Divorces, Separation Agreements and Dissolutions
Clients seeking to end their marriage frequently inquire whether they should pursue a divorce or dissolution. The choice of method depends upon the facts of the case. In order to make an intelligent decision about the appropriate course of action, it is best to consult an attorney who will advise you after reviewing with you the laws governing the division of property, spousal support and allocation of parental rights. It is important to note that in either a divorce or dissolution, the attorney represents only one party and can give legal advice only to that party. It is not acceptable for an attorney to represent both the husband and wife. Accordingly, most attorneys, even in cases that proceed by dissolution, will strongly advise your spouse to seek their own legal counsel even if the attorney has prepared documents based upon an agreement of the parties.
To pursue dissolution, both parties must agree upon all terms for the division of marital property, spousal support and the allocation of parental rights and responsibilities. This agreement is then reduced to writing called a Separation Agreement. If there are children involved, the parties either address custody in the Separation Agreement, usually by either granting custody of the children to one of the parties or by developing a Shared Parenting Plan which is incorporated into the agreement. A joint petition is then filed with the Court and the Separation Agreement and Shared Parenting Plan are filed with the Court. At the time of filing, the parties will also be required to submit a variety of affidavits. These include affidavits disclosing assets and debts, income of the parties, available health insurance for minor children and jurisdictional affidavits to insure that there are no other parties or courts that may be involved with the children. If children are involved, the parties will also be required to take a parenting class (this is also true in divorces).The Court will then schedule a hearing where it will determine if there are grounds for terminating a marriage. This hearing must occur within ninety days of filing. In dissolutions, the most common grounds are incompatibility or that the parties have lived separately and apart for more than a year. The Court will also review the agreement and inquire whether the parties believe that the agreements concerning the division of property and the provisions for spousal support are fair and equitable under the circumstances and whether the plans concerning the children are in their best interest. If the Court is satisfied on these issues, the Court will adopt the agreements of the parties. At that time the Court will also inquire as to whether the wife wishes to be restored to her maiden name (although rare, this could also apply to the husband if he has adopted the name of his wife or a hyphenated name).
The simplicity of the dissolution process makes it a very attractive method for terminating a marriage. The other benefit of dissolution is that it is generally less costly as the amount of time the attorney spends on the case is generally less than that of a divorce. As a cautionary note, a party should not pursue a dissolution simply because it is less costly if the proposed agreement is either unfair or not in the best interest of the children. What may seem inexpensive at first can become costly if it becomes necessary to unravel problems that should have been addressed in the first place. In some cases, the problems created by a bad dissolution simply cannot be remedied as, absent fraud or coercion, agreements concerning the division of property are considered final. Issues involving children are always subject to the continuing review of the Court, but a post decree custody dispute can be very costly. Accordingly, even if you and your spouse have reached an agreement in principal before consulting an attorney, you should have an attorney review the agreement to advise you as to whether the agreement is fair and appropriate.
In many cases, however, dissolution is not appropriate. First, the dissolution requires that the parties reach an agreement before filing on all terms. You cannot file a dissolution where you agree upon most things, but still want the Court to decide unresolved issues. In such a case, one of the parties must file for a divorce if they wish to terminate the marriage. When you file for divorce, you will submit the same affidavits as required in dissolution. You will also likely request that the Court issue restraining orders and set a hearing for temporary orders on temporary custody, support and payment of debts. You may also request attorney fees if one party has more control of assets or income and such fees are necessary to protect your rights.
This does not mean that the parties must “fight” or that there must be a full-fledged trial. Many cases initiated as a divorce ultimately are resolved amicably before trial after both parties have had the advice of attorneys. Parties will often even reach agreements on temporary orders. If the parties never reach an agreement, the Court will conduct a hearing and render a decision: in other words, the Court will decide if the parties cannot. You can also reach an agreement on some issues and leave it to the Court to decide those issues that are still in dispute.
There are several factual circumstances that may influence the decision to pursue a divorce rather than a dissolution For example, if one believes that a spouse is disposing of marital assets (or may begin disposing of marital assets), it is appropriate to file a divorce so that the Court can issue restraining orders to prevent the parties from selling such assets or incurring financial obligations that effect the other party. If a party is not sure of the extent of marital assets because one party has always “been in charge” of the finances, you may wish to file a divorce so that you can utilize formal discovery processes to have the spouse disclose all assets or to utilize subpoenas to obtain appropriate financial records. If there is concern that one party may leave with the children, a divorce should be filed to prevent the children from being removed from the jurisdiction of the Court. Another reason for filing a divorce is to obtain temporary spousal and child support if one party has left the marital residence and is not providing support. A party who has been subject to domestic violence may also wish to file for divorce to obtain a court order requiring the offending party to leave the marital residence. In short, there are a multitude of factors to consider and one should seek the advice of an attorney.
Regardless of whether one pursues a divorce or dissolution, it is important that you are aware of what would be the likely outcome of the case should the Court be required to make the decision in accordance with prevailing law. An attorney should advise you on the likely division of property, the treatment of spousal support and custody issues. Sometimes when you initially consult the attorney he may indicate that you need further information before he can give you advice. For example, it may be necessary to find out the value of certain assets that require expert evaluation to determine value, such as pension plans or the value of real estate or valuable art and collections.
This does not mean that you necessarily need to file a divorce, but it requires a willingness by both parties to have the assets evaluated before making a final decision. One should also be aware of the likely award of spousal support and child support if the case would proceed to trial. In other words, even if you ultimately agree to terms that are not what the Court would likely award, you should do so based upon full knowledge of what you are doing. Many people misunderstand their attorney when they begin to pursue these issues and believe that the attorney is trying to “talk them out” of an agreement. This is not the case. It is the job of the attorney to give you the best legal advice even if you ultimately choose not to follow that advice. To expect an attorney to simply write down what you want without providing you with this advice is akin to going to a doctor and demanding a particular course of medical treatment without getting the doctor’s opinion on whether the treatment you are demanding is appropriate under your circumstances.
Whether you wish to pursue a divorce or dissolution, it is important to seek the advice of an attorney. You may not even realize what you do not know. Do it yourself packages cannot substitute for the advice of an attorney experienced in this area of law. Most attorneys will generally guide their clients to pursue the course of action which is the most cost effective, balancing the goal of terminating the marriage as amicably as possible while simultaneously protecting the rights of their clients and their ability to make informed decisions.