Divorce: Who Gets What And Why
Here’s the scenario:
You and your spouse have been married for 16 years. You have 3 children together-8, 12, and 15. The five of you live in a big house in a very nice neighborhood. During your marriage your spouse worked as an ear, nose, and throat doctor in Memphis and you worked as a banker in Jackson. Your combined income was right around $200,000.00 per year.
For 15 years the two of you had a great marriage. You did everything together. You went to parties and dinner dates at least twice a month. You went on family vacations every year. You were the “perfect” couple. But one day you come home from work a bit early. You walk into your bedroom and discovery your spouse….in bed…..with your neighbor.
“How could you do this to me,” you scream. “We’re getting a divorce immediately!!!” As you’re looking up the number to your local attorney, you start thinking, “what happens to the house, the kids, the money?” “Which one of us will end up with everything?” “Will I lose my kids?” “What’s going to happen?”
Thus the question is: In a divorce, who gets what and why?
Divorce can be an ugly experience. If you’ve gone through one then you know what I’m talking about. Although, some may argue that Divorce is a beautiful thing. Regardless of how you view divorce, if you’re currently going through one or are about to, you probably have several questions as to which spouse ends up with what. Here’s what you need to know:
First, let’s discuss the property. During your marriage you and your spouse inevitably will acquire property. It could be land, money, household goods, etc. When you go through a divorce, the Court has to figure out where to place all that property. Either with you, your spouse, or a combination of both. This is called “Equitable Division.” But not all property is subject to Equitable Division. Only “marital property” can be equitably divided.
Marital property is basically any property, real or personal, tangible or intangible, acquired by either or both spouses during the marriage. Separate property includes (but is not limited to) (ii)property owned at or before the marriage and (ii)property acquired by gift or through inheritance (there are other categories of separate property but they rarely come into play).
Once the Court has categorized the property as either marital or separate, it will then make an equitable division of it. To do that, the Court will consider several factors. Those factors include (but, again, are not limited to) (i)the duration of the marriage, (ii)the age, health, earning capacity, and financial needs of each party, (iii)the contribution of each party to the acquisition, preservation, appreciation, or dissipation of the property, (iv)the separate property of each, and (v)the tax consequences (again there are other factors the Court can and will consider, but in the interest of space I’ve chosen not to include them in this post).
The Money (Spousal Support)
After the Court has made an equitable division of the marital property, it will then consider any claims for spousal support. This is called “Alimony” and there are 4 types:
- Alimony In Solido (basically a fixed sum of money payable in installments or lump sum)
- Rehabilitative Alimony (designed to rehabilitate the economically disadvantaged spouse)
- Alimony In Futuro (a periodic award of a certain amount until the death or remarriage of the recipient)
- Transitional Alimony (designed to assist the economically disadvantaged spouse in making the transition from married to single)
Most states, including Tennessee, prefer Rehabilitative Alimony. Much like the equitable division of marital property, the Court will consider several factors in awarding Alimony. Some of those factors include (i)the relative income, earning capacity, obligations, and resources of each spouse, (ii)the marital property division, (iii)the debts and expenses of each spouse, (iv)the duration of the marriage, (v)the education/training of each spouse, (vi)the standard of living established during the marriage, and (vii)the relative fault of each spouse.
Although not a deciding factor (typically), the Court can consider who was at fault in the divorce when awarding Alimony. But usually the biggest factors a Court will consider when awarding Alimony is ability to pay and need to be paid.
The Children (and Child Support)
So the last thing the Court will consider is the children. How much time will each parent get with each of the kids? Setting out the schedule each parent gets with the child(ren) is called the “Residential Schedule.” This schedule will designate a “primary residential parent” and in which parent’s home the children will reside on given days of the year, including holidays, birthdays, vacations, etc.
The custody determination must be made by the Court on the basis of the best interest of the child. And again, in making this determination, the Court will consider several factors such as (i)the love, affection, and emotional ties between the parents and the children, (ii)the ability of each parent to provide for the children, (iii)the stability of the family unit, (iv)the mental and physical health of each parent, (v)the home, school, and community record of the children, (vi)the importance of continuity in the child’s life, (vii)the character and behavior of any other person residing in or frequenting the home of each parent, and other factors.
If the child(ren) is over the age of 12, the Court can and will consider his/her reasonable preference.
Once the Residential Schedule has been determined, the Court will move on to the issue of child support. This is a support obligation usually paid to the primary residential parent. It’s determined by combining the net income of both parents, imputing those incomes along with other factors into a database which determines the amount of child support in proportion to each parent’s income.
Essentially it’s designed to come up with an amount you would normally spend on your children if you and your spouse were still living together.
Once the Residential Schedule and child support are determined, the Court will put that into an Order called a Permanent Parenting Plan. This is an Order of the Court that must be followed by both parents. It can only be modified later if there is a material change in circumstances between the parties.
There you have it!!! That’s the basics of “who gets what and why” in a divorce proceeding. Again, there are other factors that can come into play but those listed above are the most common. If you’re thinking about filing for divorce, you need to know that it’s not a quick process (usually). In Tennessee if you have kids born to the marriage, you’ll have to wait at least 90 days before the Court will grant the divorce (60 days with no kids). It can take months upon months to get divorced, especially if the parties can’t get along.
Of course, all of the above determinations made by the Court can also be made by you and your spouse through an “uncontested divorce.” In other words, you can make the Residential Schedule yourselves if you can just agree on custody. You can divide the property yourselves and even make a determination on Alimony….if you can agree.
So, going back to the fact pattern above, I would suggest sitting down with your spouse and trying to come to an agreement. Trust me, it’s far better to make these decisions yourself than to have a Court do it for you.
Good Legal Health.
The Juris Doctor