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Getting a divorce can feel like a huge mess, right? It's a big life change, and the legal side of things can seem pretty confusing. This article breaks down the basics of divorce law, from starting the process to figuring out how to divide property and handle child-related issues. We'll also touch on things like spousal support, how to sort things out without a big fight, and what happens after the divorce is final. Think of this as a guide to help you make sense of the legal stuff involved when a marriage ends. Key Takeaways Divorce law covers the legal rules for ending a marriage, including how property is split and how decisions about children are made. Starting a divorce involves filing paperwork with the court, and understanding where to file is important. Dividing property and debts fairly is a major part of divorce proceedings, with different rules depending on the state. Child custody and support are decided based on the child's best interests, with specific formulas often used for support. There are ways to resolve divorce issues outside of court, like mediation, which can sometimes be less stressful and costly. Understanding Divorce Law Fundamentals Divorce law, at its core, is the set of legal rules and procedures that govern the dissolution of a marriage. It's not just about ending a union; it's about untangling the legal, financial, and familial threads that were woven together during the marriage. This area of law aims to provide a structured and fair process for separating spouses. It touches on everything from dividing property and debts to determining child custody and support arrangements. Understanding these basics is the first step for anyone facing this significant life change. Defining Divorce Law Divorce law is a specialized branch of family law. It deals with the legal termination of a marriage, addressing the rights and responsibilities of each spouse and any children involved. The specific laws vary significantly from state to state, meaning what applies in one place might be quite different elsewhere. This complexity often makes it challenging for individuals to navigate without professional guidance. The goal is to bring closure to the marital relationship while establishing clear terms for the future. Key Principles in Divorce Proceedings Several core principles guide divorce proceedings. One is the concept of no-fault divorce, which means a marriage can be dissolved without proving wrongdoing by either spouse, such as adultery or abandonment. Instead, grounds like irreconcilable differences or irretrievable breakdown are often sufficient. Another principle is the best interests of the child, which is paramount in all custody and support decisions. Courts also strive for equitable distribution of marital property, meaning a fair, though not necessarily equal, division. Finally, the principle of due process ensures that both parties have a fair opportunity to present their case and are treated equally under the law. The Role of Legal Counsel in Divorce While it's possible to go through a divorce without a lawyer, it's often not advisable, especially in complex cases. An attorney specializing in divorce law can explain your rights and obligations, help you understand the legal process, and represent your interests in court. They can assist with drafting and filing necessary documents, negotiating settlements, and advocating for you during mediation or trial. Having legal counsel can significantly impact the outcome of your divorce, particularly concerning financial settlements and child custody arrangements. They act as your advocate, ensuring that legal procedures are followed correctly and that your voice is heard throughout the proceedings. Initiating Divorce Proceedings Starting a divorce case can feel like a big step, and it is. It's the formal beginning of the legal process to end a marriage. Think of it as opening the door to the court system to handle all the details that come with separation. Filing the Initial Divorce Petition This is where it all begins. One spouse, often called the petitioner, files a document with the court. This document is usually called a Petition for Dissolution of Marriage or a Complaint for Divorce. It officially tells the court that you want a divorce and lays out some basic information. What kind of information? Well, it typically includes the names of both spouses, the date of marriage, and the date of separation. It also states the legal grounds for the divorce, which we'll get to in a bit. The filing of this document is what officially starts the divorce case. After it's filed, the other spouse, the respondent, must be formally notified. This is called service of process, and it's really important for the case to move forward legally. You can't just tell your spouse; the court needs proof they know about the lawsuit. Jurisdiction and Venue in Divorce Cases Before a court can even consider your divorce, it needs to have the authority to do so. This is called jurisdiction. There are two main types to think about: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction means the court has the power to hear divorce cases in general. Personal jurisdiction means the court has authority over both you and your spouse. Usually, this is established if one or both spouses have lived in the state for a certain period, often six months or a year, before filing. Venue is a bit different; it's about the specific geographic location within the state where the case should be heard. It's typically the county where one of the spouses lives. If these aren't right, the case can get messy and delayed. Grounds for Divorce Every divorce needs a reason, or legal grounds. These are the specific justifications that the law