Hey, what's up everyone? Divorce attorney Bobby Buchanan here. This is Illinois divorce TV where I take you down the pragmatic path to getting divorced. Today I want to talk to you about how do you split credit card debt in an agreed divorce or really kind of what is the best way to do it or framework to think about it. As you sit down with your spouse and you talk about what you're going to do with the credit card debt that may have accumulated while you were married. Well, I think a, a pragmatic approach to this would be to look at what credit card debt. Let me back up here. Let's talk about what the law is because that's ultimately going to be the foundation that you would negotiate around if your case does get into court. So that might be helpful. As you negotiate out of court, you can obviously negotiate around any sort of framework that you and your spouse agree on.

You might both agree that the law doesn't make a whole lot of sense and what you feel like is more fair is some set of ground rules that you to agree upon. And as long as that doesn't deviate wildly from what the law is, then you shouldn't have a problem. I mean, ultimately two parties are allowed to contract with each other for the end of their divorce and any way that they see fair, as long as it's not what the law calls unconscionable and unconscionable is this big word that basically means extremely unfair, somewhat so unfair that the judge can't swallow the pill. That is the fact that two consenting adults, you know, negotiated this contract. But I digress. The framework, the law as far as dividing debt is going to be a, an equitable division of the marital debt. Now what does that mean? An equitable division is a fair division.

Sure.

What is marital debt? Well, marital debt is any debt that's been acquired during the marriage. So usually a fair division of that debt is 50, 50 especially if the debt is kind of your standard living expenses. And that sort of thing. If it is debt that's more in the nature of a growing a business or say student loans, there might be a different calculus to look at what is a fair allocation or division of this debt. So that's kinda your legal there. Kind of as an aside or an additional question. Well, what about after you're separated? Is the debt that you've accrued after you separate? Is that marital debt as well? The answer is yes. There is no kind of exception or division for after you separate that, that, that your other spouse or cruise isn't marital anymore. So you could actually be on the hook for part of their debt.

That being said, and it wouldn't be uncommon for a court to say, you know what, you're going to be responsible for all the debt you acquired after the separation and you're going to be responsible for all the debt the other spouse acquired or that, if that makes sense. Each party is going to be responsible for the debt that they accrued after the separation. And that's probably where I would start if I was trying to make a pragmatic decision on a how to divide the debt. And I was sitting down with my spouse and saying, you know, what should we do with this $15,000 of credit card debt that we have with this card and that card and this joint card and this, you know, car that's only in your name and this one's only in my name. I think one route to go and say, let's just do what the law says.

Let's look at what was accrued during the marriage and let's just divide that 50 50 I'll be responsible for this half. You be responsible for that half and we can go our separate ways. Another way to do it, you might decide that it's fair to say, okay, after we separated we really started doing our own thing. So it doesn't seem fair that I would be responsible for yours and you'd be responsible for mine. So in that case, let's just leave that off of part of the calculus. Let's just look at what was accumulated. Wow. We were actually together and we can split that. That's kind of the second way that I might think about doing it. The third way that you could think about doing it is, Hey, you know what? We kind of lived our own separate lives here. Even when we're married, I bought my stuff, you bought your stuff.

But we really thought about this as our own debt. So even though the law says that it's our debt together, and even though our credit cards are maybe even joint credit cards, this was the one that I always, always used and this is the one that you always use. So why don't we just be responsible for the debt that we actually you know, we, we accrued ourself because of our own decisions. Great. Sounds like a good decision to me. There's, that's the general high level framework. So what you do at that point is negotiate around the edges. There might be some little things here and there that you think are an exception to the framework that you've created, but you've ha, you've answered the big question of kind of what framework are we using to figure out the division of debt here? What is fair for us? What's fair for our, our personal, unique situation? I hope this has helped. I hope you're able to divide your debt in the most efficient manner possible. Let me know in the comments whether or not you think what I'm saying makes any sense is a logical approach or let me know. If it's not, I'm happy to hear it both ways. I'll talk to you soon.

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Who gets the couch and who gets the flatware? Who gets the TV in the living room? Who gets the TV in the bedroom?

Let's talk about something really practical: How to divide personal property in a divorce.

The law says that marital property should be equitably divided when you get divorced. So that’s pretty much all property that you and your spouse got during the marriage minus anything that either of personally inherited or gifted.

