How does divorce really work
May 24, 2010 1:57 PM Subscribe
My husband and I are going through counseling after 12 years of marriage. It's possible that we won't make it. What are the practicalities of divorce, and how does it really work?
I know you are not my lawyer, and that I would need to get one. But, before that happens, can someone explain the ins-and-outs of divorce? If it's a reasonably amicable divorce, are things (property, money, cars, etc.) just split down the middle? How does custody work? Child support? I really want this to work, so I don't want to think or dwell on divorce as a possible outcome, but I need to be prepared. Some details: We have an elementary-school aged child; Husband is the primary breadwinner; I was at fault (infidelity); location: Illinois. Email: areallywittymailname@gmail.com
I know you are not my lawyer, and that I would need to get one. But, before that happens, can someone explain the ins-and-outs of divorce? If it's a reasonably amicable divorce, are things (property, money, cars, etc.) just split down the middle? How does custody work? Child support? I really want this to work, so I don't want to think or dwell on divorce as a possible outcome, but I need to be prepared. Some details: We have an elementary-school aged child; Husband is the primary breadwinner; I was at fault (infidelity); location: Illinois. Email: areallywittymailname@gmail.com
If it is amicable, look into mediation rather than lawyers straight away.
posted by JohnnyGunn at 2:38 PM on May 24, 2010 [2 favorites]
posted by JohnnyGunn at 2:38 PM on May 24, 2010 [2 favorites]
Try and keep it as amicable as possible. My ex-wife and I came to an agreement and filed the papers ourselves. No lawyers, total cost was the filing cost + some printing costs.
posted by unixrat at 2:44 PM on May 24, 2010
posted by unixrat at 2:44 PM on May 24, 2010
I'm very sorry you're going through all of this. Background: I'm a divorced mom, primary custody of 3 kids, was married for 17 years to a trust fund millionaire who promised he'd treat us fairly (but then the lawyers got involved. And they managed to let him keep just about everything, as the assets were in a family trust with a will worded such a way that the trust ended with my ex with no mention of who it was then passed on to, so my kids got $0.).
However, the ONLY person who you want to answer these questions is a divorce lawyer.
The only advice I'd give you is to ask around for a good one. Take your time interviewing them. Having a good lawyer on your side makes a world of difference.
In many cases, the divorce process starts out amicably and everyone wants to be fair.
But somewhere down the road, lawyers get involved and things unfortunately turn ugly.
You will need a very strong divorce attorney representing you because this document is something you will have to live with for the rest of your life.
But here are your short answers: IN GENERAL, assets are listed and divided evenly; child support is paid to the custodial parent (and it ain't much); custody and visitation will be agreed upon by the adults; and in most states, it doesn't matter who's at fault for the divorce.
But if there's a glimmer of hope, don't get divorced.
posted by dzaz at 2:47 PM on May 24, 2010
However, the ONLY person who you want to answer these questions is a divorce lawyer.
The only advice I'd give you is to ask around for a good one. Take your time interviewing them. Having a good lawyer on your side makes a world of difference.
In many cases, the divorce process starts out amicably and everyone wants to be fair.
But somewhere down the road, lawyers get involved and things unfortunately turn ugly.
You will need a very strong divorce attorney representing you because this document is something you will have to live with for the rest of your life.
But here are your short answers: IN GENERAL, assets are listed and divided evenly; child support is paid to the custodial parent (and it ain't much); custody and visitation will be agreed upon by the adults; and in most states, it doesn't matter who's at fault for the divorce.
But if there's a glimmer of hope, don't get divorced.
posted by dzaz at 2:47 PM on May 24, 2010
I hope you don't need it, but I highly recommend Nolo's Essential Guide to Divorce. It is the book I used when my ex-husband and I divorced. It will answer your questions, and help you determine whether or not you need a lawyer. If you are able to come to an agreement together, I don't think you necessarily need one.
posted by apricot at 4:18 PM on May 24, 2010
posted by apricot at 4:18 PM on May 24, 2010
Another vote for the Nolo Press book, and for filing the papers yourself (or with the help of a paralegal, our ultimate solution) if it comes to that.
posted by chicainthecity at 7:15 PM on May 24, 2010
posted by chicainthecity at 7:15 PM on May 24, 2010
First off, as long as you're able to come to an agreement (and, in the case of children, the courts agree that your agreement is in the best interests of the children), you have a great deal of leeway to hash out the details of your financial settlement and child custody/support arrangements on your own, for final approval by a judge. For example, if you were so overcome with guilt that you wanted to walk away from every shred of marital property, a judge would probably look at you cross-eyed before signing off on it, but there's no rule saying you can't.
