When preparing for divorce, you will need to gather financial records and personal documents in order to complete the necessary paperwork.
A divorce has many steps, but it generally starts with a signature. Every document that’s signed serves to move the process of your divorce along as quickly as possible. But what does signing divorce papers mean, and how does this affect you? What are your options if you or your spouse refuses to sign the papers?
The divorce petition is the first document that has to be completed by the person filing for divorce. These papers (the petition for dissolution of marriage) are then served to your spouse. "Serving" is also referred to as the service of process. You must respond to a divorce petition usually between 20 or 60 days (depending on what state you reside in, and when the petition was originally signed). Failure to respond could result in a default judgment, in which the court rules in favor of the spouse filing for divorce. In short, a petition must be answered.
When both parties are in agreement as it relates to the terms of the divorce, a waiver of service form can be completed. This removes the burden from the court to provide a sheriff or other process server from having to serve the divorce petition.
In cases where both spouses have agreed to a divorce, having the divorce petition served is unnecessary, and the spouse can elect to sign a waiver of service form. Signing the waiver of service form may also mean that the person signing is agreeing that notification of particular proceedings such as jury selection, testimony given in court, depositions, or other matters pertaining to your case is waived. Effectively, you might be waiving "service of process and notice." Consult with an attorney before signing the documents.
If one party believes that the marriage is irrevocably damaged, the divorce process can begin with the filing of the divorce petition. Once the divorce petition is filed and served, it’s up to the spouse to decide whether or not they agree with the terms. A spouse’s refusal to sign the petition does not mean that the divorce will not happen.
Keep in mind that your spouse is under no obligation to sign the divorce petition as-is. Moreover, the spouse filing for divorce is also under no obligation to show just cause for the divorce. Generally speaking, most divorces are no-fault, which means that no explanation is needed by the person filing for divorce.
A divorce is contested when one of the parties doesn't accept the terms of divorce.
In certain cases, some spouses will claim that they have been forced to sign divorce papers "under duress." This simply means that intimidation, in the guise of threats or other methods, were used to make you sign the papers.
Signing under duress, however, is harder to prove, and must be brought to the court’s attention early in the proceedings. Coercion in any form is not taken lightly, and it is important that the court is aware of any intimidation from your spouse in regards to the divorce.
The final document you will have to sign is the divorce decree. The terms of the divorce are outlined and the document serves to dissolve your marriage. The divorce decree is the final word on how property will be divided, the nature of alimony payments, and child custody details, and it is signed by the judge.
As such, it is important to carefully review the terms of your divorce decree with an attorney so you’ll know your responsibilities. The judge’s decision is final, but can be appealed depending upon your state’s laws.
While legal documents for divorce are available widely (including online), it’s still a good idea to consult with an experienced attorney to walk you through all the paperwork you will encounter. A lawyer will help you interpret the documents and make an informed decision relating to your divorce case.
What are the 5 legal documents every parent should have?
Your question is NOT confidential. One of the great features of consulting with an attorney is the attorney/client privilege. When you talk on the phone or meet in an attorney's office, your communications are generally private and confidential. That means the attorney can't reveal what you discuss, except for very limited situations. However, when you post the question publicly on a website, you don't have any reasonable expectation of privacy. Without that expectation, you don't have any privilege with the attorney. Additionally, anyone can see what you post. What does this mean? Don't put anything incriminating in your question! Don't give enough specifics that a police officer, district attorney, or opposing party can figure out who you are and what you are saying. The reader only knows what you tell them. Keep in mind the previous advice about incriminating information, but an attorney can only base his or her opinion on what you share. "Can my landlord keep my deposit?" isn't enough information to provide an answer. "My roommate's dog tore up the blinds in our house even though I said the dog shouldn't live there. Now our landlord wants to keep the $950 deposit to cover damages. Can he do that?" is a good starting point for information. We know the problem and what caused it. An attorney may need more information, but its a much better starting point. Don't expect a miracle. Lawyers go to school for a long time. After college, they attend three years of law school and have to pass the bar. Even then, many will tell you that an attorney needs several years of experience before they are knowledgeable and proficient at practicing law. We don't spend that many years studying because the law is easy. It is complex and minor details can change everything. Avvo is a great source to find some basic information about your issue, but don't expect a response on the Q&A that magically fixes your problems. You may very well need to hire an attorney or at least consult with one in person. You've taken a good first step in looking for background information, but you should anticipate needing more guidance than a website can provide.
