When your relationship has reached the point where divorce is imminent, you may realize that you need a divorce consultation, but may not realize which questions to ask or where to begin. Below is a list of questions that may help you more fully understand the divorce process and what your rights are:

1.) What is the time frame that the case would be resolved? (this will depend on how disputed your case is)

2.) What is the process?

A Chapter 13 is a reorganization, and is for individuals who have regular income and can pay back at least a portion of their debt/creditors, through a repayment plan. A Chapter 7 bankruptcy is a complete discharge of your debts (with certain exclusions), for those individuals whose monthly expenses exceed their income.

Section 362 of the United States Bankruptcy code provides for a stay of collection proceedings from the moment a bankruptcy proceeding is filed. An automatic stay is an automatic injunction that prevents any creditor action (with some exceptions), from continuing any collection activity against a debtor that has filed for bankruptcy. The stay is the reason that creditors must stop their harassing calls after you have filed your bankruptcy petition.

For more information on automatic stays and bankruptcy, contact our office at (586) 264-3756 to schedule a free consultation.

A qualified domestic relations order, or QDRO, is a court order that allows the transfer of funds from a 401(k), or other qualified retirement account, to a spouse, pursuant to a judgment of divorce. A QDRO is one of the few instances that money can be withdrawn from a 401(k), without paying an early withdrawal penalty.

If the money is withdrawn and deposited into a bank account, or other non-retirement account, it will be taxed as income; however, if it is rolled into an individual retirement account, then it will not be taxed.

For more information regarding QDRO’s, contact our office at (586) 264-3756.

When divorcing your spouse, you need to understand the total amount of assets, including real estate, investment accounts, retirement accounts, etc. You also need to understand whether you are likely to receive spousal support. All of these factors will help you determine how your are going to support yourself after all of the assets are divided, and you are living on your own.

Many individuals that have been relying on their spouse, want to keep the marital property, despite the fact that their income is minimal. In order to determine whether or not you can remain in the marital home, you need to first consider the above, and second, speak with a loan officer, and determine if you would be eligible to refinance the home.

Although you may be very attached to the Property, you need to ensure that you have the financial ability to remain in the home. If not, it is likely your best option to sell the home, split the equity with your spouse, and find a new property where you can start fresh.

After you’ve negotiated the terms of your divorce judgment, and you are officially divorced, you will still have a lot of loose ends to tie up. One often overlooked issue that needs to be addressed, is updating your estate plan.

Generally, an estate plan will include a trust or will, a durable power of attorney, a medical power of attorney, and a deed that avoids probate. The documents that consist of your estate plan, will vary based upon your needs. However, if you have minor children, most times your estate plan will include a trust. A trust allows for more in depth planning, and staggered distributions, so that your child does not receive a windfall at the age of eighteen (18). A trust also avoids the hassles of Probate.

Most likely, if you already had an estate plan while you were married, your spouse is in the first fiduciary position for each document. It is important to change the documents, to replace your spouse with another individual.

One of the most common questions we receive is “how long do I have to wait until my divorce is final?” The statutory minimum for a divorce without minor children is sixty (60) days. The statutory minimum for a divorce with minor children is six (6) months.

That being said, the actual time that your particular case will conclude is dependent on numerous factors. One of the main factors is how disputed your case is. If you and your spouse do not agree on anything, then your case could continue on for at least a year. Another factor is the court’s schedule. Even if you have an agreement on all of the terms of your divorce, the judge may not have a hearing date available for several months.

Although the court cannot waive the sixty (60) day waiting period, the judge can waive the six (6) month waiting period, for good cause. Thus, if you have minor children, but you have an agreement on all of the issues, and it is in the best interest of the minor children, the judge can grant a divorce after sixty (60) days.

1.) Q: What is the Chapter 7 bankruptcy process?

A: If you are considering bankruptcy, we would ask you numerous questions about your income, assets, expenses, and debts. We would run your credit report to determine the amount you owe each creditor. If we find that your monthly expenses exceed your income, and your assets are within the bankruptcy exemptions, we would assist you in filing your bankruptcy petition. Once the petition is filed, a creditor’s meeting is held approximately 4-6 weeks after filing. After the creditor’s meeting is held, the Trustee has sixty (60) days to determine whether or not to discharge your debt. If the Trustee discharges your debt, then you will not be responsible for any of the debt listed in your bankruptcy petition.

2.) Q: What is the creditor’s meeting?

A legal separation and a divorce are two distinct court cases and two distinct marital statuses. Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.

The majority of couples that decide to file for a legal separation, versus a divorce, do so for religious or medical reasons. One advantage of a legal separation is that a spouse may be able to maintain health insurance through the other spouse’s employer. Be sure to check with the employer, human resources, or the health care company directly to ensure benefits will not be suspended in the event of legal separation. One of the other advantages of a separation is that you are not considered divorced for religious purposes.

However, some disadvantages of a legal separation are the costs. It is rare for people who are legally separated to reconcile though it does happen. So, if you’re in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Another disadvantage of a separation, is that you cannot re-marry, as you are still considered legally married. Additionally, when an action for separate maintenance is filed, the defendant has the option of counter-claiming for divorce. If the defendant counterclaims for divorce, the case will be converted to a divorce case. Thus, if you and your spouse do not feel the same way about a legal separation, you are better off filing for a divorce.