Basics of Divorce
If you are getting divorced, whether with an attorney or on you own, you will want to have a plan to resolve the most common issues and controversies in any divorce. Make sure that any agreement or stipulation you come to has a plan to deal with these four key areas.
Child Custody and Parent Time
If you have minor children, you need a plan to deal with matters of custody and parent time. In its simplest terms, this means who gets the children when, and who is responsible to make decisions for them. The State of Utah has several possible schedules, including a mandatory minimum, but you are free to craft a schedule that fits your children’s needs. Just remember that whatever you choose will need to be practical for you and stable for the kids. Switching every other day, for example, is hard for parents and hard on kids. Try to come up with a schedule that gives blocks or chunks of time with each parent. You’ll also want to make sure to cover holiday schedules, birthdays, summers, and what will happen if one parent moves.
Child support is one of the simplest and yet most contentious aspects of most divorces. The actual amount of child support is set by statute. You can can find a child support calculator on the utcourts.gov website (or just google it). Put in each parent’s gross income, the number of children, and the number of nights the children will spend at each parent’s house and the calculator will spit out the child support number. Child support payments go to the parent with physical custody (usually the parent with whom the kids spend the most nights). Keep in mind that child support is the right of the children, not the parent, so it cannot be negotiated away as part of the divorce. Related to child support, you will also need to decide who will clailm the children as dependents on their income tax returns. You cannot both claim the same child in the same year. The most common arrangement is to claim the children in alternate years.
Alimony (also called spousal support) is a continuation of the marital responsibility to support one another. In a typical scenario, a wife has stayed home with the kids to allow the husband to work and build a profitable business or career. When they get divorced, the wife finds that she lacks the experience and job skills to support herself. So the law requires the husband to continue to support her until she can support herself. Alimony is intended to be temporary and supplemental. It is generally awarded for a fixed number of years. A good rule of thumb is that alimony is awarded for half the duration of the marriage (ten year marriage=five years of alimony). The amount of alimony is not fixed like child support, but generally balances the receiving spouse’s needs with the paying spouse’s financial resources. Alimony can also flow from wife to husband, although this is less common. Alimony is flexible, and can be waived in exchange for a larger share of property, for example. Alimony is not awarded or appropriate in every case. In marriages of short duration it is rarely awarded. Likewise, where both spouses have worked consistently during the marriage, it will not usually be awarded. Alimony automatically terminates on the remarriage (or cohabitation) of the receiving spouse.
Property and Debt Division
Your divorce decree will also need to provide for the orderly division of marital property. With some exceptions, the general rule is that property that you bring into the marriage is yours to keep, while property acquired after the marriage needs to be divided between the spouses. This includes real property, like a marital home, personal property, like electronics and furniture, and titled property, like cars. For non-divisible property, like a home, one party may need pay the other half of the cash value of the property (with real estate, this is usually accomplished with a refinance). Bank accounts, investments, and cash will likewise need to be divided. Retirement accounts are usually divided using the “Woodward Formula,” which takes into account the length of the marriage and the value of the account. Just like property, any debt acquired during the marriage will need to be divided between the parties. This includes mortgages, car payments, and consumer or credit card debt. Often, the party receiving the property associated with the debt will also assume the debt. So whichever spouse gets the car will also take over the car payment, for example.
However you decide to structure your divorce, keep in mind that simplicity is essential to a clean break. The more complex or complicated your arrangement is, the more likely it will lead to problems and additional litigation down the road.