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Many couples are able to work out their divorce issues on their own or with a mediator’s help. This is often the best option, because it gives the parties some decision-making power. The alternative, a full-blown divorce trial in court, takes all the decision-making out of your hands, and puts it into a stranger’s - the judge. The major issues in a divorce are as follows:
Child custody and visitation
Parents (or a judge) will need to decide how to split legal and physical custody. Legal custody means the right to make major issues involving the children, such as regarding their health, education and religion - this is usually shared jointly.
Physical custody refers to who will care for and supervise the children, and who the children will live with. The primary consideration is always the best interests of the children.
Child support
Courts use the state "child support guidelines" to calculate child support. This is a formula that’s based primarily upon the parents’ incomes, the number and ages of the children, daycare costs, and the amount of medical insurance costs for the family. Judge must follow the guidelines unless they make a written decision as to why a deviation is appropriate.
Alimony
Unlike child support, the question of alimony can often be a very difficult question to answer. There are no hard and fast rules for judges to follow.
There are, however, some general principles that usually hold true. In a short-term marriage, alimony is much less often required. The longer the marriage and the more disparate the earning capacities, the higher the alimony.
Dividing property
The first step to be accomplished with respect to the physical assets is to identify what they are and ascertain their value. In the long run, the court will seek to make an "equitable" (fair) division of all marital property. With a short marriage, the court will want to put the parties back where they were before the marriage. With longer marriages, the starting point in any determination of the division of assets will be 50/50. If one party wants more than 50%, they must convince the judge why this should be so. There are few and minor exceptions. The division of assets can be accomplished by selling property and dividing the proceeds or by division in kind employing set-offs of values one against another.
Judges are interested in big-ticket items. If the two parties cannot agree on a value, the item can be professionally appraised. If one of the parties doesn't accept the appraisal, or there are conflicting appraisals, the judge will make the decision as to value and may order the item sold, or divided evenly, if possible. That makes the appraisal moot.
Judges have little patience for low-value goods; pots and pans, or anything under a certain amount. Judges get angry if lawyers or clients fight about these things. If the parties are unable to agree, a judge will sometimes order the goods sold or just split them up arbitrarily. Judges don't want to deal with these issues and the time and cost of appraising small stuff and fighting about it is usually just not worth the trouble.
With respect to the family home, judges often prefer that the children be allowed to continue to reside in the former marital home for some period of time after the separation. The reason many judges give for this is that allowing children to remain in the family home provides some stability and helps make the divorce less traumatic for them.
As a result, the sale and division of the house is often postponed. How long it is postponed depends upon a number of factors, including the ages of the children, how long the children lived in the house, and the parents’ financial circumstances and assets.
Summary
It’s essential to make divorce decisions based on law and logic: not on emotion. Judges are not concerned with the parties' ideas of fairness. Making decisions about the divorce should be undertaken just as you would make rational decisions about investments.
If you have questions about divorce, you should contact an experienced family law attorney in your area.
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