Four Primary Issues in Divorce

Posted by & filed under Alimony / Spousal Maintenance, Child support, Custody, Divorce, General Family Law, Parenting Time.

Divorce can be a challenging process.  After the initial difficult decision of whether to pursue a dissolution action, many parties wonder where to begin in sorting through the many pieces of the marital relationship.  One helpful place to start is to realize that there are two main issues that apply to every divorce and two main additional issues that apply when the divorcing couple has minor or dependent children:

 

Property Division

 

Almost every marital estate includes assets and debts.  Both must be identified, disclosed, and divided equitably between the parties.  Assets commonly include: the marital homestead, other real estate, stocks and bonds, retirement accounts, business interests, motor vehicles, and personal property (such as jewelry, electronics, home goods and furnishings, etc.).  Debts commonly include: second mortgages, credit card balances, personal loans, lines of credit, student loans, and medical bills.

 

Whether a party intends to hire an attorney or proceed without one, it is helpful to write out the list of assets and debts with even a rough estimate of their values.  Doing so allows the party and / or his or her attorney to conceptualize the marital estate and to begin to formulate potential options for a fair property settlement.

 

Spousal Maintenance

 

Spousal maintenance was formerly known as “alimony.”  It is less commonly awarded now than it was in the past, but there are still plenty of situations in which spousal maintenance is appropriate.  The two primary factors are the length of the marriage and the income disparity between the spouses.

 

If a party believes he or she may be entitled to spousal maintenance, it is helpful to begin by writing out a budget of his or her reasonable monthly living expenses.  If the party is unable to meet his or her reasonable expenses, and the party’s spouse is able to contribute to them, then spousal maintenance may be appropriate.

 

If spousal maintenance is appropriate, it is also important to consider how long it should be paid from one spouse to the other.  In a minority of cases, permanent or otherwise long-term spousal maintenance is necessary.  In a majority of cases, parties agree or are ordered to exchange spousal maintenance for a limited amount of time.  Sometimes the time frame includes a “step-down” approach whereby the amount of spousal maintenance decreases over time until it is no longer paid at all.  It is also commonly tied to the spousal maintenance recipient’s ability to earn income, which may be expected to increase when enough time has passed for him or her to seek education or take other steps towards gainful employment.

One of the most important aspects of the spousal maintenance issue is whether the parties will agree to divest the Court of jurisdiction over the spousal maintenance issue after the divorce is final.  If so, the parties’ agreement will include a Karon waiver, which prohibits the Court from modifying spousal maintenance in the future.  If the parties have not agreed to a Karon waiver, then either party may petition the Court for a modification if the parties’ circumstances change.

 

Custody and Parenting Time

 

There are two types of custody: legal and physical.  Legal custody relates to issues like religious upbringing, major medical decisions, and type of education. Parties often agree to share legal custody decisions and are awarded joint legal custody.  In a minority of cases, sole legal custody for one parent is an appropriate resolution to this issue.

 

Physical custody relates to the day-to-day care of the child.  Increasingly, the label of “joint physical custody” vs. “sole physical custody” has become far less meaningful than the parenting time schedule the parties are ordered to follow.  Rather than focusing on the label of “joint” or “sole,” the better focus here is for a party to give serious thought to the co-parenting  schedule that he or she believes is in the “best interests” of the child(ren).

 

Here are a few common schedules:

  • The parties follow a 5-2-2-5 schedule where one parent takes Mondays and Tuesdays, the other parent takes Wednesdays and Thursdays, and the parties alternate weekends (Friday through Sunday).
  • The parties follow a week-on / week-off schedule.
  • One parent provides the primary residence for the child(ren) who see the other parent every other weekend and one or two nights per week.
  • One parent provides the primary residence for the child(ren) who see the other parent on school breaks and for alternating holidays.  This schedule is especially common when the parents do not reside in the same state.

 

Of course, where safety concerns or other serious issues are present, a shared custody arrangement like those described above may not be appropriate.  In these cases, sole physical custody to one parent with limited visitation and / or supervised visitation by the other parent may be necessary.

 

Child Support

 

Child support is often relatively straightforward.  It is based on the parties’ relative incomes and the agreed-upon or court-ordered parenting time schedule.  The Minnesota Child Support Guidelines Calculator is an excellent tool for practitioners and curious parties alike: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx  It provides the basis for the child support numbers the parties will work with as they attempt to resolve the various pieces of the divorce.

The three types of child support considered in any child support award are:

1) Basic support which is paid from one parent to the other for the day-to-day necessities of the minor child(ren)

2) Medical support which divides the costs of medical insurance premiums and other out-of-pocket medical costs as between the parties

3) Childcare support which divides the costs of childcare as between the parties

 

Parties may agree to deviate from the Minnesota Child Support Guidelines, but to do so they must first acknowledge the Guidelines and then assert that it is in the best interests of the children to deviate from them.

 

The foregoing outline is a very general and very basic representation of the potential issues parties will face as part of the dissolution process.  These issues are often challenging and complex.  Any party faced with a pending divorce is well-adivsed to hire an attorney to assist him or her with the process.  Skillful representation is often key to insuring  a fair and efficient resolution.  Contact the attorneys at Williams Divorce & Family Law today to see if our firm would be a good fit for you.

 

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