Debts incurred during a marriage are generally considered joint debts-that is, during the marriage, both spouses are legally responsible for them. When a couple divorces, nevertheless, responsibility for marital debts is allocated in accordance with the property division laws of the state.
This generally indicates that the debts are divided equally or equitably (fairly, though not in half), particularly when they had been incurred for food, shelter, clothing, and medical care (called necessities). The court also considers who is better in a position to pay the debts (the spouse with the higher income and/or lower living expenses). If a couple has many debts but also has an excellent deal of property, the spouse better in a position to pay the debts may be ordered to assume the payments and also to obtain a bigger share of the property.
There are several ways to gather financial information during a divorce. Doing it yourself not just keeps down your lawyer's bill but also educates you about your family's finances and prepares you to negotiate from a position of strength. If you can't find the information yourself, however, and all efforts to gather it informally fail, you can have your lawyer conduct "discovery." Discovery is the term for formal procedures utilized to obtain information during a lawsuit. As with all matters in your divorce, remember that the attorney works for you. You should be the one making the decisions about how extensive discovery procedures should be.
If you've never seen the checkbook and have signed the tax returns for years with out reviewing them, then your lawyer might have to do a lot of digging to create a picture of your financial life. Likewise, if you have participated in budgeting and bookkeeping, but your spouse owns a cashand- carry business that you suspect is being utilized to hide assets, discovery may be worth every penny you spend.
On the other hand, if you and your spouse have couple of assets and also you have a fairly good idea of what you are both worth, then using discovery to ferret out more information might merely be a waste of money. Apply the maxim: Think financially and act legally, and you should be fine. In a divorce, the typical discovery devices include:
Deposition (or examination before trial). A deposition is a proceeding in which a witness or party should answer questions orally under oath before a court reporter. In divorces, numerous lawyers wish to take the deposition of the other spouse in order to ask about potential hidden assets.
Interrogatories. Interrogatories are written questions sent by one party towards the other to be answered in writing under oath. Interrogatories are frequently utilized to ask a spouse to list all bank accounts, investment accounts, and other assets ever held by that spouse.
Request (or notice) for production of documents. This is a request to a party to hand over certain defined documents. In divorce cases, spouses often request from each other bank statements, profit and loss statements, tax returns, pay stubs, and other documents showing earnings, assets, and debts.
Request (or notice) for inspection. This is a request by a spouse to look at items and documents in the possession or control of the other spouse. Items commonly inspected are original financial documents, houses, and cars. In divorces, the request often comes up regarding house appraisals.
For instance, Bill and Bernice are divorcing. The court orders Bill out of the family home to permit Bernice to stay with the kids. They cannot agree on the value of the home, and Bernice won't give Bill's appraiser access in order to evaluate it. Bill should request an inspection.
Subpoena and subpoena duces tecum. A subpoena is an order telling a witness to seem at a deposition (or at trial). A subpoena duces tecum is an order to offer certain documents to a specific party. These devices are commonly used to get documents or testimony straight from banks, insurance companies, stockbrokers, and the like.
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1. Avoid being put in economic jeopardy by your divorcing spouse
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