The divorce cases at time are all encompassing as they may involve every element of the DC family law.
The Washington DC divorce, child custody and child support actions are generally consolidated and can be overwhelming, financially detrimental, and emotionally draining. Thus it is imperative to engage a Washington DC Divorce lawyer experienced in all areas of family law, particularly child custody — because nothing is more important than to be able to retain legal and physical custody of the children after a divorce.
Below are some of the legal outlines and parameters pertaining to:
- Division of property
- Equitable distribution
- Alimony and pendente lite alimony
- Premarital Agreements
- Collaboration v. Litigation
DC DIVORCE: LEGAL ELEMENTS
DC divorce from bonds of marriage can be granted if:
1) Parties have “mutually and voluntarily” resided separate/apart without cohabitation for six months preceding the commencement of the divorce action;
2) Or that both parties to the marriage have lived separate and apart (pursuant to court order) without cohabitation for a period of one year next preceding the commencement of the action.
A decree for legal separation is generally sought in order to have the court declare legal separation and toll the time required (6 months if voluntary or one year if involuntary) before a divorce decree can be granted as well as having the court address preliminarily child custody, child support, and spousal support and even division of property.
There are also times that parties do not wish to divorce for religious, financial or other reasons and legal separation can provide the necessary legal clarity short of divorce.
The requirements for legal separation almost mirror that of divorce.
Specifically, a decree for legal separation from bed and board may be granted if:
- Parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation; or
- That both parties have lived separate and apart without cohabitation for one year preceding the filing of the action.
You may be declared to have lived separate and apart even when residing under the same roof. The qualifying condition would be that each party must pursue a separate life, not sharing bed nor board or have been deemed separated pursuant to a court order.
The decree of legal separation may be revoked at any time by mutual consent and request of parties.
The decree may also be converted to decree for an absolute divorce upon request of the moving party when:
- There has been no reconciliation; and
- Separation has continued “voluntarily and without interruption” for a six month period or that
- Separation has continued without interruption for a period of one year.
DIVISION OF PROPERTY
The division of property in a divorce or separation actions is premised on assigning to each party his or her sole and separate property first and categorizing what remains as marital property.
Sole and Separate property is defined as property:
- Acquired prior to the marriage, and
- Sole and separate property acquired during the marriage such as gift, bequest, etc.
- Distinguishable from the material property.
EQUITABLE DISTRIBUTION OF PROPERTY
There are those jurisdictions that apply the community property legal criteria to division of property. That is, assets and property acquired during the marriage will be equally distributed 50/50 among that parties.
District of Columbia is not one of those jurisdictions.
The DC legal paradigm is the “equitable distribution of property”model.
That is, the court will distribute all property and debt accumulated during the marriage, in short marital property, that has not been addressed in a valid antenuptial or postnuptial agreement or a decree of legal separation, in a manner that is:
- Just, and
The specific factors the court considers and balances in such equitable distribution are:
1) The length of marriage:
- The longer the marriage and the accumulation of marital property the more complex the analysis and requirement for establishing an equitable legal and accounting method to distribute property.
2) Age, health, occupation, income, employment of each of the parties:
- All significant factors in making a just and reasonable distribution of property. The court is generally more sympathetic toward a party that does not have a substantial earning capacity and has devoted time and efforts toward marriage instead of pursing a lucrative career.
3) Child custody and support awards play a significant role in the court’s view:
- The parent/party who has been awarded full physical custody of small children may have a higher financial burden in the future and depending on the child support award may require a more equitable distribution of assets to balance the financial liability.
4) Alimony and other legal financial obligation:
- Alimony, and child support from a prior marriage can provide a financial boost and thus must be considered overall in distributing all property.
5) The future earning capacity:
- The earning capacity of each party can also dictate what is equitable. A party with a higher earning capacity or potential would require less distribution from the marital property. The court’s goal in the equitable distribution process is balance the financial standings of the parties.
6) Each party’s contribution toward the family:
- The court will seek to balance each party’s contribution through the distribution of assets. The stay home parent who devoted time and resources in raising the children may require a higher level of distribution to balance the equities among parties.
7) Other financial contributions:
- Contributions to the education of one’s spouse in order to enhance the earning potential. In such cases again the court will seek to balance equities through distribution and the calculation may be more mathematical in such cases.
