Divorce Dollars - Akeela Davis Reference Series

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support payments is too low to be appropriate. In such a case, the court could impute income (i.e., assign an amount) to the spouse whose income is needed to calculate support. For example, the court may attribute income to a spouse who fails to provide income information requested by the courts, or a spouse who is suddenly unemployed or underemployed for no good reason.

      Interim or temporary agreement: An agreement between the two parties on specific issues — such as child support payments or sharing of expenses during separation — which will be effective while the parties work out the rest of the details of the divorce. A lawyer is not required to create an interim or temporary agreement, but it is a good idea to consult with one to ensure that legal rights are not being signed away.

      Minor children: Children who have not yet reached the age of majority. If there are minor children involved in a separation, the child’s best interest must be the motivating factor in deciding physical custody, access, and guardianship. Parents cannot sign away the rights of a child. Doing so will invalidate any agreement and allow the courts to set up new arrangements.

      No-fault divorce: A divorce in which the grounds for divorce are solely that the parties have been living separate and apart for one year.

      Pre-divorce syndrome (PDS): A condition suffered by those going through divorce. Symptoms may include feelings of rage, fear, loss, helplessness, pain, misery, hate, anguish, hostility, revenge, loss of self-esteem, and blaming (self or others). Some seek to deal with their feelings using alcohol, drugs, or other destructive behavior. PDS may linger on long after the divorce is finalized.

      Separation: The name given to the event that may lead to a divorce. Separation occurs when a married couple has decided that their marriage is no longer working. They have ceased marital relations and are seeking to determine the next step in their relationship. The couple is still legally married during this stage.

      Separation agreement: A legally binding contract that details the terms and conditions of the separation as agreed by both parties.

      Settlement: The term used to indicate resolution of the financial and other issues upon the dissolution of the marriage.

      Uncontested: A divorce in which both parties agree on all the issues involved in the divorce.

      There are two other terms that deserve further discussion. These are “custody” and “support.”

      Custody

      The term custody can be confusing as it can refer to physical custody or legal custody. One must be clear about exactly what is meant by custody.

      Physical custody: The disposition (physical allocation) of the children of the marriage.

      Sole physical custody: A term used to describe an arrangement in which one parent has the children residing primarily with him or her. That parent will normally receive child support.

      Joint physical custody or shared custody: A term used to describe an arrangement in which both parents have near-equal custody of the children (that is, the children reside approximately half the time with one parent and the other half of the time with the other parent). Both parties are equally responsible for the costs involved in the care and nurturing of the children.

      Split custody: Indicates that the children of the marriage are split between the parents. One parent may have sole physical custody of one or more children, while the other parent has sole physical custody of the rest. Child support payments, in these instances, may be very complicated. It is highly advised that you get legal counsel.

      Legal custody or guardianship: Terms used to indicate the person who has the right to give legal permission regarding a child’s health, education, welfare, and mobility.

      Joint guardianship: An arrangement in which both parents are guardians. In such a case, should one parent die, the child will automatically live with the other parent. Both parents must agree on things affecting the child’s health, education, and welfare when both are guardians.

      Sole guardianship: An arrangement in which only one parent is legally recognized as the guardian of the child. That parent can designate who, upon his or her death, becomes the guardian of the minor child. The parent who has sole guardianship can also make decisions on where to live and what is best for the child without having to obtain the other parent’s permission.

      Support

      There are two distinct types of support: child support and spousal support (also called alimony).

      Child support

      Even after divorce, both parents have a legal duty to support their children financially. Child support is money paid to the custodial parent for the care and benefit of the children. Every child is entitled to financial support, regardless of whether or not the parents were married.

      Both the United States and Canada have laws aimed at protecting the living standards of children involved in separation and divorce.

      In the United States, each state is required to have a Child Support Guideline. In some states, it is really only a guideline, and judges have a lot of room to deviate from that guideline. In other states, such as California, judges adhere fairly closely to the guideline. The actual amount of support depends on many factors and the state in which the parties live. For example, some states use net income to calculate the amount of support, while others use gross income. You will have to check with a state agency (see Appendix 2 for websites) or see a lawyer to find out the rules in your jurisdiction.

      In Canada, the minimum amount payable is based on the Federal Child Support Guidelines. There are individual tables in the guidelines to reflect the different tax rates in each province. Federal tables will apply if no provincial guidelines exist. In Canada, the term “guideline” is somewhat of a misnomer, since it is more mandatory in nature than a guide. Judges may award higher support payments than indicated by the guideline, but only in extreme circumstances will they award less than the guideline amounts. The guideline is based on the payer’s income and the number of children involved. This amount is neither taxable to the receiver, nor deductible to the payer if the agreement or court order was made as of May 1, 1997.

      If a child has special expenses (i.e., exceptional or extraordinary expenses, over and above child support), these costs are usually shared in proportion to the incomes of the parties involved in the divorce, or according to the terms of the divorce decree.

      Spousal support (alimony)

      Spousal support is money paid to relieve any economic inequality that may exist at the end of a marriage. Whether or not a spouse receives support depends on a number of factors; for example —

      • need,

      • ability of the other spouse to pay,

      • length of marriage, and

      • age and health.

      Either spouse may apply to the courts to vary the amount or terms of spousal support, if his or her personal financial situation changes. Spousal support, when merited, can be time-limited or indefinite, periodic or lump sum.

      Time-limited spousal support: Usually granted when the receiving spouse needs financial support while he or she upgrades his or her skills to earn an income, or when the receiving spouse has family obligations that prevent him or her from working full time; for example, while the children are young.

      Indefinite spousal support: More likely in a long-term traditional marriage. A traditional marriage is often one in which one spouse gave up his or her career to look after the children and/or to help build the career of the other spouse.

      Periodic support: Support paid monthly or annually.

      Lump sum: A one-time, non-taxable payment to the receiving spouse, instead of regular, taxable,

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