Many divorcing couples now avail themselves of a software and/or a web-based (on-line) service that helps them complete and prepare divorce papers, forms, and/or documents for filing with the court.

On-line divorce, designed for spouses who are in agreement with one another about an uncontested divorce, is a form of pro se litigation that costs less because they can prepare their paperwork and file for divorce without a lawyer.

An on-line divorce is not designed or sold to replace the services of a lawyer.

Some spouses use on-line divorce but also hire a lawyer to review the documentation before filing it. No matter what, an on-line divorce reduces legal costs.

Many couples using on-line divorce feel comfortable without hiring a lawyer. Since all issues regarding property, debt, alimony/spousal support, custody, child support, and visitation are settled, so legal advice is not required. On-line companies can direct a party in the right direction, but legal help is rarely, if ever, included.

One of the most attractive features on an on-line divorce is the ease of paperwork preparation.

Care must be taken, however. The buyer must beware and choose a reputable company with a history. In recent years, there have been several start-ups that provide very generic, non-state specific forms with little or no support and no filing instructions. Some on-line divorce companies provide an on-line solution that instantly delivers the completed forms by utilizing a web-based software application; thus the papers are available immediately for printing when an on-line questionnaire has been completed. This type of on-line divorce gives a couple the most control over their divorce, and it is recognized as the fastest way to complete the paperwork.

Other more primitive on-line divorce companies collect customer information through the Internet, process the papers in-house, and then mail them to the customer. This is a more or less a traditional method of providing a divorce service, just without the office visits.

Without a doubt, one of the biggest hurdles in a divorce is the negotiation about the terms and conditions of the marital property settlement, spousal and child support and visitation.

There is one no right way to negotiate, nor can a single, model schedule be fashioned. Negotiations, whether face to face or through lawyers or mediators or collaboratively, can be very difficult when one or both of the parties makes unreasonable demands or imagines that he or she can walk away with everything.

Most lawyers agree that negotiations move along when both spouses are at the same place emotionally and mentally, that is, when both the husband and wife each accept that the marriage is over and must end. In a surprising number of cases, one spouse is completely blindsided by the divorce. Rufus’s announcement that he wants a divorce may flatten Rhonda, who has no idea of Roxanne. Thus, the person who wants to leave may be way ahead of the person who does not see the breakup coming — at least emotionally and mentally. The person who is left may try to stall, sometimes in hope of a reunification, but as the divorce progresses, he or she moves toward the point where both spouses understand the marriage is over.

For this reason, many couples wait a period of time between separation and the onset of negotiations.

Some couples arrive at a rough agreement about the divorce and use lawyers to cross the t’s and dot the i’s; others turn the majority of the work over to the attorneys. A husband and wife who can negotiate with each other can save money and perhaps go separate ways, if not as friends, at least not as enemies.

Negotiations frequently bring into play what are termed leverage factors, considerations made by each of the parties pertaining to the issues that are being disputed.

In divorce actions, one leverage factor is, in whose interest is it to remain married longest? Answering this question can be a starting point at the onset of divorce negotiations because it creates leverage over the negotiations. If Rufus has left Rhonda for Roxanne, Rhonda has leverage she can work to her advantage in property settlement negotiations. A person prepared to wait has a bargaining tool that can be brought to bear in property negotiations.

When they end successfully, nothing is in dispute, and divorce can proceed through the courts. The terms and conditions of the divorce — the marital settlement, spousal and child support and visitation — can be memorialize in a settlement agreement, which becomes part of the divorce record.

The two most valuable assets a divorcing couple divides are the marital home and (often) the husband’s pension.

Divorcing couples often do not realize that the pension benefits of a couple ending a long marriage may be greater than the value of house they live it. A frugal couple who lived in one house for the duration of their marriage may have retirement benefits greater than the sale price of the marital home.

Very often these plans may be divided, so that the worker’s spouse, who very often is a stay-at-home mother without a pension of her own, acquires an interest in her husband’s plan via what is called a Qualified Domestic Relations Order (QDRO). Women need good legal advice about the distribution of a pension. Pension issues probably generate more appeals and reversals on appeal than any other issue in equitable distribution. Women very often are in a position to trade off their share of spousal retirements for other assets, but care should be taken in doing this. More than twice as many men as women have retirement benefits, and the benefits for men are generally much larger than those for women.

