Text UsUnfortunately, emotions sometimes get in the way and it's not possible to calmly discuss matters with your spouse. Or, you may decide after attempting to settle things that you must go to Court to get what you want. If things cannot be worked out, whether one issue or many issues are in dispute, the Judge will decide on how things are going to be. Perhaps the most important question a lawyer can ask at the initial consultation is whether there are any safety concerns on the part of any party. Unfortunately, some individuals react violently when advised that a divorce is being contemplated.
Perhaps violence or an unhealthy psychological atmosphere for the children already exists. If so, you should speak with your attorney about the possibility of having your spouse Court ordered out of the house and away from you. While this is drastic, it is sometimes necessary when a spouse is out of control. (If you leave your house you are not legally abandoning anything or giving up any rights by doing this. You should however discuss this course of action with your attorney prior to leaving). Family or psychological counseling for one or all parties, including children, may be indicated to deal with this type of problem, or simply with the stress of divorce and the lifestyle changes that will occur.
While every case is unique, there are issues that are common to many divorces. If the parties own a home, real estate or other assets that were acquired during the marriage it is generally considered marital property and often divided equally. If property was owned by one party before the marriage, that property may be considered non marital such that the Court may not award anything to the other spouse. But there are exceptions to this, such as where the non marital property, money for example, is put into a joint account during the marriage. Another exception can be where the value of the non marital property grows during the marriage.
Also, one party may have no claim to property given exclusively to the other during the marriage, by a relative in a will for example. Basically though, property acquired during the marriage (including assets in pension/401K/IRA type programs) should be considered as marital property subject in general to a 50/50 division between the parties. Courts also have the authority to assign responsibility for debts acquired during the marriage. The Court is usually required to order each party to pay an equal portion of the debts. The Court can order an unequal distribution of debt, but disparity in income alone is not grounds for an unequal distribution. If one party ran up some totally unnecessary bills, then they may be responsible for more than they otherwise would. But usually the Court will not sit there and determine who spent more money during the marriage.
Where the value of an item is in dispute, expert appraisers may be needed to give opinions about value. This is especially true where there is a business involved. If the business is considered a marital asset, a value will be assigned, and a spouse may receive a portion of the value. It should also be noted that Courts will generally not force the sale of a house where a spouse and minor children are living there.
Once the parties separate they may live their lives as they choose as long as they do not interfere with the other. (Generally speaking, infidelity during the course of the marriage can be taken into account by a Judge if there is evidence that the offending party spent marital funds on the third party). After separation parties are free to have a relationship with someone else if they desire.