What to Expect in a Divorce
When you file for divorce, you are asking the Court for a Decree that declares several things. For most couples this includes:
Declaration of the Dissolution of Marriage.
Property Division.
Child Custody, Timesharing, and Support
Before we get started explaining what to expect, I always encourage my clients to try and come to some sort of an agreement or compromise with their soon-to-be ex-spouse, if possible. It is always better for both parties to have control and certainty in a compromise, rather than run the risk that a judge will deliver a decision that nobody likes.
Declaration of the Dissolution of Marriage
This may sound a little too obvious, but it is very important to keep in mind that getting a divorce is a declaration to all the world that you and your former spouse are no longer married.
As an old custom in England, the divorce proceedings included a march down the middle of the village during which the husband would declare at the top of his lungs that he and his wife were now and forever divorced. The purpose of this was to let everyone in town know that neither spouse could bind the other to any contract or incur any debt in the other’s name. Interestingly, in some less enlightened times, the husband would actually take the wife to the town square and “auction” her to the highest bidder. This may sound outrageous today, but these were different times – a time when a woman could not own property herself, but only had interest in property that her husband owned. Usually, the “highest bidder” was actually pre-determined as he and the woman already had a relationship prior to the divorce.
Thankfully, we no longer “auction off” our spouses, though I have a had a client or two wish they could get something for their husband for once.……
History lesson aside, the world needs to know that you and your spouse are no longer married.
Marriage conveys a great deal of benefit to each spouse, but many limitations come along as well. In Kentucky, during a marriage, your spouse has a legal interest in your property. Your spouse automatically inherits certain property when you pass away, regardless of your Last Will and Testament. Also, you must name your spouse as your life insurance beneficiary, unless he signs a waiver. Under some circumstances your spouse may legally obtain credit in your name and run up debt. And obviously, a married person cannot marry another person – that’s known as the felony, bigamy. The list goes on.
After a divorce, all this changes. You are you own single person again. You have the right to contract only on your own behalf, and you can be assured that your ex-spouse cannot put you in debt. You have the freedom to draft your will as you wish and be assured that your ex-spouse will not get a dime. And you can remarry. This change occurs with the stroke of the judge’s pen.
This change in relationship status is controlled by the separation agreement that should be crafted by a qualified attorney based upon the specific circumstances of the couple. We at the Spencer Law Group are committed to helping you in a smooth transition back to “Single-hood”.
Property Division
Property Division is one of the two most notorious objectives of a divorce. If someone has a bad experience during a divorce, odds are that person will allege she got robbed in the divorce. Your attorney’s job is to make you aware of your rights and ensure that your property interests are protected. Or to use the cliché, my job is to make sure you get what you deserve.
You have the right (1) to have your separate property returned to you and (2) to an equitable division of the marital property.
When you divorce, you are entitled to your separate property, which falls into four categories.
Property you acquired prior to marriage.
Property given to you and you alone during the marriage.
Property inherited by you and you alone during the marriage.
Property acquired in exchange of one of the above.
The first category is obvious. The car you owned free and clear prior to marriage is yours and your spouse has no claim to it.
A gift given to you and you alone is also separate property. Imagine that your mother gives you a family heirloom. If she gave it to you and you alone, it is separate property. However, if you mother gave a dining room set to both you and your spouse to enjoy jointly, it is marital and thus subject to division. It can be hard to determine whether a gift is separate or marital property. That is why you may need an attorney to negotiate and possibly litigate those issues.
Inherited property may also require a court’s ruling to determine if it is separate or marital property. However, if a Will is involved, usually the language is clear as to who is the recipient.
Finally, exchanged property retains its character. If you use the $100,000.00 you father willed to you upon his death to purchase stocks, those stocks are your separate property. Later, if you sell that stock to purchase a recreational vehicle which five years later you sell to purchase a lake house, that lake house is still your separate property. Even though you were happily married through all of those transactions, you spouse has no claim to that property, as long as you can “trace out” the separate property through various exchanges.
Once each spouse’s separate property is allocated, the remaining marital property is “equitably” divided. Note we use the word “equitably” not “equally”. There is no guarantee that you and your spouse will walk away from the marriage with exactly the same amount of money in the end. The law only guarantees an “equitable” or “fair” division.
So, the spouses will list all the marital property and assess its present net value. The spouses will also list any outstanding marital debt. Then the spouses will allocate the assets and debts, doing their best to balance out the bottom line. Again, an Attorney can help ensure that you get your equitable share of the marital estate.