I’m not going to get into the nuances of classifying property here.

This is about being practical.

I’m all about getting things done.

Of not letting the good be the enemy of the perfect.

I want to help you move forward not drown in an endless debate of whether this thing or that thing is marital or not.

So let’s get to it.

I recently attended a private divorce mediation where I learned two excellent, super practical, ways to divide up personal property.

Fair warning though: Do not use these methods if you want to move your divorce forward.

If you want to squabble over who gets each and every thing, then click away immediately. 

If you think your happiness after the divorce depends on which furniture you get, the door is over there. I know I sound harsh, and I’m sure there are some keepsakes that you can’t imagine letting go of, but I’m really trying to push you into a mindset of understanding of what really matters here. Moving forward. Be brutally practical and I highly doubt you’ll message me in a year and say gee Bobby, I really wish I was fighting over the garden hose still.

People really do fight over the garden hose you know.

Ok so what are these magical methods? So I was in this mediation with a retired divorce judge and a well-respected divorce lawyer who had been practicing for at least 15 years or so. Each had their own suggested way of splitting personal property.

The judge also mentioned that in her 20 years on the bench had she ever had to split personal property. It just doesn’t make sense for a judge to do it when there are much more practical and common sense ways of getting it done.

Let’s start with the lawyer’s method.

I call it the “glass door number 1 or glass door number 2” method.

Method: Glass Door Number 1 or Glass Door Number 2

Start by making an inventory of all the personal property that needs to be split. That is, everything that you and your spouse got during the marriage (sure, you can exclude gifts directly to you or things your inherited - just decide on those ground rules first). 

Ok, so now you have one long list. 

Now one person is going to be the divider and the other is going to be the chooser.

This should sound familiar. We’ve all been using this method to split up the last piece of cake or candy since we were in 1st grade. 

If you can’t decide on who is going to be the divider, flip a coin for it. 

Don’t overcomplicate this part - or any part for that matter.

Ok - now the divider is going to get to work. Take a fresh piece of paper and make two lists - list 1 and list 2. 

There is only one rule: all items need to be included between the two lists. 

After the two lists are made, the chooser chooses which list that they want.

Simple. Done. 

Ok, here’s the second method - the retired judge’s method. I call this one “the Draft”. 

Method 2: The Draft

Step 1 is the same: make a list of all the property you are going to split up.

Now, flip a coin to see who picks first. 

Then just alternate picking until all the items have been divided. 

Simple. Done.

Don’t overcomplicate this. Just because it’s divorce, and it’s a legal proceeding, doesn’t mean it has be complicated. 

Be practical. Be smart. Move forward. 

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The house is in my name so it’s mine! Wait?! Is that true??

So you’re thinking about divorce and how it might affect what you own. Specifically, you’re thinking about your house. It’s a classic cedar frame home in the heart of Roscoe Village. Good school district. Low crime. A solid investment.

You and your spouse bought it about a year after you got married. For one reason or the other, your spouse isn’t on the deed or the mortgage.

Now that you’re thinking about divorce, the question is who has rights to the house: you, your spouse, or both of you.

I wouldn’t fault you for thinking that you have rights to the house and nobody else. I mean you are the only name on the deed and mortgage. End of story, right?

Wrong. 

When it comes to splitting property in a divorce, whose name is on something is only the beginning of the story. In fact, it’s generally the least important part of the story.

Let’s do quick review of how property is divided in a divorce.

So, before you get married, everything you own is yours.

Sure, other people might have some sort of legal claim to what you have - whether it’s because of a lien, mortgage, trust, or something else like that - but nobody has a claim to your property just because they are in a romantic relationship with you.

And that’s true after you get married as well - your spouse doesn’t have a claim to your property just because you are in a romantic relationship - they have a claim because you two entered into a legally binding relationship, a state-sanctioned relationship - a marriage!

Marriage is a game changer. With it comes all sorts of rights and relationships - for the most part we don’t think about them. If the marriage is going well, we are working as a team, building a future together.

When things break down and our future becomes less certain, we have to start thinking about what’s mine and what’s yours. 

When you get married, three property categories are created out of thin air: Your non-marital property, your spouse’s non-marital property, and the marital property. Marital means “of the marriage.”

Those three categories are like baskets, and each piece of property you own is in one of those baskets.

