Every day we are answering questions about divorce for the general public as well as our clients. While everyone’s situation is different, however there are some basic questions that nearly everyone has at one time or another. Here are our top four questions about divorce to get you started.
How is property divided?
The most common of questions about divorce pertains to the division of property. The underlying concept is that property should be divided fairly. A few states give vague and general statements and leave it up to the discretion of the judge. However, most states have guidelines that set forth various factors the judge must consider in making a property division. Consideration is often given to how and when the property was acquired, favoring that each party will be able to keep property he or she owned before the marriage, or acquired by gift or inheritance during the marriage. Property acquired during the marriage is typically called either marital property or community property. The marital or community property will be divided according to the various factors set forth in your state’s property division laws.
Under an equitable distribution approach, your marital property will be divided equitably or fairly, but not necessarily equally. Often, equitable division doesn’t result in a 50/50 split.
Florida judges consider several factors when dividing property, including:
- each spouse’s income and earning potential
- the length of the couple’s marriage
- the number of minor children at home
- whether one spouse made career sacrifices for the other spouse’s education or job
- each spouse’s debts and assets
- each spouse’s overall physical and mental health, and
- any other relevant factor.
After considering the above factors, a judge will make a property determination that meets the needs of both spouses and serves the best interests of the couple’s children, if any.
How is alimony determined?
Alimony is the most popular term for the money paid from one spouse to another post-divorce for maintenance or spousal support.
Alimony considerations are twofold: (1) Is there a need for alimony, and (2) if there is a need, how much alimony should be ordered and for how long?
The need for alimony typically centers around the issues of how long the parties were married, and whether the party seeking alimony is unable to be self-supporting without it. Even where the length of the marriage is not officially a factor in the laws of the state, it is often the practice of the courts not to award alimony for relatively short-duration marriages (for example, less than 10 years).
In determining the amount, type and duration of alimony, most states have a list of factors the judge must consider. These factors vary in detail from state to state, but center on the financial and employment circumstances of the parties. Sometimes the fault of a party in breaking up the marriage is one of the factors.
If the court finds the “need and ability” the judge will then assess the following factors:
- the standard of living established during the marriage
- the length of the marriage (seven or fewer years is short-term, seven-17 years is moderate-term, and 17 or more years is long-term)
- each spouse’s age and physical and emotional health
- both spouse’s financial resources, including the nonmarital and marital property, assets, and liabilities
- each spouse’s earning capacity, educational level, vocational skills, and employability and, if applicable, the time necessary for either party to acquire sufficient education or training to find employment
- both spouse’s contributions to the marriage, including homemaking, childcare, education, and career-building of the other spouse
- whether either spouse will have parental responsibilities to minor children
- tax consequences of alimony, if any, to both spouses
- all sources of income to both spouses, including income available through investments,
- any other factor the court deems necessary to create a fair alimony award
If alimony is granted, it may be in one of several forms. Alimony may be ordered in a single lump sum payment, in periodic payments for a limited amount of time (with the idea that the spouse receiving alimony will obtain sufficient education to become self-supporting), or in periodic payment indefinitely. In most states, alimony ends if the party receiving it marries. Florida is one of few states that offer bridge-the-gap alimony, which helps the recipient spouse meet legitimate short-term needs while transitioning from married to single.
How is child custody determined?
In a divorce, child custody should be determined according to what is in the best interest of the child. As with alimony, most states have guidelines that set forth various factors the judge must consider in making a custody order.
Traditional child custody is when one parent is awarded custody and the other is given visitation rights. The children then live most of the time with the custodial parent, who made the day-to-day decisions regarding the children. The non-custodial parent is allotted certain times to have visitation with the children.
Traditional child custody has given way to the more modern concept of joint custody which aims to keep both parents active in the lives of their children. Both parents share time and responsibilities, and schedules are divided by parenting time. There is a difference between physical custody (regarding where the child lives) and legal custody (regarding making decisions about the child’s welfare). The terms of joint custody determines the time the child spends with each parent and how parenting decisions are made.
How is child support determined?
All states have adopted some form of child support guidelines, which supposedly take into account the needs of the child and the ability of the parents to meet those needs. There are basically two types of guidelines.
In years past the most common way to determine child support was to simply take the noncustodial parent’s income and allot a certain percentage of that income for child support. The percentage increased depending upon the number of children.
More common now is the means of calculating support using the combined income of both parents to determine the needs of the children. Each parent is expected to contribute to those needs in the proportion of his or her income to the total income of both. Such calculations should incorporate health care expenses, child care expenses, any special needs, and the amount of time the child spends with each parent, and each parent’s obligation for the support of children by previous and subsequent marriages.
Can we agree that there will be no child support paid?
Generally, the court will expect to apply the child support guidelines in arriving at a support amount. If you and your spouse reach an agreement that does not follow the guidelines, the court will closely review the matter to be certain that your agreement will adequately meet the needs of the child.
Should you reach an agreement that no child support will be paid the court will likely scrutinize this closely. Regardless of the agreement that you reach initially, the matter of child support may be reviewed at any time if the child’s needs are not being met. This is particularly true if there is a significant change in the financial circumstances of parent.
Do you have more questions about divorce?
You likely have more questions about divorce and we would be happy to answer them for you. Please click here to schedule an initial consultation appointment.