Divorce Settlements: What Should You Ask For in a Divorce?

By:
Michael Tierney
Updated
September 10, 2022

Divorce is not what anyone envisions when they first get married, and it is something we go to great lengths to avoid. Unfortunately, divorce is a reality of the marriage institution we must consider. Some marriages can be saved from divorce with a little guidance and patience, but other marriages are healthier when dissolved. While divorce might not be inevitable, knowing what it might bring could help.

We recognize that divorce might not be pleasant to think about, but the more you understand the process, the less likely you are to be swept up in a complicated case. Many facets to a divorce claim are often overlooked, but some parts of divorce are simpler than appearances suggest.

When dealing with a divorce, there are a lot of negotiations to have and evidence that needs to be gathered to ensure an equitable settlement. While some spouses are more dishonest and underhanded than others, it is possible to enjoy a fairly amicable negotiation. Regardless of the nature of the divorce, the most important part of any negotiation is knowing what you need to discuss.

Ordinarily, it falls to you and your legal counsel to coordinate what you intend to negotiate with your spouse, but a little preparation can go a long way.

Spousal Support

Spousal support, commonly referred to as alimony, is one of the main talking points in any divorce negotiation. Spousal support is a tool employed by civil law wherein one spouse pays the other a set amount regularly to maintain their quality of life. This is not to say that spousal support is designed to bankrupt one spouse to fund the other but to help both spouses live in a similar level of comfort as they had as a married couple.

Many factors determine which spouse pays the support, how much they pay, and how frequently the payments are made.

Spousal Support Payment

Generally, the following details are taken into consideration to determine spousal support:

  • The standard of living you and your spouse shared before the divorce proceedings.
  • The income you and your spouse generate annually, along with any debts or assets.
  • How much property each spouse receives once it is divided.
  • Whether you earn less than your spouse or vice-versa.
  • The duration of the marriage.
  • The age and general health of you and your spouse.
  • Any financial contributions you made to your spouse's education or professional training and vice-versa.

If you are on the lower end of these spectrums, it is more likely that your spouse will be the one paying support. While spousal support can be important in post-divorce life, it is not necessarily an automatic part of the negotiation process. Your spouse can avoid spousal support outright if a prenuptial agreement is signed before the marriage that absolves both parties of such payments.

Solution If spousal support is something you think you might need following a divorce, it is in your best interest to consult your attorney about bringing it up in the negotiations. While it might occur to your attorney without prompting them, asking if it does not come up can help secure spousal support as a point of negotiation.

Child Visitation

A common point of contention in divorce proceedings is child custody and visitation. Not every couple has children, but those who do must come to an arrangement on which parent will take custody and the visitation rights of the other. Child custody is an extremely complex and sensitive detail of divorce since neither parent is likely to want to give up their ability to see their child. The custody and visitation arrangements are predicated on each parent's right to retain a presence in their child's life, but it adheres to a far more sacred principle above that right—the child's best interest.

Solution Any decision made in court about a child is designed to preserve the child's health, education, and quality of life. If staying with one parent jeopardizes any of these factors, the negotiations will likely favor the parent who does not compromise them.

Child custody is more complex than most aspects of divorce negotiations because it can be divided into multiple subtypes. Sometimes a parent gets full custody of the child while the other receives visitation rights. In other cases, both parents share custody of the child and alternate based on a set schedule enforced by law.

Father Granted Visitation

While custody arrangements are never excluded from divorce proceedings, they can blindside you if you do not prepare for them ahead of time. While you do not have to ask for custody negotiations per se, you should consult with your legal counsel before the negotiations begin. By consulting, you can assess your odds of being the custodial parent or if there will be a shared custody arrangement. It can also prepare you for your spouse being the custodial parent since your counsel can provide a rough assessment of whether living with you will meet the criteria of the child's best interests.

While we are not claiming to know how these negotiations will proceed, knowing that this will come up is important. If you do not think you will be the custodial parent, you can still negotiate a reasonable visitation schedule so you remain a major part of your child's life. However, as a non-custodial parent, there is another topic you will need to ask about in the negotiations.

Child Support

Unlike spousal support, an optional component of divorce proceedings in certain cases, child support is inescapable if both spouses want to remain in their children's lives. Supporting a child is not an inexpensive venture, and you will usually end up supporting them into their early 20s as they work their way through university.

Solution The expense of raising a child does not dissolve if you and your spouse get divorced, and you will still be expected to provide support if you are not the custodial parent. Usually, the non-custodial parent is expected to send funds to the custodial parent that they are obligated to use to support the child.

