Divorce Frequently Asked Questions

Divorce law is governed almost entirely by state — not federal — law. This means that the states are generally free to establish their own rules, procedures, and laws governing divorce and separation. It also means that the states differ, sometimes widely, in how they divide property, award custody, and deal with a myriad of other divorce-related issues. These FAQs will give you an idea of what the basic issues are. They cannot address in detail specific questions across the United States that might be subject to wide variation. If you know what to look for, however, you will be significantly more able to ask questions of your lawyer and to understand how your situation might be treated by the Courts.

The information in the FAQs can only be general, and therefore it cannot take the place of advice from an experienced family lawyer. The FAQs should not be considered personal legal advice. For specific advice concerning your situation, you should retain experienced counsel.

The National Parents Organization is not a law firm and is not licensed to practice law. Online readers should not act upon this information without seeking professional counsel. This website is not intended to be a source for legal advice, and thus the reader should not rely on any information provided in this website as such. Readers should always seek the advice of competent counsel in the reader's home jurisdiction. We do not warrant the accuracy or completeness of any information contained on this website.

Frequently Asked Questions

Shared Parenting
What Does “Shared Parenting” Mean?

What does “shared parenting” mean?

True shared parenting requires equal or, when that’s not feasible, nearly equal parental responsibilities

The term “shared parenting” is used in many ways and, as a result, it is easy to be confused. To some, “shared parenting” means only that both parents retain some active presence in the lives of the child(ren). On this understanding, even an arrangement where one parent has minimal visitation could be called “shared parenting.” This is not how the National Parents Organization understands “shared parenting.”
Our understanding of shared parenting involves both parents playing a substantially equal role in raising the children. This means that the two parents have equal legal custody of the children. Typically, this means that each parent has full legal custody of the children, just as they did when the parents were married. For that small percentage of parents who are unable cooperate on decision-making, courts can divide decision-making responsibilities or order mediation of disagreements

With respect to physical custody — the day-to-day care and companionship with the children — the National Parents Organization understands “shared parenting” to be equal or nearly equal parenting time for each parent

What is important for the children is not the words used to describe the arrangement, but the arrangement itself. Calling a sole-custodial/visitation arrangement “shared parenting” doesn’t change the reality for the children that one parent has been marginalized in their lives.

What is a legal presumption of (or preference for) shared parenting?

A legal presumption is formally defined as, “a conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true.” (West’s Encyclopedia of American Law, edition 2. Copyright 2008, the Gale Group, Inc. All Rights Reserved. Available here.) Put more simply, a legal presumption requires a court to draw specific conclusions from other facts. Legal presumptions can be either conclusive or rebuttable. Rebuttable presumptions can be rejected if contrary evidence if provided; conclusive presumptions cannot

A legal presumption of shared parenting could be framed as follows: “when two parents with custody of a child separate or divorce, there is a rebuttable legal presumption that equal legal custody and equal or nearly equal physical custody is in the best interest of the child.” The statement of the presumption would be followed by a specification of the factors that would rebut the presumption

A similar legal effect can be achieved by a statutorily mandated preference for shared parenting. (This is more than a statement of policy.) A statutorily mandated preference would require courts to consider custodial arrangements in a particular order and move to a less-preferred arrangement only when there are grounds for doing so. A legal preference for shared parenting could be framed as follows: “when two parents with custody of a child separate or divorce, a court shall consider the following custodial arrangements of the children in the following order, preferring the higher ranked arrangement unless it finds grounds for concluding that it would be detrimental to the child” and then list “equal legal custody and equal or nearly equal physical custody” as the first alternative. Such an approach should include a requirement that court decisions ordering less preferred options include “findings of fact and conclusions of law” that justify the lower-ranked alternative ordered.

Is there currently a parenting presumption, of some kind?

Is there currently a parenting presumption of some kind?

It is important to remember that family law is almost exclusively a state matter. There is significant variation between states concerning presumptions about legal and physical custody when parents divorce. Up until the late 19th Century, most U.S. states had a presumption that fathers would retain custody of their children. Late in the 19th and early in the 20th Centuries, that presumption gave way to a presumption in favor of mothers retaining custody. In the 1960s, several factors, including the feminist law reform, resulted in the removal of legal presumptions favoring either mothers or fathers; most states adopted a “best interests of the child” standard for determining custody. (See Joan B. Kelly’s “The Determination of Child Custody in the USA” for more details.)

While there are currently no states with legal presumptions based solely on the gender of the parent, some courts adopt a “primary parent” approach, giving custody to the parent they determine to have been primarily responsible for rearing the children when the marriage was intact. The criteria for determining who was the “primary parent” have been criticizes as gender-biased. (See Ron Henry’s “The Primary Caretaker Theory: Backsliding to the ‘Tender Years’ Doctrine” .)

