When it comes to settling your divorce, the issues revolve around custody of minor children, alimony, child support, and division of marital property and debt. Each state has laws pertaining to your rights in the settlement and details differ from state to state. Understanding the basics before working out an agreement with your soon to be ex might help save time, money and emotional distress.
Definition
The courts generally define marital property as tangible items, including your house, cars or furniture, along with money from retirement plans or stock certificates, items from safety deposit boxes and any other joint asset gained during your marriage. The experts at Lawyers.com note that courts sometimes exclude gifts and inheritances from family members or property obtained before the marriage.
Laws defining custody rights and child support typically leave room to consider the best interest of the children, earning potential of the noncustodial parent and other factors. You can sometimes "trade" debts accumulated during the marriage for assets or divide them according to earnings. When it comes to awarding alimony, state laws might focus on the length of your marriage or factors that include future earning potential.
Community Vs. Equitable
Your rights regarding marital property also depend upon whether your state follows community property division vs. equitable distribution of assets. States with community property laws divide marital property equally, one-half going to each individual. Courts define equitable as fair rather than equal, according to Lawyers.com. Thus, states practicing equitable distribution might consider the length of the marriage, work history and job prospects of each spouse, physical health of each spouse and other factors when determining a "fair" division of property.
Exceptions
Writing for Psychology Today, Sam Margulies Ph.D., Esq., a practicing lawyer since 1978, notes that almost 99 percent of all divorces settle before a trial and settlements rely as much on "norms" as statutes or laws. For instance, he notes the complexity of equitable distribution laws typically cause courts to divide assets equally unless one party can make a persuasive argument about why he should receive more than half. In addition, few courts would require your spouse to pay more than half his income in alimony and child support, regardless of the law. Margulies notes that lawyers could help many clients resolve settlement issues reasonably quickly if they explained these realities early in the process.
Considerations
Time is money when your attorney is involved, right down to the minute. Preparing a list of questions to ask, staying focused on practicalities and keeping your emotions in check when meeting with your attorney will likely help cut costs and may make moving through this stressful time easier. When possible, settling matters with your spouse and presenting your lawyer with the terms for review can mean significant savings. Lawyers.com notes that divorcing couples often spend many times the value of an object in legal fees if they involve their lawyers when deciding who gets to keep which piece of furniture or other household item.
Expert Insight
The experts at the American Association for Marriage and Family Therapy recommend professionally facilitated mediation if you are unable to come to a settlement agreement with your spouse, especially when the conflict involves child custody issues. This process involves a neutral third party who facilitates meetings with divorcing spouses, working to keep discussions calm while using problem-solving approaches and compromise as parents sort through details, such as custody and visitation schedules.
