Getting a Divorce in Maine
With a working knowledge of Maine’s legal divorce procedure, you’ll be able to move on with your life as soon as possible.
1. What is the procedure for getting a divorce?
You should start by requesting the relevant forms from a lawyer, or courts, or download them here:
http://www.theeasyforms.com/divorce_forms_main.htm
When you file for a divorce, either in a written filing or through a lawyer, there is a “cooling off” period that normally puts about 60 days in total between the date of filing and the date of divorce. Courts may order mediation, so it is to your advantage to have private mediation set up, such as a lawyer. Keep in mind that, typically, the word of a neutral mediator will often be treated as legally binding if there are disputes over the conclusions of the mediation.
2. What are some things I should know going into the divorce process?
First, it is important for you to understand what, in Maine, constitute grounds for a legal separation. Here is a general list of conditions under which a legal separation may be filed in court:
1. Adultery.
2. Impotence or infertility, in either partner.
3. Extreme cruelty; this may be physical or verbal.
4. Your partner has deserted you, and has been in absence for three consecutive years.
5. Abuse of habit-forming substances, i.e., drugs or alcohol. You typically must be able to document or substantiate claims of substance abuse, and courts do reserve the right to refer participants in divorces on these grounds to treatment centers.
6. If one partner has the demonstrable ability to support the other, but refuses in a way that is wanton or cruel.
7. Physical treatment that is abusive.
8. Marital differences that are completely irreconcilable. These grounds are typically at the discretion of the court, and courts will typically defer couples to counseling if one partner rejects to the “irreconcilable” clause of the filing. The counselor will be required by law to provide a written summary of his or her findings from counseling, which can last weeks or months.
9. Mental illness, so long as either partner spends at least seven, consecutive years in confined treatment.
10. Frequent criminal behavior.
11. One or the other spouse must be a resident of Maine, and have been so for at least six months, or the marriage must have taken place in Maine.
So those are the grounds of divorce. It is typically not necessary to be able to prove your allegations beyond “a reasonable doubt,” because it is a myth of the separation process that you will have a chance in court to rail on your spouse before a judge and jury, that the whole world will hear your story, and so on, and so on. Typically, you and your spouse will work out the relevant details, mainly financial, in private with mediation, such as a divorce lawyer, and the judge will simply review your documents to make sure they are reasonable, sign them, and then it’s done.
The question of custody, however, is much more complicated. Firstly, it is important to distinguish between “physical” custody and “legal” custody. Physical custody refers to the person who is responsible for the child’s normal daily activities, such as going to school, doing their homework, eating, and most substantially, where they sleep. Legal custody, which usually is shared in at least a modest capacity by the parents, especially if they are both biological parents, are those decisions that affect the child in more long-term ways. These include things such as medical care, educational choices, and arrangements for the child’s religious care.
Maine’s courts, like most courts, prefer sole physical custody. The attribute of a parent that most strongly influences which parent gets custody, or the greatest amount of custody, is which parent can provide the most stable home environment. “Stable” does not necessarily always translate to the parent with the most money, it just means that the courts prefer a home in which the child’s development and growth will be as safe and normal as possible.
Joint physical custody normally is only offered by courts if both parents express desire for joint custody, and, if the child is about 12 or older, also prefers joint custody. Courts also place certain criteria on whether or not to award shared custody, such as whether or not the parents will realistically be able to work together in the best interests of the child, if the parents will have no major disputes over the daily physical life of the child, if the geography of the parents’ living situations does not represent an extreme inconvenience (basically, will your child be attending the same school no matter which parent they are housed with), and if both partners can show that they can afford the extra costs associated with joint physical custody. This is not to be confused with joint legal custody, which courts will normally encourage, so that the child will have at least occasional contact with both parents.
Joint physical custody also becomes complicated if one spouse wants to move. Normally, if the spouse who wants to move has no physical custody, then there is no issue. But if custody is shared, then courts do reserve the right to prevent you from moving for the sake of your child, if, upon reviewing the details of the move, they decide that it would be too disruptive to joint physical custody arrangements.
