How States Differ on Divorce Laws
Not only is the divorce process an emotional rollercoaster filled with paperwork and lawyer meetings, it’s also riddled with laws that differ from state to state. Laws that apply to a couple in Topeka, likely won’t be the case in Tonasket.
Where a couple decides to file is important because it can determine what laws are applied to things like alimony, child custody and distribution of assets.
Here’s a look at how some states treat big divorce issues that can create a major bust or boom on a divorcee’s bottom line.
When are assets classified as material? New York considers the date that divorce papers are filed in court to be the cut-off date for accumulation of marital assets. Whereas in Connecticut, where there is a mandatory 90-day cooling off period between filing for divorce and the date a judgment can be rendered, assets are considered marital until a divorce is final.
“In Connecticut, assets are divided as of their value on the date of dissolution of marriage,” says Eric Broder of Broder & Orland in Westport. “If one party wins the lottery or gets a bonus from employment [prior to the divorce finalizing], those assets become part of the asset pool.”
Who has inheritance rights? In Nebraska, an equitable division state, an inheritance is considered separate property if the inheritance funds are never comingled with marital property.
“If a person received $350,000 in their name only, but that spouse then took out $100,000 and put it toward a down payment for a jointly-lived in house, only $250,000 of that inheritance is considered separate property,” says David Reed, family attorney at Lewis, Pfanstiel & Williams in Omaha. “If you are going to argue that it is not marital property, the burden is on you.”
When it comes to how assets will be divided, parties need to know what is marital property versus separate property, and whether they live in a community property or common law state.
How is child support determined? Unlike most states, Illinois’ child-support law does not take into account how much parenting time a parent has with his or her child.
“The non-residential parent pays a fixed percentage of his or her income regardless of how much time he or she spends with the child,” explains Marie Fahnert, founder of Fahnert Law in Chicago. “For example, if your child spends 50% of her time with you, but you are the non-residential parent, you will likely have to pay the same child-support as a parent who only sees his child a couple of hours per week.”
While Illinois bases the child-support obligation on the non-residential parent’s net income, in neighboring Michigan child support is determined by the non-residential parent’s income and number of overnights a parent has with a child.
Who pays legal fees? In California, if the income of the two parties is not equal, the court can order a contribution from the higher-earning party toward the lower-earning party's legal fees.
“The court believes there should be a level playing field because you go to divorce court, not necessarily because you want to, but because you have to divide the estate and end a marriage,” says Lisa Hughes, founding partner at Hughes and Hughes in Orange County.
Assigning one party to contribute toward the other’s legal fees, however, is not that easy. “The court has to do the same analysis as when we are looking at long-term spousal support,” adds Hughes, “And the court now looks at how complex the case was and whether the time was well spent. They are getting more and more critical because bills were getting higher and higher.”
Can college tuition be forced to be paid? Alabama courts can order divorced parents to pay post-minority support, which can go toward a child with a disability or toward paying for post-secondary education.
“Unless children are almost at college age, this typically is not part of a divorce settlement, but becomes a modification along the way, an issue deferred for a later date,” says attorney Steven Eversole, of Eversole Law in Birmingham.
The obligation refers to paying for room, board, books, tuition and fees. Certain factors, such as the financial resources of the parents and the child and the child’s aptitude for the requested education, contribute to the court’s decision.