Category Archives: Divorce

Creative Ways of Handling Marital Property

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When parties are unable to reach their own decisions regarding how to divide their property, many courts often split the property evenly without regard to whether this split makes the most sense for the parties.  Through mediation, the mediator may suggest creative ways of determining how to divide marital property including:

Consider the Value to Life

Rather than focusing only on the monetary aspect of property, a mediator may suggest dividing property in a manner that takes into account the value that the property will add to each person’s life.  For example, if the couple has a marital home and a vacation home of very different values, the mediator may suggest giving each person one of the properties because each can provide a suitable residence to each spouse.  The same may be completed with vehicles and with recreational items. 

Adjust Spousal Support

Many courts do not use a specific formula to determine how much spousal support to award and instead look at a number of factors in determining this issue.  However, spouses are often better equipped to realize how much additional support will be necessary for the lower-earning spouse to maintain the same lifestyle.  The spouses can also consider trading off assets so that the spousal support obligation is reduced.  For example, if the couple owns additional residences that can be used as rental income, this amount of rental income can be deducted from the spousal support amount. 

Prolong Division

In some cases, it may not serve the parties’ best interests to liquidate assets immediately and divide them.  For example, the real estate market may be lagging behind and the parties may prefer to hold onto the property until there is new demand in the market.  Tax consequences may make it detrimental to liquidate stocks or retirement funds, so the parties may agree to an equalization later in time. 

Considerations for Alimony Agreements

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Parties who do not initially agree on alimony matters may disagree about the parameters surrounding the payment of spousal support. Some considerations when negotiating an alimony agreement include:

Purpose of Alimony

The parties may be at odds as to whether alimony should be paid at all. Alimony is meant to provide financial support to a lower earning spouse, often in recognition of that spouse’s contribution to the marriage that may have negatively impacted his or her earning potential. A spouse who receives alimony can work on becoming financially independent while having enough funds to remain solvent after a divorce.

Length of Alimony

Another point of contention between spouses is how long alimony should last. The appropriate amount of time for how long support should remain in effect depends on the particular circumstances. For example, if alimony is paid so that the spouse can receive additional training or education to be able to work in a new career with greater earning potential, alimony may only be necessary until such education or training is obtained. Spouses may be able to work together on coming up with an agreement regarding this provision and others in order to make their divorce less contentious.

Amount of Alimony

Another source of friction may be the amount of alimony that one spouse should be required to pay. In some cases, a creative property distribution or use of other resources can help minimize the amount of alimony that will be necessary for support.

Modification of Alimony

The spouses may wish to reach an agreement regarding when the alimony plan may need to be revised, such as if the paying spouse has a change of income or develops a serious illness. Mediation can help the parties consider when an event is considered substantial enough to warrant a change in the agreement.

Effective Co-Parenting Techniques

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Going through a divorce is most difficult for the children. Conscientious parents who want what is best for them may take strides toward achieving a positive co-parenting relationship for the sake of their children. Some ways that parents can make the most of this difficult transition include the following:

Handle Difficult Emotions

Divorce can make a number of complex emotions to build up, including anger, sadness, grief, betrayal and fear. These feelings can emerge in the parents and their children. It is important that all parties be able to effectively communicate these emotions in order to work through them. Talking through these emotions honestly can often help aid families. The family may decide to talk through this information during mediation or in counseling. Once the parties are able to acknowledge these difficult emotions, they can discover ways on how to manage them.

Get on the Same Page

One of the most effective ways for parents to co-parent is to work together on a mutual agreement. Such an agreement can take into consideration several factors that can affect the family’s lives. This may include discussing how to handle living arrangements while a divorce action is pending, how holidays will be celebrated, how support will be allocated and other important issues and resolutions for short-term and long-term consideration. A mediator can help parents come up with an agreement that works best for all members of the family. Once these important decisions are decided, the parents can mutually communicate this plan to their children.

Help Each Other

Through the course of divorce and making the parenting plan, each spouse should strive to find ways to help the other. For example, the agreement can include a provision that takes into consideration the timing of when parents get out of work so that complying with the agreement does not pose a hardship. It can also include a provision that provides for a parent who has always participated in a certain extracurricular activity to remain active in this capacity. By helping each other, parents show that they can work together and depend on each other.

Changes that May Justify a Child Support Modification

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Like most court orders pertaining to children, child support orders can be modified when the circumstances call for it.  Some of the common reasons why a child support order may need to be changed include:

Income Has Changed

Child support calculations often take both parents income into consideration when determining the proper amount of child support to be paid.  Therefore, if either income changes, a child support modification may be desired.  If a supporting parent loses a job or has reduced hours, he or she may ask for a reduction in child support.  The parent is obligated to continue paying support until a modification is ordered.  Modifications may be temporary or permanent in nature.

