What To Ask For in a Divorce Settlement
Planning for your future often requires foresight and confidence, which can be why getting through a divorce is so difficult. It is often a very emotional process, and it’s difficult to think of your future needs when all you can think of is getting through the present.
However, the lengthy divorce process is made longer and more complicated when you have trouble negotiating the division of you and your spouse’s assets, but as difficult as this may be, it’s an incredibly important part of the divorce. The focus you place on your future will determine how you move forward with after your divorce, and in order to start off on the right one, you have to know what to ask for during these hard times.
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Assets are often very complicated to divide between you and your spouse. Even in an amicable divorce, dividing joint assets, including liquid assets, savings/retirement accounts and physical property usually cannot be done without a lawyer, unless there are minimal joint assets and you have the assistance of an experienced mediator. There are many factors to consider aside from the immediate worth of assets, and assessing these factors is crucial to maintaining good financial health.
The marital home is often one of the most sought after assets in a divorce, however, getting the house is not always the best investment. While it is technically an asset, the outstanding debts and mortgages require a lot of consideration. If you want the house, you need to consider whether or not you’ll be able to afford the mortgage and property taxes by yourself, without the assistance of your spouse’s income.
Whether or not you want the house, it’s important to consult a lawyer and a tax expert to decide how much the house is worth and determine what it will be worth trading for. Often times, it’s much easier to simply sell the house and split the profit to avoid dealing with the remaining debt and mortgage. However, if one spouse is particularly attached to the marital home, they can go through the process of buying out their spouse’s portion of it.
There are a variety of benefits you may be eligible to receive after the termination of your marriage. If you were married 10 years or longer, you can receive benefits on your ex spouse’s record, even after they remarry. However, to receive these benefits, you will need to remain unmarried, be age 62 or older and, of course, your ex-spouse will need to be entitled to Social Security retirement. Also, the benefit you receive based on your own work must be less than the benefit you would receive based on your ex-spouse’s work.
If your retirement benefits are less than your spouse’s, you will be eligible for enough benefits to make yours equal to your spouse’s benefits. Even if your ex-spouse has not applied for retirement benefits, but qualifies for them, you can receive benefits on their record; and even if you do remarry, you would be still be eligible for their benefits if that marriage were to end — just not during. However, to be certain you’re receiving your full range of benefits, you should hire a lawyer to help with the logistics.
Apportioning debt is a matter closely related to assets, as joint debts and indebted accounts or lines of credit must be apportioned between you and your spouse. Similar to the division of property, debt is separated into either community debt or separate property debt. Debts from before the marriage will remain the debt of the spouse who incurred it, such as student loans or for properties and assets purchased before the marriage. Any debt incurred during the marriage is considered community debt and must be divided between spouses.
However, there are exemptions to this rule, in regards to items purchased during the marriage that were necessary, and luxury items that were purchased by one spouse. This determination has to do with whether you and your spouse are considered lower, middle or upper class, and the price of the expenditure. If your family falls under a middle class classification, and one spouse purchased clothing or jewelry for thousands of dollars under a line of credit, that debt may be considered a luxury purchase that the purchasing spouse would have to pay.
There are a few circumstances that warrant alimony being paid to a spouse after a divorce, although the most common circumstance is that one spouse put their education or career on hold in order to raise the family’s children while the other advanced their career and achieved a higher income. Alimony may be awarded if your spouse has a more substantial income and your income is either insufficient to support you, or to maintain a similar standard of living as was accustomed during your marriage. A divorce lawyer can help make your argument in court for you to receive the maximum alimony possible.
Depending on the age of the divorcees, alimony will often only paid for a period of time until you are able to continue or finish their education, or re-establish yourself in a former career in order to self support. This length of time may be negotiated between you and your spouse and if disagreed upon, will ultimately be determined by a judge in court. However, if there are special circumstances, such as health issues or advanced age, permanent spousal support may be awarded. The amount to be received will be determined by the duration of the marriage, the final distribution of assets, and the age, physical and emotional condition of each spouse.
Custody and Visitation
If you and your spouse have children, custody and visitation will be a major issue during mediation, especially if you and your spouse disagree on custody. There are two types of custody orders; legal custody, which determines who makes the important decisions about the health, education, and welfare of the child, and physical custody, which determines with what parent the child will live. Whether or not both parents have joint legal and physical custody, there are a lot of kinks to work out in finding a smooth arrangement that works for both parents, and is in the best interest of the child.
Visitation rights often depend on who has physical custody of the child, as the parent who has the child less often will at times receive more visitation rights. Visitation right can be according to a schedule, which may be determined by either the parents or the court and can include holidays and breaks from school. There is also ‘reasonable visitation’ which is not necessarily a detailed arrangement of when the child will visit each parent, rather an open-ended order that allows the parents to work out visitation amongst themselves. Although this arrangement may seem ideal, it can lead to complications if there are disagreements between the parents.
Insurance and Healthcare
When determining the custody and other future plans for your child, you’ll need to discuss who will have the child on their medical and auto policies, and how financial responsibilities for these programs will be managed. While legal and physical custody is typically determined by what parent is best for the child, the financial liability of the child’s well-being remains in the hands of both parents. You and your ex-spouse will need to decide on an arrangement for how you will cover major personal and medical expenses, like braces, in the future.
If you and your spouse have a joint college savings account for your child, this is often considered separate from other assets and technically belongs to the child for all intents and purposes. As college years approach, you’ll need to work out how responsibility for paying tuition and other school expenses will be shared and managed between the two of you, and how this planning impacts any college savings you’ve set up until this point. If you are the primary custodial parent, you’ll want to have your attorney address the expectation for college support during mediation and court.
As you work through the mediation process with your spouse, you should make sure your attorney is addressing each of these issues and coming up with an arrangement that will suit you. Divorce is often a process that uproots you and your children so it’s necessary to take any necessary steps and precautions to ensure you and yours are provided for once you decide that it’s in the best interest of your family to get a divorce.
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This post was updated February 28, 2019. It was originally published August 13, 2018.