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It's a difficult time and you're making drastic decisions that affect every piece of personal property, your home, your savings, your debts, your pets, your kids, your living situation and your life.  Can it be more complicated?  Doubtful.

Stay focused 

These pieces of your life are divided more like a balance sheet and less like a family in crisis.  Emotions and legal matters fuel each other causing most spouses to lose objectivity over the goal of a fair settlement.  Losing sight of what’s really best can be complicated by the realization that not only do you have a failed marriage but now you must forfeit half of everything you and your spouse created together.  Ouch!

It’s no wonder many couples forget about every little tax implication, possible change in the future and sacrifices of the past that may change the outcome of the settlement.  

Get your own attorney

It's not just the ugly divorces that go to court that lead to regret.  It’s the divorce with a shared attorney or no attorney.   Some may have reached what seems like an amicable resolution between spouses and feel individual representation is unnecessary.  Be cautious of the cunning spouse who suggests a shared attorney or no attorney to his/her benefit; suggesting it will save you both money and time. A few hundred or thousand now could result in your loss of far more later.

While in some cases a shared attorney may work, you may regret not having your own representative in years to come.

Without adequate legal advice or resources that can guide you regarding your rights to a fair settlement, you may accept a settlement that does not properly protect your individual interests based on the length of your marriage and the time it takes to recover.  The resolution you reach may seem fair, but fail to provide you the best settlement based on your state laws, individual circumstances and current lifestyle contrasting your individual potential for earnings.  

This is especially true when a couple has a large amount of shared assets and high net worth or when one spouse has been a primary caregiver to the home and family while the other has focused on his/her career.

Beware:  It's important to recognize that the cost of individual attorneys, increased longevity of negotiations and possible courtroom drama may outweigh the benefits of individual representation or potential for litigation; especially when there are no children and minimal or moderate marital assets.  It may come down to whether or not you want a longer battle with a possible better outcome (sometimes worse if the case goes before a judge) or a quick resolution with a pre-negotiated/expected outcome. 

Solution

Consult with your own attorney before making the decision to negotiate directly with your spouse, mediator and/or a mutual attorney.   While you can save a great deal of money to have the basics of the divorce such as allocation of debts, division of marital assets and pre-negotiated custody arrangements;  get to know the laws and your rights before you sit down to negotiate without the help of a representative present.

Get a good attorney

If you choose to have your own attorney, don't just settle for the first attorney you interview.  You should feel comfortable that your attorney is someone with whom you feel will make the best recommendations based on your circumstances. 

He/she should be an excellent communicator with significant experience representing people in similar divorces like yours.  You should "like" your attorney.  It's great to have a strong, ambitious attorney, but it won't matter at all if he/she has a terrible court-side manner. 

Don't look to your attorney to be your friend or emotional manager, but if you don't understand each other, he/she fails to listen to your concerns and is consistently unavailable when a problem arises, your case could be hindered.

A good attorney will be able to explain the laws of your state and how they affect your case.  He/she will be able to recommend the best type of divorce for your circumstances and work to obtain the best settlement to secure you and your children's future. 

If he/she is frequently unavailable when you call, there should be a representative that is available to take your calls and assist with immediate issues.  Just make sure your calls are necessary.  Too many calls about insignificant issues may also affect your attorney’s office from being wholly available when dire circumstances arise.

Understand the major components of a divorce settlement

So, once you have secured representation and/or performed adequate research through reputable sources, you will have the big decisions in front of you.  The divorce settlement will include: terms of your divorce: custody and visitation schedule/parenting plan, alimony and child support, distribution of marital assets and allocation of joint debts.

1. Custody arrangements and parenting plan

There are no specific laws and guidelines regarding these arrangements.  So, consider your children first regarding the fairness of such a plan.  Consider what you think is fair for you and your children's relationship then consider what is fair for your spouse.  While you and your spouse may not be in love any longer, consider the importance of your spouse's relationship with his/her children.  Don't be the parent that damages a good opportunity for your children to have a stable, structured childhood with each parent, despite the divorce.  The plan should be made to the benefit and interest of your children more than the benefit of both parents.

2. Support (Child support, spousal support and alimony, maintenance and related expenses)

Child Support

State laws provide specific guidelines for child support based on gross weekly income.  So, depending on your spouse and the state for which you reside, you may not get an amount you think is needed to maintain the same standard of living to care for your child.  This is where a good relationship with your soon-to-be-ex is important for the benefit of your children.  If you can agree upon a specific amount above state minimums, then state laws are insignificant.  Otherwise, you may elect to hire a mediator who can help you and your spouse come to terms with the set amount, outside of court.

Spousal support, alimony and other expenses

There are even less specific formulas to determine spousal support, maintenance and alimony.  So, again this comes down to a few options.  You can either have your attorneys negotiate, hire a mediator or arbitrator, agree between you and your spouse or go to court.  Very few cases actually go to court.  This is expensive and rarely yields a result either side is happy to accept. 

Mediation

Usually your attorney or courts can assign or locate a mediator to help both sides come to an agreement about issues that the couple has been unable to resolve with the help of legal representatives.  It's usually an option to avoid litigation.

Arbitration

Arbitration is often for high profile cases where a private arbitrator like a retired judge oversees the case.  It's usually handled in a short amount of time and is expensive and stressful.   So, try to agree on support with your spouse based on your circumstances, history, current financial situation and expenses independently before seeking outside help (unless legally inadvisable to do so). 

Remember, future circumstances such as children's tuition, anticipated home expenses, taxes and income changes will be considered to adequately negotiate the settlement.

3. Division of marital assets and allocation of joint liabilities

Your attorney should explain the state laws that affect the way the division of marital assets (things you mutually own and usually acquired during marriage to include but not limited to: real estate, equities, bonds and investments, retirement accounts, stocks) and liabilities (debts you owe) are split between the two of you if your case goes to court.   You should know that while your Final Judgement of Divorce is a court order, signed by both parties, your credit may still be affected if your former spouse fails to honor the agreement regarding liabilities assigned to him/her.

Outside of a specific occurrence like a prenuptial agreement, if a court is deciding the division and allocation, an important fact is whether you reside in a community property state or equitable distribution state.

If you and your spouse are able to negotiate the division of debts and assets, your residing state’s laws are less impactful.

  • Community Property State (in most cases the spouse gets an even share of marital property and debts).
  • Equitable Distribution State (in most cases each would get a fair, but not necessarily equal distribution of marital assets and liability).

It's not fair.  No kidding?

After everything in this article, the bottom line in divorce should read..."It's not fair.  Get over it.  Get on with it.  Move forward." 

You may never truly accept or appreciate your settlement/judgement of your divorce.  By then end, you and your attorney may not "like" each other as much.  You may really not like your former spouse; you and your kids may feel completely dumbfounded by the changes you'll experience as a result of the divorce.   This is where we welcome you to Divorce.  Ain't it great!?

Despite the reality, it will provide you an opportunity to acknowledge your strengths and ability to get through this difficult thing in your life.  Cherish everything positive you have retained.  Recognize your divorce has freed you from a rotten spouse, bad marriage or likely both, thus providing an opportunity for you to attain a better future. It'll happen, but you need to let go of the past and accept the future "letting go" provides.  Then you will have the opportunity to move forward!

Don't let the settlement keep you down.  Learn from the mistakes made in the marriage.  Learn, grow, improve so that any future relationships are stronger, smarter and more successful!

-OurDMK.com



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