recognizes for ending a marriage. Historically, you had to prove one spouse did something wrong, like adultery or abandonment. These are called fault-based grounds. Many states still allow these, but they can sometimes make the process more complicated and contentious. Most states now also offer no-fault divorce. This means you don't have to blame anyone. The most common no-fault grounds are irreconcilable differences or irretrievable breakdown of the marriage. Basically, you're saying the marriage just isn't working anymore, and there's no reasonable way to fix it. This approach tends to make the divorce process smoother and less adversarial. Here's a quick look at common grounds: No-Fault: Irreconcilable Differences Irretrievable Breakdown Living Separate and Apart for a Statutory Period Fault-Based (Varies by State): Adultery Cruelty (Physical or Mental) Abandonment/Desertion Habitual Drunkenness or Drug Abuse Choosing the right grounds can impact how the divorce proceeds, especially if fault is a significant factor in your situation. It's worth discussing with an attorney to understand the implications in your specific jurisdiction. Navigating Property Division in Divorce When a marriage ends, figuring out who gets what can get complicated, fast. Divorce law has specific ways of handling property, and it's not always as simple as splitting things down the middle. The first big question is how your state handles marital assets. This usually falls into one of two main categories: community property or equitable distribution. Community Property vs. Equitable Distribution In community property states, most assets and debts acquired during the marriage are considered jointly owned by both spouses. This means they are typically divided 50/50. Think of it as everything earned or bought during the marriage belongs to the 'community' of the marriage. Equitable distribution states, on the other hand, aim for a fair division, which doesn't always mean equal. The court looks at various factors to decide how to split things up. These can include the length of the marriage, each spouse's contributions (both financial and non-financial, like homemaking), the economic circumstances of each party, and even things like fault if it impacted the marital finances. It's a more individualized approach. Valuation and Division of Marital Assets Before any division can happen, all the property needs to be identified and valued. This isn't just about the big stuff like houses and cars. It includes: Retirement accounts (401ks, pensions, IRAs) Investments (stocks, bonds, mutual funds) Bank accounts (checking, savings) Businesses owned by either spouse Personal property (furniture, jewelry, art) Intellectual property (patents, copyrights) Valuation can be straightforward for bank accounts, but it gets trickier with businesses or unique assets. You might need to hire appraisers or forensic accountants to get accurate figures. The goal is to get a clear picture of the marital estate. Once valued, the division can occur, either through agreement or court order. This might involve selling an asset and splitting the proceeds, or one spouse buying out the other's share. Understanding property law is key here, as it defines ownership rights. Property law overview Addressing Debts in Divorce Just like assets, debts acquired during the marriage are also subject to division. This includes mortgages, car loans, credit card debt, and student loans. The court will decide how these debts are allocated between the spouses. Often, debts are divided similarly to assets, with the aim of a fair distribution. However, the court will consider who incurred the debt, who benefited from it, and each spouse's ability to repay. It's important to remember that even if a divorce decree assigns a debt to one spouse, the creditor might still pursue both parties if the payment isn't made. This is why it's often wise to refinance loans or close joint credit accounts as part of the divorce process. Dividing property and debts is a significant part of divorce proceedings. It requires careful consideration of legal principles, asset valuation, and individual circumstances to achieve a just outcome. Consulting with legal counsel is highly recommended to understand your rights and obligations. Child Custody and Support Matters When a marriage ends, figuring out arrangements for children is often the most sensitive part of the divorce process. This involves two main areas: custody, which is about who makes decisions for the child and where they live, and child support, the financial aspect of raising them. Determining Legal and Physical Custody Custody isn't just one thing; it's broken down into two types: legal custody and physical custody. Legal custody refers to the right and responsibility to make important decisions about a child's upbringing, like their education, healthcare, and religious training. Physical custody, on the other hand, deals with the day-to-day living arrangements and where the child spends their time. Courts generally aim to establish arrangements that serve the best interests of the child. This can mean joint legal custody, where both parents share decision-making, or sole legal custody, where one parent has the final say. Similarly, physical custody can be joint, with the child splitting time between both parents' homes, or sole, where the child lives primarily with one parent and the other has visitation. Factors courts consider when deciding custody include: The child's wishes (depending on their age and maturity) Each parent's ability to provide a stable home environment The child's relationship with each parent and any siblings Each parent's willingness to support the child's relationship with the other parent Any history of domestic violence or substance