importantly, if you have any concerns about the validity of the agreement, then make sure you make this known to your lawyer.
Why Are You Seeking a Divorce?
Most states’ divorce laws allow for both no-fault and fault divorces. The fundamental feature of a “no-fault” divorce is that the spouse filing for divorce doesn’t need to allege or prove any wrongdoing or “fault” by the spouse. Some states require the couple to assert they can no longer get along. Other states ask for more, such as a requirement that the couple live apart for some specified period of time, ranging from months to years.
The grounds for “no-fault” divorce are usually:
- Incompatibility
- Irreconcilable Differences
- Irremediable Breakdown of the Marriage
Although there are three separate grounds, they all stand for the same thing: the parties can’t get along.
A “fault” divorce is granted when the filing party cites a reason why their spouse is responsible for the failure of their marriage. The traditional grounds for a fault divorce are:
- Adultery
- Cruelty, including physical, mental/emotional, and sexual abuse
- Desertion for a specific length of time
- Confinement in prison for a long period (usually at least one year)
- Inability to consummate the marriage
In a fault-based divorce, the underlying circumstances may impact several of your rights. Some states grant a more significant share of marital property or alimony to a party who establishes the other’s fault.
Also, in a fault-based divorce, the nature of the wrongdoing can affect child custody and child support. For instance, an abusive spouse may have difficulty obtaining sole or primary custody of a child.
Do You Have Any Children From the Marriage?
If you and your spouse have children together, you will face several issues. The most important are custody, visitation, and child support. Child-related issues can create complications in a divorce. Your lawyer will need to know your preferences concerning these issues and how your spouse feels about them.
In connection with determining child support, your lawyer will need a good deal of financial information, including:
- Each party’s income
- Each party’s individual debts (debts that you don’t share)
- The child’s financial needs
- How many children each party is responsible for providing support
- The cost of living in the city where the child lives
- What the standard of living was for the child before the divorce
How Much Property (and Debt) Do You Currently Have with Your Spouse?
When you divorce, you must divide up your marital property and debts between you and your spouse. This can be a complicated process. The lawyer must understand what assets and debts are involved in the proceedings. He or she will also need to know if there are certain pieces of property or assets that you especially want to retain (such as real estate, vehicles, family heirlooms, or other valuables.)
The rules on marital property division will vary from state to state. Most states divide marital property based on the legal theory of equitable distribution. In an equitable distribution state, the court will attempt to divide the property in a way it thinks is most fair for the parties. In such states, the court may consider a variety of factors to distribute the property, which may include:
- Whether a prenuptial agreement exists
- The length of the marriage
- Characteristics of each spouse, including age, employment, health, and financial assets
- The overall estate of each spouse
Because the court will distribute the property according to what seems most fair, the division is unlikely to be 50/50.
However, nine states apply different rules, called community property rules. Community property states include:
- Arizona
- California
- Idaho
- Louisiana
- Nevada
- New Mexico
- Texas
- Washington
- Wisconsin
In the context of divorce, community property is owned by both spouses. It is different from separate property, which is property owned by one spouse individually. States have different laws with regard to how property is classified.
Generally, any property a married couple obtains during the marriage is presumed to be community property. If the partners divorce, both spouses own an undivided share of the community property. This means most marital property will be divided evenly between the spouses.
States that follow community property laws start with a strong presumption that anything acquired during marriage is a community item. As such, a spouse claiming that a particular item is not community property but rather is their own personal property has the burden of proving their claim.
Your divorce lawyer can advise you on whether or not your state is a community property state. Your lawyer will help you determine what property and assets will be involved in your divorce and how they will likely be divided.
Will You or Your Spouse Seek Alimony (Spousal Support)?
Spousal support or alimony is paid to spouses after the divorce to help them achieve financial independence. The judge may award alimony in situations where the spouses have unequal earning power and have been married for a long time. The purpose of alimony is to equalize the financial resources of a divorcing couple. Like child support, alimony can become a complex issue that can result in emotional negotiations.
If you plan on seeking spousal support, then make sure you bring it up with your attorney right away. You need to request alimony by a certain point in the divorce, and if you do not, you most likely will have waived your right to request it unless something serious and unexpected occurs.
If you do not plan on seeking spousal support, then let them know that. Your attorney can advise you as to whether that is a wise decision.
Do I Need to Hire a Lawyer for Help with My Divorce?
Selecting and hiring a lawyer is an important decision. For many people, divorces are too complicated and emotionally charged to handle independently. One of the most important benefits of having a lawyer is that you will have someone on your side who is not tied up emotionally in the breakup.
A local divorce lawyer can help you understand your legal rights, file the appropriate paperwork, and facilitate a workable separation.
