Step 7 – Negotiating A Settlement
All divorces require action by the court to become valid. However, there is no requirement that the divorce proceed to trial. In fact, most divorces will end in a settlement agreed upon by both parties and approved by the court. Settlement can occur at any time prior to the decree of divorce, but it becomes more likely after discovery has occurred. This is because each side begins to see the “big picture” concerning each spouse’s income, debts, and assets. This allows the attorneys to each work with their clients and opposition to reach agreeable terms. Settlements can resolve one or all three major components of divorce—property division, support obligations, and child custody.
Martial property and debts must be divided as part of the divorce proceedings. Martial property is the property that is acquired during the marriage, rather than before it or after separation. Common martial property includes the martial home, vehicles, and retirement accounts. Debts acquired during the marriage are also considered to belong to the couple together. The most common example of this is a mortgage on the martial home. These assets and obligations must be divided in a way that is fair—what the court refers to as an equitable distribution.
The spouses know their property better than anyone else, making this a prime area for agreement and settlement. This is particularly true when the spouses have deep personal attachments to various property or specific plans for other items. The court will hear all relevant considerations regarding such property, but at the end of the day, the court alone is going to make the decision regarding which spouse received which property. This motivates most couples to work out agreements that each are happy with, rather than risking the court issue a division that may not serve either party’s liking.
Two kinds of support obligations are relevant in divorce proceedings: spousal support and child support. Spousal support, also known as maintenance or alimony, is given to keep the spouse in a substantially similar lifestyle that they enjoyed during the marriage. Because of this, spousal support is not appropriate in every divorce. It can be very important in divorces that involve couples that have been married for long periods of time, particularly when one spouse has forgone employment opportunities to help raise children. Alimony is likely to be awarded in such a situation because the court does not want to punish nonworking spouses that are supporting the family in non-economic ways. Thus, maintenance is often rehabilitative in nature, allowing a spouse to get back on his or her feet following the separation. It may also allow for a spouse to attend school or vocational training so he or she can re-enter the workforce.
Child support is quite different from spousal support. First, child support will almost always be required when the marriage has produced children that are still minors. Kansas has a formulaic method of calculating a presumed child support amount, adopted to make support obligations more consistent and less controversial. This formula uses the income of the parents, the custody arrangement, and other factors to arrive at a presumed amount. Thus, the amount of child support is much easier to calculate. This leads to it being an easier source of the agreement, so long as custody is agreed upon.
The final facet of a divorce proceeding is usually the most difficult to reach an agreement upon. Each parent will likely have strong, unchanging preferences on child custody. The residence of the children will affect where they go to school, the holiday travel plans of the parents, and countless other aspects of each spouse’s family life. Even in joint custody arrangements, dividing holidays, summers, and weekends can prove difficult and emotionally charged. As a final barrier against an agreement, certain custody schedules can directly alter the amount of child support a parent owes or receives. These factors come together to make child custody the most hotly contested portion of most divorce negotiations.
Unlike most other obligations, child custody is looked over with great scrutiny by the court. Even if parties fully agree to a custody schedule, the court must consider what is in the best interest of the children before approving the arrangement. If the agreement does not fit that interest, the court will not approve it. This metric will also be used by the court if custody cannot be agreed upon prior to trial. This makes custody agreements increasingly important in negotiations, as not only must the spouses agree, but so must the court. Factoring in how custody can affect child support directly, it is important to attempt to reach an agreement on custody to achieve settlement.
For further information regarding the divorce process, please see the below link.
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