In general, pension plans may be what are termed qualified, which means they are regulated by ERISA and guarantied by PBGC, or nonqualified, which means they are not regulated by ERISA and not protected by PBGC. A plan may be defined benefit, where each employee is guaranteed a specific benefit, such as the old-fashioned “company pension” that the Depression-World War II generation expected after years of service to one company, or a defined contribution, where the employer’s contributions are specified, such as the popular 401(k).

Pensions plans can be very difficult for a layperson to understand. Calculating the value of a defined benefit plan for divorce purposes can be particularly challenging and require the services of actuaries.

A number of jurisdictions offer summary or simplified divorces, which are ideal for couples who have been married a short time and are in agreement about everything about the divorce.

These actions streamline a divorce because they an uncontested and in many cases the couple file jointly and don’t even need to appear in court.

Many states offer simplified routines for uncontested divorce and a few offer summary procedures. While the fine print of the summary routines varies from jurisdiction to jurisdiction, basically the requirements are same. For a summary divorce, the couple

– usually cannot be married more than five years (although some jurisdictions allow for longer marriages);

– agree to waive any right to spousal support (any appeal of the dissolution);

– must be childless (although they may have children from previous marriages);

– may not own real property, separately or jointly;

– have neither significant assets (usually less than $25,000), nor significant debts (usually less than $15,000).

In a summary action, the spouses agree how they will divide what they own and what they owe, file the divorce forms in the local court, wait a few months and then request the final divorce decree from the court.

No simpler avenue to a divorce exists than a joint petition for uncontested divorce based on irretrievable breakdown. The divorcing spouses dissolve the marriage in a no-fault action. The joint petition requests court approval of an uncontested separation agreement.

In divorce, it does not get any simpler.

Sometimes people marry, only to realize almost immediately that they blundered in taking the plunge. May-December marriages, where an aging man tries to find a young woman to take care of him; impulse marriages after a get away in Las Vegas; rebound marriages when one person finds loneliness after divorce too heavy a burden — all may become what are called “short marriages” in the eyes of court, which in short order is called upon to put them asunder.

A short marriage is one where the financial affairs of the parties “do not become so commingled that they cannot easily be restored to premarital situation,” as one court put it. A short marriage, while it cannot be quantified in terms of years, is almost always a childless marriage. For want of rule of thumb, however, a short marriage is generally held to be five or fewer years. In some jurisdictions, if the parties have limited assets and have been married only a few years, a short marriage may easily be ended with a summary action, where both spouses jointly petition the courts to end the marriage.

Summary actions do not allow for alimony or appeal.

The dissolution of short marriages calls forth the image of King Solomon and his sword: a swift cut that attempts “the restoration of spouses to the economic position they occupied before the marriage.” Sometimes this may be as simple as allowing each partner to keep what he or she brought to the marriage and cutting everything marital in two. In fact, in 1988 Alaska case — Rose v. Rose– the court said of short marriage that is it analogous to a contractual “action in rescission.” When the marriage is without substantial marital property, the logic of action of rescission is easy to apply.

To be sure, ending a short marriage is not the same as an annulment, which ends a marriage that was flawed from the onset. Short marriages are lawful in every way. Under the right set of circumstances, however, they may be easier to end than a longer marriage, with property and assets.

The largest single cost of litigation is attorney fees. The cost of a litigated divorce can be eye popping. Sometimes the cost of litigation can be so great that the parties may not have sufficient funds to pay the lawyers until their assets are divided.

For the protection of both the lawyer and the client, most lawyers prefer to work with a contract between them and the client, with an up-front payment of a retainer fee. The lawyer works at an hourly rate. Typically, the total number of hours multiplied by the hourly rate is the lawyer’s fee. (This fee does not include attorney costs, such as copying costs, service fees, telephone charges, travel expenses, filing fees, expert witnesses.) When a lawyer is retained, the contract between lawyer and client spells out the terms of the arrangement, and it greatly reduces the chance of a misunderstanding.

