Understanding The Divorce Process
The state in which a couple gets married is very often not the place they end up living. Those in the military, in particular, may live in several states during the course of their marriage. When a couple decides to divorce, or one party asks for a divorce, the state or location where the complaint is filed makes a difference in the way the divorce is treated. For example, a same-sex couple can get a divorce in D.C., but can’t get a divorce in nearby Virginia. It is important that both spouses understand the divorce laws which are followed in their state, commonwealth or district.
Grounds For Divorce
In Washington, D.C., the spouse asking for a divorce is called the plaintiff, and the other spouse is the defendant. D.C. is a “no fault” divorce state. This means that if one of the parties wishes to divorce, the divorce will be granted, providing the following conditions have been met:
- Either the plaintiff or the defendant has been a resident of D.C. for six months or more
- The spouses agreed to live separately and have done so for six months or more
- The spouses have been living separately (one spouse moved out) for one year or more prior to the request for divorce
Steps In A Divorce
Depending upon the issues at hand and whether or not there are contested issues, there can be a number of steps in a divorce in the District of Columbia.
- Complaint for Absolute Divorce: The plaintiff’s statement that he or she wants a divorce and the reasons
- Affidavit of Service by Certified Mail: The defendant must be officially notified of the divorce request
- Consent Answer: The defendant’s answer in an uncontested divorce
- Contested Answer and Counterclaim: The defendant’s answer in a contested divorce
- Reply to Counterclaim: The plaintiff’s response to the defendant’s response
- Financial Statement: Each spouse’s detailed accounting of their income and expenses
- Master Child Support Worksheet: This document calculates the support based on the gross income of both parents, the gross income of the noncustodial parent, the age and the number of children.
- Praecipe for Uncontested Divorce: In an uncontested divorce (both agree on the grounds) there can be contested actions. This document is filed by the plaintiff, and it instructs the clerk to set a date for a hearing. Praecipe is from a Latin word meaning to instruct, and in this case it is instructing or commanding a hearing to be scheduled and for the parties to appear.
- Consent Form to Have Proceedings Conducted by a Commissioner: In uncontested divorce, the divorce case is heard by a commissioner as a prelude to going before a judge.
- Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce: The commissioner’s findings of fact become the basis for the Decree of Divorce, which the judge approves.
- Joint Waiver of Appeal of Divorce Order/Judgment: In an uncontested divorce, the parties sign this waiver saying they give up their rights to appeal.
- Divorce Decree: The final divorce document
There are a number of military bases and other facilities in the Washington, D.C., area including Joint Base Anacostia-Bolling, Andrews AFB, Walter Reed Army Medical Center, Fort Meade, Fort Belvoir, Fort A.P. Hill, Fort McNair, the Navy Yard and the Pentagon. Members of the military, and their civilian spouses, may wonder if there are any differences in terms of divorce.
In most instances a military divorce is exactly like a civilian divorce. There are a few exceptions, however. For example, Under the Soldiers and Sailors Civil Relief Act, divorce proceedings can be postponed if the service member is on active duty and for 60 days afterward.
Military Retirement Assets
Some retirement assets are not necessarily eligible for division. The Military Retirement Pay, Continued Benefits and the Uniform Services Former Spouses’ Protection Act (USFSPA) states that if the spouses have been married at least 10 years while the military member was on active duty, the former spouse can receive direct payments of retirement payments. If the 10-year threshold is not met, the spouse would not be eligible for payments.
Same-sex marriage was legalized in the District of Columbia on December 18, 2009. Same-sex divorce is the same as any other divorce in terms of division of property, child custody, waiting periods and other factors. In one way, however, it is different. Since 2012, if a couple was married in D.C. and lives in a state which does not recognize same-sex marriage, the petitioner can file for divorce in D.C. instead of in the resident state.
A Legal Separation is an agreement that covers all of the same issues as does a divorce. The couple would divide the property, determine child custody, pay or receive support payments and essentially live as though they are no longer married. The exception, however, is that they are still married.
Some couples use a Legal Separation as a trial divorce. Others choose it as an option if they have religious or other reasons that they feel prohibit a divorce. A Legal Separation is not a mandatory step prior to divorce, although it is an option.
One way of ending a marriage, without a divorce, is to have the marriage annulled. An annulment is a way of stating that the marriage was never legal in the first place. It is as though it never existed.
Grounds for a marriage annulment in Washington, D.C., are:
- Marriage to close relatives or blood relatives (affinity or consanguinity)
- Marriage when already married to someone else (bigamy)
- Marriage to someone who was mentally incompetent at the time of the ceremony (could not consent to the marriage)
- Marriage due to force or fraud
- Marriage to someone who was under the age of 16 at the time of the marriage ceremony
There are several types of ADR methods, one of which is mediation. Mediation is a way of enabling the spouses to communicate and reach an agreement on the issues related to divorce. A mediator is a specially trained individual, usually an attorney or retired judge, who helps the couple get to a “win-win” agreement. The mediator does not represent either party, or both parties. The mediator is a neutral third party.
One of the joys of marriage is becoming parents. When a couple decides to divorce, the issue of child custody, child support and visitation can be some of the most difficult issues on which the couple must agree.