Some property could be in multiple baskets, and property can move from one basket to another depending on how it’s treated. We’ll go into that in greater detail in another blog post.

When you get divorced, though, all that stops. The baskets are wired shut and all property is permanently categorized in one way or the other.

Ok, so let’s talk about that house with your name on it again.

That should go in your “non-marital” basket, right? Wrong.

Whether something is marital or non-marital has little to do with the names on the property.

It has more to do with when it was purchased, with what funds, and what intent.

So that house, you and your spouse bought during the marriage, that just has your name on it? It’s probably going in the marital property basket. Parts of it could be in your non-marital basket, but that’s gonna be the exception, not the rule.

If you want to dive into the nitty gritty of your case, you should talk with a lawyer. 

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Let's talk about the marital home. Or any piece of marital real estate for that matter. Whatever the property, it’s got both you and your spouse on the mortgage and you’re trying to figure out your options.

The first question is whether the home as equity. If it does, great, that’s going to open some doors for you - and that’s what we’re talking about in this post.

If it doesn’t have equity, your options are less but you still have a few - check out my future posts for options if this is your scenario.

Do you want to sell or keep your home?

The first big question or decision between you and your spouse is deciding what you want to do with the home. 

Do you want to stay in the home, do they want to stay in the home? Do you want to sell it?

Let’s say that your spouse decides that they want to stay in the house. Well, you’re on the mortgage, and I’m going to guess that if you’re not going to be keeping the house, you don’t want be saddled with the liability of the payment for the house.

Seems only fair right?

Plus, if your spouse misses any payments your credit score credit is negatively affected. Even if your spouse always make their payments on time, the mortgage is going to affect your debt-to-income ratio, which will make it more difficult for you to buy a house down the road.

You’re probably gonna want to get off the mortgage, all I’m sayin.

So how do you do that? Refinance.

Your Spouse Can Refinance to Remove Your Name

Your spouse is going to have to refinance the mortgage to remove your name. The only way that your spouse can refinance is if they are approved, so ultimately your spouse’s ability to stay in the home - if you want to protect your exposure and you insist on being removed from mortgage - depends on your spouse’s ability to refinance.

If your spouse is working and the house has equity, chances are pretty good that they will be able to refinance - but there are no guarantees.

Protecting Yourself if Your Spouse Fails To Refinance

So how do protect yourself if they are unable to refinance? You don’t want to be stuck after the divorce, your spouse living in the house, you’re still on the mortgage, and now your spouse is struggling to make payments for whatever reason - and you have little to no practical recourse.

Many marital settlement agreements include a plan B for this type of situation.

Specifically, they include language that if the party that is supposed to refinance, doesn’t within 90 days, then the house has to go on the market, and the proceeds will be split by the parties.

Another option could be that your spouse does the refinance before you finalize the divorce.

The problem with that though is that there won’t be a strict timeline on how quickly they should get the refinance done, so if both parties are not motivated and cooperating to get things done the refinance could really drag on.

Options for Selling the House in a Divorce

Alright so let’s talk about your options when you both want to sell the house and split the proceeds.

You’re gonna have to make some decisions here.

As you know, selling a house is a bit more complicated than selling a couch on craigslist.

What Are Your Goals in Selling The House?

Your goals and your spouse’s goals in selling the house might be different.

Your priority might be a quick sale; your spouse’s goal might be to get the highest price possible. If you are hoping for an agreed divorce you and your spouse should discuss whether you want the most money or whether you want to sell the house quickly; or maybe there's a happy medium.

​It's Important to Think Through All Of The Decisions You'll Have to Make in The Selling Process

Alright - You’re gonna need a real estate agent.

How do you pick one?

You’re going to get offers for purchase of the house that are lower than your asking price. How do you decide whether to accept?

There are going to be closing costs. Who pays for those?

The house might be on the market for a bit. Who stays in the house when it’s on the market? Who pays for the mortgage and the utilities while it’s on the market?

Let’s tackle these one at a time.

How should you pick your real estate agent?

No magic formula here. If you have a real estate agent that both of you like and trust, you can go with them.

If you don’t, one option is that you make a list of three real estate agents that have experience selling homes in your area and then your spouse chooses one from that list - or vice versa.

Next - where do you draw the line on price and timing?

