Special Legal Issues in Divorce
Although the divorce process follows the same general format regardless of the parties, certain circumstances will undoubtedly affect the process. Sometimes a spouse’s status, such as military membership or foreign citizenship, will alter the process. In other instances, the characteristics of the marriage, such as older age or shared children, will influence the practical focus of the divorce.
Divorce With Children
Divorces involving shared children, whether biological or adopted, may focus much more on child support and child custody determinations. Parenting plans and child support during and after divorce will likely play a central role in a divorce involving children. Even divorce processes not directly involving children, such as the division of money and property, will be indirectly affected by child custody and support considerations.
High-Asset Divorce
Divorcing spouses with a high net worth may spend much of their divorce focusing on valuing their assets and analyzing the effect of the divorce on their finances. The parties will likely hire experts to determine what their property is worth and perhaps to devise a plan for dividing those assets. Disputes over which assets are separate rather than marital property may be especially contentious if that property is valuable. Even a spouse’s separate property may influence asset division and child and spousal support. Most state child support guidelines apply only to modest earners, so divorcing spouses with a high net worth may face greater uncertainty in child support proceedings.
Late-Life Divorce
A divorce between spouses in their 50s or older may make a greater impression on each spouse’s retirement years. Eligibility for programs like Medicaid and Social Security might be affected by the timing of a divorce and the subsequent division of assets. Spouses divorcing later in life are also more likely to have estate planning documents such as wills, trusts, and insurance policies that may need revisions following the divorce. Spousal support is more commonly awarded after longer marriages, and spouses divorcing later in life may need to plan for significant alimony payments.
Military Divorce
Military rules and the characteristics of military service will likely influence a divorce involving military members. The Servicemembers Civil Relief Act, which protects service members from civil lawsuits during active duty and for 60 days thereafter, may delay divorce proceedings. Spouses filing for divorce will also need to consider the distinctive jurisdictional rules for military divorce, especially if one or both spouses are overseas. Military benefits, like retirement benefits, base privileges, and health care coverage, may be affected by divorce. Military service may also influence child custody and support.
Divorce From a Foreign National
A spouse divorcing a foreign citizen must understand their rights and responsibilities under international family law. Divorces are generally recognized across national borders, with some exceptions. Divorcing spouses may have the opportunity to choose the laws that will govern their property division, but courts might confront jurisdictional issues if property is held in a country where neither spouse is a citizen or resident. International law may protect rights assigned under child custody and support orders, even if one parent has left the country.
Same-Sex Divorce
Obergefell v. Hodges, the Supreme Court ruling that found that same-sex couples have a fundamental right to marry, also protects the right to divorce. However, a court may find it difficult to determine whether the length of the marriage should be calculated retroactively to include cohabitation between the same-sex spouses before the Obergefell ruling. The date when the marriage officially began may change the categorization of certain property as marital or separate, which in turn affects the division of property during divorce. It may also influence whether spousal support is awarded. Special issues concerning child custody and support may arise when a non-biological parent has not formally adopted a child.
Domestic Violence and Divorce
Domestic violence may have a significant impact on the divorce process. Individuals experiencing domestic violence may face real danger when considering a divorce. Fortunately, emergency orders and restraining orders protect individuals experiencing domestic violence before, during, and after the divorce process. These orders can also protect shared children. Domestic violence may affect child custody and spousal support awards. Certain states also offer emergency expedited divorces to address this concern.
