The Washington DC divorce, child custody and child support actions are generally consolidated and can be overwhelming, financially detrimental, and emotionally draining. The DC divorce statute is complicated and there are both common law and statutory interpretations applicable in the divorce proceedings.
Moreover, the child custody aspect of the divorce proceeding can be driven to litigation fueled by emotions and impulse rather than facts and evidence at times obfuscating the very legal criteria: the best interests of the children.
Given the forces involved and the life changing outcomes attributed to such matters, it is not only imperative but it is absolutely necessary 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
- Separation Agreements
- Contested v. Uncontested divorce
- Collaboration v. Litigation
DC DIVORCE: LEGAL ELEMENTS
DC divorce from bonds of marriage can be granted under two legal paths:
- Parties have “mutually and voluntarily” resided separate/apart without cohabitation for six months preceding the commencement of the divorce action;
- 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.
It is important to highlight the distinction: mutually and voluntarily. If there is no mutual and voluntarily separation with a date certain among the parties, then, the second prong kicks in and the parties would have to wait the full one year before obtaining a final decree divorce.
This does not mean that the proceedings cannot start before particularly when there are pertinent legal issues to be determined by the court such as pendente lite alimony, child custody, child support, marital property, etc. One way to commence proceedings early is via action for legal separation.
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 — regardless of whether held as sole or joint tenants — in a manner that is:
- Just, and
Thus all property acquired after marriage is presumed to be marital property unless specifically addressed and detailed in a prenuptial agreement. Even if the title is held under an individual spouse, if acquired after marriage, presumption would be that such is a marital property.
Refer to our Washington DC Prenuptial Agreement Lawyer page for more information on this topic. Well drafted, coherent and thoughtful agreement can significantly reduce the need for litigation over assets and distribution of property. Our DC Divorce Lawyer specializes in drafting agreements that are effective, enforceable and comprehensive.
The specific factors the court considers and balances in such equitable distribution of property are:
1) The length of marriage
- The longer the marriage and the accumulation of marital property the more complex the analysis and the 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.
PENDENTE LITE ALIMONY
The court when appropriate and requested may grant alimony right away and while the litigation is ongoing. Such is referred to as pendent lite alimony.
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.
ACCOUNTING CONSIDERATIONS/DC DIVORCE:
The duration and the amount of awarded alimony may vary based on balancing the variables listed. 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 rather than substance.
Additionally, Judges are not accountants and generally have a low tolerance with exertion over numbers. So it is imperative in complex property and assets 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.
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.
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.
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.
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.
DIVORCE AND SCOPE OF DISCOVERY
In the contested matters the scope and the limits of discoverable items can be broad as the Domestic Relations Rules governing the discovery process allow for discovery of any matter as long as not privileged, relevant to the issues litigated and the pending action including but not limited to:
- Condition and
- Location of any books, documents, or tangible objects.
Moreover, the discovery methods may vary depending on the litigants and the subject matter of dispute, but could include all or part of the following methods:
- Depositions upon oral examination or written questions,
- Written interrogatories,
- Requests for production,
- Permission to enter property for inspection and other purposes,
- Physical and mental examinations,
- Requests for admission.
DC SAME SEX MARRIAGE & DIVORCE
The landmark Supreme Court decision of Obergefell v. Hodge in 2015, bestowed the same rights of marriage to the same sex couple under both the Equal Protection Clause and the Due Process clause of the Fourteenth amendment. After the decision all States must and have accordingly issued marriage licenses to the same sex couple and the issue of dissolution of marriage would vest strictly on the jurisdiction having met the residency requirements.
Prior to the decision, the District being proactive on the subject and under the Civil Marriage Dissolution Equality Amendment of 2014 allowed by Statute for the non-resident, same-sex couples who had married in the District, but resided in a jurisdiction which did not recognize or allowed such marriage — to return to the District in order to address dissolution of marriage.
The bill even went as far as expanding the DC Court’s authority to weigh on such matters as:
- Assignment and equitable distribution of property and
- Child custody determinations.
Such was implemented for the same sex couples even with the couples not residing in the District clearing applying and interpreting the laws of State of residency but all in the DC Courts.
As of June 2017, there remain still few jurisdictions in Texas and Alabama who refuse to honor same sex marriage. The DC Amendment would apply to those couples residing in those territories as long as the marriage was performed in DC.
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 DC divorce lawyer is complimentary.
- AWARD OF ATTORNEY’S FEES: WHEN APPLICABLE? WASHINGTON DC DIVORCE LAWYER
- ALIMONY PAYMENTS AND THE NEW TAX CODE: DC DIVORCE LAWYER
- IMPUTATION OF INCOME IN DIVORCE
- 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:
ADDITIONAL FORMS & RESOURCES:
- 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
DC DIVORCE VISUAL AID GRAPHICS