Obviously, I'm not recommending you do this, just pointing out that the "rules" of divorce mostly come into play when the couple can't come to an agreement that they both feel is fair and equitable, and the court has to make a decision for them.
Whether "the rules" say things are split down the middle depends on whether you're in a community property state or equitable distribution state. In a community property state (the minority of US states), things are split 50/50. In an equitable distribution state (incl. Illinois), if the judge is asked to make a final ruling, many other factors can come into play, and the split may favor one party or another depending on a lot different things. There are also special circumstances for premarital property, inheritances, etc.
On custody: if the divorce is amicable, custody can work out however the parties think is best for the child(ren). Custody is often divided into two aspects: "legal custody", which means who has the right to make major decisions about/for the child (school, medical, religious, etc.), and "physical custody", which means where the child stays.
I think one of the biggest misunderstandings about divorce for the novice is that there is necessarily "a" custodial parent, rather than two parents who share custody: "who gets the kids?". "Both" is an extremely viable answer if the parents are able to cooperate, and evidence points--in the absence of serious hostility between the parents--to shared physical custody being the best custody arrangement.
I participated in a divorce support forum for almost a decade starting with my own divorce back in 1999, and I knew/met lots of women and men who were in shared parenting arrangements of one sort or another, including parents that had been sole breadwinner father/housewife prior to the split. I recall a lot of recommendations for the book Mom's House/Dad's House.
If it comes to that. Which...yeah. Marriages are far more fixable than most people given them credit for, and divorce will put your world in a blender for a long, long time, and even if things do turn out ok in the end, there are lingering (negative) aftereffects, like, forever.
posted by drlith at 8:24 PM on May 24, 2010 [1 favorite]
Obviously, I'm not recommending you do this, just pointing out that the "rules" of divorce mostly come into play when the couple can't come to an agreement that they both feel is fair and equitable, and the court has to make a decision for them.
Whether "the rules" say things are split down the middle depends on whether you're in a community property state or equitable distribution state. In a community property state (the minority of US states), things are split 50/50. In an equitable distribution state (incl. Illinois), if the judge is asked to make a final ruling, many other factors can come into play, and the split may favor one party or another depending on a lot different things. There are also special circumstances for premarital property, inheritances, etc.
On custody: if the divorce is amicable, custody can work out however the parties think is best for the child(ren). Custody is often divided into two aspects: "legal custody", which means who has the right to make major decisions about/for the child (school, medical, religious, etc.), and "physical custody", which means where the child stays.
I think one of the biggest misunderstandings about divorce for the novice is that there is necessarily "a" custodial parent, rather than two parents who share custody: "who gets the kids?". "Both" is an extremely viable answer if the parents are able to cooperate, and evidence points--in the absence of serious hostility between the parents--to shared physical custody being the best custody arrangement.
I participated in a divorce support forum for almost a decade starting with my own divorce back in 1999, and I knew/met lots of women and men who were in shared parenting arrangements of one sort or another, including parents that had been sole breadwinner father/housewife prior to the split. I recall a lot of recommendations for the book Mom's House/Dad's House.
If it comes to that. Which...yeah. Marriages are far more fixable than most people given them credit for, and divorce will put your world in a blender for a long, long time, and even if things do turn out ok in the end, there are lingering (negative) aftereffects, like, forever.
posted by drlith at 8:24 PM on May 24, 2010 [1 favorite]
It is not always the introduction of lawyers that makes things hostile - sometimes it is a child preferring to live with one parent or one spouse remarries or financial situation changes radically (either hitting it rich or lengthy unemployment) or somehow one person starts to feel hurt or vulnerable and takes the "best defense is a good offense" approach. I've seen some fall apart during the divorce and other had effective co-partnering for a couple years and then bitter attacks afterwords. Furthermore, your divorce degree is forever - if a couple is not getting along, it is very hard to change anything without the consent of the other. If you use lawyers at all, make sure you get a good one.