8) Fluctuations in income due to marriage:
- Each parties debasement or increase in income as a result of the marriage would be considered by the court. The party who financially suffers to compensate in the other area of marriage may seek restitution during the equitable distribution of marital assets.
9) Depreciable assets:
- Acquisition, preservation, and appreciation or dissipation of all depreciable assets or property and each party’s role and contribution thereto. Increase or decrease of marital property attributed to either party would be considered by the court as a factor in distribution formula.
10) Tax consequences of the distributable assets relevant to each party;
- Tax liabilities and windfalls would significantly alter the value of all assets and the court will factor in tax consequences in determining what is equitable.
11) Blame for divorce:
- The reasons for filing of the divorce action and circumstances thereof. Although DC is no fault jurisdiction, in equity all are considered and even though this factor should be given a minimal legal deference — in realty, it is generally given a measurable weight depending on the circumstances.
AWARD OF ALIMONY
The Court may issue an order for payment of alimony to either party when deemed just and proper. The Court will specify the amount, duration and basis for such award. The order may also be retroactive to the date of filing.
Generally the Court will weigh and balance the following factors in awarding alimony however alimony is an extension of an equitable distribution of property and often time it is configured simultaneously.
1) Financial structure:
- Financial abilities and earning potential of parties clearly dictate and set a financial parameter as to which party would be better suited to contribute toward the other.
2) Secure employment:
- Time needed for alimony receiving party to secure employment and self-sufficiency would determine the amount if not the duration of alimony payments.
3) Standard of living:
- Parties standard of living during the marriage is an important consideration because the court will be seeking to legally restore parties to the financial position they were before the separation and to the extent possible.
4) Length of marriage:
- The length of marriage would dictate to certain extent the duration and amount of alimony generally the longer the marriage the longer period for award of alimony factoring in also the other relevant elements.
5) Contributory party:
- Separation causes and the contributory party is again a consideration with regards to alimony.
6) Physical and emotional factors:
- Age, physical and emotional status, financial landscape, needs and liabilities of each party all would be considered by the court in awarding alimony as also discussed above in the distribution factors.
7) Ability to pay and financial resources:
- Ability of the party paying alimony to meet his or her needs while meeting the needs of the party seeking alimony. The court will consider other financial obligations and burden imposed on the party paying alimony to balance the interests involved. Financial needs/resources of each party, including all sort of income accumulated or otherwise.
ACCOUNTING CONSIDERATIONS/DC DIVORCE:
The duration of award of alimony may vary based on balancing the variables listed above. The alimony payment may be indefinite, limited in time or structured as appropriate and customized to every case.
An award of alimony may also be retroactive to the date in which the action commenced.
Award of alimony and distribution of property at time would involve more accounting tactics than legal maneuvers. It is imperative to have a coherent and organized financial landscape in advance of litigation to prevent a protracted and unnecessary legal dispute over numbers, and minutia over substance.
Additionally, Judges are not accountants and generally have a low tolerance with exertion over numbers. So it is imperative in complex property and asset divorces to have a meeting of minds over certain aspects of the financial distribution of assets and to leave only the essential litigation for the decision by the courts.
Our Washington DC divorce lawyer generally engages or works closely with financial advisors or accountants to coordinate representation.
PENDENTE LITE ALIMONY
The court when appropriate and requested may grant away of alimony right away and while the litigation is ongoing.
Specifically, during the pendency of action filed for:
- Legal Seperation,
- Divorce, or
- Termination of domestic partnership.
The Court may grant one party to pay the other party Pendente lite:
- Child Support,
- Health insurance benefits,
- Cash medical support,
- Legal fees.
The Court will use the same legal elements in awarding alimony to determine the amount and appropriateness of the Pendente lite support (support pending litigation).
The Court may also enforce payment of Pendente lite support via order for:
- Property attachment,
- Garnishment and wage withholding,
- Even imprisonment and contempt for violating court order.
Marriage may be declared annulled under the following circumstances:
- Marriage was contracted when either of the parties was previously married;
- Marriage was contracted when either party was legally insane unless parties have voluntary cohabitation after the discovery of insanity.;
- Marriage was consummated by fraud or coercion;
- Either party was matrimonially incapacitated and continues to be incapacitated;
- Either party is not at a proper age of legal consent.
