Divorce: What It Can and Cannot Do for You

Most people who are seriously contemplating divorce had a faint idea of what to expect. They have seen it in the movies and on TV. Some of them even know one or two persons who have been through a divorce. This type of second hand information does not really help much. Divorce can be an emotionally stressful and frightening event. Not only do you have to suffer emotionally, you will also have to deal with division of property and starting afresh. Although it is not possible to predict what will happen next in a divorce proceeding, it is always beneficial to have realistic expectations from the divorce. You should understand what divorce can do and cannot do.

Can Do

Property Division

The divorce court will try to divide the marital property in the most just and equitable manner. In most states property acquired by the spouses prior to the marriage are separate properties of the spouses and will not be subject to division by the court in case of a divorce. However any property acquired during the divorce will be divided by the court according to the provisions of the state law. In Community Property states such as California, the martial property, i.e. property acquired during the marriage is divided equally. In other states, the courts will attempt to divide the martial property equitably after considering the financial circumstances of the spouses, their future plans and other factors.

Property division is not easily predictable. If you want to retain some of the martial property, consult with an experienced family law attorney and negotiate a settlement with your spouse regarding property division. For example, you can offer to give up your claim on the family home in exchange for your spouse waiving his or her claim on your business.

Support Obligations

The court will also decide who pays support to whom, how much and for how long. There are two types of support – spousal support or alimony and child support. Child support is generally determined according to the guidelines set by state law, but the court can deviate from these guidelines. When deciding on spousal support, the court will consider many factors including the earning capacity and the ability of the spouse who wasn’t working during the marriage to be gainfully employed. The circumstances of each case will be an important factor affecting the court’s decision.

Child Custody and Visitation

In case there are children from the marriage, the court will decide on who gets custody of the children and order the non-custodial spouse to pay child support to the custodial spouse. The non-custodial spouse will be awarded visitation rights. When deciding on the issue of child custody, the court will use the best interest of the child principle. Each court will interpret this principle differently and the exact circumstances of the case can also influence the decision of the court. When it comes to the issue of child custody, the decision of the court might not be the best possible solution. If you are able to negotiate and resolve the issue of child custody and visitation, it will help you in the long run.

Cannot Do

Guarantee Precise and Equal Division

The court order will not divide property and assets in an exact 50-50 ratio. Nor will the court order provide for equal time with the children. The judge will pass the orders based on the facts of the case before him. No two cases are similar. Often the order may not be as favorable as you would have wanted it to be. It is not possible to have a custodial order favorable to both spouses when one lives in New Haven, CT and the other in Albany, NY.

Ensure Civil Relations

The court can only pass the order but cannot guarantee compliance. It can however pass further orders to ensure compliance if either party fails to comply with the order but there is no way a court can guarantee that the other spouse will abide by the custodial or visitation arrangement ordered by the court. Divorce does not make an ex-spouse any less a parent. In the interest of your children, you should allow your ex-spouse access to the children as ordered by the court.

Maintain Your Standard of Living

A divorce court can only pass orders for payment of support but cannot pass any other order to ensure that the lesser earning spouse is able to maintain the same standard of living he or she was used to during the marriage. It is a fact that the financially weaker spouse will not be able to maintain the same standard of living after the divorce and there is nothing the court can do about it.

Resolve Emotional Issues

The court can only decide on the legal issues of the divorce. You will have to deal with the emotional issues by yourself. The court orders will not heal your emotional wounds and will not be a substitute for therapy and support.

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