abuse The goal is always to create a plan that promotes the child's well-being and stability, even though parents are no longer together. It's a delicate balance, and courts take this responsibility very seriously. Child Support Calculations and Enforcement Child support is the financial contribution one parent makes to the other to help cover the costs of raising their child. Most states have guidelines that courts use to calculate the amount of support. These guidelines typically consider factors like: The income of both parents The number of children The amount of time each child spends with each parent Costs for health insurance and childcare Here's a simplified look at how it might work: Parent Income (Combined) % for 1 Child % for 2 Children $5,000/month 15% 20% $8,000/month 17% 22% $12,000/month 19% 25% Note: These percentages are illustrative and vary significantly by state. Once a child support order is in place, it's legally binding. Enforcement mechanisms can include wage garnishment, intercepting tax refunds, or even suspending driver's licenses if payments are not made. It's important for parents to understand that these payments are for the child's benefit, not the other parent's. Modifying Custody and Support Orders Life circumstances change, and divorce decrees aren't set in stone forever. If there's a significant change in a parent's situation, they can petition the court to modify existing custody or child support orders. Common reasons for modification include: A substantial change in income for either parent (either an increase or decrease) A change in the child's needs (e.g., medical expenses, educational requirements) A relocation of one parent to a different state or far distance A change in the child's living situation or a parent's ability to care for them To modify an order, the parent requesting the change usually needs to show the court that the modification is necessary and in the child's best interest. The process typically involves filing a motion with the court and presenting evidence to support the requested changes. Both parents will have an opportunity to be heard. Spousal Support and Alimony Types of Spousal Support When a marriage ends, one spouse might need financial help from the other. This is called spousal support or alimony. It's not automatic, though. Courts look at a lot of things before deciding if it's needed and how much it should be. There are a few main kinds: Temporary Alimony: This is paid while the divorce is still being processed. It helps the lower-earning spouse maintain their lifestyle until the final divorce decree is issued. Rehabilitative Alimony: This type is meant to help a spouse get back on their feet. It might be for getting education or job training so they can become self-supporting. Permanent Alimony: This is less common now, but it's paid for an indefinite period, often until the death of the paying spouse or the remarriage of the receiving spouse. It's usually for long-term marriages where one spouse has sacrificed their career. Reimbursement Alimony: This is awarded when one spouse supported the other through education or training that led to increased earning potential. It's a way to pay back that investment. Factors Influencing Alimony Awards Judges don't just pull numbers out of a hat when deciding on alimony. They have to consider several factors to make things fair. The length of the marriage is often a big one. A longer marriage usually means alimony is more likely and might be for a longer duration. Here are some other things courts typically look at: Each spouse's income and earning capacity: How much does each person make now, and how much could they make if they tried? The needs of each spouse: What does each person require to live, considering their age, health, and standard of living during the marriage? The ability of the paying spouse to pay: Can they afford to pay alimony without causing themselves undue hardship? Contributions to the marriage: This includes not just financial contributions but also things like homemaking, childcare, and supporting the other spouse's career. Age and health of both parties: Older spouses or those with health issues might have a harder time becoming self-supporting. Any marital misconduct: In some places, things like adultery can affect alimony decisions, though this is becoming less common. The goal is to achieve a fair outcome that balances the needs of both parties, considering their circumstances before and after the divorce. Duration and Modification of Alimony How long does alimony last? That's a big question, and it really depends on the type of alimony awarded and the specific circumstances of the case. For temporary or rehabilitative alimony, the duration is usually tied to a specific event, like the completion of a degree or a set period for job searching. Permanent alimony, as the name suggests, can last a long time, but it's not always truly forever. It often ends if the receiving spouse remarries or if the paying spouse dies. What if things change after the divorce? Can alimony be changed? Yes, it can, but it's not easy. A party usually has to show a significant change in circumstances. This could be a job loss, a serious illness, or a substantial increase or decrease in income for either the paying or receiving spouse. Courts will review the situation and may adjust the amount or even terminate the payments if the change is significant enough. It's always best to consult with a legal professional if you think your alimony situation needs to be reviewed. Alternative Dispute Resolution in Divorce Mediation in Divorce Cases When couples decide to end their marriage, going to court isn't always the only path. Alternative Dispute Resolution, or ADR, offers different ways to sort things out. Mediation