Divorce, or otherwise known as dissolution of marriage, is the process of terminating a marital union. Negotiating a divorce settlement is a crucial step in the divorce process as it helps the couple to agree on divisions of property, finances, child support, alimony, parenting time, and division of debts. This stage is not always easy for couples, especially those who end their union in bitter terms. Therefore, most couples seek legal help to ensure the process is smooth and fast. The San Diego Family Law Attorney offers all services related to divorce, and we ensure that all the client’s interests are addressed during the divorce settlement process.
What is a Divorce Settlement?
A divorce settlement is a mutual arrangement, understanding, adjustment, and agreement reached by two divorcing spouses, serving as the final agreement between them for documentation of the terms of their divorce. A divorce settlement outlines the conditions of legal names, tax repayments, and provisions for amending the legal agreement.
Negotiating a Divorce Settlement
Before you start this process, always ensure that you know the basics of your finances, you know exactly what you want, and be flexible. You can opt to hire a mediator or do a collaborative divorce. This gives you more support while negotiating. It is also wise to analyze your options and be honest with yourself.
Negotiating a divorce settlement can be undertaken using two main methods, amicable divorce settlement and fair divorce settlement.
Amicable Divorce Settlement
It is a rare case to find someone planning for a separation or divorce while they are still married. Only a few of us would take the time upfront to plan for a peaceful divorce. Couples who plan earlier ensure that they have all the steps necessary to keep the divorce on track. They make essential choices that play a central role in the divorce settlement process. Some of these include:
- The method to use for their divorce
- How to put their children's needs above their own
- How they will decide to have their divorce
- How they will negotiate their settlement agreement terms
After making the right choices, the couple will then start the negotiation process. However, they need to make crucial decisions to have an amicable divorce as follows.
Negotiate the Terms in Good Faith
Hiding any assets in your report of income could cause a stressful and financially disastrous divorce. Engaging in a good faith negotiation is the most peaceful way to end the divorce. In a good faith negotiation, both parties have the willingness to disclose any information to the best of their ability in a bid to ensure trust because complete and accurate information is relied on.
Both parties in a good-faith relationship should disclose any asset, debt, bank account, and income in their possession in a bid to paint a complete picture of the discussion subject.
Put the Children's Needs Above your Own
In an amicable divorce, mediation enables you to put the needs of your children first. The mediator's primary focus is to improve the relationship between the parents and the children.
This is an essential alternative dispute resolution trick.
A wise decision needs to be made with your children's interest at heart. This eases co-parenting and child support. It is important for both spouses to choose a divorce mediator for their uncontested divorce with a collective aim of putting the children needs first.
The divorcing couple should declare their willingness to be actively involved in their children's lives and have as much parenting time in their children's lives as possible.
Focus on the Larger Picture
A couple should choose to stay focused and avoid things that would derail the divorce process. Petty confrontations are the primary enemies of an amicable divorce.
This could particularly become stressful if the couple has children involved. It is important to note that the decision made could affect you and the children for some years to come. There is no winning in a divorce; but focusing on important things, for instance, your future and the children improve the chances of having a smooth and comfortable divorce.
Make a Decision to Divorce without Blaming Each Other
The couple should decide to have a divorce without blaming each other for the failed marriage.
Unnecessary blame might arise due to the following reasons:
- If the couple had shared firm compatibility once they got married, which then changed along the way forcing the marriage to end
- The couple could be wrapped up in career development or have their attention geared towards the children and forget to create time for each other. This move makes them seem like strangers to each other.
Regardless of the underlying reasons that led to the marriage termination, it is good to know that there is no time for blaming one another. Deciding to divorce peacefully gets you a chance to divorce amicably.
Fair Divorce Settlement
A fair divorce settlement is one that identifies and differentiates the marital property from the separate property. If one spouse owned a property before marriage and never commingled it, that spouse receives that property in a divorce settlement.
In a fair divorce settlement, spouses must be able to resolve the following issues:
- They should be able to determine who among the spouses will pay alimony to the other, and if any, at what cost and the duration of the payment
- They should be able to identify what things are considered the couple’s marital properties or the spouse’s separate property
- They should know the appropriate ways of dividing the marital estate
- They should be able to calculate child support
- They should be able to determine the child custody and visitations agreements
The fact that these issues must be resolved at a time when the couples are not seeing each other eye to eye makes it a bit complicated, since one or all of them may get controversial. This makes each spouse see things from their own perspective, a move that could be different from the other person's point of view. Decisions made from one's point of view makes it hard for one to understand how to make a fair resolution.
The following are the main principles of a fair divorce settlement.
Dividing the Marital Assets
In a community property division, the couple’s debts and assets are equally divided at a 50/50 split. This is in contrast to an equitable division, where the court divides the assets in a bid to give fair or equitable but not necessarily equal shares.
While determining the constitution of an equitable division of the marital estate, judges making a ruling in the equitable division considers the following:
- The spouse’s income potential
- The spouse’s separate debts and assets
- The spouse that fault the marriage
- Whether one of the spouses was involved in the misuse of any marital funds during the marriage
A couple that is trying to negotiate a fair divorce settlement in San Diego is advised to seek the services of a Family Law Attorney who can do an estimation of what the court would do in such a situation. Each spouse should be able to determine whether the proposed debts and assets would have any serious impact on their financial status after the divorce process is completed.
Child Support
In San Diego, a child support formula is widely used. This formula incorporates many factors most of which remove some of the parent's guesswork.
The following is the information commonly used in a typical child support calculation.
- Costs associated with the child's health and medical
- Each parent's monthly income
- Extracurricular activities expenses
- The childcare cost
- Children health insurance costs
- School tuition
- Any other fee that may benefit the child, e.g., including a child in a portion of a mortgage that one spouse may be paying to other spouses home.
