Navigating the Divorce Process

When one or both spouses determine that it is time to file for divorce, navigating the court system can become daunting. Not only is an individual under tremendous emotional stress (divorce is generally viewed as the most stressful situation people face, aside from the death of a loved one), so having a basic understanding of divorce law and the legal system will be critical to make sure you protect yourself during the process.

The main points of contention during a divorce usually involve alimony, child support, child custody, and the division of assets. Of course, each divorcing couple will have their own set of unique circumstances, so this is simply a guide

Alimony:

Alimony refers to the payment of money from one spouse to another. Alimony may be paid in one lump sum, or in installments over the course of months or years. Generally, a court will try to help one spouse maintain the standard of living they have become used to during their marriage, especially if one spouse earns significantly more than the other, or if one spouse stayed at home and raised children during the marriage For example, if a wife decided to forego a career during a couple’s 20 year marriage in order to take care of the children, when the couple is going through their divorce many courts would find it unfair to think that the wife could enter the job market after 20 years and earn anywhere near what she would have earned if she did not stay at home and support their children during the marriage. In these sorts of cases, a judge or jury will often award alimony payments from the husband to the wife. Of course, alimony can also be made from the wife to the husband, depending on the circumstances of the marriage.

Child Custody & Child Support:

In the past, it was generally accepted that a child was best of with their mother, and women were usually awarded child custody while husbands were required to pay child support. While child custody laws and child support laws vary from state to state, many states have moved beyond this bias, and now give no preference to either the husband or wife in determining child custody. In most states, the simple test is, “what is in the best interest of the child.” If a husband has proven himself to be a better and more responsible caretaker for the children, chances are that he would be awarded custody. Of course, it is usually the case that if both parents are considered fit, rather than giving sole custody to one parent or the other, a court will award joint custody. While it may be difficult on the children, they often spend alternate weeks at each parent’s home.

If one parent has sole physical custody, it is often the case that the other parent will be required to make child support payments. Keep in mind, child support is completely different from alimony, although many mistakenly conflate the two. Alimony refers to payments from one spouse to the other for the care of that spouse, while child support refers to payments from one spouse to the other for the care of the child. Child support payments vary from state to state, and may be based on objective or subjective standards. In Georgia, for example, there is very little leniency that a judge is awarded when determining child support payments. The Georgia state legislature devised a strict formula for determining child support payments, based mostly on the income and expenses of each individual spouse.

Division of Assets:

While child support and child custody are often the most volatile issues a divorcing couple will face, the division of assets is also no easy matter. Generally speaking, a divorcing couple will have to determine who will get such things as the home, cars, furniture, retirement plans, savings accounts, and, of course, debt. Again, while divorce laws vary from state to state, it is generally accepted that a couple has “marital assets” and “separate assets.” Assets gained before a marriage generally are considered separate assets, and stay with the spouse who owned them before the marriage. Assets gained during the marriage are generally considered marital assets, and are often split equitably (different from equally) during the divorce. So, for instance, if a wife had $1 million in assets before the marriage, and the husband had $500,000 in assets before the divorce, and during the marriage the wife made an additional $1 million, then the wife would probably end up with somewhere along the lines of $1.5 million, while the husband would end up with $1 million. Big numbers, I know!

I hope you found this brief summary useful. Please keep in mind, again, this is just a cursory introduction to some of the issues divorcing couples will face. It is not meant as legal advice, and each divorcing couple will face their own set of issues. I strongly recommend you speak with a divorce lawyer.