Divorce Law: What to Expect From a Divorce
If you are currently facing a divorce, you are probably wondering what to expect from the divorce process. Just as no two marriages are alike, however, no two divorces are alike or have the exact same outcome either. Predictability and divorce do not go together. Still, an experienced family law attorney will be able to give you some idea of what to expect before, during and after your divorce. Armed with realistic expectations, you will have the best chance of being satisfied with the end result of your divorce.
What a Divorce Can and Cannot do for You
Normally, people contemplating divorce have some idea of what to expect from a divorce. They have witnessed divorces on television and in movies, and often personally know at least a handful of people who have been through a divorce. Increasingly, people have also experienced their own parents’ divorce. In spite of this “second-hand” experience, facing your own divorce is one of the more frightening events in life. Not only do you face a court-sanctioned ending of possibly one of the more significant relationships you have ever had, you also must begin to think about such unpleasant things as the division of property and new living accommodations. In many cases, there is also the unhappy prospect of no longer seeing your children on a daily basis. While divorce may not be the hardest thing that your life has to offer, neither will it be a panacea for all your current problems and negative emotions. Consequently, it is wise to understand the realities of what a divorce can and cannot do for you.
What Divorce Can Do
A divorce court will attempt to divide the property of a marriage in the most economic way possible. Most states will exclude from this division any property that was acquired prior to the marriage or that was acquired via gift or inheritance. In some states (community property states) this involves a 50/50 split of the property acquired by the parties during the marriage. Other states (non-community property states) will inquire into the couple’s individual financial circumstances, financial plans for the future, and other relevant matters in attempting an equitable distribution of the property. This distribution will be done differently depending on the circumstances of each particular case. That is why it is often difficult for attorneys to predict exactly how the divorce court will handle the division of a couple’s property.
Take for example a situation where a married couple, Al and Meg, owned a carpeting business. Al and Meg began the business together early in their marriage, and they both contributed to the successful start up of the business. Once it was off the ground, however, the couple decided to have children. After the birth of the couple’s first child, Meg continued to do the books for the business. However, as the business began to grow and the couple had two more children, Meg began devoting her full energy to the couple’s home and family duties. Therefore, additional staff was hired to take care of the active roles that Meg had once had in the business. When the youngest of Al and Megs’ children was four years old and the eldest was nine, the couple filed for divorce. Al and Meg could not agree on what to do with the business. Meg wanted the business sold, while Al wanted to continue to run the business. The decision was left to the judge, who determined that the business had little market value and it was more profitable for Al to continue to run the business. Because the two could not feasibly continue to own the business together, Meg was awarded a partial payout for her share of the business (based on expert evaluations of its value) and monthly payments until her share was satisfied in whole.
In the above example, the court determined that it was best to leave Al and Megs’ carpet business intact. Under slightly different circumstances, however, the same judge might decide to sell the business and split the proceeds between the divorcing couple. Because the division of property is never predictable, if you have a strong need for some item of property, it may be best to have your attorney negotiate and settle the property distribution ahead of time with your spouse’s attorney. For example, you may decide that, although you would really like to stay in the family home, you really need to keep your business. Therefore, you might forgo the home in favor of the business. In this manner, you can attempt to strike a mutually satisfying agreement for dividing property with your spouse.
Courts will also determine a couple’s support obligations. This can come in the form of child support and spousal support (a/k/a alimony). Child support payments are now largely set by state law, however, deviation from those standards are not uncommon. Also, child support orders may depend on the custody arrangements ordered. In general, spousal support largely depends on the facts and circumstances of each particular couple. Therefore, here again, any attempt at predicting a court’s ultimate support decision is often a waste of time.
Aside from the distribution of wealth, the other main function of the divorce court is to set child custody and visitation schedules. This too is anything but predictable. While courts often try to make their decision based on a set of factors said to promote the “best interest” of the child, these decisions can vary from case to case and court to court. After all, human judges, who are influenced by their own beliefs, opinions and values, apply these factors. Further, judges usually see and hear only the worst of people during heated custody proceedings. Based on their limited “view” into the parents’ lives, a divorce court may not always make the “best” possible decision when it comes to custody. Here again, negotiation and settlement are important options to remember. Everybody, especially, your children will benefit by a cooperative child custody arrangement.
What Divorce Will Not Do
A divorce cannot accomplish an exact, mathematically equal division of property and equal time with children. Because no two people, no two marriages and no two divorces are alike, the judge who enters a divorce order must make the best decision with the limited time and information available. It may not always be the fairest possible decision that could have been reached and it is certain not to favor you individually in every possible way. Divorce courts often have to make the best of terrible circumstances. For instance, there can be no satisfactory custody arrangement when one parent lives in New York City and the other lives in Kalamazoo, Michigan. It just is not possible. Furthermore, even though a court can set custody and visitation arrangements, it will not be present every Friday when it is time for mom to drop off the kids, and it will not spend the weekend with dad, making sure he does not make snide comments about mom around the children. Although you can keep dragging your ex back into court, this is both frustrating and expensive. Unfortunately, at some level, a court order is just a piece of paper. Mom and dad will STILL have to civilly deal with each other to carry out the terms of the custody and visitation order. Divorce does not take away your responsibility towards your children, and this includes dealing with their other parent, because divorce does not make your ex-spouse any less your child’s parent (the possible exception would of course be in cases of abuse).
You should also recognize that a divorce court cannot increase your salary to prevent your standard of living from declining once you divorce. Unfortunately, from an economic standpoint, it is simply much cheaper for two people to live together, sharing expenses, than it is to maintain two separate households. Divorce will change your standard of living and there is little, if anything, the court can do about the change. Finally, a court will not be able to punish your ex-spouse or morally vindicate you for all of the bad things that happened while you were married. Moreover, the divorce process will not heal your emotional wounds or even take away the necessity of grieving the failed relationship. That is your job, although you can seek assistance through therapists and support groups.
A divorce may be just the fresh start you need to get on with your life. In all truth, however, “the getting on with life” depends on your dedication to the process. It is not something that a court order will accomplish for you. Having realistic expectations as to what a divorce can and cannot do serves as a good beginning point for a satisfactory end to your marriage.