After speaking with the agent you’re going to have to decide what you’re listing price is going to be and what is the lowest offer is that you’ll accept. If you and your spouse are struggling to agree in these areas, you may want to defer to the agent’s advice on finding a middle ground.

Decide on Who Should Pay Closing Costs

Ok - Closing costs? Who pays em? I say split em. Next issue.

Decide Who Stays in the House When it's Listed for Sale

Who stays in the house when it’s up for sale? And who pays the mortgage and utilities? These two really go together - usually.

Obviously, you have three choices here. You both stay in the house (roommates!).

You stay.

Or your spouse stays.

The right answer for you guys really going to depend on your individual situations, and will probably relate to who is willing to pay the full mortgage, if anybody.

Generally, speaking it would make the most sense for whoever is staying in the house to pay the mortgage and utilities, but there’s no inherent reason you couldn’t work out a different deal with your spouse.

There you have it, a few options for when you’re both on the mortgage and you got some equity.

Let me know if you need help talking through the options.

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It’s the document that starts it all! The Petition for Dissolution of Marriage. So how do you draft it? 

Alright so you’re exploring your divorce options and trying to figure out whether you can get this done without a lawyer.

Maybe you can do some of the leg work to save yourself a few bucks.

I’ve said it many times and I’ll say it again here: Even if just for a few minutes, you should talk with a lawyer about your situation before you decide whether the DIY divorce is right for you. I don’t want you to miss something obvious that could really hurt you financially down the road. I also need to say that the information in this blog is just that - information. It’s not advice. I don’t know your situation. I can’t give you advice. I’m not telling you to do things one way or the other. I am not you lawyer. Duh. 

I have a passion for teaching so I’m teaching you about the process of drafting a Petition for Dissolution of Marriage. Nothing more nothing less.

The Petition for Dissolution of Marriage is generally a one to three page document that is your formal request to the court to end your marriage.

The minimum contents of the Petition are established by statute. Specifically, the statute is 750 ILCS 5/403. The statute says that each Petition has to include: 

the age, occupation and residence of each party and their length of residence in this State;

1. the date of the marriage and where it was registered; 
2. whether a petition for dissolution of marriage is pending in any other county or state;
3. a statement that irreconcilable differences have caused the irretrievable breakdown of the marriage;
4. the names, ages and addresses of all living children of the marriage and whether either party is pregnant; 
5. any arrangements as to support, allocation of parental responsibility of the children and maintenance of a spouse; and the relief sought.

So that’s the barebones requirements. In practice, most attorney’s include a bit more information. We’ll go into that in a bit. 

No attorney writes the Petition from scratch. They use a template or a previous draft from another case and they modify it to suit the current case.

If you are considering drafting a Petition yourself, you have a couple options.

There are two great websites that are free where you can get your hands on a Petition. The first one is illinoislegalaid.org. Illinoislegalaid.org is an amazing, modern website that is full of information about all areas of the law.

One of the coolest parts of the website is their document generator -  and it has inspired me to build my own document generator. They have different “interviews” that guide you through a series of questions and then pump out the legal documents you need. 

Fair warning. There are no guarantees that these documents are going to protect you in the best way possible, and they are no replacement for a lawyer’s skilled drafting. They are good for people that either have no other option or have a high tolerance for risk and want to save some money. 

Your next option is the standardized forms published by the supreme court of Illinois. These forms are meant to be printed off and filled out by hand, and they include instructions that answer common questions. 

The other options that you have for drafting a Petition for Dissolution include requesting a form at the courthouse, which they may or may not have, and paying for a DIY service online. 

There are quite a few DIY services. The ultimate question is whether these DIY services offer more value than the Illinois Legal Aid website, which is completely free. I will be doing a comprehensive review of the major DIY websites in future videos.

So there you have it.

Ready to get your case filed?

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Your marriage is over, you’re ready for the next chapter, and you just want to get the paperwork done. How simple or complicated could it be?

​Nobody wants a contested divorce. Nobody wants to spend five figures plus on their lawyer just to end their marriage. Well not every divorce is cut from the same cloth.

Today I’m going to talk about what it takes to truly have an agreed divorce - that’s a divorce where both parties are on the same page and it’s just a matter of ironing out the details, putting it all on paper, and signing.

