Nolo's Essential Guide to Divorce - Emily Doskow [56]
Some states are purely no-fault states, meaning fault is entirely irrelevant to all aspects of the divorce. And some are mixed-you can't use fault as a basis for getting divorced, but judges can consider it in setting support or dividing property. In those states, however, the judge gets to decide how much weight to give the element of fault, and most don't use it much. Domestic violence is an exception to thiseven in states where fault is otherwise irrelevant, judges may consider abuse as a factor.
Each state's rule is summarized below. If the entry says "maybe," it means that the state law is wishy-washy, listing fault as one among a number of factors, or simply saying that judges have discretion in what factors they consider. In most of those states, you can assume that although you'll be allowed to allege it, proving fault won't do much for you.
Effect of Fault on Property Division and Support
Effect of Fault on Property Division and Support (continued)
Getting Started
Once you've hired your lawyer, what's next? Depending on your situation, the lawyer may advise asking for an immediate court hearing to get temporary orders about support or visitation. There's more about that below. Either way, there will be a flurry of activity and a lot of work for you to do.
Getting Your Financial Information Together
To work effectively on your behalf, your lawyer needs all of the relevant financial data from your marriage-and you'll have to provide it. You may have already started the process of figuring out your income, assets, and obligations by filling out the worksheets in Chapter 2.
Your lawyer may also give you forms to fill out. You can transfer any information you've already put in your worksheets over to the lawyer's forms or onto the disclosure forms provided by the court, if your local court uses them. It may be tedious, but it can't he avoided, so don't procrastinate.
Cooperate with your lawyer. One of the best things that you can do for yourself is to be responsive when your lawyer asks you for information or asks you to do something. Every time your lawyer has to call and remind you to do something, send something, or call someone, the meter is running. Better to spend your time than your money.
Temporary Orders
From the moment you start your divorce, every time you have an opportunity to compromise that won't be damaging to you in the long run, do it! An early opportunity will come when you and your spouse try to negotiate temporary custody and support agreements that will be in place while the case is pending. If there's any chance you and your spouse can work out a temporary agreement about spousal or child support and sort out your parenting schedule, try to make that happen.
If you and your spouse can't figure it out and if your lawyer can't negotiate an agreement with your spouse's lawyer, then you'll end up going to court for a hearing. These short pretrial hearings are sometimes called "law and motion" or "short cause" hearings, and they are for the sole purpose of establishing temporary orders.
To have a law and motion hearing, your lawyer will have to schedule it, prepare the necessary court papers, respond to your spouse's papers, and appear in court to argue on your behalf. You can imagine how much that will cost.
Sometimes, however, the expense of getting temporary orders is necessary. The wheels of justice do not turn quickly, and it could he a year or more before your case goes to trial, especially if you live in a large urban area. If you're in dire need of financial support in the short run, you may well need a hearing. But if your lawyer says there's going to he a hearing right away, ask some questions. Find out what the judge is likely to order (how much child support, for example), consider what you might agree to right now, and ask your lawyer to try to work something out with your spouse's lawyer without going to court.
Whatever you agree to doesn't have to be what you want in the long run, but you can save yourself a lot of money if you compromise