When you first told your husband you wanted a divorce, you may have said things like, “I only want what’s fair for both of us and the kids” or “I’m not looking to turn this in to an all-out war.”
Wise words indeed...
But wanting a fair divorce and actually figuring out what is fair in a divorce settlement are two entirely different matters.
So what are the things you need to concern yourself with and how can you come to a settlement agreement you both find fair?
The Elements of a Fair Settlement in Divorce:
Before you can even begin to define what a fair settlement looks like, you need to understand the main elements that make up divorce settlements in the first place.
There are countless issues that need to be determined in the divorce process, but the 4 major subjects to resolve in a divorce settlement are:
- Parenting plan and child custody (parenting time);
- Child support and related expenses
- Alimony / maintenance / spousal support / spousal maintenance (determining if it applies and if so, the amount and duration);
- Division of marital assets and liabilities and determining which assets are considered either the couple's marital property or a spouse's separate property.
Let’s take a closer look at the things to consider in a divorce agreement types of issues that need to be decided within each of these categories:
1. Parenting Time and Child Custody
As parents, you know there is nothing more valuable than time with your children.
Unfortunately, in a divorce agreement, unless you retain full custody of your children (and I’m guessing your husband won’t find that fair), you’ll go from seeing them every day to being a part-time parent.
And that can hurt.
On one hand, you want to spend as much time as possible with your children. On the other hand, your husband is a good guy, an "all-in" dad and is devoted to them. So you want the kids to spend as much time with him as possible, too.
Reconciling what's fair when it comes to parenting plans and child custody are no doubt among the most difficult decisions you'll have to face when it comes to your divorce.
And since there are no laws or guidelines around what it means to be a good parent or how you should structure your parenting plan, it can get tricky to figure out how to get a fair divorce settlement and what that really looks like for both you and them.
2. Child Support
Federal law requires that each state have a set of child support guidelines for providing divorcing parents with an idea of how much money their children need in order to live happy, healthy lives post-divorce.
Notice I said guidelines and not formula. That means when it comes to determining a fair child support agreement, it’s really up to the parties (the two spouses).
But here’s the thing... It’s not the two of you that this primarily financial issue is about. It’s about your children - and what’s fair to them. Not what some federally mandated guideline dictates.
To determine what's fair to your kids, you and your husband will both need to consider in your divorce agreement how their lives looked like before you decided to divorce.
And what you’ll both need to do as their parents, to try to keep it that way after your divorce.
If there is one topic that causes more questions than answers when it comes to what’s fair in a divorce agreement, it’s alimony - also known as spousal support, maintenance or spousal maintenance depending on where you live. Determining a fair alimony amount and duration is tough, no matter whether you have a long-term marriage or have only been married a few years.
Unlike child support where there’s at least a starting point for discussion generated by a software program, when it comes to alimony, no such software exists.
Sure there are “statutory factors” and other similarly vague dictums but in very few cases does a calculated alimony formula exist. And even those are subject to negotiation.
So how do you come to terms you both find fair when it comes to alimony?
If you're not careful, you and your husband could find yourselves with attorneys in court going back and forth and around and around on this challenging issue forever with no fair resolution in sight.
4. The Division of Your Marital Assets and Marital Debts
There are two methodologies used when dividing marital assets and liabilities in a divorce: "equitable distribution" and "community property." Depending on where you live will determine which methodology applies in your case.
Four of the states we practice in (Illinois, New Jersey, New York and Pennsylvania) use the principles of equitable distribution and only one that we practice in (California) uses the principles of community property.
When it comes to dividing marital property and marital debt in an equitable distribution state, the parties (you and your spouse) would come to a fair, but not necessarily equal, division of your marital assets and liabilities.
Whereas in a community property state, you and your spouse would each get an equal share of your marital property. But only if you and your spouse couldn't come to agreement on your own - and found yourselves in front of a judge.
The reality is whether you live in an equitable distribution or community property state, the parties can still come to agreement on what a fair divorce settlement would look like in their particular case.
Basically leaving you to divide your marital assets and liabilities in a fair but not necessarily equal manner.
At first you might think, "That's great as we'd much rather decide how to split our marital assets and debts on our own instead of being told by a judge in court what to do."
But you have to be careful as all this flexibility can make how to get a fair settlement in divorce difficult!
First, there’s the magic phrase, “fair but not necessarily equal.” How does a couple decide what that means? Is it 50-50? 60-40? Or some other split? And who gets the short end of that stick?
Then there’s the other interesting tidbit about “marital assets and liabilities.” What’s in and what’s out of your divorce discussions are just as important as coming to a fair settlement in divorce in the first place.
What if you owned a house before you got married and used the proceeds from the sale of that house to buy the home you now live in?
Or you started building your retirement accounts right out of college, long before you got married. Now it’s worth a great deal of money. Do you have to share all of it? Some of it? None of it?
This fair divorce settlement thing is starting to look like a myth.
Or is it?
What Can You Do to Ensure You Get a Fair Divorce Settlement?
So who decides the settlement in a divorce?
Since there are little or no laws or specific guidelines on how to resolve many of the parental and financial matters described above, you can see that there's lots of room for interpretation of what's fair.
But there is a way to come to an equitable and fair divorce settlement.
Use mediation to fairly end your marriage. It's a divorce method that enables you to create an equitable divorce settlement that's fair to both of you because it's a product of your own decisions and agreements.
And instead of divorce attorneys, choose to work with an expert divorce mediator who possesses the skills, knowledge and expertise to successfully guide you through the divorce process.
Equitable Mediation is the Best Way to Get a Fair Divorce Settlement.
Other Useful Resources: