NEGOTIATING A DIVORCE SETTLEMENT
Negotiating Settlement
For any divorce to be recognized as legitimate, court action is required. That said, a divorce does not need to go to trial. Actually, most divorces conclude with a settlement agreement approved by the court. Settlement can occur at any time before the divorce ruling, but it is more likely after the discovery stage. After discovery, each party gets a clear understanding of all salaries, debts, and assets. This permits the lawyers to each work with both parties to achieve acceptable terms for both sides. Settlements can resolve one or all of the three noteworthy segments of a divorce—property division, support obligations, and child custody.
After both clients begin to see the “big picture” concerning each spouse’s income, debts, and assets, this allows the attorneys to each work with their clients and opposition to reach agreeable terms. Settlements can resolve one or all three major components of divorce—property division, support obligations, and child custody.
Property Division
Property acquired during the marriage is considered marital property and must be divided as part of the divorce action. This might include the spouses’ home, vehicles, and retirement accounts. Much like marital property, debts accrued during the marriage must also be divided fairly amongst the spouses. The most common form of marital debt is a mortgage on the spouses’ home. The court will decide how to divide the assets and debts to achieve a fair result.
When it comes to their property, spouses are the experts. The spouses know their property better than anyone else, making this a prime area for agreement and settlement. This is particularly true when the spouses have deep personal attachments to various property or specific plans for other items. The court will hear all relevant considerations regarding such property. Still, at the end of the day, the court alone will decide which spouse received which property. This motivates most couples to reach agreements that each is happy with, rather than risk the court issuing a division that may not serve either party’s interests. This part of the divorce proceeding is a key area for settlement.
Marital property and debts must be divided as part of the divorce proceedings. Marital property is the property that is acquired during the marriage, rather than before it or after separation. Common marital property includes the marital home, vehicles, and retirement accounts. Debts acquired during the marriage are considered to belong to the couple as a whole. The most common example of this is a mortgage on the marital home. These assets and obligations must be divided fairly, a process the court refers to as equitable distribution.
Support Obligations
Spousal support and child support are both pertinent when proceeding with a divorce. Spousal support is also known as maintenance or alimony. The purpose of spousal support is to enable a spouse to maintain the lifestyle they lived throughout the marriage. Although spousal support is not appropriate in every situation, circumstances involving spouses who have been married for an extended period may make it more critical. This is especially true when one spouse has decided not to work and instead focuses on raising children. In this case, the court does not want to punish the spouse who may be supporting the marriage in ways other than financial support, so support will probably be awarded. Awarding spousal support often enables a spouse to progress toward economic stability after divorce. It can also help with attending school or training that will aid in re-entering the workforce.
Child support is quite different from spousal support. First, child support will almost always be required when the marriage has produced children who are still minors. Kansas uses a formula to calculate a presumed child support amount, adopted to make support obligations more consistent and less controversial. This formula uses parents' income, the custody arrangement, and other factors to arrive at a presumed amount. Thus, the amount of child support is much easier to calculate. This makes it an easier source of the agreement, so long as custody is agreed upon.
Child Custody
The final facet of a divorce proceeding is usually the most difficult to reach an agreement upon. Each parent will likely have strong, unchanging preferences on child custody. The residence of the children will affect where they go to school, the holiday travel plans of the parents, and countless other aspects of each spouse’s family life. Even in joint custody arrangements, dividing holidays, summers, and weekends can prove difficult and emotionally charged. As a final barrier against an agreement, specific custody schedules can directly alter the amount of child support a parent owes or receives. These factors come together to make child custody the most hotly contested portion of most divorce negotiations.
Child custody is investigated with extraordinary examination by the court. Regardless of whether the parties fully consent to a custody plan, the court must consider what is in the children's best interests, and it may decline an agreement. The court will likewise use this metric if custody cannot be settled before the trial. This makes custody agreements increasingly vital, as the parents and the court must all agree. Given that custody can directly affect the amount of child support awarded, it is key to reach an agreement on custody.