A Marital Settlement Agreement serves as a road map to divorce and separation and can include very detailed paragraphs addressing some of the listed items below:
- Child Custody
- Child Support
- Division of all marital property
- Division and responsibility for spousal debts
- Health Insurance for the children, spouse and coverage
- Disposition, sell, or equity purchase of Marital Home
- Pension and retirement plans for each spouse
- Tax consequences and deferments
- Separation date
- Waiver of discovery
- Future modification
- Merger or incorporated agreements
Generally after an extensive collaborative process, parties with the aid of their counsel can draft and agree upon terms for dissolution of every aspect of marriage. These agreements can significantly reduce need for litigation and alleviate the emotional and financial distress due to divorce and separation.
The agreements may also be either merged or incorporated in the final divorce decree. Merged agreements are enforceable through the family court proceedings with contempt power, and incorporated act as stand alone agreements generally enforceable through civil proceedings.
Regardless the court still needs to make best interests of the children determination on the child custody portion of the agreement and also make sure child support amount is guideline compliant.
Our Washington DC divorce lawyer has critical experience in both drafting an enforceable and comprehensive agreement as well as having fully litigated every aspect of a separation agreement.
DC PREMARITAL/PRENUPTIAL AGREEMENTS
Premarital agreement, also called prenuptial agreement, is a contract between a future couple which delineates financial obligations of each party in the event of marital dissolution, separation, annulment or termination of a domestic partnership.
Traditionally viewed as a sensitive subject, premarital agreements is a delicate matter, therefore, it is crucial for a couple to have a clear understanding and equitable expectations of the legal aspect thereof, and view love and respect as the fundamental core values of any marriage, whilst a premarital agreement is a written bond that is designed to outline financial responsibilities of a couple.
Premarital agreement can provide an effective and enforceable roadmap in case of separation or divorce. The key is to draft the agreement all encompassing while making sure it remains enforceable and valid if challenged.
The agreement can address a myriad of subject matters including but not limited to:
- Ownership, disposition and division of property
- Manage and control of property
- Spousal support, modification or elimination thereof
- Trust and estate issues
- Death benefits and life insurance policy
- Choice of law
- Any other subject matter not against the law or public policy
The premarital agreement should however be specifically drafted with three main categories in mind:
1) Sole and Separate property of each spouse prior to the marriage:
There should be a detailed list attached to each agreement under separate exhibits detailing all financial assets prior to the marriage for each of the parties. This serves two purposes:
- Provides full and complete financial disclosure which the Statute requires;
- Clearly delineate what constitutes as “Sole and Separate “ properties of each of the parties.
2) There should be specific clauses addressing property acquired during the marriage and how it would be designated either as:
- Marital property or;
- Sole and separate property assigned to a particular spouse.
- The presumption is that all property acquired during the marriage would be deemed a marital property regardless of how the property is titled unless specifically excluded in a valid prenuptial agreement.
3) How the assets, properties, and retirement accounts would be divided in the event of divorce or dissolution of marriage:
This part of the agreement requires very specific clauses addressing how all property would be divided among parties, whether it would be equally divided or equitably divided and what specific formula may apply. Each material property should have a designation and specific math for division.
The agreement may also either eliminate spousal support or significantly limit the spousal support or provide some tiered support platform. Or even address legal fees and spousal support toward legal fees.
It is of utmost importance that the drafted agreement is balanced as the unconscionability test linked to enforceability of agreement will hinge on whether there has been sufficient disclosure, notice, and if the agreement is reasonable giving the economical position of the parties.
Premarital agreements are not enforceable if:
- Not voluntarily executed by both parties
- The agreement was unconscionable
The unconscionability test is dictated by whether:
- There was full, fair and reasonable disclosure of assets and property to be considered
- There was a voluntary waiver in writing to claim over property already disclosed and excluded
- There was reasonable and adequate knowledge and understanding of the finances and property involved
- Both parties to the agreement had the benefit of legal counsel to obtain independent advise
Moreover, specific clauses should also be drafted to address how to keep certain properties excluded from marital designation during the marriage by focusing on sole and separate funding for the property, sole title designation as well as focusing on the use, intent and treatment of a property during the marriage.
There should be also definition and description as to what constitutes commingled property. An effective premarital agreement should clarify how property would be commingled and how the division of such commingled property should be executed.
Child support and child custody agreements can be addressed in the separation agreement but are both exclusionary subject matter in the premarital agreements.
Our Washington DC divorce lawyer via a comprehensive, inclusive and enforceable pre-material agreement can significantly reduce the need for litigation in event of separation or divorce. In the end marriage in part is a financial arrangement and parties should insightfully set out from the very outset to predict and protect assets not deemed marital.
