How does a divorce work? Learn the ins and outs of filing for divorce, what to expect from the process and how to get through it with minimum fuss.
Divorce is one of the most wrenching experiences life has to offer. Two people find it necessary to part, often breaking up a family with children. There’s a lot of emotional hardship that goes with divorce, which makes it all the more important that the legal process be handled as quickly and efficiently as possible.
As with any complex legal matter, you should always consult a lawyer for advice, but this outline goes over the five major elements of a divorce. Not every element applies to every divorce, but most of what happens in family court falls within this framework.
Post-Divorce Division of Property
Marriage is considered a legal contract that gives each partner certain rights to the property of the other, as well as a shared claim on the property they hold together. Dividing this property in a fair and equitable way is a major element in any divorce.
Assets to be divided are generally split into personal and marital property. Personal property, with some exceptions, generally goes with the person who owns it. Examples of personal property include:
- A personal car
- Property owned by a partner prior to the marriage
Marital property is mainly cash and cash-like assets, such as retirement accounts and even frequent flyer miles. This category also includes investments held jointly, real estate, shared cars, business assets and anything else of value obtained either by both parties or during the course of the marriage.
Marital property also includes shared debts, such as a mortgage, as well as credit card debt and business loans. Pensions and other future income also generally fall into this category.
As a rule, you are best off if you can negotiate a mutually satisfactory division of property and debt without the court getting involved. Each party in a divorce can claim personal assets, then either come to an agreement about shared property or meet with a mediator to negotiate the few loose ends. Unresolved disputes may go before the court to settle, which could come down in favor of either party.
Spousal support, often called alimony, is money paid by one ex-spouse to another. The American system of alimony began during a time when women very rarely worked outside of the home for money and the law provided relief for a soon-to-be-ex-wife who was losing her support system. This is why alimony is paid for either a term set by the court or until the wife remarries. Under the old system, it was expected that a wife’s second husband would take over the role of provider for her.
Spousal support is somewhat anachronistic today. That said, there is some place for alimony after a marriage in which one spouse sacrificed working years to support the other, especially by raising children.
Rules governing the award of alimony vary by state, but usually, a marriage has to have lasted at least a few years before alimony can be requested. In many states, the alimony must be paid for a set period of time based on how long the marriage lasted. In some states, marriages that run longer than 10 years become eligible for lifetime alimony awards. Each state has a formula for calculating alimony amounts, though this can be altered by mutual consent between the parties.
Custody orders determine where the children of a marriage will live and how important decisions about their well-being can be made. There are two types of child custody, physical and legal:
In modern divorce law, it’s common for parents to share joint legal and physical custody. When divorced parents are separated by too much distance to share the child’s time equally, one parent often gets primary physical custody with generous visitation rights for the other parent.
While in the past it was common to automatically assign custody over children to mothers, courts today virtually always make custody decisions with the overall good of the children in mind, rather than a specific parent’s supposed “right” to custody.
Visitation schedules are part of a custody assignment, but the flexibility in visitation arrangements justifies treating it as a separate issue in a divorce. Visitation orders are usually just a calendar of times when a child will be with one parent, and when they will be with the other parent.
Some visitation orders contain special provisions. In rare cases, a parent may only be allowed visitation with some kind of supervision, which may be done by anyone the parents agree to. This most often happens when either the court or the other parent feels that a non-custodial parent might pose some kind of risk to the child.
Child support is money paid by a non-custodial parent to the other, custodial, parent. This is different from alimony in several ways:
- It expires when the children turn 18
- It doesn’t matter whether the other parent remarries
- Child support, unlike alimony, is not generally taxable income
All of the orders issued by a family court have the force of law as soon as they are signed. You can streamline the divorce process by downloading and filling out your own free printable divorce forms here.