your divorce!

 Preparing for Divorce: Part One

By William H. Donahue Jr

Transitions Mediation Center

Divorce is never easy. But if you learn the basics, then prepare your facts, the divorce process will go much more smoothly. Here are the basics, and the fact finding steps you need to take.

First, familiarize yourself with a few basic principles about modern divorce law. In New Jersey and Pennsylvania, which are the two “equitable distribution” states where I practice, obtaining a divorce is now essentially a financial and parental logistics undertaking. The so-called “guilt” or “innocence” of either spouse doesn’t enter into it.

What this means financially is that your marital assets and debts are split fairly and equitably. In practice, this often means equally, but there may be good reasons why one spouse should get more than the other.

However, “whose fault it is” is almost never a reason. The law looks beyond who is the good spouse or the bad spouse, or whether there has been adultery, or who decided to get the divorce. That’s why I said at the beginning it was more a financial matter than a judgment on one person being “guilty.”

The same could be said for custody of children and parenting time. In most cases, decisions on legal and physical custody, and parenting time, should be made focusing on the relationships each parent wants with their children, and should always consider what’s in the best interest of the children. Who triggered the divorce or why usually doesn’t enter in -- though the practical ability of each parent to perform the duties of parenting going forward is an important consideration.

The three main issues in most divorces are the formulation of a parenting plan, the division of a couple’s assets and debts, and the issues of child and spousal support, or alimony.

The Parenting Plan

Let’s talk about custody first. Legal custody is the right of both parents to participate in decision making for their children. It is most often shared by couples. Sole legal custody is appropriate only if there is something profoundly wrong with one parent or the parents are so hostile and volatile it makes no sense to expect them to be able to negotiate anything concerning their children.

But legal custody has nothing to do with parenting time, which is physical custody. Once parents separate, unless there is an important reason why not, the children will spend time in each parent’s home. A parenting schedule should include holidays, vacations, long weekends, winter and spring breaks, birthdays, important family events and a variety of lifestyle issues.

Assets and Debts

There is a very common misperception about marital assets and debts. Assets acquired, and debts incurred during the marriage are the only assets and debts that will be divided in divorce, for the most part. That’s the basic principle. Except for two major exceptions, it does not matter who paid for something, to whom it is titled, or who primarily or even solely uses it.

The two major exceptions are assets inherited by one spouse either during or before the marriage, or assets gifted to one spouse by a third party – those assets are considered separately and have special rules. Gifts between spouses during the marriage are marital assets.

Child and Spousal Support (Alimony)

There are child support guidelines in most states. The parents’ respective incomes are a major component, as are the number of overnights the children spend with each parent.

New Jersey does not have alimony guidelines. Pennsylvania seems to be moving toward them. In the court system, the computation of alimony is complicated, but the overriding goal is to allow each spouse to maintain a standard of living that is reasonably comparable to the one they maintained during the marriage.

Once you have concrete figures for all of your assets and debts, for your useable monthly incomes and for your past and anticipated monthly budgetary needs, you will be in a position to negotiate a settlement that makes sense under the law, and meets everyone’s needs going forward.

You will also find that as you accumulate this knowledge, whether you bring it with you to the mediation table initially or acquire it through the process, much of the fear and anxiety about the future will dissipate. And for many people, as that happens, the anger dissipates as well. 

In Preparing for Divorce Part Two, I’ll outline some specific things you can do obtin or maybe just organize the information you will need as you approach each category of issues.