- Leslie A. Farber
3 KEY DIVORCE ISSUES
Updated: Jul 3, 2019
When the dream of lifelong love comes to an end, and divorce becomes a reality, there are many issues to deal with. The 3 main ones are: who gets what, will I get/pay alimony, and what about the kids.
During marriage or civil unions, couples tend to accumulate various types of property that may include: real estate, personal property, furniture, jewelry, investments, bank accounts, and retirement accounts. Now, couples must decide how to divide all of their property. The easiest way to deal with property division during a divorce is to do it themselves. But, because most divorcing couples aren't able to communicate amicably, the matter usually ends up in court.
There are two general ways property division is handled by the courts.
Community Property: Only a handful of states use this approach which means that all marital property is typically defined as community property or separate property. When divorcing, community property is typically divided evenly, and separate property is kept by its owner.
Equitable Distribution: Most states use this method. Here a judge decides what is equitable, or fair, rather than simply splitting the property in two.
In either approach, the court adds up the total value of the marital estate and grant each spouse a percentage of the marital property. It is important to understand the differences between marital and non-marital property.
Marital property includes most property accumulated during marriage, including debts, unless the property or debt is otherwise designated.
Separate Property can include property acquired before the marriage, gifts, court awards, inheritance, and pension proceeds among other things.
Be aware that if you purchase or maintain items with a mixture of separate and marital property or funds, it is likely that a court will decide it is marital property. If you want to keep your property separate, you need to keep it completely separate.
Alimony or spousal support is a monthly payment made by one spouse to another in accordance with a settlement agreement or court decision. The purpose of alimony is to correct any unfair economic effects caused by a divorce, such as when a stay-at-home parent suddenly needs a source of income after the divorce, but hasn’t worked in years.
Not every former spouse receives alimony. However, if you earn substantially more money than your spouse, there is a good chance you will be ordered to pay some alimony. Alimony isn't usually awarded for short marriages or when the divorcing couple earn close to the same amount of money.
Some of these factors are usually considered in the alimony decision:
Length of the marriage or civil union
Age and health of both spouses
A prenuptial agreement, if any
The standard of living during the marriage or civil union
Each spouse's history of financial or other contributions to the marriage, including contributions as a homemaker or parent
The ability to pay - can the other spouse pay financial support and still maintain a comparable lifestyle
Whether there are children from the marriage that live in the marital home
The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
The nature, amount, and length of pendente lite support paid
Alimony, also called maintenance, can be either “limited durational” or “open-durational.” “Limited” maintenance is paid for a fixed period of time. This is based on the idea that the receiving spouse will become self-supporting after several years. “Non-durational” maintenance, also called “open durational,” might be paid for the supported spouse’s if the marriage or civil union lasted for more than 20 years
If “limited-durational” alimony is ordered, you will generally have to pay a specified amount each month until:
A future date set by the judge
Your former spouse remarries or co-habitates with someone else
A judge determines that after a reasonable period of time, your spouse has not made a sufficient effort to become at least partially self-supporting
Some other significant event -- job loss, retirement – occurs and the judge agrees to modify the amount paid, or one of you dies.
CUSTODY AND CHILD SUPPORT
When deciding custody, the courts are guided by a variety of factors including the parents’ ability to agree and communicate with each other, the stability of the home environment, the needs of the child, the fitness and geographic proximity of the parents, the preference of the child, the extent and quality of the time spent with the child prior to the separation, the age and number of children, the employment responsibilities of the parents, and the history of any domestic violence.
There are 2 types of custody, physical and legal. Both of these can be solely or jointly awarded.
Physical custody refers to which parent the child lives with. Joint physical custody is usually only awarded if the parents live close to one another.
Legal custody determines who has the legal authority to make decisions about the child's education, health and upbringing. Joint legal custody is regularly granted in many states.
Couples that share joint physical custody often have joint legal custody too. But the opposite is not as common.
Child support is the responsibility of both parents regardless of their living situation or relationship. This responsibility starts in infancy and can last through college. Typically, the non-custodial parent is the one that will be paying child support to the custodial parent. But, joint custody requires a more nuanced approach.
There are three ways of determining child support:
An agreement reached by the parents through informal negotiations
An agreement by the parents after using mediation or collaborative law process
A court order
If you find that negotiating with your spouse is not working, we can help. The Law Office of Leslie Farber invites you to give us a call. As a family lawyer for many years, you will be in compassionate, expert hands.