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THE SMART DIVORCE

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April 2004
THE SMART DIVORCE

Many people dream of finding someone to share their lives with, someone who will be there "forever." Far fewer, however, dream of the day when that lifelong bond breaks, when they and their spouse go their separate ways, unable to continue living together. So it is not surprising that individuals seeking a divorce are unprepared for the legal aspects of divorce. While divorce is inevitably difficult, understanding a little about the legal process may minimize the shock and frustration that often develops.

Traditionally, the divorce process begins when one spouse files for divorce. This "complaint" will, among other things, state the reason for the divorce. Most divorces in Georgia are requested because of "irreconcilable differences," which means that neither spouse is blamed for the marriage's failure. Next, the other spouse submits a written answer to the complaint. Then, the court often holds a temporary hearing. The purpose of the temporary hearing is to decide what living arrangements, child support or alimony are appropriate until the divorce is completed. These decisions are written in the form of a temporary order, which is binding on both spouses until the entry of a final judgment. The temporary order may not reflect the eventual outcome of the divorce.

Before the divorce can be completed, assets and liabilities acquired during the marriage must be fairly divided. In Georgia, except for gifts and inheritances to one spouse, all property acquired during a marriage is considered marital property and may be divided. Property the spouses had at the time of the marriage generally is not divided. Dividing property is often a difficult part of a divorce, especially when there is not enough money to maintain two households at the standard of living the parties had shared together. Spouses are sometimes surprised to discover that the property analysis is very detailed. Courts want to divide property fairly, and doing so requires a complete understanding of what property is marital, and what is not marital. Sometimes, property is composed of marital and non-marital portions, as when one spouse pays part of the down payment on a home with money that is a gift from his or her family. The spouse receiving the gift is generally entitled to the value of that non-marital contribution. Courts will need to know all of the details about such matters in order to determine how to distribute the property of the divorcing parties.

When children are involved, their custody and support must be established. In making this determination, the court's concern is the children's best interests. The needs and wishes of the parents are secondary to finding a parenting plan that benefits the children. Often, this means that children live primarily with one parent, and spend time visiting the other on a set schedule. Different parenting arrangements are possible depending on the family's circumstances. Courts generally will assume both spouses to be fit parents capable of loving and caring for their children. Because of this assumption, courts usually expect to see custody and visitation arrangements that enable the children to continue having close and loving relationships with both parents.

Dividing marital property and deciding on appropriate arrangements for the care and support of the children, along the many other issues arising during a divorce, can be very personal and difficult to resolve. The best answer to these issues may vary significantly from case to case. Recognizing this dilemma, courts increasingly refer divorce cases to mediation. Mediation is an informal process in which the spouses and their attorneys work with a mediator, who specializes in helping parties to a dispute create mutually acceptable solutions. Mediators attempt to create environments that foster effective, future-oriented communication so that the spouses can jointly develop a solution that meets their needs. If a mediation is unsuccessful, the court remains available to resolve the divorce.

Divorces become final in one of two ways. First, the spouses can reach an agreement on all the issues, either by negotiating or through mediation. Second, when they cannot agree, the court will make the decisions and order both parties to follow those decisions. In either case, the final arrangement is put into a very detailed document that the court must approve as a legal resolution of all issues in the divorce. The terms of the divorce become an order of the court, and both spouses will be obligated to abide by them after the divorce.

Divorce is not easy. Spouses can, however, prepare for the challenge by doing three things before seeing an attorney:

? Organize financial records. Gather records for all bank accounts, investments, retirement plans, credit cards, mortgages, lines of credit, real estate, and businesses in which either spouse has an interest. Be sure to include the most recent statements. Make copies of documents instead of trying to hide or steal them from the other spouse. It is always helpful to compile a list of current assets and liabilities. Don't forget to identify if one spouse had an asset or liability before the marriage.

? Make a budget of present expenses. This helps the court determine what will be reasonable child support and alimony. Spouses can use the budget to begin evaluating how much they will need or be able to afford to pay.

? Think about what is best for the children. Imagine the happiest possible scenario your children could be in one year after the divorce. Try to separate this from what would make you happy or comfortable.

Attorneys want clients to achieve workable resolutions in a divorce, to walk away with a "good deal" they can live with. Creating a deal both spouses can accept is difficult, which only makes understanding the divorce process more important. Individuals who initially understand some of the process and have begun to work on the three items listed above have less to learn during the divorce and can put more energy into creating a good solution.

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Elyse Aussenberg is a Partner with Robinson, Jampol, Aussenberg & Schleicher, LLP.

She practices Family Law and can be reached at: 770-667-1290


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