Contact our DC Divorce Lawyer/DC Prenuptial Lawyer to schedule an intake appointment.
The District has jurisdiction in a divorce action under the following circumstances:
1) At least one of the parties to the marriage has been a DC resident for the last 6 months preceding the commencement of the action (residency requirement).
2) DC maintains jurisdiction in divorce action or a legal separation by persons of the same gender even when the 6 months residency requirements have not been met when:
- The marriage was legally performed in the District; and
- Neither of the parties reside in a jurisdiction that will allow or maintain an action for divorce or legal separation.
3) A jurisdiction that does not recognize a marriage will not generally allow or maintain an action for divorce or legal separation, however in the District, such is considered a rebuttable presumption.
COLLABORATION v. LITIGATION
A divorce action may include child custody, child support, division of property, and alimony – several legal components launched simultaneously.
In order to be effective and efficient in proceeding with each claim, it is imperative to collaboratively and possibly through the mediation process resolve those claims that parties can agree upon and only resort to litigation on issues and claims that cannot be consensually and mutually resolved.
If there are still effective lines of communication and impetus and motivation to resolve divorce and separation issues amicably, then the collaborative process with the assistance of legal counsel can reduce unnecessary litigation and focus on resolution rather than litigation.
Although our focus is litigation, effective case management requires considering all collaborative resolution first. There are times though that only litigation can be effective.
Our DC divorce lawyer is experienced, tenacious, and thoroughly familiar with DC Superior Court divorce rules, relevant statutes and the case law and also is equally trained and experience in the child custody and support areas of family law which are invariably intertwined.
CONTESTED V. UNCONTESTED DC DIVORCE
If the collaborative process can bring about resolution and agreement on any number of separation issues, such as child custody, child support, marital property/debt, and alimony then, the court filing can specifically enumerate issues agreed upon and request court action on those still contested. If all marital and separation issues are however resolved through a collaborative process and reflected in a separation agreement then parties can proceed uncontested with joint filings to expedite the process.
As long as the statutory period has lapsed, the uncontested matters can obtain a final decree of divorce. The name change request would also be reflected in the final decree and parties may also waive the appellate rights to even further expedite the final decree. To waive the appeal, parties would have to attest:
- Parties have reviewed the Divorce Order/Judgment that will be entered.
- Each party has the right to appeal the Divorce Order/Judgment for up to 30 days after the order has been entered on the court docket.
- Parties understand that the divorce is not considered final until to appeal has expired unless parties here agree to waive their right to appeal.
ARTICLES BY OUR WASHINGTON DC DIVORCE LAWYER:
- DC DOMESTIC PARTNERSHIP LAWS
- WASHINGTON DC DIVORCE V. LEGAL SEPARATION; CRITERIA FOR ANNULMENT OF MARRIAGE
- DC PREMARITAL AGREEMENTS AND ENFORCEABILITY
- RECENT COURT OF APPEALS DECISION: EQUAL DISTRIBUTION OF MARITAL PROPERTY NOT NECESSARILY EQUITABLE
- DC DIVORCE LAWS: HIGHLIGHTS
- DC ALIMONY; MAINTENANCE OF SPOUSE AND MINOR CHILDREN/ENFORCEMENT; RESIDENCY REQUIREMENTS:
Below are some of the sample legal documents/resources pertaining to a divorce action in the District:
- Complaint for Absolute Divorce
- Consent Answer (Absolute Divorce)
- Contested Answer and Counterclaim (Absolute Divorce)
- Reply to Counterclaim (Absolute Divorce)
- Joint Waiver of Appeal of Divorce Order/Judgment
- Joint Request for Uncontested Divorce Hearing
Divorces are generally draining both emotionally and financially. Your representation though should be impeccable and thorough so that you may preserve what is legally yours financially and be rewarded legal and physical custody over your children.
Engaging a tenacious, highly skilled and experienced Washington DC Divorce lawyer is paramount if every aspect of marriage must be resolved via litigation. The only consolation to a protracted and highly contested dissolution of marriage is having a competent, capable and dedicated DC divorce lawyer who would tirelessly advocate for your cause.
Contact our experienced Washington DC divorce attorney to schedule an intake appointment.
Your initial consultation with our family law DC divorce lawyer is complimentary.