This time of year, many brides-to-be are busy planning their special day. Ironically, the new year also finds many women all over the county moving towards the dissolution of their marriages. While the experience can be arduous and painful, a well-informed woman can help to make the legal aspects of the process less stressful and anxiety-provoking.
Seeking to understand the process and to get must-have tips, I consulted with family law attorney Heather L. Sunderman, J.D. With over a decade of experience, Sunderman has negotiated and litigated cases involving divorce, domestic violence protective orders, alimony, property distribution, child custody, and child support. Her exceptional talent has been recognized by her peers: She was named one of Maryland Super Lawyers Rising Stars in both 2013 and 2014. She currently practices at the firm of Mirsky Policastri, LLC, in the DC suburb of Rockville, Maryland.
Our country’s governmental structure means that divorce rules and regulations vary by jurisdiction. Still, no matter where she resides, a woman going through a divorce faces a common set of issues. The National Capital region includes the jurisdictions of Washington, D.C., Maryland, and Virginia. Rules concerning divorce, custody, and property distribution range across the area. Likewise, New York residents must adhere to their state’s divorce law, which has seen significant change in the last few years. It is therefore wise to become familiar the specific laws applicable the relevant state or jurisdiction. Moreover, if one or both spouses are members of the military, they should be aware that a unique set of regulations governs. They may be different from the jurisdiction in which they are serving. Sunderman recently focused on this topic in her excellent blog, and it is worth the read. Nevertheless, here we emphasize the principal aspects of the process that are shared by all, and we outline basic guidelines useful to women generally.
Our conversation begins with the presumption that the woman has made the decision to divorce. So, what is the first step? Sunderman says, “I usually recommend that [a woman] hire an attorney . . . even [if] only contemplating a divorce.” If she has come to a decision, she should definitely secure a competent lawyer “before any documents are filed.” What should someone look for in a divorce attorney? “Make sure the attorney is a good fit for you,” Sunderman asserts. Hire an experienced attorney who is responsive to questions, is empathetic, gives concrete advice, and is willing to speak candidly to you about your case. The consequences of the divorce settlement will be long lasting, so don’t hesitate to talk to several lawyers before making this important decision.
Whether the divorce is uncontested or contested, the most important task to undertake is the divorce agreement. Basically, the document outlines the distribution of the couple’s property and decisions about alimony and child support if applicable. Rules and procedures vary by jurisdiction, but the major issues are common to all. First, the spouses will have to divide marital property, bearing in mind that it is defined by how it was acquired, not how it is titled. Take note that it includes such assets as pensions and retirement accounts (regardless of income), 529 college savings accounts, and thrift savings plans, in addition to real estate, vehicles, furniture and other personal property. Sunderman also wants stay-at-home spouses to know that “a judge will look at economic and non-economic contributions of each spouse” to determine marital property. She also clarifies that a possession is considered non-marital (and remains the owner’s) if it can be shown that “it was acquired from a non-marital source.” Of course, any terms regarding property distribution contained in prenuptial agreements are likewise excluded.
If applicable, alimony should be calculated and child support determined. The document should be as specific as possible, and the terms should be drawn up in a way that will secure the spouse and her children’s standard of living. “Each state has its own formula to calculate child support,” says Sunderman. Your attorney should be able to explain the method your state employs to determine support. There are numerous options for arranging child custody. It may be sole custody, a time split, or sole custody with supervised/unsupervised visits, depending on the circumstances of the parties in the case. Ideally, both spouses should discuss what is best for the children and structure the custody arrangement accordingly. This will often require both individuals to set aside their grievances. If they cannot, they may have to turn to mediation, thus prolonging an already trying situation.
The components of the settlement may not be limited to the basic issues. Does one spouse want to ensure that the other does not move out of state without notice? If so, the terms of divorce should include a “notice to move” provision. This will require the relocating spouse to explain the purpose of the move and show that it is for the benefit of the children. Do the former spouses agree to share the financing of their children’s college education? Neither the three jurisdictions in D.C. Metro area nor in New York have laws that require it, so it would be wise to insert this provision in the agreement, with as many specifics as possible. A mother residing in a state with an educational support requirement should ask her counsel for details.
The National Capital Area and many other localities across the nation are home to a large number of military families. When it comes to separation and the dissolution of marriage, military couples (one or both spouses) have to attend to unique considerations. For example, an ex-spouse who fails to pay child support may be subject to heavy penalties. The length of the marriage also affects how a divorce is handled. Court proceedings can be complicated by the fact that a spouse may be on duty in another state or abroad. Sunderman reminds women that military divorce is a legal specialty, and she strongly urges them to choose a seasoned military attorney.
Sunderman argues that a satisfactory outcome not only requires that the woman make sure she is thorough and arrives at sound decisions with the advice of counsel. It is also essential that she avoids the mistakes that can have far-reaching negative impact. Impetuous decisions, for instance, can be quite harmful. “Don’t move out of the house without a plan,” she cautions. This is especially important if there are minor children in the house, for the action may impact custody decisions. “Make [a legal consultation] part of your plan,” so that you will understand your rights and responsibilities. She moves on to other common mistakes. Clients often “underestimate what can be divided.” A good lawyer will make sure that she identifies all divisible property and that both parties comply with the state’s requirements.
Women also make a mistake when they use meetings to discuss emotions and grievances instead of the issues. It is certainly understandable that a woman will be upset, and a lawyer should be compassionate. However, she will be needlessly spending more on legal fees if she uses her time to complain and dwell on hurt feelings. Moreover, doing so will not get her any farther in the process. (On the subject of fees, Sunderman also suggests using email in communications with the lawyer when possible. It is fast, specific, and both individuals will have a written record of the exchange.)
Likewise, clients err when they fail to prepare properly. As soon as possible, provide your attorney with all the necessary documents. This includes but is not limited to financial records, invoices, receipts, and a list of assets. Sunderman warns that the longer an attorney has to wait for these documents, the longer the divorce process will take.
The time duration depends upon the speed of negotiations as well as the rules in a particular jurisdiction. Sunderman states that a divorce can be completed in as little as thirty days in D.C., but she explains that waiting periods make the process longer in Maryland and Virginia. New York state government also imposes a waiting period. Contested divorces also can stretch the process by one or two years. Bear in mind also that a divorce agreement in uncontested divorces still requires a judge’s approval. Sunderman adds, “All states require a short hearing, even if there is an amicable separation and a mutually satisfactory divorce agreement.”
The work is not over once the divorce is finalized. A woman should protect herself and her children’s future with estate planning. An estate attorney can help her write a new will in which she can name new beneficiaries and a guardian for her children. Usually, in the case of the death of one parent, the other parent will be given custody. Nonetheless, the circumstances of a specific case may call for an alternate arrangement. Counsel can also explain the advantages of establishing a trust for her assets. This instrument will allow the woman to control how and to whom her property will be transferred upon her death. She should also ask her lawyer about how to handle her retirement assets.
Divorce is never easy. Even harmonious splits require the woman to define her needs, partner with a capable professional, and make informed choices. Her future and that of her children depend upon it.
The law firm of Mirsky Policastri, LLC, is located at 600 Jefferson Plaza, Suite 440, Rockville MD 20852. Telephone: 301-664-7710