What Is Estate Planning? At it's core, estate planning is nothing more than sitting down and putting together a set of legal documents that tell everyone what you want them to do with your "stuff" when you pass away. More specifically, it's a plan that you put into place while you're alive and well that says who you want to receive your assets, which assets they should receive, when and how they should receive those assets, and who's in charge of distributing them. That's estate planning in a nutshell. But there's a little more to it than just that. A basic estate plan should also include instructions for how you should be cared for and who will help maintain your assets (your "estate") if you should go through a period if incapacity before you pass away. You should have documents prepared that allow someone else to make both medical and financial decisions on your behalf. Estate planning can also include passing on your legacy to your kids (not just your assets) so they'll know "who you are" and what's important to you. It's easy to pass on "things" after you pass away, but many times we find that our clients are more interested in passing down their values and beliefs to their kids. And, of course, estate planning is also properly naming a guardian for your children and making sure that they're raised by whom you want and in the way that you want. What will happen to my children if something happens to me and my spouse? The answer to this question depends upon which estate planning documents you and your spouse have. If you don't have a Will or a Trust in place that names a Guardian and Trustee for your children, then the important question of who will raise your kids will be left up to the courts. Whether you like it or not, the court will likely choose your nearest relative to step into the role of guardian and caregiver for your kids. For some, this is a good thing, but for others, the person chosen by the court might be the last person that you would want raising your kids. That's why we recommend that, at the very least, you should have a Will that disposes of your assets and names a Guardian for your kids. If you and your spouse have Wills that name a Guardian for your kids when you pass away, then the important decision of who will be appointed to raise them will not be left to the courts. In this instance the court will appoint the person that you have named as Guardian for your children in your Will (unless that person refuses or is unable to act as Guardian). While this situation is much better than leaving the decision of who will raise your children entirely in the hands of the courts, a Guardian appointed under a Will is typically left with little to no direction regarding how you want your kids raised. Furthermore, until your kids turn 18 years old the courts will require a Guardian appointed under a Will to regularly explain how they are spending your assets on your kids. So, having a Will that names a Guardian for your children is immeasurably better than leaving that decision to the courts, but if you only have a Will appointing a Guardian, the courts will remain involved in your kid's lives until they become adults. There's good news, though... Court involvement in the lives of your kids can be completely avoided. If you have a Will naming a Guardian for your kids and a Trust giving the Guardian control over your assets and direction regarding how to use those assets to raise your kids, then the courts won't be involved in their lives at all. The reason for this is because the law considers all assets left in Trust to another person (including your kids) to be passed on outside of the probate court process. Another benefit of a Trust is that it allows you to give specific instructions to a Trustee (usually this is the same person as the Guardian) about how you want your children to be raised and how trust funds should be used. All of this is done completely free of court intervention and oversight. At a minimum, which estate planning documents do parents of minor children need to have? A basic estate plan for anyone with kids at home should include more than just a Will. We strongly recommend that, at a minimum, your estate plan should include a Will, a Living Will, A Durable Power of Attorney, a Healthcare Power of Attorney, and a HIPAA Release. If you have kids at home you should also seriously consider whether a Trust could be used to pass your assets to your kids. What happens if I die without an estate plan? At Mastry Law we like to point out that everyone has an estate plan, whether they know it or not. That's right, everyone has an estate plan, even parents who die without a Will. The plan is called Intestate Succession and it's the state's statutory scheme that is carried out by the probate courts to pass your assets out to your family members. The process is very complex, lengthy and expensive. Your spouse and your relatives have no say regarding who gets what, and it usually ends with your assets going someplace that you may have never wanted them to go. For these reasons, most of out clients do whatever they can to avoid Intestate Succession. How do I choose a guardian for my children? This question is easier to answer by pointing out the things that you should not do when naming a Guardian for your kids. First and foremost, don't limit your possible choices for a Guardian to only those people who have many financial assets. It's most important to make sure that the person who you choose to raise your kids is someone who shares your personal values and will be able to provide a stable, loving, nurturing home where your kids can grow and thrive. Sometimes, those with the most financial assets aren't the best choice. Next, don't choose a couple to act as Guardian of your kids. This may seem counterintuitive, but with the divorce rate still above 50% in the United States, you don't want your kids to be caught up in a divorce battle. And don't forget to name a Successor (or secondary) Guardian. What if something happens to your first choice and they are no longer able to be the Guardian? Then your kids are right back in the situation of having the courts determine who will raise them. To avoid this result, be sure to name a Successor Guardian.
What if my spouse cannot be found or evades service of the divorce papers? In that case the attorney would have to proceed with a divorce but attempt to serve the other party by a process called service by publication. That means that you are essentially publishing and providing public notice of your intent to seek a divorce. To serve by publication you have to receive permission from the court to serve the other spouse by publication. That involves demonstrating to the court that you have exhausted reasonable good faith efforts to reach the other party to no avail and need to file for divorce by publication. Once you receive permission, your attorney would then actually go through the process of publishing service and then wait for a period of time for the other to answer. If they do not answer, then it becomes a default situation and your attorney could then proceed with the divorce.
