A Divorce is a very traumatic event in our lives.  It can be a very stressful period for the entire family.  This Article is written in order to help the reader aleviate some of those fears. 

Divorce Grounds

In most states a Divorce is either based upon fault of one of the parties or it is a no fault state.  In a fault based state the grounds are stated in the law.  They can range from abandonment to adultery and many things in between.  A state that has no fault divorce does not care who is to blame, and therefore, there is no list of grounds to be found.  As a result, it can be couched as the parties have irreconcilable differences which means the parties can not get along.

Distribution of the Marital Property

Property is a term with special meaning.  It generally means assets that can range from Stocks, Real Estate, Good Will of a business, salaries of the parties, 401k, pensions etc.

Most states distribute the marital property based upon a theory of Equitable Distribution, Community Property or Equitable distribution combined with Community Property.

Under an Equitable Distribution theory the court will attempt to do justice in the case and be fair.  Of course, there are many things to be considered such as the contribution of the parties towards the asset.  An asset owned prior to marriage is calculated differently than one purchased during the marriage with assets of the marriage.  Even where an asset is purchased during the marriage it does not automatically mean it is marital asset.  For example, where one party purchased an asset during the marriage, but they can show it was bought with money they had before marriage that asset is not likely to be divided.  In my example, a court would lean towards awarding that asset to the purchaser even though the asset was purchased during the marriage.  Sometimes, the asset can be a mixture.  For example, it was owned prior to marriage, but the parties used it during the marriage.  In a mixed scenario the value to be divided among the parties may require a different calculation.

Under a Community Property Theory every asset acquired during the marriage is to be divided equally.  For example, CA is a true Community property state.  However, even under the above theory assets acquired prior to marriage are not marital assets.  There are exceptions to my previous statement.

Equitable Distribution combined with Community Property states are a combination of the two theories previously mentioned.  It is not a theory at all, but in my experience they have features of both.  Arizona for example is a Community property state.  However, it is not a true Community property state.  Rather Arizona uses features of Community property and equitable distribution to distribute marital assets.

Alimony

Alimony can be a lump sum or paid over a period of time.  Alimony takes into account many things.  For instance, the education of the party seeking alimony, the length of the marriage, whether the party seeking alimony did not work during the marriage, the length of time it would take that party to get a better education to reenter into the job market etc.  Typically, the longer the marriage and where the party seeking the alimony did not work during the marriage the more likely it will be granted.  Please note, however, that Alimony is not automatic.

Custody

The test for custody is "best interest".  The court will fill that in by substituting what is best for the child's emotional, spiratual, educational, medical needs and consider other factors as well.  What the court decides is what is needed for the child to grow up and become a healthy adult.  In short , anything that will contribute to helping the child become a healthy adult is in the child's best interest.

The court must also decide which parent is the better parent or which parent will help the child thrive best.  Where there is a custody battle everything about a parent gets examined microscopically.  A simple argument with a child can become a negative, ones level of cleanliness at home can become an issue, which parent helps the child with homework, who is the child more emotionally "bonded" (attached) with, which parent does the child look to for emotional support etc.  Therefore, one must strive to be flawless during a custody battle.

Finally, the court will decide which parent will best meet the child's emotional, educational, religious needs.  The parent that will provide the best environment for the child to "thrive" is the parent who will get custody.

Joint Custody is typically issued by a Court where the parents are in agreement and can get along.  The reality of most  Joint Custody agreements is that the child lives with one parent and the parents share the power to make joint decisions about the child's upbringing.  A true Joint Custody agreement is only realistic where the parents live near each other so that the child can go to the same school and have the same friends.  In a true Joint Custody agreement the childs physical living arrangement is divided between the two parents.

Visitation

Visitation is the right of both children and parents to spend time together.  Where a parent does not live with the children, the right to visitation arises.  In the case of a divorce, visitation is usually worked out as part of the Divorce Settlement.  .

Remember even if there is a Court Order it is a guideline for when the parents cannot agree on the visits.  The parents can enter into a different agreement inspite of the Court Order.

Where the parents are not getting along, it is best to resort to the Order and follow the order as directed.

Child Support

Every state requires payment of Child Support by the noncustodial parent.  It is based upon the gross income (before taxes) of the parent who does not live with the children.    For example, in New York State one child = 17%, two children = 25% etc.  Additionally, some  taxes are deducted from the gross.

The child's afterschool activities, childcare, private education may be considered where appropriate.

Child Support is usually paid until the children reach 18 or 21 depending on your state.

This Article is provided for general information only.  It does not constitute legal advice.  Nor does it give rise to an attorney client relationship.

Fabiola Jean-Gilles, Esq.