Child Custody
A fair settlement recognizes what is best for the children, as both parents play their roles of bringing them up. This is with the exception of having one parent who is unfit to be around them, though in a rare event. A fair settlement includes ample parenting time for each parent.
Equitable visitation agreement may not see parents getting equal custodial time, but they provide a more frequent and continuous time where they meet the children. The parent who had spent more time with the children, and played an essential role in their lives is granted more time with them. However, it does not mean that the move pushes away the other parent from the children’s lives.
Each parent's work schedule determines his or her visitation hours. The parent is able to get an equal share of important school holidays and breaks with the children. Rarely do parents get a joint legal custody where each parent can make an important decision affecting the Child’s welfare and education or any other child’s extracurricular needs; instead, sole custody is usually common in California, which gives one parent the sole decision making responsibilities for the children while the other parent may be granted visitation rights.
Alimony
Alimony is the support that one spouse gives to the other spouse after the divorce. It is applicable where one spouse has been a dependent of the other spouse for financial obligations. A working spouse pays alimony to the non-working spouse for a particular period. In the past, a husband was compelled to pay maintenance to the ex-wife for longer periods and probably for a lifetime in some cases. However, in today’s world where both spouses have jobs, it is rare to be awarded lifetime alimony.
The following are factors that are put into consideration when granting alimony:
- The spouse's ability to pay alimony, paying attention to expenses
- Mental and physical deficiencies that could be preventing the receiving spouse from earning an income
- Financial needs of the receiving spouse
- The earning potential of the receiving spouse
- The receiving spouse’s level of education and training and what is needed for the spouse to enter a workforce
- Source of income of the receiving spouse
Separating the Marital Property from Separate Property
A settlement becomes fair if the marital property and separate property is identifiable. The spouse who owned a property before marriage and failed to commingle it should receive that property in the divorce settlement.
A gift or any other form of inheritance that one spouse could have received from the other spouse is also considered separate property. If the said gift or inheritance was received during the marriage, then the asset goes to the spouse who received it.
If one spouse commingled a marital property with separate property, then it is not easy to separate the two, and if it becomes too complicated to trace one spouse's contributions to that separate asset, then it automatically becomes marital property.
In some cases, it is not possible to separate property even if it was commingled. For instance, if one spouse owns a home worth $20,000 of equity during the marriage tenure, and the mortgage was continuously paid during the marriage, and is now not being refinanced, the equity is likely to be classified as a separate property.
A reasonable and fair settlement also adjusts the child support according to the time each parent is to stay with the child in his or her custody. With many factors surrounding a fair settlement, there is no set formula to determine a just agreement. In response to many questions on the constitution of a fair deal, it is advisable to get in touch with an experienced family lawyer for assistance.
Marital Settlement Agreement in California
A marital settlement agreement (MSA) allows the two divorcing parties to draft an agreement that benefits them in a bid to end their marriage. California courts usually favor settlement over court cases because court cases are time-consuming, emotionally draining, and expensive.
In a marital agreement, the parties are empowered to work out on the terms of their divorce as opposed to waiting for a court to make a decision. California favors a 50-50 split in marital assets while an MSA can alter this formula to suit individual party’s needs.
It is important to spell out all the aspects of a divorce in a marital settlement agreement. Failure to disclose any information may force a further legal action to be taken, especially if an addition to an already existing MSA is made. That means an additional cost implication will be incurred.
The following are the contents of a marital settlement agreement.
- Child support and/or custody
- Attorney’s fees
- Tax considerations
- Marital and non-marital properties identity
- Factual information about the marriage
- Provisions for payments of any outstanding debts
- Violation of the above MSA warrants you to fill to contempt charge against your spouse
MSA’s are highly favored by courts in San Diego. However, limits usually prohibit the freedom to enter into this kind of agreement. No child support or obligation can be overridden by the court's jurisdiction in the process of awarding child support. The same court cannot replace an arrangement of any custody arrangement involving a minor child in the marriage. Court decisions affecting the prescription of a child religious upbringing is not enforceable in San Diego.
Financial disclosure
Spouses are required to disclose all the marital and non-marital property to the other partner. The preliminary exposure is a must, and no court or any other party can waive it. However, the parties are free to divide their property in any way that they want as laid down in the MSA.
Representation
Both you and the soon to be ex-spouse are allowed to make your own MSA agreement and later file the paperwork to your preferred family court. Relevant forms are obtainable from a third party legal documents provider. This move is affordable just if both of you are in agreement of all the aspects in your divorce settlement. However, you are compelled to seek legal advice in case you are representing yourself; for any other contentious issue arises, you can seek the services of an attorney.
Can You Appeal a Divorce Settlement?
A divorce final judgment is also known as a divorce decree. It is issued by the preceding judge during the proceedings. Any spouse who was not satisfied with the judgment is free to appeal the decree if the state statute has no objection. One or both spouses can appeal the judge’s decision to an appellate court. The appellant has between 35 and 45 days to file the notice of appeal from the date of entry of the divorce decree. The idea of the notice is to inform the trial court that an appeal will be filed.
Finding A Family Law Attorney Near Me
Couples in San Diego sometimes fail to come into consensus with their spouses when their marriages hit a rough patch, and the only option is to divorce. When this happens, the most secure option is to hire the services of a family law attorney to help you with your divorce. Additionally, Mediation is a suitable way to reach a consensus with no or minimal disputes arising during negotiations. If it gets to this point, you can consult the our San Diego Divorce Lawyer at 619-610-7425 to help in negotiating the divorce settlement professionally.
