From a practical standpoint, the actual divorce process is pretty simple.
What Topics Need to be Addressed?
There are four or five main areas to be decided in a divorce mediation (some of which may not apply to your particular situation):
1. How will you divide up what you own together?
The first step here is to identify what is separate property and what is marital. Separate property typically includes property you owned before the marriage and property you inherit. Marital or joint property typically includes income and retirement plans earned during the marriage, the marital home, joint savings, etc. Once that is identified, you determine how the marital property will be divided — most commonly in equal shares, but not always.
2. Will either of you support the other?
Spousal support, alimony or spousal maintenance are different terms for the same thing — the support one ex-spouse pays to the other after the divorce, usually for a limited period of time. The duration often depends on the length of the marriage, the ability of each spouse to work, and other specific circumstances. For instance, one consideration might include whether there are small children or elderly parents in need of care. Another might be whether the receiving spouse needs training or education to become more employable. The purpose of spousal support is to help the receiving spouse get back on her/his feet, so the amount and duration will be decided accordingly.
3. How will you both support the children?
All adults are responsible for supporting their children. Child support is broken down into:
- basic child support (covering food, clothing, and shelter), and
- add-on expenses, such as child care, tuition, camp, and after school activities.
The amount of child support is usually determined by the needs of the children and the parents’ income.
4. Creating a parenting plan.
This includes decision making, particularly around big issues like health care and education (sometimes called legal custody). It also includes physical custody, which is where the children will live most of the time. There may be many variations on their schedule, and the plan will likely change over time – as the children get older and more independent, as they change schools and as parents change as well. The parenting plan also includes a structure for holidays, vacations, visits with extended family and unplanned for events like sick days, snow days, and the like. It may also include some guidelines for behavior – such as not putting children in the middle, or when and how to introduce significant others.
How will those decisions get made — and who will make them?
Either you and your ex will make the decisions together in a setting like mediation or the collaborative process, your lawyers can negotiate on your behalf, or (most rarely) a judge will decide after a trial.
Trials are extraordinarily expensive and are rarely used. Mediation and the collaborative process, which allow the spouses to make decisions themselves, are becoming more popular.
Once the terms of the agreement are reached, your mediator — or one attorney — will write them up into a Settlement Agreement. It is a good idea to have this reviewed by a mediation-friendly, family law attorney who will make sure it says what you mean it to say, make sure you understand every word of it, and suggest tweaks or details that you may not have thought of earlier. Your reviewing attorney might also do some negotiating with the your spouse’s reviewing attorney to finalize the agreement.
Once the agreement is completed, it is ready to be attached to the court papers and submitted to court. The judge will review it carefully, ask questions if needed, and sign off. At that point, you are divorced, and the Judgment of Divorce becomes a court order for you and your family.
Joy S. Rosenthal, Esq.
Rosenthal Law & Mediation
225 Broadway, Suite 2605
New York, New York 10007
Phone : 212.532.4704