I’m going to talk about what makes a divorce simple and what it makes it complicated, and then I’ll break down a hypothetical divorce so that you can see some of the decisions you might have to make.

My hope this will leave you better prepared to think through your divorce and help you to start processing what it’s going to take to make your divorce happen.

It all comes down to finances and kids during your marriage.

The simplest divorce usually comes from a marriage that is relatively short, there are no kids involved, little to no property, little to no debt, and the parties don’t live together.

If there is any property or debt it’s not jointly held meaning all property or debt is either in your name or your spouse’s name.

​If I have a client with a scenario like this - and their spouse is cooperative, I can have them divorced within a couple weeks.

There are kids, a business, an income disparity, a good deal of wealth or debt, a power imbalance in the relationship, maybe a history of domestic violence, and both parents want the kids to live with them while they go to school.

A divorce case like this rarely offers any easy ways out and a lot work needs to be done on finding an amicable solution. It can be done but it can take well over a year to get there. Two or three years wouldn’t be out of the ordinary.  

Let’s say you have two kids with your spouse, about 100 thousand  dollars in your 401k, your spouse has 50k in theirs, you have about 10,000 dollars in credit card debt, you both make about the same amount per year, and you’re still living in the same house, which you own, and you have about $5,000 between your checking and savings accounts.

So what specifically are you going to have to an agreement on?

First things first: the kids.

There are two major things to decide: what’s the parenting time going to be, and who is going to make the major decisions for the children.

There’s a third things as well - child support - but that is determined after you decide on the parenting schedule.

If you’re of the mindset that child support is the most important thing and the schedule is secondary, you’re doing it wrong - I’ll just leave it at that for now.

Alright so let’s talk parenting time.

That’s your nuts and bolts schedule for when you’ll have the kids and your spouse will have the kids.

The first question I get a lot here is “do we need a schedule?” “We get along and can just work it.” That’s great! But the answer is yes, you need a schedule. The laws says you do, so you do.

The judge won’t approve your parenting plan without one.

That doesn’t mean you have to stick with the schedule though - most agreements have language in them that says that if the parties agree to a schedule different than the court schedule that’s fine. Life happens. Maybe you have a work thing. Maybe the kids want to be with the other spouse for whatever reason. You two are flexible and reasonable and that’s great, and your court agreement shouldn’t get in the way of good co-parenting.

Ok so what are the major things you need to keep in mind when thinking about a parenting schedule?

First, you and your spouse are going to need to work out, who the kids will be living with when while they are going to school?

Is the schedule closer to 80% with one parent and 20% with the other parent, which possibly offers more stability for the kids, or is the schedule going to be closer to 50-50, which gives the kids a chance to spend a good amount of time with both parents?

How are you going to split school breaks like spring break?

Are you going to alternate who gets it or are you going to split it down the middle?

What about Christmas break? When is the split point for Christmas break?Christmas eve night or Christmas day?

Thanksgiving? Who gets it and when?

The kids birthdays? Your birthday?

Teacher-conference days off school?

How about summer? Does each parent get a block of time with the kids to go on vacation? How do you decide when this block of time will be and how long it will be? If you can work these things out with your spouse before you see a lawyer, you will drastically simplify the process.

The next issue is going to be decision making - that’s major decisions - specifically, decisions related education, extracurricular activities, health, and religion.  

If you and your spouse are amicable enough to have an agreed divorce from the get go, this one shouldn’t be difficult.

It’s either going to be the parent that is already making these decisions - or it’s going to be both of you.

Chances are if you get stuck on this one, you’re going to see a fair amount of disagreement in other areas.

Alright, let’s talk child support.

The amount of child support, in 9 out of 10 cases, is based on the child support guidelines. In fact, most judges are pretty reluctant to not follow the guidelines and actually, by law, they have to follow them unless there is a good reason not to.

So how is child support calculated in Illinois?

Basically, in its simplest form, each parent pays an amount based on their percentage of the total income between the parties.

The total child support amount is a predetermined amount set by the Department of Healthcare and Family Services.

One major thing to keep in mind is that the calculation is drastically different if each parent as at least 146 overnights with the children per year.

So if you’re schedule is 156 of the overnights with one parent and 200 with the other parent, the child support obligation is going to be much different than if you had a 300 overnights with one and 65 with the other type schedule.

Alright, so you got the schedule and child support figured out.

The next big issue is the division of the marital assets.
 

The first question to tackle here is who, if any one, is going to stay in the house, and how you are going to divide the equity.

Let’s say that there is 100 thousand dollars in equity in the house and you want to stay in it after the divorce. The most common approach is that you’ll buy your spouse out of their portion of the equity. Let’s say that’s 50k. You don’t have 50k on hand. One option, and again a very common one, is a cash out refinance. You refinance the property and at the closing table your spouse signs the deed over to you, and she is cut a check for 50k.

Another option would be sell the house and divide the proceeds at the closing.

Next in the asset line up are the retirement accounts.

The three go-to approaches here are:

1. equalize the retirement accounts, so if you have 100k and your spouse has 50k, you would be giving 25k to your spouse.
2. equalize just the marital portions of the accounts. So let’s say that since marrying your 401k has gone from 50k to 100k and your spouse’s has gone from 30k to 50k. That means that your marital portions are 50k and 20k respectively. So there would need to be a 15k transfer from you to your spouse to equalize the marital portions.
3. The final common approach here is that you take yours and your spouse takes theirs.

Which approach you take is going to come down to the personality of the parties. What a judge might do if the case went to court is going to depend on some other factors that I’ll dive into in a later video.

Finally, you and your spouse need to decide what happens with your debt and savings.

The easiest solution is going to be a 50-50 split of both, but you may need to decide based on the nature of the credit card debt who is going to be responsible for what percent. You may also decide that one person gets more the savings because of whatever reasons you have. My suggestion would be to not overcomplicate this decision, and to not overcomplicate any of your decisions.

Your goal is an amicable divorce - to make that happen - you might have to concede on some issues and just give in.

That, of course, is up to you. Good luck!

“I have a guess ma’am” “You got these documents online. Because they’re completely wrong, and I can’t divorce you today.”

Going to court is a lot of hurry up and wait. You hurry up to make sure you’re there “on time” and then you wait for your turn. It’s not uncommon to wait 20, 30, 40 mins, even more. With all that waiting, I see my fair share of divorce disasters. People who, for whatever reason (maybe money, maybe fear of lawyers), have decided to do their own divorce, and you can tell they really have no idea what’s going on, if their documents are correct, if they are saying the right things in front of the judge, and things are just going off the rails entirely.

I really feel for these people.

A big part of me wants to jump in and save them. 

What a lot of people don’t realize is that it’s more than just getting the judge to stamp the papers and pronounce you divorced.

It’s what’s in those papers that matters.

Even if you have no property and no kids, there may be some legal relationship between you and your spouse that needs to be addressed in your divorce papers, otherwise it could turn into a real pain in the butt down the road.

That’s what lawyers do. They look at your situation and make sure you have plugged all the leaks as best as possible. Of course, nothing is fool proof and there aren’t any guarantees, but there’s a big difference between having a little legal advice and none at all.

So back to this lady in court, I saw the other day.

The judge was frustrated because she knew the lady wanted to be divorced.

It’s a big deal.

It’s the end of a chapter. And it can be scary to go into court by yourself.

But the judge’s hands were tied. The document itself was really screwed up.

The pronouns were wrong, child support was wrong (it was using the old law), and custody was even wrong.

The lady gave her husband residential custody without even knowing it!

The judge handed her the documents and told her that she’d have to come back another time. The woman left really frustrated.

Sometimes I’ll catch people like that in the hall and give them some direction, other times I don’t have time, or it’s not possible for one reason or the other.  

There are some great resources online if you are trying to do your divorce on your own. There are also attorneys that provide unbundled services, meaning you can hire them for one hour and they will provide you with some solid direction and great advice.

The biggest mistake you can make is not at least exploring the option of help before you move forward.

Guardian Ad Litem, Clinical Psychologist, Court Coordinator, who are these people? What’s their role? What should you know about them? That’s what we are going to talk about right now!

Alright, so today’s blog is a quick breakdown of the different people you might interact with in your divorce case.

I’m going to run through the major players here. Keep in mind, if your case is not contested - or even if it is - all of these people might not get involved. But I think it’s helpful to get a full understanding of the lay of the land so you know where to set your expectations if your case does get more heated.

