Potential Legal Issues Related to Divorce

December 30, 2023by Adam Sacks

Divorce

Divorce is a legal process that dissolves the marital bond between a married couple. It is a life event that can be emotionally and financially challenging, often requiring legal intervention to navigate the complexities involved.

Divorce proceedings encompass a range of legal matters, including child custody arrangements, property division, visitation rights, and the division of assets.

Depending on the specific circumstances, the divorce process may be uncontested, where both parties agree on the terms or contested, involving disputes that need resolution. In many jurisdictions, a no-fault divorce option is available, allowing for the dissolution of the marriage without placing blame on either spouse.

Divorce

 

Potential Legal Issues

When going through a divorce, several potential legal issues can arise. These issues revolve around:

  • Child custody arrangements
  • Legal requirements
  • Property division
  • Visitation rights

Child Custody

Child custody arrangements are perhaps the most emotionally charged and challenging aspect of divorce. Determining where the children will reside and who will make decisions regarding their upbringing can be complex.

Child Custody

 

Legal Requirements

Legal documents such as parenting plans and custody agreements are often required to ensure that the well-being of the children is prioritized.

Property Division

Property division is another significant legal issue in divorce. Marital assets, including property, bank accounts, and investments, must be equitably distributed between the spouses.

Visitation Rights

Visitation rights or parenting time is a critical consideration for noncustodial parents. Determining a schedule that allows the children to maintain a meaningful relationship with both parents is essential.

Legal requirements vary from jurisdiction to jurisdiction, but generally, couples must meet certain criteria to initiate divorce proceedings.

These requirements may include residing in the jurisdiction for a specific period, satisfying separation periods, or proving an irretrievable breakdown of the marriage. Failing to meet these legal requirements can delay or complicate the divorce process.

Property Division and Other Assets

In a divorce, one of the most important and complex aspects is the division of property and other assets. This includes both marital property, which is acquired during the marriage, and separate property, which is usually owned by one spouse before the marriage.

Different jurisdictions have different ways of dividing property, but generally, the goal is to achieve a fair and equitable distribution. Factors such as the length of the marriage, each spouse’s financial contributions, and each party’s future financial needs may be considered.

Other assets, such as retirement accounts, investments, and businesses, may also need to be addressed. Proper evaluation and identification of all assets are essential for making informed decisions and ensuring a comprehensive agreement.

Property Division and Other Assets

Marital Property vs. Separate Property

In divorce cases, the classification of property as marital or separate plays a key role in determining how it is divided between the spouses.

This distinction becomes even more complex when considering businesses involved in the divorce. Here’s a breakdown of the key differences between marital and separate property and how various factors can impact their classification.

Marital property refers to assets acquired by both spouses during the marriage. This includes income, real estate, investments, and businesses started or obtained during the marriage.

On the other hand, separate property encompasses assets owned by either spouse before the marriage, inheritances, gifts solely received by one spouse during the marriage, and any property agreed upon as separate through a legal agreement.

While the general rule is equitable distribution, there are four exceptions to marital property:

  • Commingling
  • Prenuptial or postnuptial agreements
  • Separate property agreements
  • Transmutation

These exceptions allow spouses to clarify property rights and protect certain assets from being considered marital property.

Retirement Accounts & Pension Funds

Retirement accounts and pension funds are determining assets that often need to be considered during divorce proceedings. These financial resources play a significant role in ensuring financial stability in retirement and, therefore, require careful attention when dividing assets.

Legal issues can arise when it comes to dividing retirement accounts and pension funds. Different rules and guidelines apply depending on the type of account or fund and the jurisdiction in which the divorce takes place.

One common approach is the Qualified Domestic Relations Order (QDRO), which enables the transfer of funds from one spouse’s retirement account to the other spouse’s account without incurring penalties or taxes [1].

Even with a QDRO, some specific requirements and procedures must be followed to execute the transfer successfully.

Another relevant legal issue is determining the portion of the retirement account or pension fund that is eligible for division.

This often involves assessing the contributions made during the marriage and potentially considering other factors, such as the length of the marriage or the value of other assets being divided.

Retirement Accounts & Pension Funds

 

College Education Savings Plans

When it comes to divorce proceedings, one key aspect that often gets overlooked is college education savings plans.

These plans, such as 529 plans or educational savings accounts, are intended to help parents save for their children’s college expenses. These plans can be significantly affected during a divorce, and it is important to understand the legal considerations involved.

Divorcing couples must address the division of assets and determine what happens to the funds allocated for their children’s education.

College education savings plans are considered marital assets, subject to division during the divorce process. This means that both parties have a claim to the funds accumulated in these plans.

To divide these savings plans, several options exist. One possibility is for the divorcing couple to reach a mutual agreement on how to distribute the funds.

This could involve one party retaining the entirety of the account while compensating the other party through other assets or financial arrangements.

The court may decide how to divide the college education savings plans based on factors such as each party’s financial circumstances, the contributions made to the plans, and the educational needs of the children.

The court’s primary goal is to ensure that the children’s college expenses are adequately covered.

Child Custody & Visitation Rights

Child custody and visitation rights are often one of the most sensitive and contentious issues in divorce proceedings. When a married couple with children decides to separate, it becomes a high priority to determine the custody arrangements and visitation rights for the children.

Child custody refers to the legal and physical responsibility of caring for and making decisions regarding the child’s upbringing, while visitation rights allow the non-custodial parent to spend time with the child [2].

The court’s primary consideration when deciding on custody and visitation is the best interests of the child. Factors such as the child’s age, relationship with each parent, and the ability of the parent to provide a stable and supportive environment are taken into account.

Divorcing couples need to understand the legal implications, rights, and responsibilities related to child custody and visitation to ensure the well-being and happiness of their children during and after the divorce process.

Child Custody & Visitation Rights

 

Establishing Legal Custody Agreements

When going through a divorce, establishing legal custody agreements is a critical part of the process. Legal custody refers to the right and responsibility of parents to make decisions regarding their child’s education, healthcare, and general upbringing.

Navigating this aspect of divorce can be complex due to various legal issues that may arise.

One important factor to consider is custody laws, which vary from state to state. Familiarize yourself with the specific laws in your jurisdiction to ensure that your custody agreement meets all legal requirements. In some cases, grandparents may seek legal rights to visitation with their grandchild. Grandparents’ rights can vary depending on the jurisdiction and the circumstances.

It is advisable to consult with a knowledgeable family law attorney to understand the applicable laws and potential outcomes.

At Sacks & Sacks, our experienced divorce attorneys have extensive knowledge of the legal issues related to divorce, including those relating to child custody and visitation. We are committed to providing our clients with the best legal guidance and representation.

If you are going through a divorce or have questions about establishing legal custody agreements, please do not hesitate to contact us for a free consultation.

 

Sources:
[1] Retirement Topics – QDRO – Qualified Domestic Relations Order | Internal Revenue Service. (n.d.). https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qdro-qualified-domestic-relations-order

[2] child custody. (n.d.). LII / Legal Information Institute. https://www.law.cornell.edu/wex/child_custody

by Adam Sacks

Adam Sacks is lead Family Law Attorney at Law Offices of Sacks & Sacks, P.A. in Jacksonville, Florida. He has a BA in Psychology from 1994, and received his Juris Doctor Degree in 1999 from the Western Michigan University Cooley Law School.

Sacks and Sacks Law
1646 Emerson St. Suite B Jacksonville, FL 32207

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