Some states have a preference for or a presumption of shared legal custody (which is distinct from genuine shared parenting). See Family Law Quarterly.

And sometimes these preferences/presumptions are framed in terms of shared parenting. However, care must be used in evaluating the nature and effect of such presumptions. Sometimes the term “shared parenting” is used so broadly that any arrangement where each parent has any time with the children will count as a case of shared parenting. Sometimes the presumption in favor of shared parenting (or joint custody) is extended only if both parents request it. Do not assume that a legal presumption of or preference for joint custody or shared parenting means that there is a burden on the other parent to show why substantially equal parenting is not appropriate

Alaska currently has a legal presumption of shared parenting during temporary orders (the period when the divorce case is before the court). Alaska’s temporary custody statute states: “Unless it is shown to be detrimental to the welfare of the child... , the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody” (AS 25.20.070).

What are the main arguments for shared parenting presumptions?

What are the main arguments for shared parenting presumptions?

  1. Social/psychological and Economic

    Litigation of child custody is costly financially and emotionally. Custody litigation is encouraged by the absence of a legal presumption concerning custodial arrangements that is based in a factor that is clear to potential litigants. Appealing only to “the best interest of the child(ren)” encourages both parents to anticipate “winning” a custody dispute because each parent invariably believes that what he or she proposes is best for the children. Given the overwhelming empirical evidence that, in most cases, children of divorced parents do best in a shared parenting arrangement, courts should be required to begin with a presumption that such an arrangement is in children’s best interest and move away from that only when there is evidence that such an arrangement would harm the children. Such a presumption would reduce litigation of child custody, saving families’ financial resources for the benefit of their children and lessening the antagonism between parents seeking to “win” custody.

  2. Constitutional

    A number of legal scholars have argued that a presumption of joint legal custody and substantially equal physical custody — true shared parenting — is a constitutional right of parents.1 The argument of these authors relies on a hundred-year history of federal court decisions declaring that parental rights are fundamental constitutional rights. The term ‘fundamental constitutional right’ has a very specific meaning in the U.S. legal system. Fundamental rights may not be infringed upon by the government without a showing by the government that there is a “compelling state interest” in doing so that that this interest cannot be achieved by any less constitutionally offensive means. These authors argue that the current procedures for determining custody of minor children when parents divorce do not meet these standards.

1See, Ellen Canacakos, “Joint Custody as a Fundamental Right,” Arizona Law Review, 23(1981)785-800; Holly Robinson, “Joint Custody: Constitutional Imperatives,” Cincinnati Law Review, 54(1985)27-65; Cynthia McNeely, “Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court,” Florida State University Law Review, 25(1988)891-956; and Donald Hubin, “Parental Rights and Due Process,” Journal of Law and Family Studies, 1(1999)123-150. Jump back to footnote 1 in the text.

How do opponents of a shared parenting presumption respond to arguments for such a presumption?

How do opponents of a shared parenting presumption respond to these arguments?

We know of no published responses to the argument for a constitutional right to a presumption of shared legal and physical custody. And we know of no published responses to the argument that a clear presumption of substantially equal shared parenting would reduce litigation. With respect to the empirical claim that shared parenting is usually best for children, opponents of a presumption of shared parenting cite some research that shows either no benefit of shared parenting or a benefit from sole custody. The research cited, though, does not represent the consensus of impartial researchers in this area.

See, Ellen Canacakos, “Joint Custody as a Fundamental Right,” Arizona Law Review, 23(1981)785-800; Holly Robinson, “Joint Custody: Constitutional Imperatives,” Cincinnati Law Review, 54(1985)27-65; Cynthia McNeely, “Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court,” Florida State University Law Review, 25(1988)891-956; and Donald Hubin, “Parental Rights and Due Process,” Journal of Law and Family Studies, 1(1999)123-150.

What are the main arguments against shared parenting presumptions?

What are the main arguments against shared parenting presumptions?

Opponents of a presumption of shared parenting often point out that shared parenting is not appropriate in all cases. Opponents also believe that courts can be relied on to make decisions that promote the best interest of children without any presumption.

How do advocates of shared parenting presumptions respond to arguments against such a presumption?

How do advocates of shared parenting presumptions respond to these arguments?

Proponents of a legal presumption of shared parenting agree that shared parenting is not appropriate in all cases. This is why a presumption in favor of shared parenting should be overridable when there is evidence that it would be harmful to the children. Proponents of a legal presumption of shared parenting are more skeptical of the ability of our overburdened family courts, which are seeing families often at the height of a temporary conflict between the parents, to reliably determine what custodial arrangements are best for the children. Asking a court to focus only on whether there is evidence that shared legal and physical custody would harm the children presents the court with a much more manageable task.

How are these issues different with non-married couples, same sex couples, or any cases different from married, male-female couples?

How are these issues different with non-married couples, same sex couples, or any cases different from married, male-female couples?

