Happy New Year! Our hope for you is that this year is full of happiness, friends, family, and fun. We have all made our New Year’s resolutions and if your resolution is to seek divorce, you aren’t alone.
Over the past several years January has come to be known as “divorce month” because there is a higher than usual rate of separation or divorce every January. People don’t want to separate right before the holidays so they put off leaving, or maybe they want a fresh start for the new year and decide that January is the right time to separate. Whatever the case may be, we want you to be fully aware of the process and what to expect when you seek divorce. Depending on your individual domestic issues, it is also worth considering seeking couples therapy to avoid divorce altogether, but if you are truly unhappy then continuing to push off a divorce for holidays or birthdays will only rob you of further happiness. Many people stay in unhealthy or unhappy relationships for their children, but consider this: if your child were grown, how would you feel about him or her being in the situation you’re currently in? Finances are another reason people avoid divorce. Each situation is unique and only you know what you and your family need, but if you’re seeking legal advice you’re in the right place.
Here is some basic information about what happens during a divorce:
Equitable Distribution
Equitable Distribution is a process conducted by the court to divide marital property when spouses cannot decide how to divide the property on their own. There are three steps to equitable distribution: classification, valuation, and distribution.
1. Classification
If the parties do not settle during mandatory mediation, then a judge will identify all property (real or personal) and debts and will classify it as either separate, marital, mixed, or divisible property.
– Separate property is generally any property that is owned solely by one spouse, usually acquired by a spouse before the date of marriage. If an asset is separate property, it is not subject to equitable distribution.
– Marital property is usually property that is presently owned by both spouses that was acquired after the date of marriage and before the date of separation. If an asset is marital property, it is subject to equitable distribution.
– Mixed property is property that has components of both separate and marital property either because separate property increased in value during the marriage due to marital effort or because the property was acquired with both separate and marital assets. The portion of the mixed property deemed marital is subject to equitable distribution while any portion deemed separate is not.
– Divisible property is normally any sort of passive value increase or debt from marital property that occurs after the date of separation. Divisible property is subject to equitable distribution.
2. Valuation
After all property and debts have been identified and classified, the parties will gather all the information and documents necessary to show the value of the property and debts. Commonly, fair market value is assigned to any property found to be marital or divisible, the parties can also have their property appraised to determine the value. Generally, any valuation of the property or debt is made as of the date of separation but if there is any property that has significantly increased or decreased in value since the date of separation, that will be considered when the court reaches the distribution step. Whatever value is found for the property is what is subject to distribution.
3. Distribution
At this point, all the valued marital and divisible property and debts are distributed between the parties. Distribution usually ends up being 50/50, but a judge may decide to divide the property some other way if a 50/50 split is not found to be equitable.
Joint Child Custody
Joint custody is when both parents, who are either separated or divorced, continue to share the responsibility of parenting their children. Both parents remain actively involved in raising their children in some way. Joint custody may refer to either physical custody, legal custody, or both.
Physical custody refers to where the children will live. If parents are granted joint physical custody, that usually means the children will go back and forth between each parent’s home. If parents live close enough, it is common for the children to alternate full weeks or some alternating-day routine with each parent. Even if joint physical custody is granted, the children will be required to have a permanent address for medical records and for school, so one parent’s home will usually be the primary residence even though the children will go back and forth.
Legal custody refers to who makes the major decisions related to the children. These major decisions most commonly include healthcare, religion, school selection, and extracurricular activities. When parents are granted joint legal custody, one parent may not exclude the other in the decision-making otherwise they may be found to be in contempt of court. Joint legal custody does not mean that the parents share in the day-to-day decision-making, only decisions that have a long term impact on the children’s welfare.
We hope you’ve found this blog post enjoyable and informative. Thanks for reading, and have a happy new year!
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