Ideally the couple will decide on a child custody arrangement that works for them. If the couple cannot reach a decision, the court will make a decision which it feels is in the child’s best interest.
There are two forms of custody: legal custody and physical custody. Legal custody is the ability to make decisions regarding the child’s religious upbringing, education and medical care. Physical custody is where the child lives.
In D.C., the court prefers to see joint custody, although that does not necessarily need to be a 50/50 split in terms of physical custody, and does not mean that the court will never award sole custody to one parent.
The parents will need to develop a Parenting Plan, either together if they can agree on issues, or separately if they cannot. The Parenting Plan covers such items as:
- Overnight schedule for children’s physical custody (alternating weeks, for example)
- Communication plan (How is contact maintained and scheduling coordinated between parents?)
- Holiday schedule (alternating holidays, Mother’s Day always with the mother, Father’s Day always with the father)
- Vacation schedule (summer vacation, school breaks, family trips)
- Extracurricular activities (how each parent is involved, what is allowed or not allowed)
- Doctor, dentist, optometrist responsibilities
In addition, the Parenting Plan should contain a plan for how disputes will be handled, should they arise. The court will need to approve the Parenting Plan as part of the divorce decree.
Both parents are assumed to be financially responsible for the well-being of their child or children. When there is a disparity between the parents’ income, one parent may owe the other parent child support.
The basic way in which child support is determined is to combine the gross incomes of the parents, alter the combined amount according to certain factors (alimony, for example) and assign each party the corresponding percentage of child support. To use round numbers, if one spouse earns $75,000 and the other spouse earns $25,000, the higher income-earning spouse would contribute 75 percent of the child support.
There are a number of online child support calculators, although these should be used only as a guideline. To continue the example, one online calculator determined that if spouse A earns $75,000 and spouse B earns $25,000, that the annual child support contribution for spouse A is $12,034.50 plus an additional $3,247.50 to supplement the low income of spouse B. This ends up being $1,003 per month that spouse A would pay to spouse B for support of one child.
To determine a realistic estimate of the child support that will be owed, it would be wise to consult with an experienced divorce lawyer.
The District of Columbia, like many of the United States, considers all assets and debts acquired during the marriage to be community property and subject to division. Property that is not divided during divorce is property that was owned before the marriage. Premarital property, such as retirement accounts, is not considered marital property, provided it was not comingled with marital property.
Division Of Property
The goal is that the couple will reach an agreement regarding the division of their property. If they do not, then the court will decide how to award the assets and debts, based on factors such as:
- Any separate assets or debts
- Duration of the marriage
- Each spouse’s age and health
- Each spouse’s contribution to the acquisition property (the role of homemaker considered a contribution)
- Each spouse’s current income and income-earning potential
- Property award in lieu of or in conjunction with alimony
The marital property and debts will be assigned in a way that is equitable, just and reasonable. The assets and debts which are subject to division include:
- All credit card debts
- All liquid funds in savings and checking accounts
- All motor vehicles and boats
- Any collectible items
- Household furnishings and clothing
- Real estate assets including the family home
- Retirement assets including IRAs, 401(k)s, Keoghs and other retirement assets
- Stocks, bonds and other similar investments
Spousal Support Or Alimony
Spousal support, also called alimony or spousal maintenance, may be awarded to one spouse in certain circumstances. Either spouse is able to ask for it, and whether it is granted and the amount of the award, will be up to the court.
There are two types of alimony:
- Temporary alimony can be awarded for a specific period of time so the spouse with the lower income, or the stay-at-home spouse, can become financially self-sufficient.
- Permanent alimony can be awarded in recognition of a long-term marriage, or in the event that a spouse is unable to earn an income. Some of the same factors considered in the division of property are considered in the award of temporary or permanent alimony.
Permanent alimony ends when either spouse dies or when the receiving spouse remarries.
Even when both spouses agree that divorce is the best thing for them to do; it can still be an emotional time. You may be leaving a home that you built together or selling a boat you both love. And if you have children, each of you may have less one-on-one time with them.
A divorce attorney can help you see through the emotions and reach decisions that are in your best interest, and in the best interest of your children. An experienced divorce attorney can also protect you from making decisions which could have long-term negative consequences. Your divorce attorney is more than a tour guide through the legal process. Your attorney is your protector, advisor and confidant who is dedicated to your desired goals.
How To Choose A District of Columbia Divorce Attorney
When selecting a divorce attorney, it is important to select one who focuses his or her legal practice on family law in general, and divorce law in Washington, D.C., in particular. Because divorce laws vary per location, having someone who understands the nuances of each district court can be important.
If you have potentially unique issues, it could be important that your attorney has experience in that area of law. Examples of this are same-sex divorce, military divorce, domestic violence or high net worth divorce. Ask to meet prior to putting an attorney on retainer. It will be important that you feel comfortable with your lawyer and that you can communicate well. You will have many important decisions to make, and hiring a Washington, D.C., divorce attorney is your first one.
If you live in Washington, D.C., and are considering a divorce or are the defendant responding to a request for divorce, contact us for a free initial consultation and case review with a divorce attorney.