As the holidays approach, many will ask themselves this one key question: should I stay, or should I go? The decision to separate is not an easy one, and it can wreak havoc on a person’s emotional, financial and social well being. Indeed, these are the real issues that complicate the process of restructuring a family, but in the legal world there really are only four points that need to be addressed in a divorce:
1. Custody- (1) What time-sharing schedule will parents follow with their children? (2) How will major decisions be made about the children’s welfare– education, medical care, and religious upbringing?
2. Child Support- How will both parents contribute towards the children’s expenses? Thankfully, there are guidelines that each state follows, and most are available online. Generally, the formulas take into account (1) the income of each party; (2) the health insurance cost for the child; (3) work-related daycare/aftercare expenses; and (4) the time-sharing arrangement. This should be straight-forward, except when someone is self-employed or paid on a commission-only basis, in which case the parties may need to look at using an average over the past few years, and if someone is unemployed or under-employed, arguments will often arise as to an appropriate imputed income.
3. Alimony- If someone is unable to support him/herself, and the other has a demonstrated ability to pay, then there really are two questions that need to be answered: (1) what is the amount needed? and (2) what is the appropriate duration? Some states have established guidelines that they use for alimony calculations, others may want to refer to the formula proposed by the American Academy of Matrimonial Lawyers (www.aaml.org).
4. Property Division- How will the parties divide the assets (and debt) accumulated during the marriage? This may require an analysis of what portion is pre-marital, as well as tracing out gifts and/or inheritance. All the assets need to be identified and valued before a court can consider the appropriate distribution.
Of course, the more couples want to argue about these four issues, the more it will cost them, and those that choose to litigate their divorce may well incur $23,000 each in legal fees based on national averages. Generally, the more economically prudent approach is to work out a settlement outside of court, either through traditional negotiations, mediation or a Collaborative Divorce. Of course, to determine the best course of action, parties should first consult a reputable family law attorney that can explain the law and process, which typically may range from 6 months to 18 months, and then they need to figure out a realistic budget.
Whether it is driven by financial or emotional reasons, or perhaps both, the fact is 90% of divorces are settled before trial. The highly contested cases, which make up about 20% of the courts’ docket are considered “high conflict cases” that often are fueled by clients driven by anger and revenge, or they involve severe mental health issues and/or addiction problems. Those cases have a high tendency to return to court, but thankfully that is not the majority.
Ultimately, it is well documented that starting around Thanksgiving, and then continuing through the holidays and into Valentine’s Day, there is often a spike in divorce consults as people weigh their options, together with the emotional and financial risks for all those involved. During this difficult time, the importance of having an emotional and financial safety net can not be understated because although the legal issues are not complicated, going through the entire process, which includes establishing a new home, new schedule, and an entirely new identity as a single person is far from easy.