While child support is not expected if you waive your parental rights, we have no doubt you intend to remain a constant in your child's life. If you are not selected as the custodial parent, you will be expected to make regular payments toward child support. Remember that the visitation schedule does not change the amount you owe in child support and does not excuse failed payments. The amount of child support you owe is also determined through factors similar to those used to calculate spousal support. Fortunately, asking about child support payments during the negotiation process can provide some relief.

A Mother and Child

By consulting with your legal counsel before a judge gets involved, you can get a preliminary estimate of how the child support payments will work out. Once you have that, you can ask about negotiating the rates so the payments are fair to you and your spouse. This is not to say you can always negotiate lower payments, as a judge is responsible for determining what is fair. On the other hand, if you are the custodial parent, it is important to consult with your counsel and the judge to ensure your spouse is held accountable for the support they owe.

Support payments are not the end of what you will need to inquire about during divorce proceedings. Some parts of divorce proceedings are more niche and will not always be applicable unless you are in a specific circumstance. These niche requests are usually reserved for the more serious divorce cases where your spouse is not as trustworthy as you believed when you first married them.

Ex Parte Order

If you believe your spouse might do something reckless such as take your children before the divorce is resolved or alter your financials behind your back, you might need to inquire about an ex parte order. An ex parte order is a fancy name for a temporary restraining order (TRO) designed to protect your spouse's shared assets and children from underhanded machinations. While not common, some would do anything to ensure their spouse gets as little as possible in a divorce. Sometimes people marry someone controlling or abusive and will take the desire for divorce as an insult.

While your spouse might not necessarily fit these criteria, it might be in your best interest to request an ex parte order if you believe they will attempt to compromise your shared financial accounts.

Couple Seeking Divorce

With an ex parte order, neither you nor your spouse will be able to:

  • Sell or transfer assets from joint or independent accounts.
  • Apply for loans that might generate substantial debt.
  • Alter the beneficiaries listed in life insurance policies or other windfalls.
  • Remove the other spouse or any children from active health insurance policies.
  • Cancel existing insurance policies.

With an ex parte order, your financial accounts will be safe from any underhanded actions your spouse might take. Generally, ex parte orders are automatically issued to prevent either spouse from doing anything morally or legally questionable. However, some states only issue ex parte orders when they are requested by one or both parties in the divorce.

When an ex parte order is issued, they remain in effect until the divorce is finalized and the assets are properly divided. It is important to remember that an ex parte order does not prevent you from using personal funds for normal expenses or opening new bank accounts for when the divorce is completed. They only protect existing assets from tampering.

Drug Tests

Another niche request only comes up if your spouse is a drug addict whose condition threatens your safety and your children. Drug addiction is a common and unfortunate condition that can severely compromise the judgment of the addicted party. The biggest obstacle when divorcing a drug addict is proving they are an addict in the first place. Depending on the addict your spouse is, it can either be obvious or nearly impossible to tell at a glance. When proving your spouse is a drug addict, the best method is to ask your counsel about requesting a drug test for your spouse.

Person Taking a Drug

The legal system is extremely picky regarding which drug tests are admissible in a court of law. As a result, an official petition for an approved test is required if you want to use one as proof of your spouse's addiction. Conversely, you will need to account for any accusations from your spouse that you are a drug addict. Combatting these accusations is easier if you request to submit to a drug test to prove your sobriety.

It is rare for drug addiction to play a role in divorce proceedings, but it is a possibility that you must consider. Despite everything we have discussed here, there is always more to learn about divorce and civil law. The only obstacle is finding a source for this information.

Learn the Law

Unfortunately, divorce is an extremely unpleasant facet of civil law that is a common issue with couples worldwide. The reality is that over half of all marriages end in divorce, making it more likely than most people care to admit. While divorce is unpleasant, it is worth trying to understand what it entails to ensure you survive the process. Some divorce proceedings are more complicated than others, especially if your spouse is a less savory individual. Keeping abreast of the details involved in divorce proceedings can serve a remarkable purpose in allowing you to overcome the challenges it brings.

Person Learning the Law

The key to learning about divorce is information, which was originally very difficult to come by unless you trained as a legal professional. Fortunately, this information is far more accessible than it was 50 years ago. Additionally, this information is more easily understood by the average citizen. Using this information, you can learn more about how divorce works and how to overcome the challenges of the proceedings. We know divorce is not something you ever wanted, and we can only hope that the information we have provided here is of some benefit to you.

Written By:
Michael Tierney
Michael is a legal writer and graduate of WSU. Prior to becoming a legal writer, he had 6 years of experience as a legal assistant and office manager for a family law attorney. He's written about numerous legal subjects from helping spouses who are stuck in toxic situations to the intricacies of custody battles. In his spare time, he enjoys hiking, rock climbing, and building custom keyboards.

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