Once two people decide to end their marriage, there are many issues that must be resolved. Obtaining a “divorce” requires resolution of all issues arising out of the marriage. Deciding that the marriage is irretrievably broken is just one small issue on the long, long list of issues that must be determined.
Of course, if there are children involved, the parties or the Court must determine the following:
- Whether the parties will share joint custody or whether one of the parties will be entitled to sole custody of the children;
- A parenting schedule that will delineate how much time and when the children will be with each parent on a regular basis;
- A parenting schedule that will govern how the parties will share holiday parenting time and other special occasions (including all religious and non-religious holidays, Spring Break, Fall Break and other days when school is not in session) with the children;
- How parenting time will be shared in the summer;
- How much uninterrupted vacation time each parent may have with the children;
- Which party will provide health and dental insurance for the children;
- How work-related child care will be handled;
- Whether child support must be paid by one party to the other and, if so, how much;
- How the parties will share responsibility for extraordinary medical expenses incurred by, or on behalf of, the children;
- How the parties will share responsibility for extracurricular activities;
- Which party is entitled to claim the dependency tax exemptions and other tax benefits relating to the children; and
- Any other unique issues that might affect a particular family and/or child.
Beyond the child-related issues, a divorce is akin to the dissolution of a business in many ways. First, the parties or the Court must identify non-marital property so that it may be restored to the party that brought it into the marriage. If the character or value of the non-marital property has changed during the marriage, it is often necessary to determine the value of the non-marital claim. Once non-marital property has been restored, the parties or the Court must divide all marital property which may include real property, personal property (which includes vehicles, furniture, household goods and furnishings, personal items, etc.), savings accounts, checking accounts, investment accounts, stocks, bonds, trust accounts, life insurance policies, retirement and pension plans, business interests, memberships, reward points, etc. In most cases, in order to achieve an equitable division of marital property, it is necessary to determine the value of the assets being assigned to each party. The parties or the Court also must determine which party will pay the debts incurred by the parties during the marriage.
Another major issue that must be determined is whether one party will have an obligation to pay maintenance or spousal support (sometimes referred to as alimony) to the other and, if so, how much and for how long. In addition, the parties or the Court must agree upon various tax issues and whether one party should be required to pay all, or a part, of the attorney’s fees and costs incurred by the other party.
If the parties are capable of agreeing upon all of the issues arising out of their marriage, the terms of the agreement must be submitted to the Court for a determination that the terms of the agreement are not unconscionable. If the Court finds the terms of the agreement to be conscionable, the Court will incorporate the terms of the agreement into a Decree of Dissolution of Marriage. If the parties are not able to agree upon all of the issues arising out of their marriage on their own or through mediation, the Court will conduct a Trial to make the necessary determinations. A Trial addressing all of the issues arising out of a marriage could take anywhere from a few hours to several days or, in some cases, even weeks.
Considering the complexity of addressing all of the issues arising out of a marriage in proper detail, competent legal advice and having proper representation in divorce proceedings is a necessity to minimize future problems. Goldberg Simpson attorneys have years of experience assisting parties in the resolution of these issues both on their own and in Court.