Cases involving the separation of never-married parents run the gamut from cases that are indistinguishable from a marital situation except for the absence of a legal marriage, to cases where the parents have not established relationship and one (or both) parties may not have desired to become a parent. In some cases, both parents have an established relationship with the child, in some cases not. There is a reasonable argument to be made for greater flexibility in court decisions in these situations to represent the broad range of cases

In the case of same-sex couples, with current technologies, at most one of the parents has a genetic relation to the child. Nevertheless, both parents may have the same sort of social and emotional bonds with the child as are present in traditional marriages where both parents are genetically related to the child. It is the social and emotional bonds that are so vital to protect.

What are the main arguments against shared parenting presumptions?

Opponents of a presumption of shared parenting often point out that shared parenting is not appropriate in all cases. Opponents also believe that courts can be relied on to make decisions that promote the best interest of children without any presumption.

Child Custody
“Legal custody” signifies who makes the “major” decisions concerning a minor child. These decisions include those concerning health (including mental health), education, and religion. In an intact family, both parents usually make those decisions together, discussing them as they arise. If both parents can communicate effectively during and after the divorce process, the Court will tend to award “joint legal custody,” which means that all the major decisions need to be discussed and made jointly. “Sole legal custody” is the opposite, where only one of the parents is making these decisions. In cases where there is intense bitterness and little communication between the parents, or where decisions are significantly delayed because of substantial disagreements, sole custody is more likely awarded.

“Physical custody” signifies who has custody of the minor child at what times. Many courts have begun to abandon the term “physical custody,” because it appears to indicate that one parent is really the caretaker of the child while the other parent has only “visitation,” and is thus only a visitor in the child’s life. What most often happens in practice is that one parent has physical custody part of the time and the other parent another part of the time— each parent has physical custody of the child at various times. Since this is the case, it makes little sense to say that only one parent has physical custody. Some courts say that one parent has “primary physical custody,” meaning that this parent has custody most of the time; but that terminology is unnecessary, since the parenting plan (who has custody when) tells us how much time the child will have with each parent.

There is also the term, “joint physical custody,” which sounds like each parent has the child with him/her exactly 50% of the time, but that is almost never the case. Rather, “joint physical custody,” denotes that the parents have somewhat equal time and responsibility for the child (which can be a 4 day a week / 3 day a week plan, for example.) It is generally of no significant advantage to have a designation “joint legal custody,” except if one parent wants to move a child out of state.

Who gets custody and when is decided based upon “the best interests of the child.”

- Jerome L. Aaron, Attorney at Law, Massachusetts

When can a child decide with which parent to live?
Again, the states differ, but generally, if a child is of “sufficient age and intelligence” to make an informed decision about where he/she wants to live and can articulate that decision, the child’s decision will be given substantial weight. A bright 11-year-old might have very mature reasons for living with one or the other parent. The desire to live in a home with fewer rules, however, is not an example of an informed, intelligent decision, unless one parent is overbearing in the extreme, as an example. Children, as a rule, do not testify in court, so a child’s preference would come to the court’s attention through a probation officer of the court or a guardian ad litem (investigator appointed by the judge).

- Jerome L. Aaron, Attorney at Law, Massachusetts

After our divorce, we now find that the parenting plan we had agreed to needs to be altered, and we both have agreed on a new plan. Do we need to go back to court to have it changed?
As children become older, as parents change their residences, or for other reasons, parents sometimes find that the parenting plan they had agreed to in the divorce or the one ordered by the judge no longer works well. As long as the parents agree on a new schedule, there is no need to return to court to make changes. The court generally does not care, and it only needs to intercede where there is a disagreement. If subsequently to the new agreed schedule, there is again a disagreement, the spouses can only revert to the last court-ordered schedule, and they must then return to the Court to make any changes.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Child Support
Will I have to pay child support, and how much?
Child support, which is supposed to be support for the child, often also includes items which go towards the support of the other spouse as well. The cost of housing the child and providing heat and electricity for the child are items that inure to the benefit of both the child and the other spouse, yet they appear to be included in “child support.” So in many states, support is not measured solely by what it costs to raise a child. This is partly due to the fact that it is nearly impossible to invent a formula for all families that predicts what they will spend or should spend on a child, as there are too many variables. Instead of making an inquiry in court as to the parents’ net worth and incomes and the state’s cost of living figures, the states invent simple formulas to use. Some are better than others. Few are accurate for all families. There are simply too many variables.

The states differ widely in how they determine child support, with most all of them having a formula-based percentage applied to the gross income of the payor spouse. More recently, these formulas (required by federal law) take into account the recipient’s income as well, recognizing both parties’ obligations to support their child.

