Easier Said Then Done
You might be surprised to hear divorce is actually really quite simple. There are only 4 areas that need to be determined! Of course, simple doesn’t necessarily mean it is easy. Those 4 areas have a lot of nuances. The divorce agreements that I write are filled with important details, and are often 40 or 50 pages long.
Here is a quick guide to give you the framework and the structure of what divorce is really all about. The 4 areas are: dividing up your assets, spousal support, child support, and devising a parenting plan.
Let’s look at these things in more detail:
Decide how you will divide up the property you own together (division of assets)
- The first step here is to determine which property is separate and which is marital. Examples of separate property are a car you bought before you got married, or assets you inherited from your family. In some states, the title of particular property will determine whether it is marital or not, while In other states, title is not determinative. Marital property usually includes Income earned and retirement plans accrued during the marriage.
- The second step is to decide how you will divide the marital property. The marital home is often a couple’s biggest asset, and elsewhere on this blog I have written about a few creative ways of dividing it up. Some items (for instance pensions and real estate) may need to be a formal, professional appraisal.
- Other items may require some thought about your priorities – for instance, figuring out whether and how one partner can afford to purchase the other’s interest in the house, whether you agree to continue to own the house together until the children are grown, etc..
- Marriage is considered to be an economic partnership – there is a basic assumption that both spouses contribute to the marriage, whether those contributions are financial or not. Therefore, both spouses are generally entitled to a portion of the marital assets.
- Some states divide all marital assets equally – these are called “community property” states. Other states use “equitable distribution” as their benchmark, which means dividing assets fairly, not necessarily 50/50. For instance, while a business may be considered marital property, if one spouse is working in the business day after day, that spouse may be entitled to more than 50% than the spouse who does not make a direct contribution.
- Consider all kinds of property – including real property, bank accounts, retirement accounts and businesses. And don’t forget to include debts and taxes – make sure it is clear who is responsible for paying each of your major debts.
Spousal Support (also called alimony or maintenance)
- How will each of you support yourselves after the marriage? Will one spouse provide funds to the other? If one spouse has stayed at home during the marriage, she or he may need financial support to go back to school or obtain training to enable him or her to go back to work.
- Spousal support is generally provided for a limited amount of time, often tied to the length of the marriage. If a couple has been married for a long time, or if the spouses are older at the time of the divorce, spousal support might last until the end of life.
- Most states have guidelines to determine the amount of spousal support – this is also tied to each spouse’s income, but it may also be tied to the lifestyle the couple enjoyed during the marriage, other assets either party has, the length of the marriage, and other factors.
Decide how you will support the children
- Child support includes both the basic monthly amount one parent pays the other, as well as how occasional “add-on” expenses will be covered. The basic amount covers food, clothing and housing, while add-ons include costs that will vary more, such as child care, tuition, summer camp, and the like.
- The amount of child support each parent is responsible for is tied to that parent’s income, so it is important to include language about how you will share income information in the future, and how these support amounts will be modified when parental income changes.
- Finally, it should be clear when child support will be reduced or when it will end. Generally, this is when each child reaches a certain age (typically either 18 or 21, depending on which state you live in).
Make a parenting plan.
- One of the most important parts of the parenting plan is how you and your ex will make major decisions affecting the children. This is often called legal custody. Who will make the decisions around the child’s religion, education, and medical needs? Joint custody means that the parents will decide these things together. While this is often preferred, there may be circumstances where only one parent has decision making power, or has the last say.
- Parenting time is a determination of how often the children will be with each parent. This is often decided by the children’s ages, how close the parents live to each other and to the children’s schools, the parents’ work schedules, and other factors.
- It is also important to determine how the children will spend special occasions, such as school holidays, vacations, and birthdays.
- Finally, you might want to include particular provisions regarding traveling with the children, visits with extended family, how the schedule will be modified, and flexibility of scheduling.
This is the general outline of a divorce agreement.
Of course, one of the most important things to be decided – before you get to any of this – is the process that you will use to make these determinations. Rather than submit them to a judge to decide, consider mediation or collaborative law — processes that keep you in the driver’s seat.