Divorce & Separation

DIVORCE BASICS

AGREEMENT

When contemplating a divorce or separation, a couple will need to reach agreement in one or more of three general areas.

(1) Parenting of children

(2) Support of children and/or spousal support (read "Child Support Obligation")

(3) Equitable division of marital assets and liabilities (read "Marital and Separate Property")

There are three ways to achieve this agreement.

(1) Through MEDIATION where the couple meets with a neutral mediator to explore settlement options and to arrive at agreements the parties feel best meet their needs and the needs of the children, if any (read "About Mediation").

(2) Through the COLLABORATIVE FAMILY LAW process where each party is represented by a specially trained collaborative attorney. Settlement discussions are most often carried on in a four-way meeting among the parties and their respective attorneys, although each party remains free to meet with his or her attorney as needed.. As with mediation, resolution is reached by the parties. In collaborative law however, each party has an attorney by his or her side to provide on-the-spot legal advice and to assist in creative problem solving along the way (read "About Collaborative Family Law").

(3) Through the traditional route of a CONTESTED matrimonial action where each party retains a matrimonial attorney to speak for him or her and to negotiate a settlement with the goal of obtaining the best possible outcome for the party. This process takes place in an adversarial system that in the best case scenario, results in a reasonable settlement for both parties and in the worst case, results with one party winning and the other party losing.

PROPERTY RIGHTS

The law of divorce is known as the law of EQUITABLE DISTRIBUTION. The word equitable connotes fairness. Thus, the law of equitable distribution is meant to achieve a fair distribution of marital property and support. However, the more control the parties can assert over the outcome, the more likely they will be to feel the agreement is fair for their particular situations.

Final decisions will be made by the parties, alone or with the assistance of their attorneys, or failing that, by a judge. If parties cannot agree on an outcome, they have the right to be heard at a trial where they will present their case to a judge who will then make a final and binding decision.

The law of Equitable Distribution regards a marriage as an economic partnership between the parties. Fault is not usually a factor in the final distribution of marital property and a person does not lose his or her interest in the property by allowing the other party full use of that property.

GROUNDS FOR DIVORCE