Many states also have factors which may cause a deviation from the percentages applied for child support, such as multiple children, costs of seeing one’s children when a parent is at some distance and must expend money to do so, the payment of college expenses for a child, the fact that the child support order may leave a payor without sufficient funds to live, and other factors. Each state’s laws and regulations much be checked to determine what it considers an appropriate child support amount.

Child support may be paid directly to the other parent or to the department of revenue in the particular state. The latter arrangement is not recommended. The state departments are notorious for failing to keep proper track of payments and for delay in sending payments. This may lead to more expensive litigation and accusations of non-payment. Always try to have payments made directly. If they are not being made, a switch can be made to collection by the department of revenue.

The standard child support formula usually assumes a standard physical custody arrangement, where the child lives primarily with one parent. Where there is joint physical custody or a greater sharing of parenting time, child support is often lowered to acknowledge that each parent is already paying substantial amounts toward their child while the child is with that parent.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Do I have to pay for college?
States differ widely in the treatment of payment of college. Some states do not require it. Some states look at each party’s income and make an order according to ability to pay for college and the aptitude of the child. Judges generally do not make parents pay for a premium cost college education if they truly cannot afford it. Since college is a form of child support, there is often a reduction in child support when there is an order to contribute to college.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What if I lose my job or take a cut in pay and can’t afford to pay child support? What do I do?
If you unexpectedly lose your job or take an involuntary pay cut, or your business takes a nose dive, for example, and you can’t pay your child support, it may be tempting to agree with your spouse to lower child support for a while. That is fine, but you must immediately file a modification action. You have no right to rely upon a promise by your spouse to accept less support. Unlike the parenting plan, if both of you agree to lower support, but you have not returned to court to obtain a new court order, the old, higher court order remains in effect, and there may be nothing a judge can do to change that, except by the use of elaborate and difficult arguments. Your spouse may take the lesser amount for two years by oral agreement with you, and then sue you in contempt for the back support, and your spouse will almost always prevail. At that point, you may owe $20,000, $30,000, or more, and you will owe interest on the amount – interest that runs monthly. As the court says, “You can’t bargain away the rights of your children,” so you must obtain a new court order immediately for the lower amount of child support. If your spouse is serious about the agreement to take less, you both can sign such an agreement and submit it to the court to obtain a temporary order in a modification action. In general, the court cannot relieve you from responsibility to pay the higher amount unless you file for a modification, and then only from the date the modification is served. Be warned.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Domestic Violence
How does domestic violence affect divorce proceedings?
Domestic violence, or the accusation of domestic violence, may have profound effects upon a divorce proceeding, particularly upon custody of children. If there is domestic violence, the Courts often have separate proceedings wherein the victim can receive substantial remedies against the aggressor, which may include a restraining order that the aggressor spouse not come near the other spouse, that spouse’s work place, or home; physical and legal custody of a child; an order for no visitation or only supervised visitation; monetary compensation; an order that the aggressor take an anger management class, etc. Although it is generally thought that domestic violence against a spouse should not necessarily have an impact upon the parent’s relationship with a child, judges have substantial discretion to affect that relationship, especially where the child witnessed some act of violence.

If a spouse is forced to leave a marital residence because of domestic violence, that spouse’s address can be “impounded,” or kept secret, so that the aggressor spouse cannot find the other spouse. Also, a spouse who is a victim can often obtain a restraining order “ex parte,” meaning, without notice to the other spouse if there is an emergency. There will then be, in short order, a follow-up hearing with advance notice and an opportunity to be heard to determine if the restraining order should be extended.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What if I am falsely accused of domestic violence?
In most instances, one accused of domestic violence has a right to a hearing where witnesses are called, documents are presented, and the complaining spouse is cross-examined. If you believe you are falsely accused, you need to defend the matter vigorously since so much is at stake. Unfortunately, most of these allegations are said to happen at home where there are no witnesses, so it may come down to your word against your spouse’s. The absence of prior violence or calls to the police, and the failure of the alleged victim to take pictures, to seek medical attention, or to tell anyone, may be evidence that the victim is not being truthful or is exaggerating or embellishing. Generally, domestic violence claims are for “serious bodily injury,” or imminent threats to commit serious bodily injury. Although any physicality, such as shoving or grabbing, is regrettable, it should be remembered that these may not rise to the level of “domestic violence,” and so may not warrant a restraining order.

- Jerome L. Aaron, Attorney at Law, Massachusetts

How do I go about ceasing false accusations of child abuse, and holding the other party responsible for making a false report?

The first recommendation that you will hear repeatedly for many of the questions that arise here is "Document Everything".  By this, we mean create a journal with dates, times and descriptions any time you have contact with the other party.  Keep especially close track of any contacts with Child Protective Services or police, when you are served papers, and when you are brought to court.

