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How Complicated is My Divorce?

HandelontheLaw.com Staff Writer

Friday, October 11, 2013



How Complicated is My Divorce?
Divorce

In Woody Allen's "Love and Death," the misery-loving Natasha said, "I never want to marry. I just want to get divorced." Well-spoken, Natasha, for divorce can be fraught with difficulty of varying degrees, depending on 5 factors: attitude; children; assets; liabilities; and support in the forms of child support and spousal support. Let’s start with attitude because that affects everything else. Put down your weapons and step back from them for a moment. Divorce is about dismantling the life that you and your spouse have fashioned together, resolving issues of child custody/visitation and support, and dividing up assets and debts. Since divorce is about dismantling and dividing, some divorce lawyers say that in divorce, there is no winning; there are only degrees of losing. That may be debatable, however this much is true: the more cooperative you and your spouse are with each other, the more time and money you will save, and the less stress and disappointment you will suffer. If you still want to pursue an aggressive position with a "killer" attorney, so be it, but remember Sollozzo's fateful words in "The Godfather": "Blood is a big expense."

Let's assume mutual cooperation for the sake of discussing divorce's 4 other basic factors: children, assets, liabilities and financial support. First, the biggest, fattest "don't" in divorce is: don’t be intimidated by the process or the people; this is your divorce and its provisions will affect your life for years to come. If you and your spouse have one or more children in common, then you and your spouse may be connected to each other for a very long time beyond your divorce. In addition, when children are involved in a divorce, the Court stresses the best interests of the children. Keeping those 2 aspects in mind, a custodial arrangement and a visitation schedule must be fashioned and maintained. To that end, custody can be determined by a type of track record focusing on which spouse has been taking care of the children. Who washes their clothes? Who cooks their meals? Who cares for them when they are sick? Who attends school-related conferences and functions? Questions of that type often help determine the custodial parent. Custody can also be effectively shared if the parents cooperate with each other in the best interests of the children. Regarding both custody and visitation, the Court, a mediator and/or your negotiating attorneys can all be aided by a simple item: you and your spouse should each write a list/schedule of your involvement with each child, including any and all of the child’s home, school, after-school and community activities in which you take part. Using those lists/schedules, consider dividing visitation time into small, flexible, workable units depending on each child’s gender, age and personality because you want to adjust the schedule to the needs of each child. In any event, visitation schedules generally involve: alternate weekend visitation; mid-week visitation; a more or less 50-50 split of school recesses; alternating holidays such as New Year's, Thanksgiving, Christmas, Rosh Hashanah and Yom Kippur; Mother's Day with the mother and Father's Day with the father; alternating years for the child's birthday; frequent phone contact; and modification of a few occasional days through mutual agreement.

A third factor of divorce is the division of assets. As you might expect, higher stakes and more complex assets can further complicate your divorce. One asset commonly found in divorce is the family home, which can be: maintained for a time beyond divorce, for example in the case of minor children who will live in the home; sold; "purchased" by one spouse who buys out or trades other assets for the other spouse’s equity. In any event, the family home should be appraised and qualified lawyers and CPAs should be consulted to ensure that this major asset is divided correctly and all tax consequences are known and handled. Another asset that complicates divorce is the retirement account, such as an IRA, employee-funded retirement account or pension. In some cases, a retirement account can be divided by a Qualified Domestic Relations Order essentially splitting the account; however, other retirement accounts such as military, Civil Service and other federal retirement plans might not be divisible by a QDRO. Due to the complexity of dividing retirement accounts, qualified lawyers and CPAs should be consulted about this type of asset, as well. Still another asset that can complicate a divorce is the stock option, which is typically difficult to value and is often subjectively valued for the purposes of division in divorce. Once again, qualified lawyers and CPAs should be consulted for the fairest split and adequate handling of tax consequences. A fourth asset that can complicate divorce is partial or total ownership in a business by one or both spouses. In this case, the ownership interest must be evaluated for fair distribution during the divorce. This may also require qualified lawyers and CPAs for a fair evaluation and effective handling of tax consequences. While these are merely four types of assets that complicate a divorce, they should give you some idea of high stakes and complexity requiring professional assistance.

Liabilities comprise the fourth factor commonly found in divorce. Liabilities must also be fairly divided between spouses. This can be a considerable source of strife because in some jurisdictions ex-spouses can be held responsible for debts incurred during the marriage whether or not those debts are divided during the divorce. Consequently, if debts are divided during the divorce but one spouse files for bankruptcy, it is conceivable that the creditor will seek payment from the other spouse for his/her ex-spouse's debt. Furthermore, bankruptcy can effectively alter a divorce property settlement, stop (stay) back child support obligations, and stop (stay) spousal support obligations. Consequently, if your spouse has filed or intends to file a petition for bankruptcy, you should consult with a qualified attorney, probably a bankruptcy attorney.

The fifth factor commonly found in divorce is financial support in the form of child support and spousal support. Child support is based on the child's legal right to be fed, clothed, housed and otherwise cared for; consequently, the amount of child support is normally set by the court based on the parents’ financial circumstances and payable from the noncustodial parent to the custodial parent. The parents' financial circumstances are commonly derived from financial statements/worksheets completed by each parent. The court then uses this information to compute child support according to your state's mathematical tables and formulas. You can find your particular state’s tables and formulas by calling your state's Attorney General's office, contacting your local family court or reviewing your state's web site. Spousal support is sometimes also involved in divorce. Here, a judge determines: whether one spouse needs financial support from the other spouse; and the amount, if any, that should be paid in spousal support. In order to answer these questions, the judge may consider such factors as: the length of the marriage; each spouse’s ability to work; each spouse's ability to pay spousal support; each party's age and health; the standard of living during the marriage and the ability of each party to maintain that standard for himself/herself after divorce; other financial responsibilities; parental responsibilities that might prevent a spouse from working full-time or at all or in the career of his/her choice; each party's skills and educational level; and each party's other liabilities. While spousal support is generally not as painstakingly computed as child support, contacting your state’s Attorney General's office, local court and state’s web site should give you some valuable information about your state's treatment of spousal support. As the factor of financial support and the other 4 factors show, this article merely touches on some complicating aspects of divorce and the extent to which experts and authoritative information should be used to handle each factor.

DO'S AND DON'TS

DON'T be intimidated by the process or the people.

DO adopt an attitude of cooperation with your spouse.

DO write a list/schedule of your involvement with each of your children, including any and all of the child's home, school, after-school and community activities in which you take part.

DO fashion and maintain a workable, flexible custodial arrangement based on the best interests of your children.

DO consider dividing visitation time into small, flexible, workable units depending on each child’s gender, age and personality.

DO consult with qualified attorneys and CPAs regarding the division of any complicating assets such as:
a. The family home;
b. Retirement accounts;
c. Stock options;
d. Partial or total ownership in a business.

DO consult with qualified attorneys and CPAs regarding complicating liabilities such as joint debts and bankruptcy.

DO refer to your state's Attorney General's office, family court and web site regarding child support tables and formulas.

DO refer to your state's Attorney General's office, local court and web site regarding spousal support.


Kathy Catanzarite

[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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