THE ABC’s OF THE BIG D – DIVORCE

For many men divorce is a scary thing. Especially for those going through this for the first time, there is a lot of fear associated with the fear of unknown. Unfortunately, many men have a distrust of the courts and attorneys and when they try to handle it on their own, they end up accepting settlement agreements that hurt them worse in the long run.  Sometimes those who are wise enough to seek the aid of an attorney, unfortunately find that many attorneys do not take the time to explain to their clients the law relevant to their case. They just tell them, “this is standard” or that ‘s just the way it is, and never take the time to explain the reasons why, or what the options are. However, if you do not understand the law, you do not know your rights, and if you do not know your rights, you are likely to “leave money on the table” or otherwise accept less than you should.

Due to this and the fear of the unknown and fear of the outcome in court, I have seen many men whose settlement agreements are worse than they would have received had they just insisted on their rights and insisted on their “day in court.” Men/fathers, if you sleep on your rights, you just may lose your rights. The Morris Firm for Men is here to help protect your rights as a father and as a man going through a divorce, by helping you to learn and understand the law as it is relevant to your case. This allows our clients to make intelligent and informed decisions about their case, whether that means going to trial, or negotiating a settlement, or mediation, or an uncontested divorce, or whatever the case may be.

Divorce can be scary, but whether you have been through the family courts before, or this will be your first time, this article aims to help you to dispel some of that anxiety by providing a framework and outline of the broad areas which the court will consider in a divorce case.

Whether divorce is certain or you are just curious, it is important that you learn, so that you are better prepared to protect yourself if and when that day comes.

Lesson One: Lesson number one is a simple, but important fact. The client always has the right to decide if and when to settle the case. The court can not force you to settle and neither can the attorneys. If they told you otherwise without a full explanation of why, you may want to consider a second opinion and seek alternate counsel.

Lesson Two: Similarly, the client also has the right to decide when and if to file. However, if you wait to long, the other side may file first and you will find yourself without the option of controlling the timing of the filing, which creates jurisdiction over your divorce. That being said, there are two important questions which I often am asked to address in divorce consultations, being “why should I file,” and “should I file first.” Obviously, there are many answers I could give to these questions, and some of which would be dependent on your particular situation, however, here are a few major points to consider.

While filing first may not be right for your particular case, there are some notable advantages in addition to the reasons for filing in general. For one, being the first to file allows you have more control over the timing of the case, timing being important for things such as discovery requests, as well as motions for default judgement.

If the marriage is over, you should file for divorce because until a court enters an order of a final divorce, the other party is still able to rack up debts in your name, which the court may potentially decide you are liable for, not to mention the ruining of your credit. Filing for divorce also helps you protect your assets because most courts easily recognize a prevention of removal or destruction of assets, meaning the divorce filing is one of the fist steps to stopping the other party from doing things such as removing large sums of money from the bank accounts, or all of the furniture from the home, or locking you out of the home, or selling the car.  Filing for divorce first also creates jurisdiction for the divorce, which potentially can stop the other party from being able to move away, or even out of state, with your children. Note that until a divorce or custody matter is filed the other party could potentially relocate to another state, which could then potentially take jurisdiction of the case. In worse case scenarios, this could lead to the Alabama court refusing to force the mother to return to Alabama with the child or children, and/or the other state taking jurisdiction over any child custody issues, which means that you would have to litigate any custody battles in said state.

Lesson Three: There are four main areas over which the court has jurisdiction in a divorce action: property, child custody, child support, and alimony.

Property: The court will decide how to divide all marital property by what is called “equitable division.” This means that the court will to come to a fair division of all martial property. So, what is marital property? Marital property is all property, debts and assets, tangible and intangible, that were acquired during the marriage, from the date of the ceremony to the final order of divorce. Whether something is or is not marital property is often arguable and varies depending on the particular facts and circumstances.

Child Custody: We will cover more on the issue of child custody in the article dedicated to that topic.  There are different legal standards that apply depending on the circumstances, but if you learn one thing about child custody, remember this, that if you want primary or equal custody of your children the first time the makes a custody determination if your best shot.

Child Support: We will cover more on the issue of child support in the article dedicated to that topic.

Alimony:  There are several different forms of alimony but the general principle behind the legal concept is that the court wants both parties to be able to enjoy the same standard of living as they did prior to the divorce.  There are several factors that the court will consider, such as the length of the marriage, the relative income of the parties, and the cause of the separation.  Alimony is not awarded in every case, and there is no guarantee that the woman will be awarded alimony just because of the length of the marriage or because the husband was at fault.

In conclusion, there is a much to learn, but you do not have to do this alone, the Morris Firm for Men is here to help!  Don’t sleep on your rights, protect them. Learn from this article and the other resources available on this website, and when you think it is time to take the next step we will be here to help by offering the legal and strategic experience you need to balance the scales!