By Erica Christian
The circumstances giving rise to a divorce may be emotionally consuming making it difficult for you to think about what life will be like once the divorce is granted. It’s also easy to be overwhelmed with all of the terminology and procedures that come along with filing for a divorce.
As you begin this process, you must thoughtfully consider what your goals are in regards to the issues that will be addressed in your case. Identifying goals, both in the short and long term, is essential to developing the best strategy to obtain the results you want in a divorce.
Below is a guide that will help get you started on defining your goals and identifying how these goals can be achieved.
The Wish List
To initiate a divorce action, a party files a petition with the court asking the court to grant a divorce based on the terms he or she specifies. The Petitioner will include requests relating to all of the following: custody and placement of the minor children, financial support for the children, financial support for the party (maintenance or alimony), property division, and costs/attorneys fees. In states where fault plays a factor in the granting of the divorce or the ability to receive support, the Petitioner will include provisions, which describe what the other party did which precipitated the filing of the divorce.
The opposing party is often shocked when he or she sees everything the Petitioner is asking for. It’s important to realize that the petition is a wish list. Often, the relief requested in the Petition is unrealistic and unreasonable. However, if the Petitioner does not include everything he or she could possibly want, he or she may be barred from asking for that relief later in the process. Whether you are the Petitioner or the Respondent, it is important to begin by identifying your wish list in relation to the topics outlined above. Together with your attorney, you can later determine how realistic the goals are given your particular situation.
While engaging in this process of identifying you goals and later refining your goals with your attorney, you should be sure to keep an open mind. Depending on the circumstances leading to the divorce, you may be looking to punish your spouse, or punish yourself. To the best of your ability, it is important to look beyond the present situation. By keeping an open mind and analyzing your goals in the here and now and in the future, you will help yourself identify reasonable goals that you have a better chance of achieving.
Custody and Placement
Legal custody and physical custody are two very different concepts that are often confused into one concept of “custody.” Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, sometimes referred to as placement, is the time that the child will spend with each parent. It is important for you to identify your goals relating to legal custody and physical placement at the beginning of the divorce process. Depending on your relationship with your children, the goals as to each may be different for the short term and the long term.
There are two types of legal custody: sole and joint. In many jurisdictions, there is a presumption that the parties should have joint legal custody of their children. This presumption can be overcome for a variety of reasons, including, but not limited to: lack of involvement by one parent in the child’s life; alcohol or other drug abuse by a parent; physical, emotional or mental abuse of a parent to the child or the other parent; and the ability of the parties to communicate with one another and support the other parent’s relationship with the child. Given the joint custody presumption and the burden needed to overcome the presumption, identify your goal as to legal custody and in a short sentence or two, identify why you believe this arrangement is in the best interest of your children.
Physical custody arrangements vary greatly. Physical custody also often determines who will receive child support. First, identify your ideal schedule. You may have heard of an every other weekend schedule or an equal shared placement schedule. Perhaps you and your spouse rotate placement during the school week. Simply identify the schedule that you believe is the best schedule considering your and your children’s schedules and the relationship your children have with each parent. As with the legal custody arrangement, compose a short statement describing why you believe this schedule is in your child’s best interest. Depending on your relationship with the children and the events leading up to the divorce, your ideal schedule during the pendency of the divorce may be different than the schedule you hope to enjoy with your children at the end of this process.
Financial support for the children and spouse
A thoughtful analysis of your present finances and the financial situation you and your wife will be in after the divorce is final will help you determine what your goals are in terms of support for the children and wife.
In most jurisdictions, child support is determined by a formula applying the placement schedule to the parties’ respective incomes. Even if you have an equal shared placement schedule or a majority of the placement with your children, your state’s formula may require you to pay more if there is a disparity in income between you and your wife.
Additionally, if there is a disparity in income, you or your wife may be able to seek spousal support, also referred to as maintenance or alimony. However, spousal support in most jurisdictions is not automatic simply because there is a disparity in income. Most states have a variety of factors that the court considers in determining whether or not a spouse is entitled to spousal support including, but not limited to: the length of the marriage, the earning potential of each party, the contributions of each party to the marriage giving appropriate weight to homemaking contributions, contributions of one party to the other party’s earning power, and possibly marital misconduct. Generally, the longer you were married and the bigger the difference in earnings, the longer you will pay maintenance or the larger the payment may be.
Given this basic understanding, identify your goals relating to spousal and child support. If there is a large disparity in income, you should also identify goals that would increase the earning power of the spouse earning less.
Asset and Debt Division
In order to come up with goals related to your assets and debts, you need to identify all of the assets and debts of the relationship. Each state varies in determining what assets and debt are individual and which are marital. Some states treat assets and debts acquired prior to the marriage as individual property; others count all assets as marital unless the asset was acquired by gift or inheritances.
For starters, identify what assets and debts you believe may be considered individual assets or debts. Then, of the marital assets and debts, define what your goal is as to division. Many states have a presumption that assets and debts are to be divided 50/50. However, there may be exigent factors that justify deviating from an equal division of the assets and debts in a relationship including, but not limited to, contributions to the marriage and marital misconduct.
What’s Possible and What’s Probable
Given the wish list is complete, the next step is to meet with your attorney and allow him or her to discuss what goals are possible and what goals are probable. The reasonableness of your goals will be largely dependent on the laws of your jurisdiction. Applying the law to the circumstances in your case will project what the probable results could be if your case went to trial. Notice I did not say what would happen in your divorce. An attorney with the ability to predict the future would most certainly be a force to be reckoned with. However, considering no attorney can predict the future, your attorney can only base his or her analysis of the probability and possibility of achieving your goals on his or her knowledge of the law and past experiences before the judge assigned to your case. Your attorney will then develop a strategy for your case keeping these goals in mind.
Achieving Your Goals
Now that you have a list of realistic goals for your case, the next step is negotiation or adversarial proceedings, which will realize these goals.
You and your wife are free to settle your case anytime you both choose so long as it is prior to the conclusion of a trial. This agreement may be the product of negotiations between the attorneys, direct negotiations between you and your wife, or the product of mediation. Direct negotiations are not advisable, especially in cases with complex issues. You should consult with your attorney prior to entering into any direct negotiations with your wife. To facilitate settlement, you and your wife may agree to mediation. Mediation is an alternative dispute resolution process using a neutral third party, the mediator, to facilitate negotiations. Not all mediators are attorneys, but all mediators are trained in techniques to promote dialogue and realistic bargaining between the parties, which helps them reach a resolution by agreement. You may decide to have your attorneys present at the mediation, especially in situations with complicated issues.
If you and your wife cannot come to an agreement on the terms of your divorce, you have a right to have your issues litigated. At trial, you present evidence in favor of your terms, your wife presents evidence in favor of her terms, and a Guardian ad Litem may be appointed to present evidence in favor of terms that would be in the best interest of the children. At the conclusion of the trial, the Judge makes a ruling on all of the contested issues of the divorce. The difficulty with trial is the uncertainty of the end result. If you and your wife agree on some issues, but not all, you may be able to submit a partial agreement and have a trial on the remaining contested issues.
Prior to agreeing to any settlement, you should refer back to the goals you defined. After meeting with your attorney and analyzing which goals are being met through the agreement, you can then determine whether or not you should agree to a settlement or proceed with trial.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.