Divorce Overview

Divorce may be one of the most stressful times in your life. However there are many things you can do to prepare and to take control of the situation in order to relieve some of the stress and apprehension. You probably have a lot of questions about how divorce will affect you and your family.

Several things must be decided in a divorce, legally known as “dissolution of marriage.” The following information will introduce you to the issues you need to consider as you are preparing for divorce. After reading this you should talk to a lawyer to learn more about your specific situation.

Summary

Property and Finances

This is the financial aspect of the divorce. All of your marital assets, property, and debt must be divided.

Support

One spouse may be ordered to pay support to the other. There are three kinds of support:

  • Maintenance – commonly known as “alimony,” is paid by one spouse to help support the other spouse.
  • Child support –  is paid by one spouse to the other to help support their child or children.
  • Unallocated support – is a combination of maintenance and child support.
Children

If you and your spouse have children then custody and parenting time must be decided. This only applies to “minor” children: children under the age of 18, or up to age 19 if they are still in high school.

How are these decisions made?

Some or all of these decisions may be made by agreement. If you and your spouse can’t reach an agreement on any issue, then you may have to go to trial. However there are many steps before a trial, and trial should be the last resort. Most cases settle, and it is usually in everyone’s best interest to do so. Trials take a long time, can be incredibly expensive, and leave the ultimate decision out of your control and in the hands of the judge.

Each aspect of divorce is discussed in more detail below.

Marital Property

What is marital property?

Marital property can include anything of value, including bank accounts, real estate, cars, investments, pensions and retirement accounts.

When is something marital property?

Marital property is anything acquired by you or your spouse during the marriage. It doesn’t matter whose name the property is in – if it was acquired during the marriage then it’s probably marital. For example, if you bought a house solely in your name during the marriage, or your spouse started a business, both assets are probably marital.

There are two main exceptions to this rule: property that is acquired by 1) gift, or 2) inheritance. If something was given to you (not to you and your spouse) by gift or inheritance during the marriage, it will probably be categorized as “non-marital” property.

What difference does it make if something is marital or non-marital?

Only marital property may be divided in the divorce. Under the law, marital property is to be divided “equitably”. “Equitably” means fair, but not necessarily equal. The court can look at a variety of factors, including each spouse’s income, earning potential, and property to make this decision. Misconduct (fault) is not a factor in deciding what is equitable. Of course, like everything else in a divorce, you and your spouse can reach an agreement on how to divide the marital property.

If property is determined to be non-marital because it was acquired by one spouse prior to the marriage, or during the marriage by gift or inheritance, then it may not be allocated in the divorce and will remain the property of the spouse who originally owned it.

Debt

What is a marital debt?

Like marital property, marital debt is any debt accrued during the marriage, regardless of whose name it is in.

What happens to marital debt?

Like marital property, marital debt will be divided equitably, or according to an agreement by the parties.

Maintenance/Alimony

Who is entitled to maintenance?

Several factors are considered to determine if one spouse is entitled to maintenance from the other spouse. These factors include you and your spouse’s age, income, property, earning capacity, as well as the length of the marriage and whether one party contributed to the other’s education or career (typically by acting as a homemaker while the other party acted as the breadwinner).

In 2014 a new law was enacted setting out a formula by which the court will calculate the amount and duration of maintenance. The court has the discretion to deviate from this calculation in certain situations.

Custody

What is the difference between sole and joint custody?

The designation of “sole” or “joint” custody only relates to how decisions are made regarding the children. Sole vs. joint custody does not determine the amount of time the children spend with each parent. When parents have joint custody they make all major decisions regarding the children together including education, health care, and religious upbringing. If parents are granted joint custody then they will have equal decision making power and will make those decisions together.

If one parent is granted sole custody, then that parent will have the sole power to make major decisions for the child.

What is “residential custody”?

The parent with “residential custody” is the parent with whom the children live most of the time. In situations of sole custody the parent with sole custody will also have residential custody. When parents have joint custody one parent will typically be designated as having residential custody. The non-residential parent has the right to visitation or “parenting time” with the children.

Visitation

How is visitation decided?

In most situations the parents will agree to a schedule which grants the non-residential parent visitation on a regular basis, as well as dividing up holidays and allowing for vacation time with the children. The amount of visitation can vary.

Child Support

Who pays child support?

Child support is paid by the non-residential parent to the parent with residential custody.

How long does child support last?

Child support lasts until each child turns 18, or to the age of 19 if the child is still in high school.

How much is child support?

Child support is based solely on the net income of the parent making the payments, (the “obligor”) and the number of children. The obligor pays 20% of his or her net income if the parties have 1 child, 28% for 2 children, 32% for 3, 40% for 4, and so on. “Income” for purposes of calculating child support can come from all sources, including marital and non-marital sources.

When can child support be changed?

Child support can be modified anytime the obligor’s income changes, or anytime there is another change in circumstance.

Can the parents agree to not pay child support?

No. Child support is for the benefit of the child, therefore the court will typically not allow parents to reach an agreement to reduce or waive child support.

Next Steps

This page summarized the basic issues you need to consider in a divorce, however every situation is different. You should contact a lawyer to discuss your case and get answers to any questions you may have. Betsy Ehlen provides free consultations for divorce. Feel free to contact her at 872-225-2048.