Do I have to pay alimony in a divorce?
Spousal support, as it is now commonly called, used to be known as "alimony." Spousal support is not mandatory in most states, but can be ordered by a judge under certain circumstances.

If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.

However, other factors also need to be considered. For example, spousal support should most likely not be considered if:
  1. The marriage was for a short duration (less than two or three years), and
  2. Both spouses are employed and self-sufficient
  3. This does not mean the parties cannot agree on spousal support
There is no firm dollar figure used to calculate spousal support. The amount should be decided by both parties.
What happens if we reconcile and want to cancel the divorce?
You and your spouse can dismiss the divorce after the papers have been filed. Simply request a dismissal form from the county clerk anytime before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.
Allowable Deductions

The following are deductions typically allowed against gross income:

  • State and federal income taxes that accurately relate to the tax status of the parties
  • Contributions to Social Security (FICA)
  • Mandatory union dues
  • Health insurance premiums
  • Child or spousal support that was paid
  • Necessary job related expenses
Legal Requirements for Divorce

Under most state laws, a divorce (or "dissolution") action must be filed and decided in court. Many states have a "no-fault divorce" policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct.

The following legal requirements are necessary to file for divorce in most states:

1. Residency: The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level.

2. Waiting Period: Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry.

3. Legal Grounds: States generally recognize two legal grounds for divorce: (1.) irreconcilable differences and (2.) separation. "Irreconcilable differences" simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage.

4. Jurisdictional Requirement: An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 3-6 months prior to filing for divorce.

Who receives custody of the children in a divorce?
The parents must decide on the custody of any minor children. Custody is divided into physical custody (where will the children live) and legal custody (who will make important decisions regarding the children's health, education, etc.). Both physical and legal custody can be either joint or sole. Even if one parent will have sole physical custody, the other parent still has visitation rights, if requested. For more information, refer to the section on Custody of Minor Children in a Divorce.

Custody of adult children is not at issue during the divorce process.

How much will it cost to file for divorce?
The filing fee for a divorce petition or complaint is approximately $100-$350 in most counties. It generally costs an additional $100-$200 to file a response to the petition. These fees are collected by the government and are in addition to any service or legal fees. The filing fees are in addition to the amount charged by LegalZoom.

Learn more about pricing for LegalZoom's divorce services.
What is a marital settlement agreement in a divorce?
A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody, child plans, debt division, spousal support and any other relevant issues related to the divorce.

While it is not required, filing a marital settlement agreement does have advantages:
  • Lays out all of the agreements in writing, limiting ambiguities
  • The spouses may not have to go to court. The judge might honor the written agreement if it's written correctly and covers all material aspects of the divorce
  • Proves to the court that major issues were considered, and the case will move more quickly though the system
Marital settlement agreements can be entered into at any time before the final judgment. They are typically filed with the final judgment.
Will I have to go to court at any time during my divorce?
If the divorce is uncontested and a marital settlement agreement is filed, the spouses may not need to go to court. In that case, all legal documents can be filed with the court, and the judgment can be sent to you. However, the court may request a formal or informal hearing. At an informal hearing, the judge may ask questions about certain facts presented in the papers. At a formal hearing, the divorce case must be presented from the beginning.

Disputes regarding the division of property, child custody, spousal support or any other terms of the divorce do not automatically require court intervention. In many cases, they can be resolved through arbitration, mediation or third-party negotiation (such as an attorney).
How is child support determined?
Most state laws have guidelines to determine child support payments. The payment amount is based on each parent's income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for the following expenses:

  • Child care
  • Health care and health insurance
  • Special educational or other needs
  • Travel-related visitation
Parents can increase or decrease the guideline amount if the following conditions are met:
  1. Both parents acknowledge they are fully informed of their rights under state law and the amount of child support is mutually agreed upon
  2. Both parents declare that the agreed upon amount is in the children's best interests and will adequately meet their needs and
  3. For welfare recipients, the right to support has not been assigned to the county, and neither parent has a public assistance application pending
Keep in mind that the judges presiding over divorce proceedings are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.
What happens to retirement funds and 401(k) plans in a divorce?
In community property states, accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401(k) and 403K plans, etc.

Certain retirement benefits are not classified as community property. They include:
  • Railroad retirement benefits
  • Social Security payments
  • Compensation for military injuries
  • Worker's compensation disability awards
Regardless of the length of the marriage, retirement benefits should be discussed and settled. For example, the petition, marital settlement agreement and judgment should all provide either for the spouse's waiver of retirement benefits or the division of any such benefits. A spouse should waive retirement benefits only if that spouse's share is worth very little.

There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Stock options and pension plans where a person must work for a certain number of years may be worth more than you think. It may be advisable to hire a professional pension actuary or appraiser before making a decision. This will cost $150 to $300, but could be well worth it.

When dividing a retirement account, you want to make sure you don't lose any tax advantages. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse. Please contact the retirement plan administrator or a qualified attorney for more information regarding QDROs.
What is an uncontested divorce?
An uncontested divorce is one in which both parties agree to the divorce and the terms of the settlement without going to trial. This does not mean there are no arguments or disputes between the spouses. It simply means the spouses reach an agreement without going to court and having a judge resolve contested issues.

Uncontested divorces move much faster through the court system and are therefore less expensive. In addition, bypassing the lengthy litigation and trial process tends to reduce hostility and allows the former spouses to move on with their lives more quickly.

How long does it take for a divorce to be final?

On average, there is a zero to six month waiting period after the initial divorce petition is filed and served on the other spouse before a divorce becomes final. A judge may make a final ruling, or judgment, on the divorce prior to that date. This order will be effective immediately. However, the marriage is not finally dissolved, and the spouses may not re-marry, until after the waiting period.

During the period between the judge's order and the expiration of the waiting period, any action taken by either spouse is a separate act. In short, these decisions will no longer effect community property.

Of course, if a divorce cannot be resolved agreeably and requires litigation or a trial, it could take longer than six months to finalize.

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