It's a difficult time and you're making important decisions that affect every piece of personal property along with your savings, debts, pets, home, kids, living situation and life. Can it be more complicated? Doubtful.
Stay focused
Everything that's anything may seem like it's being considered 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 best for you and your family can be complicated. It's even more difficult to come to terms with not only a failed marriage but the forfeiture of half of everything you and your spouse created together. Ouch!
It’s no wonder many couples forget about every possible change in the future and sacrifices of the past that affect the success and fairness of the settlement.
Consult with your own experts and advisors
It's not just the ugly, litigated divorces that lead to regret. It can also be the divorce that seemingly ends well with a shared attorney or no attorney, that can lead to your waking up one day in a state of panic over your settlement.
Sharing an attorney
While on the subject of shared attorneys, it's important to note that only one spouse will technically have representation in such arrangements while the other spouse has none (unless a second attorney is hired). So, it's important to clearly understand the nature of representation when hiring an attorney for "legal paperwork" assistance.
No attorney
Some spouses may reach what seems like an amicable resolution between spouses and feel individual representation is unnecessary. While in some cases where a couple has limited assets/debts, no children and/or been married for a short time, a shared attorney may work.
However, it's best to have at least consulted with your own legal representative (along with other applicable experts like your accountant, financial advisor and/or a private investigator) in order to have a clear, personal-financial picture, as well as, to know your rights, governing laws and possible advantages in your state, based on your circumstances, if your case were to go before a judge. You will then be in a better position to decide if you should hire these professionals to include your own attorney and how best to proceed in negotiations with your spouse.
Use caution with 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.
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 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: Now, we must also warn you about getting into a legal fight with all guns ablazin'. 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
Before starting negotiations or hiring an attorney, get to know the basics of divorce laws in your state, as they apply to your circumstances in order to better negotiate the allocation of debts, marital assets and parenting plan, if applicable. It will make you a more educated legal consumer, save you time and money and provide more assurance that your settlement will be the best possible.
Always consult with an attorney before making definitive decisions with your spouse, mediator and/or a mutual attorney. Many offer a free, first time consultation. While mediators may help you both develop an agreed upon mediated settlement agreement, it's best to have an attorney review the settlement before it is filed.
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 cases 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 agreement
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, you will always be co-parents. 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 in 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.
If your case goes to trial, the judge will only be concerned with what's in the best interest of your children.
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.
In most cases, if you and your spouse agree on some terms of your settlement, but not on others, then you can put those contested terms before a judge to decide. The same holds true for arbitration. As always, speak to your local attorney for laws, processes and guidelines in your state as they apply to your circumstances.
Mediation
Usually your attorney or courts can assign or locate a mediator to help both sides come to an agreement about issues that you have been unable to resolve with the help of legal representatives. It's usually an option to avoid litigation and ongoing legal fees. A mediator does not provide legal advice, but may provide information about the law. The mediator does not decide like a judge or arbitrator. He/she helps the parents come to an agreement regarding their parenting plan, other contested terms or all terms of their settlement agreement. Once a mediation report is established, it will usually be provided to the couple's attorney(s) and upon legal review and consultation regarding the report and if the couple is in agreement, a mediated settlement agreement can be established.
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 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."
Truth be known
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 and 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. That's the most valuable take-away from your divorce. Learn, grow, improve so that any future relationships are stronger, smarter and more successful!
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