I think we’re all pretty familiar with the role these two have. Your lawyer is your advocate, counselor, and representative. Their job is going to be to fight and bargain for the best deal possible while also giving you advice on where to concede and compromise. 

We all have a pretty good understanding of what a judge does from what we’ve seen on TV.

It’s important to understand though that TV court (whether it’s Law and Order or Judge Judy) moves at a pace about a hundred times faster than real life judges.

People often complain that there is case is limping along. Why won’t the judge just make a decision already?? It doesn’t make for great TV but there are very specific rules on when a judge can make a decision about your case. Nine times out of ten, when your case is up in court, the judge is legally not allowed to make a decision on what’s called the “merits” of the case. The merits refer to the substance the case - who gets the kids on what nights, who get the house, etc. The judge can only make decisions on this stuff at hearing or trial. Hearing or trial requires a great deal of preparation by your lawyer and is unpredictable a lot of the time. So in practice, much of a case moving forward comes by agreement. It’s in the best interest of both parties to agree on many things. 

It’s the sheriff’s job to keep order in the court.

It’s the clerk’s job to keep the documents in order and to manage that day’s court call. Court call refers to the case set to be heard that day.

It’s the coordinators job to manage the judge’s calendar and make sure that they are not overbooked.

These three are the ones that really make the court run. 

Technically, these two people have slightly different roles but in practicality they both serve the same purpose - they are appointed by the court to protect the best interest of the child.

Usually - unless the parties qualify - it is a private attorney - meaning that you will have to pay the fees of this lawyer.

The Child’s rep or GAL as they are often called will interview the parties, investigate the facts, and make recommendations to the judge.

Their opinion carries a lot of weight with the judge. 

The clinical psychologist is another professional that serves at the appointment of the court. Most commonly, they are the court’s expert meaning that they are assumed to be neutral and the parties are splitting the cost of their time and expertise.

A clinical psychologist will only be appointed in cases where the parties are truly at loggerheads unable to agree on the big custody questions (who is going to be the primary parents, who is going to make decisions for the child.)

The psychologist will typically interview the parties, the child or children, and anybody else they feel plays a key role in the upbringing of the child. They will then write a report making an expert recommendation on how the judge should rule in your case.

If you don’t agree with their opinion, you will usually have the option of hiring your own expert psychologist.

So those are your major players. There are certainly other professionals that may play a role in your case, but in nine out of ten cases that’ll be it. 

Today’s blog post is right up there with one of the most asked in all of divorce and custody land: how long are you gonna be stuck in the purgatory we call the “divorce process.”

If I could snap my fingers and get you from where you are right now to where you want to be - divorced - I would, but I can’t. So let’s talk about what really controls how long the process takes.

Default divorce is a divorce where your spouse is either MIA or just doesn’t participate. This type is going to take typically around six to eight weeks. There are some hoops to jump through and some mandatory waiting periods, but that’s it.

If you are reading this right now thinking, “my spouse will agree to whatever - I just need to know how to get it done and how long it will take.” Then you have what we can call an agreed divorce. That’s where everything is...agreed. If you have kids, for example, you’ll have to agree on issues like child support, parenting time, holiday visitation, and summer vacations. There’s more, but you get the idea.

In the case of an agreed divorce, the length of your case depends on how long it physically takes you to get the paperwork together, get it signed by your spouse, and schedule a final court date. This is the part of the blog post where I say that talking with a lawyer – for at least a phone call - is a wise move. I wouldn’t trust your own assessment of how complicated your divorce is.

Don’t be that person that thinks they just have the flu, puts off going to the doctor, and then it turns out to be much worse. The same type of thing happens in court – All. Of. The. Time.

You can go to your local courthouse and see if they have forms to “Do It Yourself,” look for forms online, or hire a lawyer.

If you’re gonna hire a lawyer, you need to know a couple things. 

First: Not every lawyer will get your case done at the same speed. Some lawyers don’t have enough support staff, or maybe they just don’t appreciate your urgency, or maybe they are prioritizing more contested matters. If you hire the wrong lawyer, you could find yourself waiting and waiting while your lawyer does who knows what. 

Second: you don’t have to hire a lawyer for the entire case. You might consider hiring a lawyer just for document review. By doing so, it’s possible that you save time and money - while also getting the protection that a lawyer provides. The trick is to find a lawyer who provides this service. Many lawyers are very traditional in their approach to providing legal services and they’re apprehensive to give one off document review services.

