Divorce in Maine - FAQs
What does the divorce process involve?
In Maine you file a Complaint for divorce with the Court. Once the Complaint is filed it is
served (either by sheriff or your spouse accepts service). Once service is completed then your
spouse has twenty days to answer the Complaint. If children are involved then the Court will
automatically schedule a Case Management Conference, usually within sixty days from the date
the Complaint for divorce is filed and served. At the Case Management Conference a
Magistrate, not a Judge, will deal with any issues involving the case and particularly the children.
The Magistrate has authority to enter as Court orders any agreements reached, or to make a ruling
regarding child support even if there is a disagreement.
What do I need to do and to provide to start the divorce process?
You will need to complete a child support affidavit if there are minor children involved. In all
cases you will need to provide your attorney with a detailed list of assets, debts, and income. The
Court form for providing this information is known as a Financial Statement. These details are
similar to what you would provide to a bank when requesting a loan.
How do property and debt get divided between me and my spouse?
There are no specific rules for the exact division, but the law requires that any marital
property (and the reference to property includes debts as well) be equitably divided between the
parties. Any non-marital property must be set aside to the spouse who owns the non-marital
property. The difference between marital and non-marital property is often the most factually
and legally complicated area of a divorce. Generally, non-marital property is any property
acquired by a spouse prior to the marriage and kept in that spouse's own name, as well as
increases in value during the marriage so long as no marital effort is used to increase the value.
Non-marital property is also any property gifted or bequeathed to a spouse during the marriage
and kept in that spouse's name. This is an oversimplification and it can become more
complicated than this. Non-marital and marital property disputes often occur when people marry
later in life and the marriages are not of a long duration. People who marry young, or stay
married for a long time, have fewer marital/non-marital property issues to resolve.
Marital property is any property acquired during the marriage, regardless of whether it is
acquired in one name or both names. Property is valued and then any debt is subtracted to get the
equity of the property, which is what is really being divided. Marital property is equitably, not
equally, divided. However, many Courts will start with the idea that marital property should be
divided close to 50/50. This division can be changed, however, especially if one party
contributed more to the acquisition and improvement of the property than the other party, or if
one party has more income and a better ability to generate income in the future. The ability to
earn income has a lot to do with assigning responsibility for marital debt. The Court can also
take into consideration when dividing marital property whether one party received a greater
amount of non-marital property than the other party.
What are the children's non-financial issues that need to be resolved?
There are two major non-financial issues involving minor children. First, there is the idea of
shared parental rights and responsibilities, meaning that both parents retain all rights to their
children (to get medical, educational, and other information regarding their children) and must
cooperate in deciding major decisions (often educational and medical) regarding their children.
The law favors shared parental rights and responsibilities, but these rights to obtain information
and make decisions can be allocated to one parent. The other major part is primary residence and
visitation. Primary residence is where the children reside, and it is usually allocated to one
parent, but it can be shared. Once this is determined the other parent will have visitation rights,
such as weekends, evenings, important holidays, birthdays, school vacations for December,
February and April, and summer vacations.
How is primary residence determined?
It is usually determined by looking at which parent is better able to care for an meet the needs
of the children in the future. This is called the best interest of the children, and although there are
a number of factors, the best way to view this is to look at what has been done in the past and
what is being done at the time you separate or plan to separate from your spouse. Often one
parent has a work schedule that allows less contact with the children and the other parent is more
able to care for the children, or has traditionally been caring for the children. Absent something
unusual, such as abuse, substance abuse, neglect of children, or severe mental health problems
affecting parenting, then the parent who has always been there in the past and can be there in the
future for the children has a better chance of obtaining primary residence of the children. This is
an oversimplification of what can become complicated, and there are no hard and fast rules.
However, past and present practice have a lot to do with how a Court views the parent role since
what parents did before they decided to divorce demonstrates what each parent really thought of
the other parent's parenting ability.
What are the financial issues involving children and how are those determined?
