It is not unheard of for spouses to attempt to minimize assets by depositing funds in another person’s account, overpaying credit card statements, delaying the distribution of trust income and deferring income. An accountant may be engaged to review such items as owner loans, dividends, retained earnings, distributions of income by partnerships and subchapter S corporations, bonuses, expense accounts, retirement plans, depreciation of property and perquisites of employment.
Loosely defined, marital property is any property acquired during the marriage by either or both spouses, regardless of the form in which it is held, who earned it or who holds title to it. Pensions, professional licenses and separate bank accounts can all be marital property. There are, however, some important exceptions to the general rule. An inheritance, a gift to you from someone other than your spouse, – or an award or settlement resulting from a personal injury is considered separate property even though received during the marriage. Also, if separate property is sold, the cash proceeds of the sale are separate property. However, a spouse may claim that the value of the appreciation of separate property constitutes marital property.
Due to many variables, it is impossible to accurately predict from the outset the financial costs of divorce. Attorney’s fees, of course, constitute the largest (but not the only) component of divorce costs. The two factors having the greatest influence on the amount of legal fees are the complexity of issues to be resolved and the willingness and ability of the parties to reach an agreement on the terms of the divorce, without resorting to contested litigation. Even thorny issues such as the custody of children and the division of substantial property can be expeditiously (and therefore relatively inexpensively) resolved when both of the parties are committed to negotiating in good faith and in the spirit of compromise. On the other hand, the inflexibility of one or both of the parties can cause even a “simple” divorce to cost tens of thousands of dollars. If custody is an issue, the court will often appoint a lawyer (“the attorney for the child”) who will represent the child and a forensic psychiatrist to interview the parents and children (if age appropriate). The fees of the attorney for the child and forensic psychiatrist will be paid by you and/or your spouse. If the value of a business is an issue, the court may appoint a neutral forensic accountant to review the financial records of the business(es).
An annulment is granted when a marriage is voidable or void from the beginning, that is to say, there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid. Grounds for annulment are as follows:
Fraud: It may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse, his or her parent or relative with an interest to avoid the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; concealing one’s inability to procreate, secretly carrying a disease or genetic disorder that would increase the risk of procreation; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness.
There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.
The most common forms of custody are sole custody, which gives one parent authority to make all decisions, and joint custody, which often refers to parental sharing of major decisions concerning child rearing. Legal custody refers to the authority of one or both parents to make decisions as to the child’s health, education, welfare and other interests. Physical custody describes the physical residence of the child. For example, one parent may have sole physical custody while the parents have joint legal custody. Regardless of the custody label, parents have great latitude to determine a custody arrangement by entering into a written custody
Mediation is a voluntary and confidential process in which an impartial party helps spouses to reach a mutually acceptable settlement. The general idea behind mediation is that the traditional adversarial approach to marital dissolution can be costly, counterproductive and emotionally punishing. Mediation may provide a way to resolve the various issues surrounding the dissolution of a marriage in a relatively amicable way. However, be aware that the mediation setting may also become just another forum for a wife and husband to vent their anger, frustration and other emotions in a counterproductive manner.
Your spouse cannot force you to participate in mediation, nor can you force your spouse to cooperate. To be successful, mediation requires that both parties to the divorce be committed to the mediation process and be prepared to openly discuss financial and other issues. Mediation is not recommended if there is domestic abuse, the threat of abuse or if one spouse is likely to “overpower” the other spouse in the mediation process. To commence the mediation process, a mediator mutually acceptable to both spouses is selected. Some mediators have professional backgrounds in the field of social work. A mediator may or may not be a lawyer but should not provide legal advice in his or her capacity as mediator. Unlike an arbitrator, a mediator cannot impose settlement terms on the parties.