While friendly divorces do exist, most couples are not seeing eye to eye at the time of a divorce. There are often hurt feelings and anger surrounding the situation, which can make interacting with each other painful, difficult, and often contentious. It’s likely that most people aren’t entering into divorce negotiations with the intention of being unfair to their soon-to-be-ex-spouse, but they may have wildly divergent ideas of what would constitute a fair settlement, which can make it difficult to come to an agreement. And of course, there are cases where one or both spouses refuse to negotiate in good faith at all, which can also make it difficult to achieve a fair outcome. But it is possible to get a fair settlement. Take a look at what you need to know about ensuring that you get a fair divorce settlement.
What is Fair?
In order to achieve a fair outcome, the first thing you need to do is define what fairness would look like in your case. The easiest and most obvious answer would be to split everything 50/50 – money, assets, children, pets, everything.
But the reality is that an exactly equal 50/50 split is rarely the right answer, and often not even the truly fair answer. Some things – like a house, for example – can’t easily be split down the middle. Of course, a house can be liquidated and the money split evenly – and sometimes that happens – but in other cases, it’s fairer for one spouse to remain in the house and the other to receive a different asset or more of the couple’s cash reserves to make up for the equity they’ll lose in the house. Some things shouldn’t be split up at all. For example, assets that were brought into the marriage by only one partner and weren’t commingled during the marriage are often considered separate property belonging solely to one spouse. A gift or inheritance, for example, usually stays with the spouse who it was initially given to, rather than being split up. And when it comes to things like pet ownership or child custody, a 50/50 split is often just not practical or even achievable. If parents live in two different school districts, for example, school-aged children may not reasonably be able to alternate weeks with each parent in the name of fairness. A different arrangement will have to be reached.
For this reason, people deciding how to split things in a divorce case often strive for a split that is equitable, even if not exactly equal. An equitable split is one that is as fair as possible to both parties while taking practicalities and circumstances into account.
Dividing Money and Property
Couples who are committed to negotiating a fair divorce settlement on their own can often do so without the help of the court, though they may need to bring in certain third parties, like accountants, business managers, a legal resource group, or mediators to help with complex financial situations or settle hotly contested points. Divorcing couples don’t have to leave their affairs to the family court – generally speaking, if a couple comes up with a settlement agreement on their own and submits it to the court, the court will approve it. The only time a court is likely to object to an arrangement that the couple has agreed upon is if that arrangement is wildly unfair to one partner or if there’s a reason to suspect that one partner was coerced, threatened, or otherwise under duress when they made the agreement.
Couples should start by identifying all of the assets and debts, and decide which ones are joint marital property and which ones are separate. Once that’s settled, you can start deciding what belongs to who. One way to start is by beginning with the least valuable items on your list and working your way up to the most valuable items. If you can’t agree between the two of you who gets low-stakes items like the microwave or the living room couch, you’re probably going to at least need a mediator before you get to big-ticket items like houses and cars. On the other hand, if negotiations go smoothly for the least valuable items on the list, you may be able to get through most or all of it on your own.
Determining Custody and Visitation
The key to a fair custody and visitation arrangement is remembering that it’s not fairness to the adults in the situation that really matters – what you really want is to make sure that the arrangement you make is as fair as possible for your child. Family courts call this the “best interest of the child standard” and it’s what they use to determine contested custody cases. You and your spouse can create your own parenting plan together and submit it to the court for approval – and it will probably be approved if you both agree to it – but you would be wise to apply the same standard to your negotiations.
Would it be fair to your child to cut one of their parents out of their life, assuming that the parent was fit and willing to be involved? Probably not, so you shouldn’t try to. Would it be fair to insist that a child move away from friends, family, a community they’re familiar with, and a school that they’re used to when they could live with the other parent and stay in the same community? It depends on the situation, but in many cases, that would not be fair to your child, so if you’re planning to start over in a new city or state after your divorce and your spouse is staying, you may not want to insist your child live with you. Every family is different, but if you approach custody and visitation questions with your child’s needs and best interests in mind, it’s likely that you’ll come up with the best possible arrangement for your family.
When you’ve come up with a divorce settlement and custody arrangement that you can agree on, you can submit it to the family court. Agreeing on a fair divorce settlement ahead of time can make the divorce process easier and faster. A legal resource group like National Family Solutions can help you ensure that you have the correct documentation and follow the necessary legal procedures for your location.