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What’s Fair During a Divorce?

What Role Does Fairness Have in a Divorce?

Divorce is a process, and it often starts with a conversation. In many ways, that divorce process is difficult to predict—it can be turbulent and toxic or effortless and liberating. The tone and tenor of your divorce will depend largely upon the two people involved with the proceedings.

Fairness and Friction

However, much of the friction involved in a divorce (outside of hurt feelings) revolves around a simple sounding question: what is fair? Determining what is fair during a divorce is both complex and highly personal. Each party seeking to dissolve the marriage will attach a personal and emotional value to what is at stake, as well as a financial value.

There are some areas that, legally, have a much starker definition of “fair.” If you’re in the process of getting a divorce—or thinking about getting started—it might be helpful to think about how your assets (financial and otherwise) might be broken up in a way that’s fair.

What is Fair Financially?

When people think about dividing assets during a divorce, they most often think about this in a financial sense. That makes sense, especially because “assets” is a pretty leading word. Unfortunately, a divorce is usually more complicated than looking at the balance of your checking account and splitting it down the middle. Many people have more assets than they think.

When it comes to divorce, it’s not uncommon for parties to consider the following assets:

  • Finances (the obvious ones—savings accounts, checking accounts, CDs, etc)
  • Real estate: In general, the value of real estate holdings are taken into account during a divorce proceeding
  • Retirement Accounts: Even if only one partner was contributing to the retirement account, it may still be divided between the two parties
  • Investments: If you’ve made investments in the stock market or other entities, those investments are subject to division as well
  • Debts: It’s not just assets that are subject to division. Sometimes debts can be divided between parties as well, even if those debts are incurred before the marriage

In some cases, couples will sign a prenuptial agreement in order to delineate what assets (or liabilities) can be divided during a divorce.

It’s also worth noting that, at first glance, some of these divisions might not seem fair. For example, if only one party was putting money into a retirement account, why does that retirement account then need to be divided? The answer is, essentially, that family budgets are complicated. It might be that you were only able to contribute to your retirement because other bills were paid by your partner. It’s not fair, then, to assume that the retirement is yours alone.

Essentially, any marriage without a prenuptial agreement assumes that both parties are merging finances. Once merged, the finances can’t be disentangled, only divided fairly. That’s the theory anyway.

What is Fair for your Family?

It’s not only finances that must be divided fairly. Your family might have grown financially, as well as in other ways. Indeed, the division of children is often one of the most contentious aspects of any divorce proceeding. To be clear, the children are not split or divided in any kind of physical way! Nor do, for example, two children go with one parent and two children go with another (typically).

Rather, what most divorcing couples need to dedicate some thought to is the division of time with the children. In most cases, both parents want to spend as much time as possible with the children. In some cases, an even 50/50 split of time can be accomplished—and there are a few things that make it easier:

  • If both parents live near each other (or in the same school district)
  • When parental partners agree to a 50/50 split
  • If the children would not be in any way harmed by a 50/50 split in time
  • The schedule of the children and the schedules of the parents are not negatively impacted by a 50/50 split

However, in many cases, that kind of down-the-middle division of time simply isn’t practical. In those cases, divorcing parents may try other arrangements (such as weekends with one parent and weekdays with other and so on). Depending on the arrangement of time, there may also be financial obligations involved, such as child support payments.

What Is Fair Isn’t Always What Works for You

In many ways, a divorce is a negotiation. It’s a way to protect your priorities during a life-changing event. In many cases, parties will have differing priorities, making good faith negotiation not only possible but also helpful. In other words, a straight 50/50 division of each and every asset and debt may not be what you want.

Part of the struggle with any type of divorce is trying to figure out what you do want. Identifying what’s “fair” is, essentially, just one way to start that conversation. It’s a starting point for any type of negotiations to come. That’s why what’s “fair” might not be what you agree to.

But as long as you’re aware of that—as long as you’re keeping your priorities in mind—that’s okay. Ultimately, a divorce isn’t about doing what’s the most “fair” for everyone. It’s about finding what works for you, so you can feel confident and secure moving forward into a new phase of your life.

If you want to know more about what happens during a divorce, contact the offices of Mallie Law Firm to schedule a consultation.

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