The second recommendation is to protect yourself.  Without alarming them or telling them what you're doing, make it a habit to take photographs of your children when they arrive for your parenting time on every occasion - and then take photographs shortly before they leave on every occasion.  Label the photographs with dates and keep them safe so that you can show there was no physical abuse while they were with you.  Photos of your children being happy with you also helps to show that you are a good parent.  Make sure that any time you anticipate a Child Protective Services investigator will come to your house that your house is clean and well stocked with healthy food - a clean and healthful environment goes a long way toward building a good defense against allegations of abuse or neglect.

If the allegations are repeatedly being found by Child Protective Services to be false or unfounded, get a record of those findings.  File a motion with the court for a hearing and take your records before a judge.  Ask the judge to place sanctions upon the other party for each new false accusation that occurs after that date - these sanctions can be monetary, a loss of parenting time, or other punitive action.  It may take more than one hearing to be successful - be tactful and respectful of the judges time and decision.

You may also be able to request that the other party be required to have supervised parenting time.  This will depend on the level of alienation that is being used by the other parent, your current share of parenting time, and whether the court may believe that statements and actions of the other parent are negatively affecting your relationship with your child(ren) and/or their well being.  

- Curtis Vandermolen, Member, Executive Committee, National Parents Organization of California

Guardians ad litem (GALs)
What is a guardian ad litem and why would I want one involved in my case?
When parents cannot agree on who should have legal or physical custody or whether custody should be shared or not, the Court will often appoint a “guardian ad litem,” --- an investigator (a “GAL”). This person is usually a psychologist, but is sometimes a lawyer. Depending upon what issues arise in your case, you may want one or the other. If your spouse exhibits certain behaviors that you think will be difficult to detect or to name, or whose significance to the family may be lost upon a non-psychologist, you should strongly consider asking the court to appoint a mental health professional. Bipolar disorder, for example is often downplayed; the spouse who has it may deny it, say that it is under control through medication, or state that he/she has never been hospitalized, so that the mere diagnosis is of no significance. A mental health professional, however, will look for the mood swings that accompany this pernicious problem, and that person will also be aware that many patients go off their medication, only to experience unsettling symptoms later. A lawyer investigating this may miss the entire issue. Likewise, certain behaviors may have been undiagnosed, yet they may be indicators that such a person should not have primarily physical custody of a child. A guardian ad litem will be helpful in interviewing the parties, collecting medical and other records, and interviewing “collaterals”— those persons identified by the parties as having important information concerning custody.

Guardians ad litem will interview the children, see them interact with the parents, review documents submitted by the parties, seek out medical and psychological records, talk to witnesses suggested by the parties, and otherwise gather the relevant information in order to write a report to the court.

Unfortunately, many courts do not have the funds to pay for private guardians ad litem, and so the cost falls upon one or the other or both spouses. Guardians ad litem generally are paid at their normal hourly rate (which may be upwards of $100.00 per hour for investigating, writing a report to the court, and testifying, if necessary). The report of a GAL can be used in evidence at trial if the GAL testifies, or if there is agreement on its use. Parties have a right to cross examine the GAL and to call the witnesses who were interviewed by the GAL to contradict the report and the GAL’s testimony (except that the court does not want children to testify and be cross examined in court.) Providing accurate information to the GAL with back-up documents is critical in obtaining a favorable report.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Move Aways
Can my spouse move with the children out of state?
It is interesting that prior to the filing of a divorce, there is often no prohibition on one spouse taking a minor child out of state to live. It is not considered “kidnapping” at that point. Once a divorce is filed, however, things change. Almost all states then prohibit the removal of a minor child by one parent without the permission of the other parent or a court order.

- Jerome L. Aaron, Attorney at Law, Massachusetts

How easy is it to obtain a court order to move a child out of state permanently?
This is one of the most contentious areas of law at this time, and many states differ in the factors to be considered if “relocation” is requested by one parent. Some states are very lenient and others not so much.

At this time, many states permit a parent to take a child out of state to live permanently if there is a “real advantage” to the parent desiring the move. This is a rather lenient standard. Having employment in the proposed destination state can be good enough to warrant a favorable court order even if the relationship of the left-behind parent and the child is harmed.

In some of those states, the relocation is much more difficult if the parent to be left behind has “joint physical custody.” In that case, the Court will likely weigh much more heavily the relationship between the child and the person proposed to be the “left-behind”

In some states like Massachusetts, even a proposed move to a distant destination within the state is subject to obtaining a court order.