The major financial issue is child support, and this is done by a calculation to arrive at a
specific number. You take both parent's income, then the number and ages of the children, to
begin your calculation. (There can be adjustments up or down for income, but these are too
numerous and nuanced to detail here.) From this you arrive at a basic percentage and a support
figure. The percentage of the income is important (e.g. one parent makes $60,000 per year and
the other parent makes $40,000 per year then one parent earns 60% of the income and the other
parent earns 40% of the income.) As part of any child support order each parent must pay the
percentage of work related day care expenses for the minor children, as well as health insurance
paid for the children. This is factored into the calculation. The Court has the ability to deviate
from a child support calculation, but it rarely does so. Uninsured medical expenses are normally
divided in proportion to each party's income (e.g. following the earlier example it would be
60/40). Parties can agree to do something different with regard to child support and uninsured
medical expenses, but the Court will more closely scrutinize this to understand why it is being
done.
The other financial issues involve tax deductions for the children which, unless agreed upon
between the parties, go to the person having primary care of the minor children. Child support
ends when the child is eighteen and either 1) graduates high school or 2) turns nineteen,
whichever first occurs. College expenses are never ordered by the Court but can be agreed upon
between the parties. Child support normally covers everything else, such as extracurricular and
other expenses, but the parties can agree to extra expenses and, in some cases, the Court will
consider ordering it, although this is the exception and not the rule.
When is alimony (called spousal support in Maine) ordered?
There is no formula for spousal support like there is for child support, and so the
determination of spousal support can be one of the more difficult and contested issues in a
divorce. Some cases are clear that there should be no spousal support (e.g. when both spouses
make almost equal amounts of money or the one spouse who makes money does not earn much).
There are cases where spousal support will bed ordered because of the great discrepancy in
income between the spouses, and cases where one party believes spousal support should be
ordered. In cases where spousal support is to be considered Maine law presumes no spousal
support when the parties have been married less than 10 years as of the date of the filing of the
divorce complaint, and for parties married between 10 and less than 20 years as of the date of
filing the complaint for divorce the law presumes spousal support, if ordered, will be paid for no
more than one-half the length of the marriage. Lastly, for marriages of 20 years or more as of the
date of filing the complaint Maine law presumes that if spousal support, if ordered, it will not be
limited in duration. This presumption can be overcome, but the Courts will often follow this
legislative guideline. The major factors in determining spousal support have already been
discussed, and they are length of marriage and earning potential. It is too complicated to discuss
all the possible factors to consider for spousal support. If there is a chance of spousal support a
good lawyer is critical to help you obtain spousal support, or limit or avoid paying spousal
support. We know what to do in order to get you spousal support when your are owed it, or to
minimize it or otherwise avoid it when it is a risk to you. Schedule an appointment to talk to us
about this.
How do I win?
Everyone who wants a divorce receives one. We have a 100% success rate. However, this is
probably not what you mean when you say I want to win my divorce. Winning your divorce is
really about understanding your rights, and setting attainable goals. Then, with the help of a
good attorney you can succeed in reaching these goals. That is what winning in a divorce case is
all about. We can do this for you as we have done for thousands of clients over twenty years.
Should I negotiate or go to trial?
We always try to negotiate a case after we determine what is a reasonable expectation and
result for you. However, this takes a second person (your spouse) to understand what is
reasonable and should happen. If your spouse is reasonable then we can save thousands of
dollars for you and months, if not a year or more, spent going through the divorce process. This
is largely up to your spouse. We can negotiate ourselves or through a court mediator. If we
negotiate a settlement then a final divorce can happen as soon as sixty days after the complaint
for divorce is served on your spouse. It takes five minutes in a short hearing to finalize an
uncontested divorce. If a contested hearing is needed this can take a year or more before it
happens. We will protect you in a contested hearing by doing any necessary discovery and taking
the steps needed to represent you in trial.
What issues come up after a divorce?
A divorce is final as to any property issues. However, the Court has authority to modify any
issues regarding the minor children, such as primary residence, visitation, child support and
financial issues, as well as in some cases to modify spousal support. Normally this requires a
substantial change in circumstances since the prior court order, although with child support the
order can be reviewed every three years without showing any change, and if it is reviewed within
three years the child support must increase or decrease at least 15% to be modified. The Court
always has the authority to enforce any of its orders by contempt or enforcement motions, and
attorney's fees are appropriate and should be ordered where a party has the ability to comply with
an order and has failed to do so.