is a big one. In mediation, a neutral third person, the mediator, helps you and your spouse talk through the issues. They don't make decisions for you, but they guide the conversation. The goal is to reach agreements on things like dividing property, child custody, and support. It's often less confrontational than a courtroom battle. Plus, it can be quicker and cheaper. The mediator's job is to facilitate communication, not to represent either party. Arbitration as a Divorce Alternative Arbitration is another ADR method, and it's a bit more formal than mediation. Think of it like a private, less formal court. You and your spouse present your cases to an arbitrator, who is usually a lawyer or retired judge. The arbitrator then makes a decision, much like a judge would. This decision is typically binding, meaning you have to follow it. It's a way to get a decision without the public nature and lengthy delays of the court system. It can be a good option if you want a definitive answer but want to avoid the traditional court process. It's a private way to resolve disputes. Negotiated Settlements Negotiated settlements are pretty straightforward. This is where you and your spouse, often with the help of your individual lawyers, talk directly to each other to work out a divorce agreement. It's all about compromise and finding common ground. You each state what you want and what you're willing to accept. If you can agree on all the terms, you write up a settlement agreement. This agreement is then submitted to the court for approval. It's the most direct form of ADR and gives you the most control over the outcome. It requires a willingness from both sides to communicate and find solutions. ADR methods like mediation and arbitration can save time and money compared to traditional litigation. They also allow for more creative solutions tailored to the specific needs of the divorcing couple and their children. The focus is on finding mutually agreeable terms rather than having a judge impose a decision. Enforcement and Compliance with Divorce Decrees So, you've gone through the whole divorce process, and the court has issued a final decree. That document lays out exactly how things like property division, child support, and spousal support are supposed to work moving forward. But what happens if one person just doesn't follow the rules? That's where enforcement and compliance come in. It's not just about getting the divorce finalized; it's about making sure the terms of that decree are actually put into practice. Mechanisms for Enforcing Court Orders When a divorce decree isn't being followed, there are several ways the court can step in to make sure things get done. It's not always a quick fix, but the system has ways to handle non-compliance. Contempt of Court: This is a serious one. If someone willfully disobeys a court order, they can be found in contempt. Penalties can range from fines to, in extreme cases, jail time. It's usually a last resort, but it's a powerful tool. Wage Garnishment: For things like child support or alimony that aren't being paid, a court can order a portion of the non-paying party's wages to be directly withheld by their employer. This is a pretty common and effective method. Property Liens: If a party is supposed to pay a certain amount from the sale of a property or transfer ownership, but they don't, a lien can be placed on their assets. This essentially means they can't sell or refinance that property until the court order is satisfied. Civil Lawsuits: In some situations, the party who isn't complying might face a separate civil lawsuit for damages caused by their failure to follow the decree. Consequences of Non-Compliance Not sticking to the terms of a divorce decree can lead to some pretty significant problems for the person who is out of compliance. It's not just a slap on the wrist. Financial Penalties: This can include back payments, interest on those payments, and even fines imposed by the court. Legal Fees: The party who has to go to court to enforce the decree can often recover their attorney's fees and court costs from the non-compliant party. So, not following the order can end up costing you more in the long run. Loss of Privileges: In severe cases, a court might restrict certain rights, like the ability to travel or even modify custody arrangements if the non-compliance impacts the children. Damage to Credit: Unpaid support obligations, if reported, can negatively affect a person's credit score, making it harder to get loans or housing. Modifying Divorce Judgments Sometimes, life happens, and the original terms of a divorce decree just don't make sense anymore. Circumstances change, and courts understand that. It's not about avoiding the decree, but about adjusting it to fit new realities. Material Change in Circumstances: To modify a judgment, you usually have to show that there's been a significant, unforeseen change since the original order was put in place. This could be a job loss, a serious illness, or a change in a child's needs. Specific Areas for Modification: The most common things that get modified are child support, child custody, and sometimes spousal support. Property division is usually final and much harder to change. Formal Process: Modifying a judgment isn't automatic. It requires filing a formal request with the court, presenting evidence, and often attending hearings. The other party will have a chance to respond. It's important to remember that a divorce decree is a legally binding document. While courts are willing to consider modifications when circumstances genuinely change, they also expect parties to make a good-faith effort to comply with the original orders. Ignoring the decree and hoping it goes away is rarely a good strategy and often leads to more