In most states, if there is a successful relocation petition, the Court will hear arguments as to how the parenting plan should be changed to accommodate the relationship between the left-behind parent and the child. For example, a request by the left-behind parent for the entire summer with a child plus many major holidays and school recesses where the child is moving from the east coast to Colorado might be deemed reasonable.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What if my spouse intends to take our child out of the country illegally?
If you are in the middle of a divorce proceeding and you suspect that your spouse may flee with your child, you can ask not only that the court assist you, but you can contact the State Department. There is a program through which children can be put on a no-fly list. The forms are available online at the State Department website. If the parent does flee with your child, forcing the parent to return is usually accomplished via the “The Hague Convention on the Civil Aspects of International Child Abduction.” This is an international agreement by which many countries have promised cooperation in finding and returning abducted children. It is very cumbersome and usually results in lengthy and expensive legal proceedings, however. Some countries have not signed it and recovering children from those countries is even more difficult. The best course if you suspect that your spouse may flee with your child is therefore to take pre-emptive action.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What happens after a divorce is filed?

A divorce, like any other lawsuit, seeks to have an impartial person resolve all the issues upon which you disagree. After a divorce is filed, therefore, much of the focus is on gathering information to prove to this person (the judge) that your version of the events of the marriage is correct and that the property division, custody allocation, etc. should be decided the way you propose. This is done through the “discovery” process. Each party can use various techniques: written questions, document requests, and oral interrogation (deposition) to obtain the documents and other information necessary to prove his/her case to the judge. Discovery can be done from the opposing party and from third parties in order to obtain information. Remember that just because you believe you know something doesn’t mean that the judge knows it. Facts that you want the judge to find as true must either be admitted by the other spouse or proven by you.

Temporary Orders

Often, there are issues in a divorce action that must be determined quickly and cannot wait months for a trial.

If, for example, the parties are separated, living in different homes, and each one states that they want to have the children live with them Monday through Friday, this is a matter than often cannot wait. If one party does not have money to hire a lawyer, but the other party is very well off, that also needs to be dealt with quickly. The same is true if one party lives with the children but has no source of income other than the opposing party. The Court will not leave the children not knowing where to live, or a party and/or the children in poverty until the end of the case. Such questions are dealt with by way of “Temporary Orders.” Either party can apply for a temporary order of the court by submitting a written “motion” to the court asking the court to do make some arrangement temporarily. That “motion” is sent to the other party in advance of the hearing, and a hearing date will be assigned, at which time the Court will hear orally from both parties and consider the “motion” and other evidence submitted.

Pre-trial and Trial

After the evidence-gathering period (the “discovery period”) is ended (often the Court will determine a specific discovery period based upon the complexity of the issues), there will be a pre-trial, at which time the judge attempts to help the parties settle their remaining differences. At that time, all relevant information will have been gathered, so the parties or their counsel can speak knowledgeably about what can and cannot be proven. If the remaining contested issues are not settled on or before the pre-trial, a trial date will be scheduled.


Trial is the final stage in any case that is not completely settled. Witnesses are called by the parties to the courtroom and questioned in the presence of the judge and the other spouse. The judge considers all the documents submitted at trial and all the witness testimony (including that of both spouses) and renders a decision, sometimes months after trial.

- Jerome L. Aaron, Attorney at Law, Massachusetts

How does the Court divide our property?
Here, the states vary greatly; and there are many classes of property that can be divided.

You need to find out two things: (1) what is the method your state uses to divide property, and (2) what does your state say is included in the divisible property. Some states are “equitable division states,” meaning they do not divide property “equally,” but “equitably,” in accordance with certain factors. In some states, for example, if one spouse has aged parents who are quite wealthy, that spouse might receive less in a property division because there is a reasonable opportunity for that spouse to inherit a great sum soon. Likewise, in an equitable division state, if one spouse is infirm and cannot work or is much older than the other, that spouse may be eligible for a greater share of assets. Other states have rules that any assets acquired during the marriage are divided equally, while assets acquired prior to marriage are separate property of the spouse who acquired them.

Some states exclude inheritances from marital property; others do not.

Most states do have rules that include pensions and other retirement assets. Pensions can be divided such that the spouse who did not earn the pension through employment can participate in the payout nonetheless. Military pensions may be treated differently.

If one spouse owns a business, that business is usually valued by a professional business appraiser, and the amount determined to be the value of the business is marital property that can be divided.

Money in trust for a spouse might or might not be divisible in a divorce. The matter often has to do with how much discretion that trustee has been given by the trust document to distribute money to the beneficiary. If the beneficiary could, perhaps, take nothing because the trustee decides to distribute all the funds to the other beneficiaries, then the trust is not likely to be considered a marital asset. In general, there must be an enforceable right to the funds in order that they be considered marital assets. If, for example, the beneficiary spouse is to receive funds upon the death of another person, according to the trust, then this is an enforceable right, and the trust would be marital property. How much the trust is worth, however, will still be open to question, since it may be years before any funds are distributed.

