Frequently Asked Questions
DIVORCE
What is a marriage?
Marriage is defined as a civil contract between two people of the opposite sex, and must be of age or have the consent of a parent and must be unmarried and not divorced within the six months prior to entering the current marriage contract. Generally, to be married, two people must be of opposite gender. However, some states are in the process of changing the different sex requirement.
What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.
What is an annulment?
Marriage is a contract, an annulment is a method of voiding a marriage from the beginning. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted, however, if the marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
Must I get divorced in court?
No, many times with the consent of both parties, a divorce can be obtained without a court appearance.
How long does it take to get a divorce?
A divorce can generally be obtained immediately if the parties have lived separate and apart, without reconciliation, for 180 days. Otherwise one must file a petition for divorce and obtain the divorce after remaining separated for 180 days. However, if you have children from your marriage, you must be separated for one year in order to obtain a divorce.
CHILD SUPPORT
Who has to pay child support?
Liability is imposed upon both parents. Substantially all states have adopted the Uniform Support of Dependents Law. Under that law, "if possessed of sufficient means or able to earn such means, either or both parents shall be required to pay for child support a fair and reasonable sum as the court may determine."
How is child support calculated?
The federal Family Support Act of 1988 requires every state to establish numerical child support guidelines. Every state has "child support guidelines" that applies a percentage to the non-custodial parent's income. It is from this percentage that the child support is calculated.
What income is included in the calculation?
In the vast majority of cases, child support is based on reported wages of the payors, as proven by income tax returns.
What can I do to make sure child support payment is made?
There are many enforcement means available in most states. These include income deducting money from the payor parent's wages, making a negative report to credit reporting agencies, collecting past-due child support from lottery prizes won by the payor parent, intercepting tax refunds due the payor parent from state and federal income tax authorities, seizing property the payor parent owns, such as real estate and bank accounts, medical support enforcement (where the employer is required to deduct health insurance premiums from the payor parent's wages similar to an income execution), obtaining a court order directing that the payor parent pay a cash deposit to secure payment of support, obtaining a court order placing the defaulting parent on probation and, usually where other methods have all failed, obtaining a court order sentencing the defaulting parent to serve jail time.
Can my former spouse file for bankruptcy to avoid paying child support?
No. The federal bankruptcy code exempts child support and alimony.
What if my former spouse cannot be found?
Most states have a parent locator service. Call your state's support enforcement agency and ask about the parent locator service. All states have adopted the Uniform Interstate Family Support Act ("UIFSA"), a statute providing for interstate collection of child support. This Act sets up the method for enforcement of support orders where the parties live in different states. Essentially, the party seeking enforcement, files a petition in his or her home state. That petition is sent to the payor parent's home state and he or she is brought into the court of that state. Usually the custodial parent in a UIFSA proceeding is represented by an attorney who works for a government agency in the payor parent's home state. If you wish to file a UIFSA petition, you should be able to obtain the assistance you need to file the petition and get an attorney appointed to represent you in the other parent's state by contacting your local child support enforcement agency. UIFSA proceedings can be very time-consuming and frustrating. In many cases, the custodial parent is better served hiring an attorney to file a petition in either the custodial parent or payor parent's state directly rather than through the UIFSA procedures. Prior to filing a UIFSA petition, the custodial parent should usually consult with an attorney in his or her home state to discuss whether filing a UIFSA petition is the best method for collecting support under the circumstances of the case.
