Everything You Need To Know About Divorce – Think about what you need to negotiate in a divorce and then how to negotiate it.
In this blog I have simplified the law. For a detailed explanation of what needs to be negotiated, click here to download my book Divorce Without Drama.
Everything You Need To Know About Divorce
Whenever I mediate a divorce, I mediate everything in the following order: children, alimony, assets, and liabilities. We will discuss these topics in turn.
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Parenting time is the time you spend with your child. If your child gets 50% of the time, that’s 50/50 parenting time, not joint custody. Therefore, parenting time is equal to your child.
Despite what your coworker says, there is no “standard parenting time” in Oregon. The law requires a parenting schedule that is in your child’s best interest. The hard part is getting both parents to agree on the best interests of the child.
Custody is the legal right to make decisions about your child’s education, religion, medical care, and where they live.
Sole custody means that the parents have the right to make decisions about education, health, religion and residence. Joint custody means that both parents agree on the child’s education, health, religion and place of residence.
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The court cannot force you to have joint custody, which means that if both parents do not agree on joint custody, the court will award custody to only one of the parents.
To illustrate the differences between parenting time and custody, Parent A may be awarded sole custody and Parent B may be awarded 100% of the parenting time. Really? Yes, indeed. These two concepts are mutually exclusive.
Maintenance is calculated based on several factors, such as the parent’s income (including spousal maintenance), the number of children, the number of nights spent with each child and health insurance costs. Click here to calculate your child support.
Spousal support is not a calculation, it is a negotiation. Spousal support is often negotiated based on factors such as length of marriage, differences in income, earning capacity of the parties, and standard of living during the marriage.
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Marital property includes everything of value. It doesn’t matter whose name is on the property title. If it was acquired during the marriage, it must be valued and included in the divorce. How you value the property is negotiable, but the property should be included.
The formula for assets is very simple: fair market value of the asset – debt associated with the asset = value. Let’s take the example of a house. The valuation formula looks like this: $750,000 – $450,000 = $300,000. So, if the home is valued at $750,000 on Zillow and you have a $450,000 mortgage, the equity in the divorce is worth $300,000.
Not to complicate our simple formula, if an asset, such as a retirement plan, was included in the marriage, the formula also includes a down payment discount of the following amounts: Fair Market Value – (Liability + Down Payment Discount) = Value. For example, if your retirement plan is worth $400,000 now, but it was worth $150,000 when you got married, and you borrowed $10,000 from your plan, it would look like this: 400,000 – ($10,000 – $150,000) = $240,000. So the stock is worth $240,000.
Complex concepts such as passive growth, capital gains discount, future tax relief, present value discount, owned and non-owned shares, business or pension valuation and business asset valuation are too complex to discuss on this blog. For more information, see my book Drama-Free Divorce.
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In the case of divorce, all obligations must be considered. It does not matter whether the liability is in the name of the party. It doesn’t matter who (mostly) created the obligation. If responsibility arises in marriage, we take it into account.
A secured liability is a debt attached to an asset. Secured liabilities are houses with mortgages, cars with loans, etc. In a divorce, we consider insured liabilities within the value of the property, such as the house example in the assets section above.
As with assets, we discharge the liability for the pre-nuptial amount if the marriage involves a liability. For example, if a credit card balance at the time of marriage was $10,000 and only paid interest each month, the card was continued at the time of marriage and now has a balance of $26,000, the premarital balance is written off. It looks like this: $26,000 – $10,000 = $16,000. We use $16,000 in the divorce.
Student loans are a unique animal. They are assigned to the person listed on the loan and are usually, but not always, not counted in a divorce. Why? Because education is real estate that other parties cannot help.
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Credit cards are one of three categories: (1) held in the name of one party, (2) held in the name of one party but the other party is an authorized user, or (3) jointly held. Most people think that their credit cards are in their name, but in reality they may be the authorized user of a spouse’s credit card or only one party’s joint card.
How do you find it? Check your credit report, not your credit score. Click here to access your free federal credit report (and no, checking it won’t lower your credit score). Your credit report shows what credit is in your name and whether it’s in your spouse’s name.
Joint debt makes divorce difficult if the balance is not paid in full. For example, if you have a joint Capital One card but don’t have enough money to pay it off, or if you don’t qualify for additional credit to transfer the balance to your name, we may have to pay for the property sold. One of the equity balance.
Now that you know what to negotiate, it’s time to learn how to negotiate a divorce. There are four different ways to negotiate a divorce. Each process has its advantages and disadvantages.
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This is the safest option. Each of you is represented by an attorney whose sole job is to get you the best deal possible. It is also the most expensive option. As I write this blog, most couples who hire two attorneys typically spend $15,000-$20,000 for a total of $30,000-$40,000! Yes, you read that right.
It saddens me to admit this, but most attorneys do not tell potential clients what the typical client will actually pay to settle their divorce. Instead, they tell the prospect they need a $2,500 deposit to get started, and then the lawyer says, “I’ll do everything I can to keep costs down.” They never cut costs, it’s always over $2500… much more. Ask anyone who has used a divorce attorney and they will back my claim.
It’s a terrible choice. Why? Only one side is represented by a lawyer. Why is this important? Remember that a lawyer’s ethical duty can only be to the party he represents. They prepare the documents for the benefit of their client. That’s their job. They cost around $5,000 to $7,000 in total. So yes, it’s cheaper than hiring two lawyers, but it cheats one party.
In rare cases, some parties may escape proper handling of documents. If you have no assets, no children, you both earn equally and you don’t have to pay anything, you can do the paperwork without worry. But you don’t know what you don’t know about any of them. This is the cheapest option and costs around $20 in documentation fees. You get what you pay for.
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Yes, I’m a broker, so part of that preference, but I talk to non-brokers several times a week.
If you don’t want drama, if you don’t want to spoil your spouse, if you trust your spouse with mutual interests in mind, and if you want you and your spouse to decide what to do, you should mediate. Justice, not court, if you want to save money, do it right.
If you try to mediate to save money, but you can’t agree on the most contentious parts, you’re wasting your money.
The Scary Truth: Anyone in Oregon can call themselves a “broker” because “brokers” are not licensed or qualified. Your manicurist must be licensed, but brokers are not required to be licensed or qualified.
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I strongly recommend only hiring an attorney mediator. Why?
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