Lawyer Monthly Magazine - July 2019 Edition

However, some states still will consider marital misconduct as one of the factors as it relates to property and debt division and spousal support (previously known as alimony). For example, where I am licensed, in Missouri and Kansas, the conduct of the parties during the marriage is a factor that the court can look at in property and debt division and spousal maintenance. However, in Illinois, where I am also licensed, the courts do not consider marital misconduct as a factor for property and debt division and spousal maintenance. Having said that, there are some cases where marital misconduct could have a bearing on the best interests of the children for the child custody portion of the case. In divorce and family law matters, would you advise clients to hire a private investigator? The use of private investigators is generally on the decline with the advent of no-fault divorce. While courts in some states can consider marital misconduct for property and debt division and spousal maintenance, many courts are hesitant to give it much weight. However, there are still some cases where parties do opt to hire private investigators to: • Prove marital misconduct and/or adultery; • Show unsafe or harmful practices relative to the best interests of the children; • Serve crucial witnesses and opposing parties’ summons subpoenas as a special process server; • Identify hidden financial and other assets; • Conducting surveillance; and/or • Substantiate untrue statements about income and employment. What factors impact how marital property and debt is divided in divorce? Equitable division is how most states divide marital property and debt in divorce. Marital property and debt are all property or debt accumulated during the marriage. Separate property, which is not divisible in a divorce, is property that was obtained prior to the marriage or property that was obtained by gift, inheritance or that is set aside in a prenuptial or postnuptial agreement. Factors most courts look at in dividing marital property and debt are: (1) The economic circum- stances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; (2) The contribution of each spouse to the acquisition of In order to ensure the divorce process goes as smoothly as possible, how should clients prepare for what may be contested divorce matters? It is critical that a party hire an attorney who has experience in contested divorce matters. If the case cannot settle prior to trial, having an attorney who has significant trial experience is vitally important. After the attorney has been selected, it is crucial that parties give their attorneys all the necessary information as early as possible in the process. This can include providing all the documents and evidence that the client feels are potentially important in the case, including financial information from tax returns, account statements, deeds, estate planning documents and anything else that can have a bearing on property and debt division, spousal support and child support. However, if custody is at issue in the case, it can also be critical to provide all the information that a party thinks is important in terms of their custody request as well. This can include school and medical records and a litany of other information. How are allegations of cheating and marital misconduct handled? Does proving marital misconduct make a difference? The reality is that to get divorced in most states in the United States, cheating or marital misconduct does not need to be proven. A party typically only has to show that the marriage is irretrievably broken and that there is no reasonable likelihood that the marriage can be saved. the marital property, including the contribution of a spouse as homemaker; (3) The value of the nonmarital property set apart to each spouse; and (4) Custodial arrangements for minor children. Some states, as I mentioned previously, will also look at the conduct of the parties during the marriage, while others do not. How should cases be handled if there is domestic abuse? How do you handle these cases differently, especially if your client fears they could be in danger? If a party fears for their safety in a divorce or family law matter, it is important that an attorney act quickly to protect their client. Laws can vary by state and the exact verbiage can be a little different. However, generally, parties will want to seek an Order of Protection to prevent the abuse. In some states, this is known as a Restraining Order. If the other party violates the Order of Protection or Restraining Order, they can often be charged criminally. DIVORCE & SEPARATION THE USE OF PRIVATE INVESTIGATORS IS GENERALLY ON THE DECLINE WITH THE ADVENT OF NO-FAULT DIVORCE. 82 SUPER LAWYERS JUL 2019 www. lawyer-monthly .com