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As a collaborative attorney, I am often asked “what would a court do?”  Although parties in a collaborative divorce are not asking the court to make decisions in their case, what the law is and how a court may view an issue is important.  It is part of the information that a client needs to understand to truly make a decision in their own best interest. I recently attended an education series with local judges to gain an understanding of the current state of the law. In the second part of this 2 part series, I outline some of the factors a court may consider in making litigated decisions. On property division and cash flow, here are some of the considerations:
  • When dividing assets and liabilities, the courts often begin with an accounting and confirmation of all real estate, accounts, retirement assets, investments,  stock options, inheritances,  gifts,  debts,  personal property, vehicles, and all other possessions.
  • The courts have to differentiate between marital property that was created or acquired during the marriage and non-marital property that should stay with one party.  Non- marital property may include assets from before marriage,  gifts or inheritances, and student loans.
  • Non-marital property stays with the receiving party.  Marital property is divided equitably. This is often interpreted as equally,  although there are some exceptions if the outcome is deemed unfair.
  • Division of property is a separate question from cash flow (child support and spousal maintenance).
  • Child support in court is often calculated with the guidelines based on percentage of overnights with each parent and incomes.  Then medical expenses and extra curricular activities are shared by percentage of income.
  • Spousal maintenance or alimony is a discretionary area of the law. It is based on the needs of the recipient and the ability of the other spouse to provide support.
  • Court requires an analysis of budgets and income or potential income of both parties.  It can be difficult to address income if a party has not or is not working.
  • Some of the factors for determining support include: length of the marriage, education and age of the spouses with regard to work ability, work history, parenting needs of children, and reasonableness of expenses.
  • Because spousal maintenance is one of the most discretionary areas of family law,  it is difficult to find consistent outcomes in the court as every case is decided based on the individual facts (and judge).
A collaborative process is a different paradigm but clients have the same legal rights as parties in court.  Know what the law is and what a court may do and then make well informed decisions. A good collaborative attorney can help in this journey.
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155391642-family-law-gettyimagesAs a collaborative attorney, I am often asked “what would a court do?”  Although parties in a collaborative divorce are not asking the court to make decisions in their case, what the law is and how a court may view an issue is important.  It is part of the information that a client needs to understand to truly make a decision in their own best interest. I recently attended an education series with local judges to gain an understanding of the current state of the law. In this 2 part series, I outline some of the factors a court may consider in making litigated decisions. On parenting  and custody, here are some of the considerations:
  • A court first needs to establish jurisdiction and make sure they are the correct court to make a decision.  This can often be a substantial (although non- substantive) part of the process.
  • The first decision is legal and physical custody.  Legal custody is decision making and legal parenting rights. Do you jointly make decisions on medical, education and religion or does one of you have sole rights?   Physical custody outlines the parenting time with each parent.
  • There is a presumption that both parents have a meaningful role in making decisions and regular contact with the children.
  • All other elements of parenting are based on the best interests of the children.  This is an in depth analysis that considers the developmental stage of the children,  safety,  and common values of the family.
  • Some particular challenges in custody and parenting can be:  domestic abuse,  chemical dependency,  high conflict,  special needs of the child,  reunification with an absent parent,  and temporary plans with revision.
  • It is rare for a child to testify in court or be asked for their opinion on parenting.

A collaborative process is a different paradigm but clients have the same legal rights as parties in court.  Know what the law is and what a court may do and then make well informed decisions. A good collaborative attorney can help in this journey.

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Divorcing couples often think that they will be “done” when the court documents are signed and the divorce is finalized, and that there will be only smooth sailing ahead. But, after the documents are finalized, there is the new normal to navigate, particularly regarding parenting. Co-parenting while no longer cohabiting is a huge adjustment for families in the wake of a divorce. Although co-parents are no longer married or living under the same roof, they are still in the same boat when it comes to raising their children, and so communication and cooperation is more important than ever. After a divorce, co-parents’ attitude towards each other must be “All hands on deck!” instead of “Abandon ship!” or “Hey, you! Walk the plank!” Co-parents who continue to diligently communicate and cooperate in raising their children are much better captains over the course the children’s lives will take. Of course, regardless of the situation, children sometimes try to play parents against each other in hopes of getting what they want. This attempt at mutiny often begins something like this: “Mom/Dad said I could…”, and with no confirmation of the other parent’s consent, Mom/Dad agrees to let the child do x,y, or z. Important information can be distorted or omitted altogether when children are placed in the middle of what should be an adult conversation about what is appropriate for children. This scenario can be avoided through active communication and cooperation between co-parents. Co-parents that work together to divide and conquer life’s challenges after divorce keep their family afloat in the inevitable waves that come with life.