Divorce FAQ's

You Have Questions, We have solutions. 

Q.  What is the first step that needs to be taken when getting a divorce?

A.  Traditionally a dissolution of marriage, or divorce proceedings are initiated by the filing of a Petition by one party. The Petition for Dissolution of marriage is then served to the responding party. The party originally filing the Petition is known as the “Petitioner” and the other party is known as the “Respondent”. Following receipt of the Petition, the Respondent generally has 30 days in which to file his or her responding statement to the facts stated in the Petition.

Alternative Dispute Resolution models such as Mediation and Collaborative Divorce may answer this question differently based on the circumstances involved. It is not uncommon for the divorce process to “unofficially” begin months in advance of a petition when it is necessary to retain a team or consider whether these processes might be appropriate.

Q.  How much is getting divorce going to cost?                            

A.  All you can know for sure is that there is a hierarchy of costs associated with different processes that can be organized into three groups.

The first group would be called litigation. A case that actually goes to court will be the most expensive and can push into six figures on each side including attorney fees and expert fees for child custody, financial, vocational, and many other specialties. This would be followed closely by those cases that are litigious but never reach the court room.  A litigious case that misses the court room can be just as expensive and reach into six digits on each side including the same previously mentioned experts as well as private judges.

The second group consists of Collaborative Divorce and complicated Mediation cases. This group is characterized by the fact that the decisions making process is put more into the hands of the parties. This of course means that the better a couple is at communicating and decision making, the less expensive the process is likely to be. Of course complications arise when difficult issues are present but a Collaborative case can generally be expected to be significantly less expensive than a litigated case.  Mediation will almost always be the least expensive if the parties are willing and able participants in the process. Costs can significantly rise in this process when communication and follow through are not commitments of the parties.

The third group, a Pro-Per divorce is always the least expensive because you do it yourself. This means the divorce can be done for the cost of the filing fees.                                                                              

Q.  Will I be able to receive alimony?

A.  In Missouri and Illinois it is referred to as ‘spousal support’. Although, no two cases are the same, the tests for maintenance include consideration of the following:   1) Need - Can you support yourself with earned income plus investment income?   2) Ability to pay - Does the payer of alimony have sufficient funds to pay?   3) Length of marriage - A long-term marriage (10 years or more) is typically a stronger case for the lower-earning spouse.   4) Health of both parties   5) Reasonable needs. Only an attorney can advise you how the specifics of your case may impact your ability to receive spousal support.  If you and your spouse cannot agree on what is reasonable spousal support then a judge will make that decision.

 Q.   Do we have to go to court?

A.   Usually you will have to go to Court to settle custody and property issues.  If you can't reach an agreement at all, then a court date is set and a judge hears the case.  If you enter into a Collaborative Divorce and successfully complete the process you never have to go to Court.

Q. When do I come see you - before or after I hire an attorney?                                                                                    

A.  It works best if we talk before you hire an attorney, especially if your circumstances are such that you can use the collaborative approach. The collaborative process eliminates the cost of litigation, and thus not all lawyers will participate in this approach. If you already have an attorney, come talk with me anyway.  If you do not, we can recommend one.

Q.  My spouse won't come to your office with me - will you work with just one person?                                                        

A. Certainly, we will work with just one of the parties involved. That will preclude any collaborative approach, but you should not forego financial advice during the divorce process just because the other party is unwilling to participate.

Q.  How much is this financial advice going to cost me?    

A.  The quick answer is "not nearly as much as it will cost you if you DON'T get any financial advice."  Divorce is not an inexpensive process, but reaching bad financial agreements simply to get the whole thing over with will haunt you for many years.  We offer you a free initial 30-minute consultation.  Among other things, we will discuss fees openly and honestly.  You'll be able to make an informed decission.   

               
Q.  How do I know which assets are the best ones to keep?

A.  Not all assets are created equal and some assets may have more of a beneficial effect on your financial future.  Assets such as businesses and retirement accounts continue to grow. Other assets may require money
for their upkeep, such as a home and automobiles, and those costs must be considered in the overall settlement.  We are experienced in assessing these situations.

Q.   Is my IRA considered marital property if it's in my name only?                                                                                              
A.   Everything acquired during the marriage, no matter whose name it's in, is typically considered marital property.  If you are going through a divorce, it would be important to evaluate the financial drawbacks to having your IRA included in the list of assets you retain, post divorce.  Remember, the funds in the IRA cannot usually be accessed before age 59 1/2 without paying a 10% penalty for early withdrawal.

Q.  Will I lose my pension?

A.   Pensions and retirement plans are marital assets if earned during the marriage.  Any balance in retirement accounts accumulated as a result of contributions made during marriage is community property. The questions of vesting, pay status, present value, benefit amounts, and pre-marriage or post-separation contributions will require further investigation by a competent analyst.  However, it is possible to keep your pension and have it offset with other assets.

 Q.  My spouse and I are splitting his/her retirement plan, what do I do with my share?

A. There are only three options you have once your share is awarded to you:

• Take all or a portion of the funds in cash and possibly pay taxes and penalties for early withdrawal.
• Roll all or a portion of your share into an Individual Retirement Account (IRA) in your name.
• You may also have the option of leaving your share at the company that holds your spouse’s retirement plan but they will likely charge fees for you to keep the account there.

Q.   What is a QDRO and why do I need one?  

 A. A QDRO (or Qualified Domestic Relations Order) is the legal document that divides up a qualified pension or retirement account (including 401k's) pursuant to a divorce.  Neither the Judgment of Divorce nor the Property Partition is sufficient to divide up the qualified plans; a QDRO is needed, preferably before the divorce is final.  There are many nuances that go into QDRO's and make it an advocating (versus neutral) document. In order to protect your assets, be sure to obtain qualified advice in this area from a specialist.

 Q.   Should the custodial parent keep the house?

A.   This is a great question, and it's one of the most important overlooked questions.  While the answer is sometimes yes, there also may be times when the answer is no.  It's important to pinpoint exactly what it will cost to maintain the home, factoring in taxes and inflation and expense of upkeep. An analysis must be performed to determine if there is enough money to stay comfortable in the home and pay all the bills without being overextended. Once that has been determined, the advisability of retaining the home must be compared to that of giving up other assets (such as liquid accounts, retirement plans, etc.).  Finally, all decisions need to be weighed against current economic and stock market conditions.  We are trained to help people answer this question before they commit to a settlement that cannot be changed.

Q.   What if I bring a house into the marriage that is in my name only, and I add my spouse's name to the title?

A.   You might have made a "presumptive gift" to the marriage and should consult with a family law attorney to discuss your options.    

Q.   I have never worked. Can I get Social Security?

A.   If your spouse has worked and if you have been married for 10 years or more, than you are entitled to one-half of your spouse's Social Security or your own, whichever is higher--even if you are divorced.  Your spouse still retains 100% of his/her Social Security benefit. This is an automatic guarantee and therefore it is not a negotiation point in a divorce.  Social Security Administration website link.

Q.   How do we figure how much child support should be paid?

A.  Missouri and Illinois have Child Support Guidelines that are mandated by the State. However, the Guidelines get tricky when one (or both) spouses is an independent business owner who can control their wages.  In this situation, it typically helps to bring in a financial expert who can help determine the true potential income of the each spouse.