Main Issues in Divorce

The Dirty Little Secret

The dirty little secret about the main issues in divorce is that for the overwhelming majority of us, it’s just not all that complicated. Despite the complaints of some divorce lawyers that “it’s all gotten so technical,” it’s still pretty simple technically. What makes divorce difficult is not so much technical complexity, but rather the white-hot emotional content of so many of the issues.

Once you get past jurisdiction and residence, which are usually no issue at all, the main issues boil down into four groups:

Here’s a list of the main issues present in divorce and separation. You’re welcome to print it or download it and share it with your spouse.

Reconcile?
1. Trial separation?
  1. Formal or informal?
  2. Agree on temporary working arrangements
2. Counseling
  1. What’s the commitment?
  2. Who pays for it?
  3. What’s the goal?
Parenting
1. Time spent with each parent
2. Holidays – separate arrangements? Martin Luther King, Easter, AEA/Spring Break, Memorial Day, Mother’s Day, Father’s Day, July 4, Labor Day, Halloween, Thanksgiving, Christmas, Winter Break, New Year’s Day, children’s birthdays, parent’s birthdays, other holidays
  1. Summers
  2. Weekends (day, time, and transportation)
  3. Weekdays (day, time, and transportation)
  4. Reciprocal first-choice for babysitting?
  5. Introduce babysitter to spouse?
  6. What to do if one of the parents leaves the area?
    1. Alternate plan?
    2. Renegotiate?
    3. Re-enter mediation?
    4. Any difference depending on the reason for leaving?
  7. Time spent with any third parties (grandparents, etc.)
3. Major decisions
  1. Academic, religious, civic, cultural, athletic, medical and dental care, and other activities (name a parent for each?) (one parent for all?)
4. Any agreements about Mom’s and Dad’s behavior when with children
  1. Drugs and alcohol?
  2. Dangerous activities?
  3. Third parties?
Child Support
1. Guideline monthly payments
  1. Amount and date(s) payable
  2. Provisions to increase, decrease, suspend, or terminate.
2. Any reason to deviate from guidelines?
  1. Income out of the range?
  2. Visitation schedule?
  3. Special needs?
3. Any scheduled payments
  1. Bar Mitzvah/Bat Mitzvah
  2. Car(s) at 16?
  3. Help pay for wedding(s)?
4. College expenses
  1. Undergraduate, technical school
  2. Benchmark school?
  3. Graduate school?
  4. Any restrictions or limits (grades, time, etc.)?
  5. Share expenses?
  6. Any savings plan (PACT, etc.)
5. Taxes

Medical expenses
1. Health insurance
  1. Monthly premiums
  2. Annual deductibles
2. Amounts not covered by insurance
3. Dental, orthodontics, vision, mental and nervous?
4. Any special needs?
Life insurance?
1. How much?
2. How long?
3. What evidence of status?
Division of Property and Liabilities
1. House

Fair market value (FMV)
Debts (including home equity, if any)
Who deducts mortgage interest and property taxes?
Capital gains
1. Sold after May 7, 1997? If so, probably not an issue
2. Purchase price for house
3. Any improvements?
4. All capital gains on prior houses
5. One-time exclusion at age 55
Plans for future
If house will be sold, when? What if it doesn’t sell? Drop price? When? Who pays repair costs, closing costs?
Who gets escrow account?
If house will not be sold, will it be jointly held? If so, for how long? Repair costs?
Effect on credit flexibility
Any access to house for spouse who’s moving out?
Timing of sale in relation to divorce

Other real estate (same issues as above for each property). Depreciation? Recapture? Any timeshares?
Tangible personal property (property you can touch)
1. Vehicles
  1. May need bills of sale
  2. Responsibility for paying off loans
2. Household furnishings
3. Collectibles
4. Tools and equipment
5. Keepsakes
  1. Divide up?
  2. Access to other spouse for copying?
Financial assets
1. Retirement accounts – need to know how much is after-tax and how much is still taxable
2. Estimate present value of pension plan(s)
3. Stocks, bonds, mutual funds – need to know basis
4. Bank accounts
5. Life insurance
  1. Cash values
  2. Possible use to ensure payment of child and spousal support
6. Frequent flyer miles?
7. Professional licenses?
Debts
1. Charge cards, personal loans, other?
2. Need to know which debts are joint and which ones are individual
3. Close joint accounts?
  1. If can’t close out because balance is too high, close out new purchases?
  2. Agree on payment of balances — both responsibility and timing
4. Indemnity agreements?
5. Bankruptcy?
Family business
1. Continue as partners?
  1. sever?
  2. work together?
2. Buyout?
3. Value
4. How to get cash out?
Income Tax
1. Refunds
2. Liability for back taxes
3. Joint return?
4. Indemnity?
Litigation
1. Any recovery expected
2. Any potential liabilities
Consider delivering part of property in the form of tax-deductible alimony
1. Gross up to compensate recipient spouse
2. Watch excess alimony
3. Watch alimony fixed as child support
Tissue samples

Fertilized eggs?
Sperm samples?
Other tissues?
What to do with them? One keeps? Destroy? What restrictions on use?

Spousal Support
1. Monthly payments
  1. Amount and date(s) payable
  2. Provisions to increase, decrease, suspend, or terminate.
  3. What if tax law changes?
  4. Beware of excess alimony
  5. Beware of alimony fixed as child support
2. Medical insurance
  1. Available from employer?
  2. Available from spouse’s employer through COBRA?
  3. If using COBRA, what to do when COBRA runs out?
3. When does it stop?
  1. When recipient dies (required)
  2. When payor dies?
  3. When recipient remarries or cohabitates?
  4. Fixed period?
  5. Contingency?
4. Cash settlement
Other Issues

Social security (10 yr. rule)
Attorney fees
Mediation fees
Relationship to church or synagogue
1. Both continue to attend same?
2. Small groups?
3. Divorce service?
Timing of the divorce
1. Ability to file joint return?
2. Bankruptcy?
How to modify agreement
1. Planned renegotiation?
2. Agree to mediate?

The Dirty Little Secret

Remember: Think strategically

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