In equitable division states, it seems to be the rule that the longer the marriage, the more the Court tends to divide the assets equally, no matter where they came from. In short marriages, the court tends to give back to the parties what they brought to the marriage.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What happens to our debt?
In a divorce, the court divides not only the assets, but also the debt, without regard to whose name is on the credit card or loan. If debts were incurred for vacations that both people attended, that is marital. If, however, there is a debt incurred for a car that one spouse is keeping, that spouse should take on the debt. If there is a large gambling debt on a credit card, that will likely be taken by the person who incurred it, unless the gambling was a longstanding custom in the marriage that both parties knew about and concurred in. In such a case, the “innocent spouse,” may nevertheless be ordered to take on some of the debt.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Can I sell property or transfer or cash in investments after a divorce is filed? What if my spouse does this?
Once a divorce is filed and served upon the opposing spouse, some jurisdictions forbid the liquidation of personal assets, except perhaps to hire a lawyer and pay ordinary living expenses. Some jurisdictions have no such prohibition, so such an order must be requested by a party. If you believe your spouse is possessed of substantial assets that might be sent to a foreign country or given to another family member to avoid being distributed in the divorce, you may want to approach the court quickly and obtain an order restraining the use of assets.

If no divorce has been filed yet, taking a sum of money from the joint bank accounts, even a very substantial sum, may be reasonable, especially if this money is necessary for you to live until the court can make a decision on support. If money is removed from joint accounts, you should deposit those funds in a separate account so the use of the funds can be disclosed and tracked.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Is there a rule concerning payment for health insurance for my spouse and children?
It seems universal that the court wants to see that children of a marriage have health insurance. If one person has such insurance from employment, that spouse will generally be required to keep it in place for the benefit of the child during and after the divorce.

If there is a “family plan” in place, the Court usually orders that the spouse continues to be covered as well, both during and after the divorce. Most states have “continuation” statutes for health insurance so that insurers must continue the coverage for the divorced spouse if the Court orders it. This does not apply to so-called “self-insured” plans. You need to check with your plan administrator carefully to see what the company policy is concerning health insurance.

Generally, courts will not require one spouse to cover the other after the divorce if there is no company plan available. If the divorce becomes final without there being a company plan in place, new employers will not permit the coverage of the ex-spouse. It is the “continuation” of such a plan existing while you were married that is generally mandated. If one spouse, after the divorce, is sufficiently wealthy, however, there can be an order to cover the other spouse, even if this means buying a separate policy.

When the employee who is covered by an employee policy remarries, there is often an opportunity for the ex-spouse to continue on the other spouse’s insurance plan by the addition of a rider or separate plan, but at a reduced cost. Often, the non-employee spouse will have to pay the freight for that coverage. When the non-employee spouse remarries, he/she will be off the policy of the ex-spouse.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What if I have a dispute with my lawyer or feel my lawyer is not doing a good job?
Lawyers are not like ordinary business people with whom you have a transaction. They have a very special duty to their clients to diligently pursue their claims and defenses within the bounds of the law and to not take any actions that may jeopardize the client’s legal position. They are required to communicate with you in a timely manner and keep everything that you communicate confidential, whether those communications are oral, in writing, through documents provided, etc.

If you feel your lawyer is not doing a diligent job or not communicating with you in a manner that you understand or in a timely manner, you have the right to change lawyers. You have a right to the return of your file promptly so that you can provide it to another lawyer. The only portion of your file that must be returned to you, however, is the portion you have paid for. If depositions were taken, but you did not pay the fee for those or the stenographic costs, those transcripts are not required to be returned, in general.

Your lawyer cannot represent both you and your spouse simultaneously, even if your divorce is uncontested. If your lawyer did represent you and your spouse while you were married to give you tax advice, for example, even years ago, that might be a reason to disqualify that lawyer from representing your spouse now. That would apply even more so if that lawyer talked with you concerning a possible divorce and then was hired by your spouse. Such a matter as the disqualification of a lawyer will have to be taken up with the judge.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Can I modify my previous divorce judgment?
Usually, child support, health insurance, and other child-related provisions are modifiable upon a showing of a substantial change in circumstances of one or the other parties. Usually, the division of property is not modifiable, and alimony (spousal support) may or may not be modifiable, depending upon the particular provisions of your divorce.

Modification requires a separate court filing, and ultimately, pre-trial and trial, if one or more issues cannot be settled.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What if my spouse does not obey the temporary orders of the court or the judgment of divorce?
If a spouse does not obey the orders of the court, then the other spouse can file for contempt. This is usually a separate action where the papers are filed and then served upon the other spouse, with a hearing date set separately from the divorce. If a required payment is not made, if child support or alimony is in arrears, or if parenting time is denied, for example, contempt may be brought. One should request to be reimbursed for counsel fees and the costs associated with the contempt, as no court proceeding would have been necessary but for the failure to abide by the lawful court order. Usually, a “clear and unequivocal” order is required for contempt, along with an equally “clear and undoubted disobedience,” so if a payment is to be made by one spouse, but there is no due date in the Court order, a contempt will usually not stand. A contempt will also will not be available to force one spouse to see his/her children according to the parenting arrangement. If a parent continues to be a no-show at times ordered or agreed upon for parenting time, the more appropriate route is to change the schedule through court order, rather than to bring a contempt.