Expenses Have Changed

Child support can also be based on the child’s anticipated expenses.  If the child’s expenses go up because he or she becomes disabled, has expensive extracurricular activities or has increased educational expenses, the receiving parent may ask for an adjustment in the child support amount.

Supporting Parent Has Additional Obligations

A supporting parent may start a new family and have additional children to support from within his or her own household.  Child support can often be modified if circumstances change that justify this modification.

Supporting Parent Has a Disability

A supporting parent may ask for a modification in child support if he or she suffers an injury or develops an illness that prevents him or her from working.

If both parents agree to the proposed modification, they can submit the agreement to the court to be converted into a new order.  They may be able to reach a new agreement through the assistance of mediation.  If the parties cannot reach an agreement regarding a proposed modification, the party wanting the change will have to file a motion with the court asking for the modification.

Key Aspects of Collaborative Divorce

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Historically, divorce has been a contentious process, often being labeled as “bitter” by spectators. However, divorce is in essence a business deal. The spouses must usually reach some solution regarding their existing assets, child custody, visitation and child support matters. Most divorces end in settlement. Collaborative divorce provides an alternative to the adversarial process involved in most divorces.

Cooperation

One key aspect of collaborative divorce is the emphasis on cooperation. In an adversarial divorce, the parties often take opposing sides on major issues and have their attorneys’ battle out a negotiation. In collaborative divorce, the parties work together and come up with solutions that work for them and their families.

Focus on the Future

In some divorce cases, the emphasis tends to be on the past. One party may feel aggrieved and entitled to a greater stake of the marital estate because he or she has been wronged. In collaborative divorce, the focus is on the future. The parties think about how they will both be able to survive and thrive after the divorce. More thought goes into the settlement process which focuses its attention on making both parties solvent after the divorce.

Customization

Many court orders include standard language that is given to many different couples in different situations. A collaborative divorce focuses on the individual needs and interests of the parties. Agreements that are brought about by collaborative divorce are often much more detailed and thorough as they showcase the actual intent of the particular parties involved, rather than providing a basic roadmap in a generic manner. When parties are instrumental in the creation of the agreement, they are more likely to abide by the terms than when an order is simply imposed on them by another individual.

Benefits of Using ADR to Establish Paternity

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While it may not appear so, paternity can be a complex topic. Generally, the courts will look to certain actions to determine a child’s legal parent, which can make matters complicated.

For example, courts will look to determine if a father has signed the birth certificate or completed an acknowledgment of paternity. However, this can be a complicated process as many states permit a father to contest paternity even after signing a form of this nature. However, the court often requires a specific type of paternity test to be completed before it will disavow someone as the father. This often includes ordering a paternity test in court and having the results clarify the situation.

In some instances, a person who is not the biological father of a child may contest paternity and may still be required to support the child even if it is determined he is not the child’s biological father. This can be due to a married father being presumed to be the father, a father not having enough evidence to refute such a presumption or because of state laws that limit the amount of time a father has to contest paternity.

Rather than dealing with these legal complications, some parties use alternative dispute resolution to verify paternity. ADR often provides a more private experience so that the party’s interactions and grievances do not have to be aired out in court. Additionally, ADR tends to be less contentious and hostile than many family law cases that are contested. By using this process to establish paternity, the groundwork is laid for an amicable process to determine other rights, such as custody or visitation.

Legal Separation Issues Prime for Mediation

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When parties have reached the conclusion that they would like to separate but are not quite ready for divorce, they may choose to get a legal separation. In many states, the date when a legal separation is issued can be very important because it may mean that other facets of a couple’s life are separated, such as income and property rights. Many times, a couple’s separation agreement may later be incorporated into the divorce agreement. When the parties are able to reach their own agreement, they can often save money from expensive legal fees. For this reason and others, mediation may be sought so that the parties become a proactive part of the agreement. Some provisions that spouses may wish to include in their separation agreement include:

Property Division

When this issue is litigated, both of the parties may wind up dissatisfied. Judges do not take sentimental value and other such factors into consideration. Instead, there is often a certain balance that must be achieved and each item is given a certain value. When the parties are able to mediate this issue, they can decide for themselves who should receive each item without the worry of losing property that is more personally valuable to them.

Parenting Plan

The sooner the parents can form an amicable relationship as co-parents, the better for the children. While courts often issue standard visitation and custody orders, parents are in a better situation to tailor a plan in a way that will work for them and take individual considerations into account, such as school activities and work schedules. They can also include more customized information in their parenting plan, such as visits with extended family, childcare arrangements, vacation notification policies and plans to address potential problems that may arise.