The 4 Biggest Legal Issues You Might Face in Divorce
Each and every divorce is unique in its own way. That being said, there are certain legal issues that just about every single divorce proceeding deals with. You might not know that, because the phrases or words your divorce attorney uses, or the way the legal issues are presented in your research, or the documents and forms you are viewing can be very confusing, foreign-sounding, and alienating. This is why, to make things clearer and more accessible for you, we present the following: a breakdown of the 4 biggest legal issues you might face in your legal divorce process.
Legal Issues of Property Division
As one of the most common legal issues in divorce, property division is an umbrella term that encompasses a lot of the financial aspects of your divorce. Property division focuses on your assets and divides them equitably. It is important to know that courts focus on equity, not equality, so don’t be surprised if your property isn’t divided 50/50 at the end of your divorce.
There are four major steps in figuring out property division:
Identify the property.
Your attorney will ask you to fill out some sort of financial affidavit, which is a fancy way of listing out your assets. This can be culled from income statements, deeds, financial documents, and tax returns, but involves retirement accounts, cars, your house, in fact, anything you, your spouse, or both of you own. You will need to disclose everything.
Classify the property as marital or non-marital.
Then your attorney will want to figure out what is your separate property, and what is marital property. Whatever is your own property, you keep to yourself. However, how your assets (and debt) are considered (whether it’s your property or marital property) depends very much on which state you live in and the divorce law there.
Read more in our “Property Division: Community Property States vs. Equitable Distribution States.”
For example, say you have a savings account only in your name, and your spouse has one in their name. You would keep your respective savings accounts; however, if you two had a joint bank account, that becomes marital property because you both “own” it.
Assign the value to all of the marital property.
This is usually a relatively easy step. If you have a joint bank account that has $5,000.00 in it, that is worth $5,000.00. Attorneys typically ask what the fair market value is to figure out the worth of a vehicle, house, or other tangible items.
Divide the marital property equitably.
After figuring out all marital property, every asset needs to be divided equitably. It is important to note that “fault” is not considered in an equitable division. For example, if your Ex cheats on you, that is not a factor when determining how to equitably divide a property.
Read the SAS “Fault vs. No-Fault Divorce” article to understand more about “fault.”
Legal Issues of Spousal Maintenance
Another common legal issue in divorce pertains to maintenance, which is another name for alimony. Maintenance is one adult paying the living expenses of another. Maintenance is usually the most unpredictable aspect of divorce because there are a lot of factors that courts will look at to determine who, if anyone, should receive maintenance. That being said, courts are leaning towards a formula approach rather than a factor approach to make things more predictable.
How Maintenance Works
The most important factor courts look at is the ability of the spouse with the lower income to support themselves post-divorce. The easiest way to explain maintenance is to give a standard example courts see during divorces:
Say a couple has been married for 15 years. The woman, after having children with her husband, decides to stop working and stay at home with the kids. The court considers the mother’s income to be $0. This has nothing to do with the “worth” of a stay-at-home parent, but rather, they do not have an income from a job. Say the father in this example makes $100,000.00 a year. The woman, over the years, got used to a standard of living with a $100,00.00 income. Maintenance accounts for her standard of living during the marriage and her ability for her to support herself. In this case, the man would definitely have to pay maintenance to the wife.
Maintenance can be permanent or short-term, and it can be modified. The key term to modifying maintenance is a “substantial change in circumstances.” If someone wants to modify maintenance, they have to prove a substantial change in circumstances occurred.
You and your Ex can waive your right or his right to maintenance as well. Similarly, not every divorce case is one where maintenance is appropriate. Maintenance, whether paying it or receiving it, is not guaranteed in your divorce.
Legal Issues of Custody and Parenting Time
These legal issues only apply if you have a minor child. A minor child is a child under the age of 18 who is not emancipated. If you have at least one minor child, custody and parenting time will be something brought up in your divorce.
There are two types of custody: legal custody and physical custody. Legal custody is the power to make legal decisions (school, medical, religion, etc.), and physical custody relates to the day-to-day routine (routine care, outfits for school, etc.).
Custody is awarded in the best interest of the child. The best interest of the child does not mean asking the child who they want to live with. Instead, courts will look at the entire situation that both parents are in, and figure out who should have custody based on the best interest of the child.
Child support is the financial aspect of child-related legal issues. It is incredibly important to understand that parenting time and child support are two separate issues – so just because you have parenting time, it does not mean you may be owed child support and vice versa.
Courts usually take a formula approach to calculating child support, so it’s a pretty predictable financial issue in your divorce. The majority of states follow this formula:
(Gross monthly income of parent 1) + (Gross monthly income of parent 2) = the parents’ combined income
Courts take the combined income and multiply it by a child support percentage, coming up with a “child support amount,” and then figure out who is owed what portion of that amount.
Child support is usually awarded to the parent who has the child, or children, the most amount of time. So if your kids live with you most days out of the year, your Ex would owe you child support. Child support is designed to take care of the everyday essentials for children. Child support ends when you and your Ex’s youngest child turns 18.
For more on this important topic, read “Child Support: 5 Things Mothers Must Know.”
Prenup and Postnup
Some couples decide to sign a prenuptial (prenup) or a postnuptial (postnup) agreement. A prenup is signed before you are married, and a postnup is signed after you are married. In the eyes of the law, prenups and postnups are binding contracts. If you signed either one of these before or during your divorce, it will be binding on your divorce agreement. This means that if you do have a prenup or postnup, whatever you agreed to in those contracts will be part of your divorce settlement.
Check out “The Top 7 Things to Know About Postnuptial Agreements.”
If you did not sign any prenup or post nup, this is nothing to worry about. It just means there is no prior contract between you and your Ex and you can negotiate as many issues as you would like during your divorce.
Legal Issues in Settlement vs. Trial
Your attorneys may encourage you to try to settle with your spouse. Settling basically means you come to an agreement with your Ex before going to court and having a judge decide certain details about your divorce. The biggest positives of settling are it will cost way less in attorney’s fees and lessen the ongoing, emotional rollercoaster of dealing with your break up. Settling is the best option if you and your spouse are in agreement with most legal issues of your divorce, or will eventually agree to them. So, do keep it top of mind when you talk to your attorney.
If you are thinking about or beginning divorce, you’ll want to check out this complete list of things to help you stay organized and protected: “55 Must Do’s On Your Modern Divorce Checklist.”
Legal Issues in Divorce: Get to Know Your Terminology
While every divorce is different, there are some things that almost every couple has to deal with. Property division and spousal maintenance are standard legal issues in any divorce. If you and your Ex have a minor child, you’ll also have to figure out custody and child support. This is not an exhaustive list, but a pretty good start to know what issues may arise and what your attorney may ask you about when you start your divorce.
Alexa Valenzisi is a rising 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation.
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