THE BASICS OF DIVORCE LAW FOR NON-LAWYERS

by Theresa Mihalik, J.D.
Pamela M. Pacetti, J.D.
Anne (Jan) W. White, J.D.
Al Bonin, J.D

True in All Jurisdictions:

1) Mediation and Arbitration. Meditation and arbitration are viable options in all jurisdictions. In mediation, the parties work with a mediator in the hope of resolving all matters. Nothing is binding unless the parties agree. In arbitration, the arbiter issues a ruling after hearing the evidence much like a court, but in a more informal setting. Arbitration is like hiring a private judge to make a decision

2) Spousal Support Taxable. Unless otherwise agreed upon, when correctly drafted, spousal support is generally tax deductible by the payor and taxable income to the payee.

3) Child Support Non-Taxable. Child support is not tax deductible by the payor, or taxable income to the payee. Child care is only deductible by a parent for the amount of the child care paid by them AND is only deductible by that parent that has physical custody of the child more than 50% of the calendar year.

4) Written vs. Verbal Agreements. Agreements between the parties are generally only binding if signed by both parties. Some agreements, such as child support, may require approval of the court in order to be enforceable.

5) Child Support Guidelines. All jurisdictions have child support guidelines.

6) Tax Consequences on Transfer of Assets. Generally, almost all assets divided by the parties in a divorce can be transferred one to the other without tax consequences, except savings bonds. Be careful as to the timing of transfers of assets as it may have an effect on taxability. There are also special requirements for how and when transfers are to take place with retirement assets in order to obtain tax advantages. Federal law requires that most retirement benefits be transferred at the time of divorce by court order so as to avoid negative tax consequences.

7) Social Security Benefits. They are not dividable or considered by the court in the division of assets. However, they can be viewed as an economic circumstance in an action for divorce.

8) Custody and Visitation Defined. Joint custody can have several meanings. It can really be best explained as simply decision making and time sharing. One is totally independent of the other. By illustration, the parties can have joint decision making and one parent can have the majority of time with the children. This arrangement would be considered joint legal custody with one party having primary physical custody. Joint custody can also mean that the parties share physical custody of the children. These phrases can be confusing to a parent. In describing it to a client, keep it simple. What would they like to have as far as decision making and alternation of care?

9) Tax Consequences Basis. Be mindful of tax consequences and the basis of assets in the division of property. Example: 100 shares of stock valued at $5 a share may not necessarily be worth the same as $500 cash. The sale of stock may have tax consequences.

10) Other Factors. Other factors the court might consider in determining the best interest of the child from a mental health perspective may include, but are not limited to:

  • (a) parent's ability to manage their emotions
  • (b) capacity for self-awareness (not repeating mistakes)
  • (c) ability to have empathy for spouse and children
  • (d) subordination of self-interest to the interest of the children
  • (e) good judgment
  • (f) reliability
  • (g) communication skills
  • (h) capacity for interpersonal relationships
  • (i) protective of the child

12) Attorney-Client Privilege. Items revealed to an attorney are, for the most part privileged, with a few exceptions like intent to commit a crime. In collaboration a party generally agrees to waive certain of these privileges and, as it relates to mental health professionals, a party also waives the right of confidentiality with a few exceptions.

13) Best Interest of Child(ren). The attorney should look out for the best interest of the children regardless of who he or she represents, whether it is a traditional or collaborative case. In most cases, what is the best interest of the children is also in the best interest of the parent.

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