This is a divorce process where the spouses reach an agreement on the terms of divorce. Examples of key terms would be: division of assets, division of debts, custody, and parenting time.
This is the easiest and simplest way to go through the divorce process. Not to mention, this is the safest approach. Otherwise, you and your spouse would be putting your fate in the hands of a judge.
A contested divorce is one with which the spouses are unable to reach an agreement on key negotiables which would allow for the marriage to be terminated. Furthermore, when legal counsel for both parties cannot reach terms of agreement, a court oversees the process to resolve the dispute.
For spousal support to be determined, the party seeking support fundamentally has to prove (1) there is a need for support and (2) the other party has the ability to pay. More broadly, this proof is evaluated based on 11 factors:
- past relations and conduct of the parties
- the length of the marriage
- the party’s ability to work
- the source and amount of property awarded to parties
- the ages of the parties
- the ability to pay spousal support
- the party’s present situation
- the party’s needs
- the party’s health
- the prior living standard of the parties and whether the parties support others
- general equity principles
A temporary order is a kind of relief granted to a party at the beginning of a trial or sometime before the final judgement. Some of these orders may include child support, possession of children, spousal support and many others. In some cases, temporary orders are granted ex- parte which means it is granted to one party without the other party’s knowledge. It is important to realize that temporary orders are only enforceable during the period of the divorce process but can become permanent and hence clients must seek counsel on all options available for a temporary order and final decision made.
Grandparenting time is also determined based on the best interests of the child. Based on the 2004 amendment, grandparents could seek grandparenting time based on certain factors. For example, if the child’s parent of who is the grandparent’s child is deceased or if the child’s parents are divorced, grandparenting time is likely to be approved. In a case where parents refute grandparenting time, the court would have to prove that this denial of grandparenting time affects a child’s mental, physical or emotional health in order for the refutation to be denied. In cases where step-parent have adopted the child, the process of acquiring grandparenting time is a little different. Grandparenting time is strictly given only to grandparents whose child is deceased.
Step parents are not mandated to provide child support. Nonetheless, some states have statutes that can mandate a step parent to provide child support when the child is living in the same household as the step parent. However, this would likely be the case if the child’s parent(married to the step-parent) is unable to provide financially for the child. (This is done through the Marital Settlement Agreement). Step- parents can also be ordered to pay child support in a case where they stand in as an acting parent for the child.
Debts are divided exactly how assets are divided. Often, the Court will use debts to balance out the distribution of assets in order to make sure that everything remains equitable. The person who gets the car usually also gets the car loan; the person who gets the house usually also gets the mortgage. In addition to keeping this equitable, this also helps to inventive someone to pay the debt. After all, it’s hard to get motivated about paying for the car that someone else is driving.
The short answer is “equitably.” You get what you had before the marriage, they get what they had before the marriage, and the rest of the stuff is fairly divided. That is to say, the Court is required to strive for a division that is fair and equitable to everyone involved. This does not mean that it has to be a 50/50 split, but it often ends up being close to that. In most cases, as long as it’s not suspiciously unfair to someone, the Court will approve whatever arrangement the parties agree on.
It is only in those cases where the parties refuse to cooperate and work out an arrangement that the Court has to step in and turn it into a long, complicated, and expensive process. The Court has to look at everything, label everything, value everything, and then divide everything in an equitable manner.
Determining who gets to keep the home is a controversial process, as the home is commonly the most significant asset (and debt) of the parties. Usually, one of two things happens. Most often, the person who is still living in the home after the other moved out ends up getting the house. Alternatively, when minor children are involved, the parent with the most time with the children may be granted the home to decrease effects on children. When either of these happen, the other parent is often awarded more of the other assets in order to make sure that the division is equitable.
Parenting time, just as with child custody is determined based on the what the court deems to be best interest of the child. A child’s best interest under normal circumstances is presumed to be the preservation of a strong relationship between the child and both parents.
In practice, parenting time is generally going to be whatever both parents agree on. The Court will only step in if the arrangement is suspiciously unfair or if the parents refuse to cooperate in agreeing on a schedule.
Related article: How is Grandparenting time determined?