Divorce is never easy. It is a highly emotional process that often involves fierce disputes over custody, child or spousal support, and asset division. These disputes can be highly contentious and may require the assistance of a lawyer and/or a mediator.
The most common disputes during a divorce are:
- Why did this happen?
- What to do about the kids (child custody, visitation, and support arrangements)
- Spousal support
- Division of assets: the family home, savings and checking accounts
- Division of debts
- Division of family businesses
- Tax issues
- Retirement plan issues
Personal Conflict: Why Did This Happen?
Divorce is emotional. It is very common for personal conflict to be an issue of dispute in divorce. While this matters, it is also usually best handled in counseling or therapy instead of in the courtroom itself.
Some states are what is known as “no-fault” states. In a no-fault divorce, the spouse filing for divorce need not verify any wrongdoing on behalf of either party to get a divorce. Some states require the couple live apart for some time, ranging from months to years, before they can file for a no-fault divorce. The grounds for no-fault divorce are incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. Although there are three separate grounds, they all stand for the same thing; the parties can’t get along.
There are some states that are at-fault divorces, and so the parties’ behavior during the marriage can have an influence on the outcome of divorce issues. A “fault” divorce is when the filing party cites a reason why the failure of the marriage is the spouse’s fault.
The traditional grounds for a fault divorce are cruelty, adultery, desertion, confinement in prison, and inability to consummate the marriage. A benefit of filing for a fault divorce is that it may eliminate the mandatory period of separation that is required for a no-fault divorce. Further, some states may grant a more significant share of marital property or alimony to a party who establishes the other’s fault.
Parental Disputes: What to Do About the Kids?
If you have minor children, the most important issues are their care, custody, and financial support during the divorce process and after it becomes final. Judges always use the “best interests of the child” legal standard to adjudicate the matter. The desires of the parents involved in the disagreement are secondary—what is best for the kids will always come first.
The two most common issues that need to be addressed in all divorces with minor children are child custody and child support obligations:
- A child custody order is a legal document that specifies the living arrangements of the children after the divorce as well as visitation and other rights for each parent. The judge will decide whether to award sole custody to one parent, or joint custody to both. Joint custody is the most commonly awarded type.
- So how is custody determined? The court will look at a number of factors. They will look at each parent’s ability to properly care for the child. A child’s attachment to an area like a home and school environment often plays a deciding role. The quality of the relationship between parent and child is also important, and a court will often take a child’s wishes into consideration, especially if the child is older.
- It is also important to note that a parent’s rights go beyond physical custody. Unless the court says otherwise, each parent has the right to have a say in the direction of the child’s life. This includes matters like education, extracurricular activities and sports, religion, and healthcare choices.
- Child support is intended to cover the expense of providing a child’s basic living necessities, including food, shelter, clothing, education, the cost of necessary medical treatment, and reasonable recreation. Luxury items are usually not covered by child support.
- Child support amount calculations are determined based on various factors that relate to the financial situation of the child and its parents. A court usually considers the child’s age, physical characteristics, development, and medical needs. A court also places great weight on the income level of the parents, as well as their earning capacity, education, and financial background.
Spousal support
Alimony or spousal support refers to payments made to one spouse from the other after a divorce. Nowadays, alimony is far more rare than it was in past decades. It is usually awarded only in situations where the spouses have unequal earning power and have been married for a long time.
A judge also assesses one spouse’s financial need and whether the other spouse has the ability to pay alimony. In some cases, the judge may award temporary spousal support only while the divorce is pending.
Property Division: Who Gets What?
One of the most important legal issues that a family court deals with during a divorce is how to divide the couple’s property. The goal is to fairly divide all marital property between the spouses, which includes all earnings, all property bought with those earnings, and debts accrued during the marriage. Any property acquired by gift, devise, or or bequest is considered the separate property of that specific spouse and does not get divided.
The factors that the court considers include:
- Duration of the marriage
- Which spouse will have primary custody and physical care of the children
- The current and future financial needs of each spouse
- Each party’s earning potential
- Non-monetary contributions to the marriage, such as child-care
- Age and health of the spouses
- Any legal obligations one spouse owes from previous relationships
Family Home
Perhaps the most disputed item in divorces is the family home. Expect to fight over the home where the children, memories, and amenities reside. The parent granted primary physical custody of the children generally receives preferential treatment when the family home is decided.
Bank Accounts
Both spouses are granted access to funds deposited from the time of the marriage. Separate bank accounts maintained during the marriage with personal funds, inheritances (not deposited into joint accounts), gifts, and the appreciation of those items are generally off limits in divorces.
Division of Debts: Who Owes What?
Often even more difficult than dividing the property in a divorce is deciding who will be responsible for any debt the couple has incurred during their marriage. In order to do this, you’ll need to know how much you owe and to whom.
Order both spouse’s credit reports from each of the three credit reporting agencies: Equifax, Experian, and TransUnion. Your credit report breaks down everything you owe in your name, including joint accounts you share with your spouse. Go through the credit reports and identify which debt is shared and which is in one name only.
There are several ways to decide who will be responsible for which debts this, including:
- If possible, pay off the debts now. If you have savings or assets you can sell, this is the cleanest method. You don’t have to worry that your spouse will leave you responsible for their portion of the debt
- Agree to take responsibility for the debts in exchange for receiving more assets from the division of property.
- Agree to let your spouse take responsibility for the debts in exchange for receiving more assets from the division of property.
- Agree to share responsibility for the debts equally. Though at first glance this choice appears most “fair,” it does leave both of you the most vulnerable. Legally, you are still responsible if your ex-spouse doesn’t pay up, even if s/he signs an agreement taking responsibility for the debt.
Division of Family Businesses
Family owned businesses that were formed during the marriage will be split during divorce. Even if family businesses were formed prior to the divorce, any assets, equity, inventory, clients, and loose cash acquired during the marriage are divided fairly.
Tax Issues
Tax issues that may arise from divorce include:
- Who will get the tax exemption for dependents?
- Who will be able to claim Head of Household tax filing status?
- How can you be sure alimony payments will be tax-deductible?
- How can you be sure child support payments will be tax-deductible?
Retirement Issues
When you spend years of your life working, it can add up to a sizable retirement account so you can lead a comfortable life in the future. What workers earn prior to their marriage is untouchable; however, contributions made during the divorce will be divided between both parties, even if one spouse never worked one day during the marriage.
If your spouse has retirement savings, you are probably entitled, by law, to half. This money can be used for your own retirement or for a down payment on a house, relocation expenses, or other current expenses. The primary issue with the division of retirement assets is that while the assets may have been sufficient for your joint retirement needs, more than likely your individual retirement needs will be much greater.
Do I Need an Attorney for Help With Marriage Dissolution Legal Disputes?
While any legal proceeding can be confusing, divorces often add extra emotional stress. If you are going through a divorce or planning on filing for divorce, it is important to seek the help of an experienced local divorce lawyer. They can help explain your rights and guide you on the best way to move forward, whether it is through negotiation or trial. They will be your advocate throughout the entire process and make sure your rights are protected.
