It happens. Sometimes ‘til death do us part’ no longer seems like a viable option for your marriage. Whatever the reasons, are you prepared for getting a divorce? Do you know what to expect? Probably not. Since ‘knowledge is power’ a bit of basic information may ease the mind.
While each person’s marriage and family situation is unique, and this is not a ‘one’size’ fits all situation, each divorce must resolve fundamental issues such as the family’s finances and, if there are children, custody matters.
The family’s financial issues that require resolution are :
1. Dividing the assets
2. Spousal support
3. Child support
The custody issues, to name a few are:
1. Where will the children live?
2. When will each child spend time with each parent?
3. Who will make decisions for the children?
Dividing the assets in ‘divorce speak’ in New York is termed equitable distribution. The concept is that the division of the assets should be fair- hence the use of the word equitable. Assets include the marital residence, other real estate, retirement funds, non-retirement accounts, vehicles, jewelry, furniture and such. Also, equitable distribution includes an allocation of who shall pay which debts. Debts include mortgages, home equity loans, credit cards, car loans and any other debts incurred during the marriage.
Spousal support is called ‘maintenance’ in New York ‘divorce speak’, but in other states it is referred to as alimony. If there is a significant disparity of income, the person who is the financially advantaged spouse would pay maintenance to the financially disadvantaged spouse. The amount of the payment and duration is guided by calculations based on the Domestic Relations Law post divorce maintenance provisions.
Child support is paid to the parent with whom the children resides. The amount of the payment, is guided by New York’s Child Support Standards Act and the income of both parents.
All the financial issues identified above are subject to negotiation by the parties and if the parties cannot reach an amicable resolution and they choose to go to trial, a Judge may make the decision for them.
Custody is always a delicate matter. There are different kinds of custody – joint custody, sole custody, shared custody, residential custody- and the determination, as to which kind of custody will prevail, is either agreed to by the parties or determined by a court. That custody decision will determine where the children live, how much time each parent spends with the children, and who makes the decisions for the children’s well being.
To explain further: Parents having joint custody will make decisions for the children together on consent. If the children will live the majority of the time with one parent, that parent is said to have residential custody subject to the other parent’s parenting time, for which a schedule shall be determined. If the children spend an equal amount of time with both parents, that is said to be shared custody, and a parenting schedule shall be determined for this arrangement as well. Sole custody is when one parent has both residential custody of the children and makes the decisions for the children, usually after consultation with the other parent, but not necessarily on consent and a parenting schedule will be worked out as well for the non-custodial parent.
Lots of decisions need to be made to determine the future for a family that is changing its status from married to divorced and the ‘how’ to make the decisions is as important as what kinds of decisions need to be made. If divorce is the destination, there are different paths to get there ; litigation, mediation and collaborative divorce.
When people think of divorce, litigation is the first thing that comes to mind. However, each divorce need not be resolved through the Courts. Mediation and collaborative divorce are alternative dispute resolution methods that eliminate the need to appear in Court.
In mediation a neutral mediator facilitates the parties to come to a settlement agreement of all the issues of the divorce.
In a collaborative divorce case both parties are represented by counsel, but the parties and counsel work together as a team, and agree, as with mediation not to seek resolution in the courts.
In a litigated case, the parties are represented by counsel, and the case proceeds in an adversarial way with the Court scheduling appearances and ultimately, if the parties do not negotiate a settlement, the divorce issues are determined by a judge.
Which method to choose is up to the parties. It is the first decision that they will need to make, and could well determine how long the journey and how smooth the road to divorce will ultimately be.