DIVORCE - WHAT YOU NEED TO KNOWPeople considering divorce have many questions. People ask their lawyers, '' How much alimony do I have to pay?'' ''How much child support will I owe?'' How long I will have to pay?'' How much of my pension does she get?"
With very few exceptions, the lawyers cannot give to you very precise answers. You and your spouse may negotiate a settlement between yourselves or a judge may determine the conclusion for you. In most states there are now formal guidelines that the court must follow in awarding child support. But in most states, and on most issues, judges can make rulings at their own discretion after hearing evidence.
If you and your spouse end up going to trial, it can be risky. Most judges do their best to be fair and professional, but like the rest of us, judges are susceptible to their own prejudices and biases. If you don't like the judge's decisions, you can appeal to a higher court.
But few people ever utilize the appeal process. Appeals are difficult to win because the burden is on the person making the appeal to prove to the higher court that the trial judge misinterpreted the law or abused the discretion permitted the judge by law.
If you are one of the few who wins an appeal, what you generally get is a new trial. The only way to be sure that your divorce meets your needs is for you and your spouse to negotiate the resolution yourselves.
When you negotiate your agreement, you negotiate a contract voluntarily. You sign it voluntarily. You cannot decide that neither of you will support your children or subject your children to danger or neglect. But, within very broad limits you are free to decide together how you will resolve the issues at hand.
Experienced lawyers often think they can predict what would happen at trial. Divorce lawyers tend to develop a consensus or sense of industry standards about the results of trials. They may agree that the judges "always give the wife half the house" or "a certain formula is generally used to compute support." Lawyers who have appeared many times before the same judge may acquire useful generalizations.
Although judges may develop certain predictable consistencies, you can't depend on it. You may get a particular judge, or you may get that judge on a bad day, or your lawyer may be wrong.
Although most lawyers will predict the outcome in court, few will guarantee you the conclusion. You need to treat such predictions with healthy skepticism.
Judges understand that you can do a much better job of generating an agreement that works for you both, which is why they don't meddle in a settlement agreement. Ultimately, the law governing your settlement agreement is what you together believe to be fair and in the best interest of your family.
A Divorce Decree Must Deal With 5 Basic Issues
When a marriage dissolves, the state has several concerns that must be satisfied before a divorced is approved. The state wants to know how the children will be supported, who will support them, and who is in charge of them. The state is the parent of last resort.
The issue of alimony, sometimes referred to spousal support or maintenance; originates from a similar concern. The state does not want to support a divorced spouse. Today, at least in theory, alimony is gender neutral, and, if circumstances warrant, the wife can be obliged to pay alimony to the husband.
The last issue of concern to the state is clarity in title to property. Historically, the interest of the state has been to make sure that property could be freely transferred with a clear title. When a marriage dissolves, the state needs to know who owned what property and needs to extinguish any claims each spouse had to the other's property. Therefore, the state asserts that upon divorce, property be clearly divided into two separate baskets: the husband's and the wife's.
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