Attorney fees can be reduced when the spouses do more of the work associated with a divorce. For example, when the couple cooperates with each other — for example, freely exchanging financial information needed in conjunction with the marital settlement agreement rather than forcing expensive discovery — legal costs can be held down. Uncontested actions also greatly reduce the amount of work a lawyer has to do.

Courts generally do not order the parties to pay each other’s legal fees; however, in some cases, jurisdictions by statute permit courts to award attorney fees in domestic relations cases. Courts, in deciding this, consider the financial positions of the parties, and the court has the discretion to order one party to pay all or some of the other party’s attorney fees if one spouse has the ability to pay and the other one does not. The conduct of the parties may be a consideration in awarding attorney’s fees in divorce actions, and the actions of parties who raise unnecessary issues or raise issues in bad faith may be sanctioned with attorney fees.

In general, divorce courts in the United States follow the American Rule, which means the winning side is not entitled to attorney fees because it won.

The burden of proof is on the party asking the court to make an attorney’s fee award.

Sometimes, the husband argues that he cannot work anymore or does not have the income he had at the onset of the divorce, and the wife, in turn, contends that the income should be imputed, or attributed. He contends that he is struggling to survive as a novelist; she contends he is a willfully unemployed idler. She supports her contention by demonstrating that he has the ability to work and that the unemployment is elective.

This can happen during the trajectory of the divorce or when the parties appeal for modifications of alimony or child support as a result of a change in circumstance, but on this point, the wife has the law on her side. In general, for purposes of spousal and child support, courts consider the earning capacities of the parties, not their actual income. Courts view elective unemployment (idling) or underemployment as bad faith and remedy that with the legal fiction of imputed income, which makes the party responsible for the payment.

Courts impute income in two ways — the first, as a matter of fact, where the court considers the actual earnings of the spouse, and the second, as a matter of law, where the court considers the earning power of the party.

For example, a judge may impute a certain income level to a brain surgeon who abandons his profession to become a street musician because courts believe his family has a right to income that would have been provided had he paid “diligent attention” to his career. The rationale behind the imputation of income is that no one should be allowed to escape obligations by taking actions that make the fulfillment of such obligations impossible.

The desire of a woman to stay at home with small children is a good-faith reason for not imputing income to her, courts have found.

In dividing the marital estates, the appreciation of assets, both separate and marital, present difficult questions. Assets appreciate actively, which means as a result of improvements or actions by its owner, such as building a fireplace in the marital home, or passively, which means as a result of changes in the market, such as during the house boom. This sounds simple, but like everything in the context of divorce, it becomes more complicated.

Very often judges face complicated arguments about the active and passive appreciation of assets that are in part marital and in part separate. For example, in general, in a private company headed by a single owner all appreciation is generally active, but one of the most difficult situations in family law happens when courts must deal with the appreciation in the value of private, family-run businesses. Active or passive appreciation can become something of a Gordian knot in the case of private business that is separate property when marital or community funds are commingled with uncompensated contributions of a homemaking spouse. This situation happens very frequently, such as doctors who employ their spouses as secretaries.

The management of separate property investments can become problematic, particularly during the wide gyrations of the financial markets. When one spouse plays an active role in the management of separate property investments, the other spouse may claim that the increase should be marital, particularly when it is the husband managing the wife’s property. By the same token, a wife whose investments take a plunge may allege dissipation because her husband mismanaged her money. At the least, both spouses should have some idea of the original cost of an asset because this number is used to calculate any appreciation.

In general, courts have held that when a nonmarital asset appreciates because of the efforts of either party, the appreciation becomes marital. The asset need not be money. In a 1991 Montana case, a court held that a wife who had managed her husband’s collection of baseball cards should share in the appreciation of the collection.

One of the more difficult situations arises when separate property appreciates during the marriage. In general, in dual-classification, equitable distribution states, active appreciation that results from marital efforts is marital property while passive appreciation remains separate property. Courts look on appreciation as a result of marital efforts as active, and appreciation as result of market forces or third-party as passive.