When determining sole custody, judges are less likely to listen to children if they are younger, and even if a child is older and fully able to express his desires, those desires may not always be considered relevant to divorce hearings. Also, if the court finds the situation irresolvable, or simply if neither parent is seen to be competent enough to care for a child, the court has the right to give the child into the protection of Maine’s social services. This may be for a set duration, until certain conditions such as employment of either parent is met, or indefinitely.
When filing for a divorce, it is typically best to approach a court in the county or district in which your marriage license was given. This is not at all necessary; it simply speeds up the process. And remember that mediation may be used by the court, normally if there are children or if one partner denies that the conditions of the filing are valid, but courts do reserve the right to order mediation at any time. You should also have either resolved property issues equitable in private with documentation, best is with a lawyer or lawyers present, in such documents that you may present to the judge.
Maine is an “equitable distribution” state, which means that each spouse retains his or her individual property. This includes gifts, inheritances, property acquired prior to the marriage, any gained value of such property, or anything you came to own by exchanging property that fits those above categories. The property acquired during marriage is divided with the following factors in mind: the contribution of each spouse to the purchasing value of what is being disputed, which includes either spouse’s contributions as a homemaker to the value of the home, the value of each spouse’s property, and the economic circumstances of either spouse at the time of separation. Courts may force continued co-habitation for a time if there are difficulties involving children. Something to keep in mind is that the person at fault for the grounds of divorce is NOT a relevant factor in the mediation process.
In terms of alimony, courts, or court-appointed mediators, sort through several factors. Sometimes they may simply order one spouse to give all real estate to the other as alimony, sometimes they might order a single lump sum be paid. Courts reserve the right to divide alimony however they like, but there are certain guidelines they follow. Among relevant factors are:
-How long the marriage lasted.
-How old those involved are.
-How taxes would affect the assigned alimony amount.
-If either partner has damaged relevant property such that its value decreases.
-The ability of either spouse to pay alimony, and the “income potential” of either spouse after separation.
-How able either spouse is to compete in the open job market, examining relevant factors such as age, health, education, and training.
-The contributions of either spouse as a homemaker.
Once again, marital fault is NOT a relevant issue in terms of how alimony is allotted.
Title 19 of Maine law also details how child support is divided. Common examples of child support include monthly cash payments, continued payment of a child’s insurance policy, or costs related to joint physical custody, such as regular transportation costs of the child. Standard guidelines are in place, and are typically provided by a divorce lawyer or the court, but the court reserves the right to deviate from these standards if certain conditions are met. These include:
-If more than 6 children are in positions to receive alimony.
-Child support is being decided jointly with other rights, such as property rights.
-If the child requires additional support for health problems; the health or emotional state of the child or children.
-Transportation for the children.
-Comparative standards of living for the child before and after divorce.
-The financial needs and abilities of either partner, including nonrecurring income that isn’t included in ‘gross income.’
-The financial resources of the child.
-The presence of assets owned by either parent that are worth more than $10,000 and do not produce income.
It is critical that people going into a divorce be prepared and educated for the legal consequences of their separation. What they should remember is that the most important things in the proceedings are the welfare of any children, equitable and mediated distribution of property, and that the futures of those involved are as undisrupted as possible so that life can go on.
3. Which lawyers in Maine should I turn to?
Reputable lawyers are available throughout Maine. It is not necessarily always in your best interest to get in touch with a high-powered law firm, if it is your intention to proceed through the divorce as speedily as possible. However, if you are looking for such services as motions to stop the divorce, or if you are contesting property, there are options. Internet searches will typically give many options, or contact the law offices of Robert F. Montgomery at help@divorcemaine.com, or telephone 207-775-5006. Mr. Montgomery’s office is one of the oldest and most reliable divorce law services operating out of Portland.