complicated and costly legal battles down the line. Legal Ethics in Divorce Practice Attorney's Duties to Clients When you're going through a divorce, the lawyer you hire has a set of responsibilities to you. Think of it like a contract, but with professional rules. They have to be competent, meaning they actually know what they're doing in divorce law. This isn't the time for them to learn on your dime. They also need to keep you informed about what's happening with your case. You shouldn't have to chase them down for updates. This duty of communication is key to a good attorney-client relationship. They also have to act in your best interest, which means putting your goals ahead of their own convenience or any personal feelings they might have. Confidentiality and Conflict of Interest Anything you tell your lawyer is supposed to stay between you two. It's called attorney-client privilege, and it's a big deal. This means they can't just blab about your personal life or the details of your case to other people, not even your nosy neighbor or your soon-to-be-ex. There are some exceptions, of course, like if you give permission or if there's a legal requirement, but generally, it's all private. A conflict of interest happens when a lawyer has a personal stake in the case that could mess with their ability to represent you fairly. For example, if they used to represent your spouse, or if they're friends with the judge. If a conflict pops up, they have to tell you and usually can't represent you anymore. Professional Standards in Family Law Family law, especially divorce, can get pretty emotional. Lawyers in this field have to stick to certain professional standards to keep things from getting out of hand. This includes being honest with the court and with you. They can't lie or mislead anyone. They also need to be respectful of the other side, even if things are heated. It's not about being best friends, but about maintaining a level of professionalism that allows the legal system to work. Sometimes, lawyers might suggest mediation or other ways to settle things outside of court, not just to save time or money, but because it can often lead to better outcomes for everyone involved, especially kids. It's about finding solutions, not just winning arguments. Competence: Possessing the necessary legal knowledge and skill. Diligence: Acting promptly and thoroughly on your behalf. Communication: Keeping you informed about your case's progress. Confidentiality: Protecting your private information. Loyalty: Prioritizing your interests above all else. Access to Justice in Divorce Law Divorce can be a really tough time, and figuring out the legal stuff on top of everything else can feel overwhelming. The idea behind 'access to justice' is pretty simple: everyone, no matter how much money they have, should be able to get the legal help they need. This means being able to understand your rights, find a lawyer if you can, or at least get good information about how the divorce process works. Legal Aid and Pro Bono Services For many people, the biggest hurdle is the cost of hiring a lawyer. That's where legal aid societies and pro bono services come in. Legal aid groups often provide free or low-cost legal help to individuals who meet certain income requirements. Pro bono, which means 'for the public good,' is when lawyers volunteer their time to help clients who can't afford representation. These services are incredibly important for divorce cases, especially when children or significant assets are involved. It's worth looking into what's available in your area; sometimes a quick search can point you toward organizations that help. Understanding Procedural Safeguards Even if you can't afford a lawyer, the court system has built-in safeguards to try and keep things fair. These are called procedural safeguards. They include things like making sure you get proper notice of court dates and filings, understanding the rules of evidence, and having the chance to present your side of the story. The court process itself has rules, like how long you have to file certain documents (statutes of limitation), that are meant to keep things moving and prevent endless legal battles. Knowing about these procedures can help you feel more in control. Ensuring Fairness in Legal Outcomes Ultimately, the goal is a fair outcome. This involves more than just following procedures; it's about making sure the decisions made in your divorce case are just. This can be challenging, as 'fairness' can be subjective. However, legal principles like the division of property, child support calculations, and alimony are designed to create a balanced result based on the specific circumstances of each case. Courts consider many factors to try and reach a resolution that addresses the needs of all parties involved, especially when children are part of the family. The legal system aims to provide remedies that address harm and establish clear rights and obligations for everyone moving forward. The Impact of Divorce Law on Society Divorce law doesn't just affect the individuals going through a separation; it ripples outward, influencing family structures, economic stability, and societal norms. It acts as a framework for managing the dissolution of marriages, aiming to bring order to what can be a chaotic period. The way laws are written and applied reflects and, in turn, shapes how we view marriage, family, and individual rights. Law as a Governance Framework for Families At its core, divorce law provides a structured way to handle the end of a marriage. It sets out rules for dividing property, determining child custody, and arranging financial support. This legal structure helps to prevent disputes from escalating and provides a predictable process for all parties involved. Without