In terms of finances, there is are a couple of different pieces of the pie:
- the initial split of property
- spousal support (money to you to fund the transition back to earning your own living)
- child support depending on the custodial arrangment (even with joint custody if the child is living more with one than the other, the finances will reflect that)
- agreement about who pays for other child related expenses (eg. father has to keep child on his health insurance or if parents have commitment to support such as college tuition after child turns 18)
posted by metahawk at 10:16 PM on May 24, 2010
In terms of finances, there is are a couple of different pieces of the pie:
- the initial split of property
- spousal support (money to you to fund the transition back to earning your own living)
- child support depending on the custodial arrangment (even with joint custody if the child is living more with one than the other, the finances will reflect that)
- agreement about who pays for other child related expenses (eg. father has to keep child on his health insurance or if parents have commitment to support such as college tuition after child turns 18)
posted by metahawk at 10:16 PM on May 24, 2010
It's possible that we won't make it. Is it possible that you will? I hope things work out for your family.
If it's a reasonably amicable divorce, are things (property, money, cars, etc.) just split down the middle? How does custody work? Child support?
My understanding is that you will come to an agreement on your priorities (e.g. keeping things smooth for your child, avoiding a stressful court situation; distributing assets evenly so neither party feels wronged, making a clean break and getting out asap) and act from there. Things can be split any way you want, i.e. go down the middle but if one of you really wants a particular item, the other one will give it up or negotiate for something else in return. If one person has been wronged or will be keeping the kid(s), they might have more leverage in getting the things they want. If just getting out with a minimum of injury is a priority, then one person might end up keeping more than the other. Just give it up and move on.
If you can make an agreement together (with mediation; you can each get your own lawyer to help with this), custody works any way you want it to. Counselors/lawyers may be able to suggest ideas. Court only comes into play if you guys can't agree on your own. If one parent feels strongly that the child(ren) should be with them, the other may have to compromise. Joint custody gives the kid(s) equal time with each parent (and each parent's new family, if applicable), but it can be hard to move back and forth. Living with one parent is more stable, but you have to work to make sure that your child gets to know both parents -- again, only if that is a priority, and it might require a level of interaction that you don't want to have with your ex-spouse. There are mechanisms in the government to ensure that child support is paid, and I believe it can be done in a pretty automatic way so that you don't have to interact if you don't want to. One thing to watch for is how you speak about each other to your child, even at this stage in the process. Try to present a united front. "Your daddy did this" and "Tell your mom she shouldn't be so ___" are toxic phrases.
posted by ramenopres at 9:00 AM on May 25, 2010
If it's a reasonably amicable divorce, are things (property, money, cars, etc.) just split down the middle? How does custody work? Child support?
My understanding is that you will come to an agreement on your priorities (e.g. keeping things smooth for your child, avoiding a stressful court situation; distributing assets evenly so neither party feels wronged, making a clean break and getting out asap) and act from there. Things can be split any way you want, i.e. go down the middle but if one of you really wants a particular item, the other one will give it up or negotiate for something else in return. If one person has been wronged or will be keeping the kid(s), they might have more leverage in getting the things they want. If just getting out with a minimum of injury is a priority, then one person might end up keeping more than the other. Just give it up and move on.
If you can make an agreement together (with mediation; you can each get your own lawyer to help with this), custody works any way you want it to. Counselors/lawyers may be able to suggest ideas. Court only comes into play if you guys can't agree on your own. If one parent feels strongly that the child(ren) should be with them, the other may have to compromise. Joint custody gives the kid(s) equal time with each parent (and each parent's new family, if applicable), but it can be hard to move back and forth. Living with one parent is more stable, but you have to work to make sure that your child gets to know both parents -- again, only if that is a priority, and it might require a level of interaction that you don't want to have with your ex-spouse. There are mechanisms in the government to ensure that child support is paid, and I believe it can be done in a pretty automatic way so that you don't have to interact if you don't want to. One thing to watch for is how you speak about each other to your child, even at this stage in the process. Try to present a united front. "Your daddy did this" and "Tell your mom she shouldn't be so ___" are toxic phrases.
posted by ramenopres at 9:00 AM on May 25, 2010
nthing mediation. I do freelance work for such an attorney (but not in your state, sorry!) and his approach, as well as other mediators I've met, is much more humane than airing everything in open court. As long as there are no extremes (stubborn spouse, issues with the children), a good mediator should be able to help you find balance, especially if there is custody and care of a child involved.
Please consider mediation if you can!
posted by kuppajava at 9:34 AM on May 25, 2010
Please consider mediation if you can!
posted by kuppajava at 9:34 AM on May 25, 2010
This thread is closed to new comments.
Good luck, and do what you can to avoid having it come to that.
posted by devbrain at 2:05 PM on May 24, 2010