You learn as you go through life that in most situations there has to be some degree of compromise… so too in a divorce. Especially in a divorce. And especially if there are children involved and/or if you own property (real estate and/or personal property). Unlike marriage, which takes two of you to say “I do”, a divorce complaint can be initiated by only one spouse, regardless of what the other spouse wants, and divorce will eventually be a reality.
When clients who are contemplating a divorce come in to see me they generally have the same types of questions – what is going to happen to them and their family from the date that the divorce complaint is filed until the judge declares that the parties are divorced? How long will the process take? How much will the divorce cost? Do they need an attorney to get divorced? All of the answers to those questions depend, again, on how much you are willing to compromise because the more that you can agree upon, the easier and, generally the shorter, the process. Retaining counsel early in the process will help to ensure that your rights are protected.
Once the divorce complaint is filed, the process, which will eventually end in your divorce, will have been set in motion. During the months that follow the filing of the divorce complaint there are many details to sort out. You need to have an understanding of what types of issues you will be facing because whether you have filed for divorce, or your spouse has filed for divorce, the same issues will be raised. Some of the more common issues are identified below but you must recognize that there may be additional issues to consider in your particular case since each marriage and each divorce are unique.
If you and your spouse are able to identify and discuss all of the relevant issues pertaining to your divorce then the most cost effective, time saving and sensible document to have prepared is a Property Settlement Agreement. The Property Settlement Agreement will involve compromises from both of you and it must set forth in full and complete detail all of your agreements. The Property Settlement Agreement will be presented to the court and made a part of your Final Judgment of Divorce and you and your spouse will have to abide by the terms of the Agreement for years to come. For that reason, it is advisable to seek legal help with the drafting of the Property Settlement Agreement and, if your spouse hands you a Property Settlement Agreement to sign, that you hire a lawyer to review your Agreement and provide you with some guidance so that you and your rights are protected.
If there are children involved, you must be prepared to discuss where the children will live, who will make decisions regarding their welfare, child support, medical insurance, life insurance, parenting time, holidays and vacations, schooling, activities – just to name a few. The needs of the children will be paramount to the court and, thus, must be your first concern. You must be able to communicate with your spouse on all of these issues in order to ensure the safety and happiness of your children.
Financial concerns are also of extreme importance as you and your spouse try to figure out how you are going to afford life on your own. Recognizing the simple fact that your separate lives are not going to be as comfortable – financially – as life together, you will have to think about where you will live, how you will pay your expenses and if alimony is an issue.
During the course of your marriage you and your spouse gathered property which may have included real estate. All of that property (real and personal) must be distributed in some form between you.
You may have gathered various assets (pensions, stocks, IRA accounts, mutual funds, etc) and debts (mortgages, credit card debt, car loans, school loans, etc) during the course of your marriage which must also be evaluated, divided and/or paid. Assets acquired prior to the marriage must be identified and considered.
There are various tax issues that you will have to consider since the payment and receipt of alimony and child support will have tax consequences to you and your spouse for years to come. You must also consider such things as who will declare the children and mortgage deductions.
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