Each state has different rules, requirements and legal documents. Every state in the U.S. has different documents and different rules. Failure to get the correct documents, updates and advice may result in protracted court time, confusion and loss of assets. An experienced attorney, in your state, knows the specifics of what is required to minimize problems and court disputes. You can take a chance and hope you did things right, but please remember there are no re-dos on bad plans once you die. When you're gone, you're gone. There is no one size fits all estate plan. Does the online form or attorney ask you about your heirs? Is your daughter a spend thrift? Is your son in bankruptcy? Is one of their spouses going to take advantage of the situation when you die? What if your child divorces after you pass? Will his spouse get a portion of the inheritance? Do any of your heirs have special needs? Is there a way to keep that money from being lost? What if your child isn't alive when you die? Where does the money go? Is money allowed to be held by a minor child? If not, where does the money go? Won't your Personal Representative be able to hold it? What can they use it for? How long do they control it? What if everyone is gone? What if you become disabled? Will you lose everything to end of life care or is there a way to protect your house and cash assets? The questions go on indefinitely and a 30 minute meeting with an online attorney or a do-it-yourself form aren't enough. Remember there are no re-dos on a bad plan when you die. When you have minor children special trust language and beneficiary designations are required. Each year I see plans where parents leave money to minor children. It's always the same. They name their spouse on their policy and then their children. What if they die together or one died and the documents never got changed? They thought they were okay naming their children as beneficiaries, but that's not the way it works. They would have been mortified to learn that the children never got to use one penny of the life insurance policy, IRA or 401k, because no one ever told them that minors can't inherit directly from such plans until they're 18. The things that go wrong with bad planning or no planning happen every day. Unfortunately, you will be none the wiser, because you're dead. There are no re-dos on a bad plan when you die. When you have minor children and you never answered the questions you weren't asked or didn't know to answer devastating things happen. Most people know when they die, if they have minor children, they need to name a guardian for their children, but they don't think things out, because they're talking to an attorney online or filling out forms, without any guidance. How hard could it be? It's harder than you think. Should you name your parents? What if they get older or sick and can't handle things? What about naming your brother and his wife named as guardians? Did anyone ask you who would legally get the kids if there's a divorce? What if no one wants your little darlings? It happens. Where does the money come from to raise them if we can't access your life insurance, retirement or estate, because minors can't inherit? As I said above, the State holds the money and there's no access until they're 18. Have you named different levels of guardians to take over if the first few don't accept the job? Is the person controlling the money the best person to raise the kids? What wishes and dreams do you have for your children? Will those ever be known? When you're dead you're dead. Little Suzie and Little Johnny can't ask you why they didn't have access to the life insurance or any of the assets in your estate when they were growing up. They can't tell you how they always felt like they were a burden to their guardian and they never got to go to Little League or Vacations, because there just wasn't enough money. There are no re-dos on a bad plan when you die. Online forums don't examine your financial situation and help you determine the best plan for you. There are often many fees when you die including Probate costs, filing fees, notice to creditors and estate tax. Did anyone ever advise you there was a way to avoid the expense of court and fees? Most online plans don't go into your financial details or options. What will happen to your retirement plans? Will the kids cash out your IRA and 401k? Will this result in huge taxes? Is there a way to avoid that? Is there a way to safeguard your land and assets if you get sick? Yes, but no one ever told you that the documents had to have special wording to accomplish this result. Once you get a diagnosis there are amazing things that can be done to protect the well spouse, kids and your estate. When you don't get the right advice and you bleed money due to illness, lose your house and leave your spouse and kids destitute it's too late. Remember when you're gone or too sick to handle things, there are no re-dos. It's too late, if everything is gone! Online trusts usually don't avoid the one thing they were created to do - They don't avoid probate. Wills all go through probate and most trusts do also. Why? Because the online program didn't help Mary and Bill get all of their assets into the trust name. Their accounts and real estate must all be transferred into the trust name, otherwise, your estate will go through probate. Can mom and dad transfer their own deeds into the trusts? Not likely. Have you ever heard the saying, "You Get What You Pay For?" While I understand the attraction of a bargain, there are some things like Brain Surgery, Parachutes and Estate Plans, where getting it done right matters more than getting it done cheap. As I've said before, it's too late to change things when you're gone. Be careful out there. I love the internet and maybe someday you'll be able to get a great estate plan where you spend hours with a Board Certified Estate Planner, online, making sure that your plan is perfect and all of your needs are addressed, but that day is not here yet. Don't be pennywise and pound foolish. :)
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