If you have joint legal custody and your spouse refuses to communicate with you or makes major decisions without your input, you can file a contempt case as well. Joint legal custody carries with it an obligation to confer and make joint decisions.

- Jerome L. Aaron, Attorney at Law, Massachusetts

What is the procedure for obtaining a divorce?
In most states, there are generally two procedures: one for an “uncontested” divorce, and one for a “contested” divorce. If the parties are in full agreement about all the terms of their divorce, they can file “uncontested,” meaning they submit their written agreement, financial statements, and certain other documents. They will then be required to appear once for a hearing in which the judge ensures that the agreement was signed voluntarily, is fair, and contains reasonable provisions for the protection of the child, including, among other things, health insurance.

If one or more issues (for example, custody, division of property, or the parenting plan) is in dispute, the case is “contested.” The parties can submit a partial agreement for divorce either sooner or later, but the contested issues will be finally determined by the Court at trial. 

If there were contested issues when the divorce began, but those contested issues were all resolved during the case, the divorce can again become uncontested. All issues are either settled by agreement or go to trial, where witnesses testify. 

- Jerome L. Aaron, Attorney at Law, Massachusetts

Pro Se Litigants
How do I represent myself in Utah family courts?

April 12, 2014
By Executive Committee, National Parents Organization of Utah

At a recent membership meeting, National Parents Organization of Utah presented general information and suggested resources on representing yourself in court with a focus on family law matters. This information is important for those representing themselves or for those considering self-representation.

Our primary purpose for posting this is to provide a tool and reference information, such as the embedded links, for Utah members and prospective members who are considering self-representation or are already representing themselves. Of course, start with the  Frequently Asked Questions on National Parents Organization’s website.

The complete presentation, with links to Utah resources, is attached. As you access Utah state offices remember the difference between legal information and legal advice.

Legal advice explains your legal rights, suggests what course of action to take, and the possible consequences of the lawsuit. Legal information is information on court procedures, due dates, deadlines for filing certain documents, when hearings are scheduled and information that is contained in records. Pro se litigants must do their homework.

To be successful in a case, the pro se litigant must become aware of and continually review: Utah Rules of Civil Procedure and applicable sections of Utah Code.

If I am moving out of the house, what can I take?
There are really no hard and fast rules, in general. If you know your marriage is over and you are moving out, it is best to take every single thing you believe you will want to have, even if you must store those things. Once a divorce begins, you may find your clothes are sitting on the lawn. You may find your baseball card collection and autographed baseball was given away to a nephew, and that three of your suits are missing, while two others have holes in them. Many judges, overworked by the huge number of cases they must decide, take the position that they will not divide personal property, and that the parties must do this by themselves. If there is substantial conflict in the case and negative feelings, the spouse who is in possession of what you want may simply offer that you take a couple of worn rugs and some of the older items. You can’t rely upon a judge to get these back for you. Better to take a fair amount of the personal possessions at the outset and let the other spouse argue that they should come back. Although anything can happen in a divorce case, it is seldom that a court will entertain a request that lamps or chairs be returned to the marital home. Don’t clean out the house—

be fair. Also remember that if you take too much, you will likely hear a claim that this traumatized the children.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Family Courts
Can I change judges if the present judge seems biased?
One often hears that a litigant in a divorce feels the judge is biased against him or her. The problem is, having a judge discharged from your case is extremely difficult. In many jurisdictions, the judge must first ask the question of him/herself whether he/she feels capable of rendering an impartial decision in the case. If the answer is yes, the challenge to the judge is usually over. Very few judges “recuse” themselves. They almost all seem to feel they are unbiased. Appeal of that decision rarely produces a good result. It is only when there is some provable, outside relationship between the judge and a litigant that one can successfully have a judge ousted. Examples are when a judge is related by blood to a party; when a judge has dated a party; when a judge has a business relationship with a party; or when a judge has publicly commented upon the character of a party. Other than that, recusal is usually not an option. Some states may see it differently, and, again, it is worthwhile to check into your state’s take on this.

- Jerome L. Aaron, Attorney at Law, Massachusetts

Family Law Attorneys
What if I can’t afford a lawyer?
It is very important to have legal counsel in any divorce proceeding, even in an uncontested case. If there are contested issues in your case and you can’t afford a lawyer, you can ask the court to order that your spouse pay you an amount of money for legal fees “pendent lite” – during the litigation. If that amount is depleted, you can approach the court for second award of counsel fees. You can also ask the court for permission to liquidate investments or other assets to pay your legal fees and even basic living expenses.

- Jerome L. Aaron, Attorney at Law, Massachusetts