During divorce in community property states marital property is usually distributed 50/50 between both parties, but each person maintains possession of any separate property each owns. In states that are defined as equitable distribution states, all assets and income the couple accumulated throughout the marriage are distributed in an equitable manner. However, this does not necessarily mean equal distribution.
Divorce and Financial Issues: What is My Entitlement?
During the divorce process, there are three financial issues that are important for the parties to not only discuss, but also to resolve including:
- Child support
- Spousal support or alimony
- Distribution of marital debts and assets (depending on the state, this would be either considered community property or equitable distribution)
There are no specific formulas or guidelines to follow while attempting to resolve these issues. This makes the question of entitlement a very difficult question to answer. The best way to answer that question is to look at these topics in more detail below.
When you have children, it is important to ensure your ex-spouse provides enough child support to prevent your children from suffering financially after the divorce. However, it can be very challenging to reach an agreement for several reasons. Although most states have guidelines for child support, the online child support calculators usually only show the minimum amounts allowable by law.
Another thing to keep in mind is the states may have different methodology for calculating child support. The three models that are currently used for child support calculation in the United States are as follows:
- Income sharing model
- Income percentage-of-obligor guidelines model
- Melson formula (only Delaware, Montana, and Hawaii use this formula)
The last thing it’s important to understand is there are many extraordinary expenses necessary when it comes to raising children. These additional child-rearing expenses are not listed within the child support guidelines. The additional expenses may include any (or all) of the following:
- Expenses for college
- Daycare costs
- Dental expenses such as braces
- Car insurance if the minor has a license
- Computers that are needed for school or college
- Summer camp
- Mobile phone service
- Shopping for going back to school
Alimony or Spousal Support
One of the most intense disagreements that occur between divorcing couples involves discussions regarding spousal support/alimony. The reason for this is because almost 90 percent of U.S. states have no formula for calculating alimony. Even though there are no formulas for calculating it, most legal practitioners subscribe to the philosophy that both husband and wife are entitled to maintain a similar lifestyle to the one they enjoyed as a couple. This means avoiding an agreement that allows one party to live in luxury while the other struggles to make ends meet.
Division of Marital Debt and Assets
Distribution of martial assets and debts is another area that provides very little guidance regarding the manner in which it should be handled. Forty-one of 50 states fall into the category of equitable distribution, a process that allows the parties to reach mutual agreements they believe are fair (this does not mean equal distribution). Even in the nine community property states, the spouses are entitled to decide for themselves who gets what regarding both debts and marital assets.
Equal Access to the Children
At one time the assumption was women would automatically be awarded full custody of the children without the father having the right to protest very much. Those days have changed. Most states today favor joint custody, either legal or physical. While joint physical is not always possible, the divorce lawyers can work out a schedule allowing the ex-spouse to remain an integral part of the children’s lives. If joint physical custody isn’t possible, joint legal custody is another option, and the agreement will define how often the children will spend with the non-custodial parent.
Entitlement to Fair Treatment
The wife is entitled to fair treatment when it comes to both monetary and non-monetary aspects of the divorce. She should not have to fight for things like seeing her children, having time for herself (while the ex has the children on a regular schedule), speaking with the children when they are with their father, and fair communication without arguments. The wife is also entitled to defend herself against not only physical abuse but also emotional abuse. Emotional abuse includes but is not limited to false accusations that may affect her ability to obtain custody and/or visitation with her children. The husband cannot go into court and claim his wife is guilty of child neglect just so he can attempt to gain full custody of the children instead of joint custody like many states prefer.
She is also entitled to the use of legal counsel if it is available through the husband’s workplace or a private legal plan. In some cases, the husband may be held responsible for both his and his ex-wife’s legal costs.
Entitled to Transportation
If there is a vehicle to which she had full access during the marriage, she may be entitled to retain that vehicle even if her name is not on the title. However, this does not mean she retains it free and clear. If there is a lien on the vehicle, she may be ordered in the divorce settlement to obtain a loan in her own name covering the balance remaining on it. In extenuating circumstances, the husband may be required to make the payments. If the wife has always had custody of a particular vehicle and needs it to get back and forth to work or to transport the children to doctors, daycare, and school, the court may order the vehicle remain with the wife even if it is jointly owned or only in the husband’s name.
Entitled to Communication with Children
She is entitled to communication with her children when they are in the care of their father. This means he must provide a telephone number when she can call to speak with them while they are away. The husband is not entitled to block her number or refuse to allow the children to speak with their mother—this can be construed as withholding communication, and he can be held in contempt of court.
She is entitled to know where her children are at all times if outside the normal vicinity of their father’s house. For example, if he lives in the same state as the mother and wants to take them out of state for anything more than an hour or so, he must notify her and provide a telephone number and address (if the father has a cell phone, this will suffice for a telephone). Of course, this also pertains to the mother as well as the father.
Facts Concerning Divorce Law
While some aspects of divorce are the same, or at least similar, there are also aspects of it that vary depending on the state in which the petition is filed. These differing laws extend beyond simply whether the state is a common law state or equitable distribution state. While all states allow no-fault divorce, there are 17 states that only allow no fault. According to NOLO, the other 33 states have specific conditions under which a couple can file a fault divorce, and even the spouse being divorced can contest the action under certain conditions.
Divorce is a complicated process, which varies from state to state. Nine states are what is called community property states, meaning everything the couple acquired during marriage with a few exceptions is subject to equal distribution. The other 41 states are equitable distribution states but does not necessarily mean the marital property is evenly distributed.
In 33 of the 50 states a divorcing couple can choose to file an at-fault divorce while the other 17 are strictly no-fault states. No-fault means there does not need to be a specific reason the couple is filing for divorce. Legal Yogi can help you with any questions you may have in reference to divorce. You will find many articles that can help you gain an understanding of the process, and they can even help you find a divorce lawyer licensed to practice family law where you live.
This website has some great charts on divorce statistics.
This one shows information regarding equitable distribution statutes and statistics.