these established rules, the dissolution of a marriage could lead to prolonged conflict and instability, impacting not only the couple but also any children and extended family members. The law essentially governs the transition from a married unit to separate individuals or co-parenting arrangements, offering a path toward resolution. Evolving Societal Values Reflected in Divorce Law Divorce laws aren't static; they change over time, often mirroring shifts in societal attitudes towards marriage, gender roles, and individual autonomy. For instance, the move towards no-fault divorce in many places reflects a societal acceptance that marriages can end without one party being solely to blame. Similarly, changes in how marital property is divided or how child custody is determined often show a greater emphasis on equality and the best interests of the child. These legal adjustments demonstrate how the law adapts to reflect what society generally considers fair and appropriate in family matters. It's a dynamic process where legal principles are constantly being re-evaluated against current social values. Maintaining Order Through Legal Structures The legal system, through divorce statutes and court decisions, plays a significant role in maintaining social order. By providing clear guidelines and enforcement mechanisms, it helps to ensure that agreements are honored and that vulnerable parties, particularly children, are protected. This predictability is vital for economic and emotional stability during and after a divorce. The existence of a legal framework for divorce allows society to manage these personal transitions in a way that minimizes broader disruption. It's about establishing a clear set of rules for a complex life event, ensuring that responsibilities are met and rights are respected, contributing to the overall stability of the community. The law provides a framework for resolving disputes and protecting rights. Wrapping UpSo, divorce is a pretty complicated thing, legally speaking. It touches on a lot of different areas, from how property gets divided to what happens with kids. We've talked about some of the main legal ideas involved, like making sure everything is fair and following the right steps. It's not always a straightforward path, and sometimes things can get pretty messy. But understanding the basics can help make the process a little less daunting. Remember, this is just a general look at things, and every situation is unique. If you're going through this, getting advice from someone who knows the law well is probably a good idea. Frequently Asked Questions What is divorce law and why is it important?Divorce law is basically the set of rules that explain how marriages can end legally. It's super important because it helps make sure everything is handled fairly when a couple decides to split up. This includes figuring out things like who gets what property, how kids will be cared for, and if one person needs to help the other financially. It’s like a roadmap for ending a marriage the right way. How do I start the divorce process?To start a divorce, one person usually has to fill out and file some official papers with the court. This paper basically tells the court that you want a divorce and gives some basic reasons why. After that, the other person needs to be told about the divorce case. It's a bit like sending an invitation to a formal meeting, but it's the first step in a legal process. What's the difference between community property and equitable distribution?These are two main ways states handle dividing up stuff when people get divorced. In community property states, most things bought during the marriage are owned equally by both people, so they're usually split 50/50. In equitable distribution states, the judge tries to divide things up fairly, but not necessarily equally. 'Fairly' can mean considering things like how long you were married or who earned more. How is child custody decided?When deciding custody, courts look at what's best for the child. They consider who has been the main caregiver, each parent's ability to provide a stable home, and sometimes even the child's own wishes if they're old enough. Custody can be 'legal' (who makes big decisions) or 'physical' (where the child lives most of the time). The goal is always the child's well-being. What is spousal support or alimony?Spousal support, often called alimony, is money one ex-spouse might pay to the other after a divorce. It's meant to help the person who might have a harder time supporting themselves, perhaps because they stayed home to raise kids or didn't earn as much during the marriage. It's not automatic and depends on many factors. What is mediation in divorce?Mediation is a way to solve divorce problems without going to a full court trial. A neutral person, the mediator, helps the couple talk through their issues and come to an agreement together. It's usually less stressful and cheaper than fighting in court. Think of it as a guided conversation to find common ground. What happens if someone doesn't follow the divorce orders?If someone doesn't do what the judge ordered in the divorce papers, the other person can ask the court to step in. The court has ways to make people follow the rules, like ordering them to pay money they owe or even facing penalties for not cooperating. It's about making sure the final divorce agreement is actually respected. Can I get a divorce without a lawyer?You can try to get a divorce without a lawyer, especially if your situation is simple and you and your spouse agree on everything. However, divorce law can be complicated. A lawyer helps make sure your rights are protected and that you understand all the legal steps and consequences. For most people, having legal advice is a good idea.