The breakdown of the marital relationship is stressful enough; the actual divorce process should not add to that stress. By focusing on the legal consequences of divorce – children, property and money – and not the troubled relationship itself (granted, easier said than done), you will be several steps ahead of the general divorcee in getting on with your life.
As I sit with my client in the back of the courtroom waiting for the bailiff to call my client’s name, I glance over at her soon-to-be-ex-husband. He is unrepresented and is seething with nervousness and anger. My prior attempts to negotiate visitation rights and child-support payments ended with several choice words being yelled at me over the phone.
Unfortunate, sometimes, is the state of affairs of divorce. Still, divorce is a necessary evil. So, how can a spouse protect his or her interest in the divorce but facilitate the divorce so that it brings no more harm than is necessary? The obvious answer is to hire an attorney. The additional, not-so-obvious and difficult answer is to come to an agreement with your spouse so that the consequences of divorce are not litigated in court. The following are a few things to consider:
Custody–First and foremost, who gets the children? This is not always an easy question to answer. What is in the child’s best interest determines who is granted custody of the child. Factors the court considers in making this determination include, among others: the age, gender and health of the child; the moral fitness of each parent; each parent’s attitude toward the child; the parent’s past conduct toward the child; the stability of the child’s social and family relationship; and the reasonable preference of the child. When these factors are substantially equal, the court will give preference to the parent that has been the primary caregiver of the child. Traditionally, the mother, as the homemaker, held the role of the primary caregiver. However, the traditional roles of a husband and wife rarely hold true today, and the determination of who is the primary caregiver is a factual determination. An attorney will be able to provide guidance on this sensitive issue.
Visitation–After custody is determined, visitation rights will be granted to the non-custodial parent. The court will seek to promote the relationship between the child and the non-custodial parent. Only in rare circumstances are visitation rights denied to a non-custodial parent. If the parties cannot agree to a visitation schedule, the court will impose one. The default visitation schedule includes visitation every other weekend, one late afternoon/evening period per week, alternating holidays and two weeks during the summer.
Child Support–The question is not whether the non-custodial parent will have to pay child support, but how much. The determination of how much child support is paid is dependent upon how many children are being supported and the non-custodial parent’s income. Child support rarely has anything to do with the custodial parent’s income. If you are denied custody of the children, be prepared to pay child support.
Property–Courts have authority to order an equitable distribution of all marital property, or any property that is acquired during the marriage. Property that was separately brought into the marriage by either the husband or wife will be considered separate property unless it is commingled with or treated as marital property, e.g., wife including her husband on her savings account. Division of marital property is not always 50/50, but depends upon what the court finds equitable. The parties’ age, health, status, employment, assets and needs are among many factors considered by the court in dividing marital property.
Alimony–The purpose of alimony is to ensure that the person whose economic dependence has resulted from the marital relationship receives an adequate income stream after the divorce. Alimony can be awarded to either spouse. The trend is to award alimony less frequently, and the court considers many factors in determining whether and how much alimony to award. Factors considered include the parties’ past standard of living, the financial circumstances and needs of the parties, and the parties’ respective earning abilities.
Modification–Custody, visitation, child support and alimony can all be modified by the court.
No divorce is ever without its pains. With a little foreknowledge, and aid of an attorney, the pains may, however, be lessened.