When clients first contact me, they are often highly emotional, and understandably so. Divorce is complicated. Whether they arrived at their decision after months or years of thought or found themselves forced into the process after discovering their spouse was cheating, time and time again I watch them grapple to make sense of the life change they face. Compounding their struggle are the financial and legal issues involved in dividing marital property.
To advocate on my clients’ behalf and negotiate the best possible settlement for them, it is important that I have a full understanding of their financial picture as well as their short-term and long-term goals early on in the process. Though it may mean some forethought and legwork for clients at the outset, their investment will pay off, resulting in less billable hours and a comprehensive agreement that protects them now and in the future. As you prepare to meet with your divorce lawyer, here are five areas on which to focus.
1. Property. Marital property refers to any property the couple acquired during the marriage. It can include but is not limited to the marital home, cars, furniture, jewelry, furs, and household furnishings. Who owns the property will depend on whether you live in a community property state or common law property state.
In common law property states, if one spouse purchases property in his or her name, that spouse likely retains ownership of that property. If a married couple purchases property and both names appear on the title or deed, each spouse owns a one-half interest. In community property states, assets acquired during the marriage are subject to division between both spouses in equal parts, regardless of whose name appears on the title or deed.
Currently, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Examples of community property include money earned during the marriage, property acquired with money earned during the marriage, and separate property commingled with community property such that individual ownership is no longer determinable.
It is important to note that the division of property isn’t always cut and dry. When it comes to real property such as the marital home, if one spouse puts time or non-marital funds into a property and it increases in value, that spouse may have a claim in part for the increase in value or, alternatively, reimbursement of his or her financial contribution.
Before you meet with your attorney, prepare a list of all marital property, when it was acquired, and, if applicable, whose name appears on the deed or title.
2. Child support. When parents divorce, they are legally required to provide financial support for their children until the children’s emancipation. Even though parents are obligated to pay child support to the “other parent” on behalf of the child, the right to receive support belongs to the child, not the custodial parent.
On the other hand, child support is an obligation of both parents. How much parents are required to contribute is either outlined in a court order or established between the parties in a written agreement. Depending on your state of residence, there may be specific guidelines for calculating child support, which takes into consideration such factors as both parent’s income and the allocation of parenting time between them.
Parents incur three categories of expenses in the care of their children: fixed, variable, and controlled. Fixed costs are incurred even when the child is not residing with the parent and include housing-related expenses such as rent, mortgage, utilities, household furnishings, and household care items. Variable costs follow the child and only accrue when the child is with the parent and include such expenses as transportation and food. Controlled costs accrue when the child is in the custody of the primary caretaker and include clothing, personal, care, entertainment, and miscellaneous expenses.
Compiling a list of childcare expenses according to these classifications beforehand will help your lawyer accurately assess your children’s present and future needs.
3. Spousal support. Alimony is one of the fastest changing and most controversial areas of law. Depending on the state in which you are divorcing, courts may have varying degrees of discretion when determining alimony. Courts may consider the length of the marriage, the couple’s age, the couple’s physical and emotional health, their standard of living while married, each spouse’s education level, their employability and earning capacity, and the allocation of child-rearing responsibilities when making awards.
Those seeking alimony may receive permanent alimony, limited duration alimony, rehabilitative alimony, reimbursement alimony, or some combination thereof. Spouses in long marriages may be eligible for permanent alimony, which is meant to compensate the economically disadvantaged spouse for as long as they need. Spouses receive limited duration alimony or maintenance for a set period when there is an economic need established, but the length of the marriage is not long enough to warrant a permanent award. The idea behind rehabilitative alimony is to give the economically disadvantaged spouse time to become financially independent. Spouses receive reimbursement alimony to compensate them for becoming economically disadvantaged as a result of being married, such as when a spouse takes a career break to care for and raise children.
When meeting with your lawyer, be prepared to discuss your financial needs, career goals, and the time it will take you to reach those goals, so you have the support you need when you need it. If you are the spouse who is paying, it is essential to discuss how assuming this burden will impact your financial picture.
4. Child Custody. Child custody is arguably the most highly contested issue you will face during your divorce. Depending on your state, either legal or physical custody may be awarded based on the best interests, i.e. physical and emotional welfare, of the child. Legal custody is the ability to make critical decisions about a child’s health, welfare, and education. Legal custody can be joint, meaning both parents are equally involved in making important decisions or sole, where only one parent makes such decisions. Physical custody refers to where the children reside. With shared or joint custody, children spend equal time living with each parent. When one parent has primary custody, the child lives with one parent and has parenting time with the other parent. Where there is sole physical custody, the child resides with only one of the parents.
What is best for the child can turn on several factors. Courts consider the mental and physical health of each parent, the child’s relationship with either parent, and how stable the home environment is. Courts may also examine the level of cooperation and communication between the parents, the distance between the different homes and school, the child’s special needs, if any, and the parents’ employment responsibilities. The age and number of children, as well as the child’s preference (depending on the child’s age) where he or she wants to live, are also considerations. Joint legal custody is most common, but may not necessarily be the same as physical custody. Custody arrangements may change as children grow to accommodate their changing needs at different developmental stages.
Determining which type of custody you seek at the beginning of your divorce will allow your lawyer to advocate effectively for your position.
5. Documents. When you and your attorney meet, bring with you all documents that affect or can substantiate any of the above. Bring deeds, titles, prenuptial and post-nuptial agreements, wills, trusts, powers of attorney, bank statements, financial statements (including those for CDs, stocks, pensions, and retirement accounts), mortgage statements, loan documents, tax returns (individual and business), separation agreements, utility bills, credit card statements, and insurance policies (home, health, and auto). Bring any documents you suspect are relevant and even those you don’t, such as those one-off bills you pay and then forget about afterward. You will be surprised how quickly small invoices add up.
No matter how talented your lawyer is, he or she is not a mind reader and is only privy to the information you provide. The more ammunition you give your attorney at the beginning, the better off you will be at the end. Though pulling your documents together and laying out your case is only half the battle, how thorough you do can decide whether you win the war.
Legal Disclaimer: This article is intended for informational purposes only and does not constitute legal advice on any subject matter. Consult with an attorney for more information regarding your particular circumstances.