If it’s just a matter of getting the paperwork together, filing your case, and getting a final court date - two to three weeks. That’s if you and your spouse are on the ball about getting together necessary documents, paying mandatory fees, and signing on the dotted line.

These are the case where there is a big sticking point between you and your spouse. Maybe you two still live together with your children, and you both want to stay in the house and be the “primary residential parent.” Or maybe your spouse has a business that was started during the marriage and you are entitled to a part of it. Or maybe your children are about to enter college and you want your spouse to contribute to college expenses. Or maybe...I could keep going. The contested divorce scenarios are endless.

So how long does a divorce with one of these complicating factors take?

It absolutely depends on whether you and your spouse can find common ground. Now, if you have a spouse that’s being extremely difficult, you’re going to have to make the decision about if the agony of the divorce process is worth whatever you might get from going through the process. That’s exactly the type of decision a seasoned divorce lawyer can help you with.

If you’re currently going through a contested divorce, you might be thinking, what in the world is actually holding things up? There could be a lot of different reasons.

One of the most common is discovery. That’s the formal exchange of documents from one side to the other. 

The other is your attorney’s case load. If your attorney handles a lot of contested matters, they may have to prioritize the work of other clients over your case.

The pace of court is also just slow. Court dates are generally scheduled 30-45 days apart.

Or maybe it’s something more technical like removing your name from the mortgage and deed of the house and your lawyer knows that rushing things along is going to cause more of a headache in the long run.

The fact is: There are a lot of very good reasons that divorce cases don’t end. If you’re confused, ask your lawyer to explain, so you can set your expectations in the right place.

Now, I know you want a number so I’ll say this: A contested divorce typically lasts anywhere from 6 months, on the very short end, to 2.5 years, or even more.

You worked like a dog during your marriage, and built up a nice retirement fund. Is your spouse legally entitled to any of it when you get divorced?

When you’re married, and you and your spouse are working as a team, you don’t think much of the sacrifices you’re making - working long hours, setting aside a portion of paycheck each week - to make sure that you two have a little nest egg for your golden years - it’s romantic.

But then the team falls apart.

For whatever reason, trust is lost and the partnership breaks. The future - 20, 30 years down the road - looks a lot different now. When the team was together, you shared expenses - most importantly the biggest expense - your house. Not any more. Your total expenses are going to increase but you still only have one retirement fund.

You don’t have to share it do you? Well, my friend, you probably do. 

When you get divorced, all the property that you and your spouse own is classified into three categories: your non-marital property, your spouse’s non-marital property, and marital property. Marital means “of the marriage.” So, what happens in a divorce is you take your non-marital property, your spouse takes their non-marital property, and the marital property is divided. The law says that it should be divided equitably. In practical terms, equitably means, in 99% of cases, either a 50-50 split or something like a 60-40 split.

So what’s non-marital property then? You know the stuff I get to keep for sure?? Wouldn’t my retirement fund be non-marital? It’s in your name, you worked for it, your employer did most of the contributing actually, it didn’t even show up in your paycheck… None of that matters.

On the other hand, most of the property that you got during the marriage is marital. That includes contributions to your retirement fund. But what about contributions that were made before the marriage? Well, those are considered non-marital. So, really, if you started contributing to retirement account before the marriage and continued to do so during the marriage - it’s both marital and non-marital.

If the case went before a judge, they would award you the non-marital portion and they would split the marital portion. The methods on calculating the marital and non-marital portions can get a bit more technical – let’s not go there right now.

It’s not as easy as just withdrawing cash from a checking account, is it?

No, it’s not.

There are two basic ways that the value of a retirement account is split. 

If you and your spouse have other property you might negotiate an offset. For example, if your house has equity, you and your spouse could decide that you will keep your retirement account in its entirety and your spouse will keep the house. If an offset isn’t in the cards, the other option is called a QDRO or qualified domestic relations order. 

A QDRO is a special kind of order that the judge signs and you send to your retirement account administrator. It directs the administrator to divide the account by whatever instructions are laid out in the QDRO. The administrator then reaches out to your spouse in order to set up a separate retirement account. QDRO’s and retirement account division can get extremely technical.

Honestly, it would be silly to try to handle a retirement division without a lawyer.