After the initial shock that happens when a couple decide to end the marriage, very practical considerations come to the fore. One of the most important is the division of the marital estate. The couple, one way or another, must come up with hard numbers of what they own individually, as separate property, jointly as a couple, as well as what owe individually and together.

Depending upon the circumstances of the breakup, these numbers can be had by discovery, which is a very time consuming and expensive process whereby one party subpoenas the other requiring the production of records, or the couple can work together and assemble this records themselves.

The more wealth a couple has, the harder and more complicated the task becomes. Couples very often have everything they need to do this; however, frequently the records are not all in one place. Sometimes they are not up to date.

It may seem darkly comic, but a couple preparing to divorce needs the same financial records they would need if they were going to a financial planner to prepare for their so-called “golden years.” The same information is used to prepare a property settlement. On the asset side, this includes, but is not necessarily limited to, everything each owns individually as well as everything they own together; on the liability side, it includes, but is not necessarily limited do, everything each owes individually as well as everything they owe together. On the asset side, this means checking and savings accounts, mutual funds and money market accounts; real estate records, including the marital home and second homes and unimproved land; personal property, such as automobiles, furnishings, collections (art, stamp, coin); stocks, bonds, annuities, retirement plans, including pensions and profit sharing; accrued vacation time, medical savings accounts; other valuable personal property, life insurance and season tickets. On the debt side, this means records of credit cards, vehicle loans, mortgages and home equity loans, promissory notes, student loans and other debt.

It is a good idea for both spouses to have copies of all financial records — his, hers and theirs. Later in the divorce action, the assets and liabilities in these records will be classified as marital or separate — an important step in determining the size and eventual distribution of the marital estate. That cannot be done without the records, however.

Many divorcing couples struggle to agree on the value of a professional practice, particularly its goodwill, which is its value beyond the market value of any tangible assets. Battling spouses argue vastly different calculations for this business asset that neither can see nor touch nor sell.

It is not an easy call. One Florida court likened “[t]he attempt to determine the goodwill value of the business of a sole professional practitioner, absent consideration of reputation, presence and tangible assets, is somewhat akin to a metaphysical quest for the sound of one hand clapping.”

Goodwill, which includes reputation, prestige, and company name, is the favor that a business enjoys by virtue of being established — that hard-to-calculate part of the whole that is greater than the sum of its parts. Goodwill is based on the observable phenomenon that when a business is sold, the sale price is greater than the value of its assets.

In divorce actions, particularly those involving professional practices such as a doctor or lawyer, goodwill becomes a point of contention when one side (usually the professional himself) contends that it is separate property and the other side (usually the wife) contends that it is marital. Very often goodwill can far exceed the value of any physical assets accumulated by the professional. Goodwill can also be a factor among tradesmen. Ralph runs a thriving shoe repair business out of a hole-in-the-wall shop on a side street, but when Ralph and Mrs. Ralph want to retire they cannot find a buyer because all the value of the business is Ralph and his reputation for good work.

In divorce actions, courts must grapple with the distinction between realizable goodwill, which can converted to cash by selling the business, and unrealizable goodwill, which is the business, professional and marketing skills of the owner. In general, most courts hold that realizable goodwill is marital property and take a variety of positions about unrealizable goodwill.

Or the craftsman, in the case of the shoe repair shop. In some businesses unrealizable goodwill may be the business. Ralph’s Shoe Repair has a substantial value as long as its founder, proprietor and sole employee does the work; without Ralph, its value is reduced to nothing but the sale value of his tools and tiny shop.

Goodwill questions also surface when courts must deal with the goodwill value of professional degrees acquired during the marriage, particularly when one spouse (often the wife) forsakes a career for the promise of a payoff of enhanced earnings because of the degree (taken by her husband).

A majority of American jurisdictions hold that personal goodwill of a business is unrealizable and cannot be classified as marital property; on the other hand, enterprise goodwill — “the corporate, transferrable reputation of the business itself” — is realizable and must be included in the marital estate. “If enterprise goodwill is not marital property, the valuation of a business will be much lower than the actual price than the same business could command on the open market.”