What to Give Up and What to Fight for in Divorce Proceedings


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Divorce stresses you mentally, emotionally, and often physically. You are tired of the conflict, and just want the process over. In divorce as in life generally, it is wise to pick your battles. Knowing what to give up and what to fight for during the divorce proceedings is crucial for getting through this difficult time. Think long-term rather than short-term when making your choices.

Consider the laws of your state when making decisions. States like Maryland are equitable distribution. That means each spouse will not necessarily receive half of the marital property, but the division is supposed to be fair. Each marital situation is different, and “fair” may end up as more than half for one spouse and less than half for the other. The court takes various factors into
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consideration, including the length of the marriage, the age, and health of each spouse and each one’s economic circumstances.

Custody

Nothing is more important to most divorcing couples than custody, and the result will have far-reaching effects on your children. Some states favor one parent while others do not. For example, Maryland law does not favor one parent over the other. The court considers the child’s best interests. Step back and consider what those best interests really are. Try and reach an agreement with your former spouse. If you can’t agree, the court makes the decision. Remember that custody and visitation are not set in stone, and either parent can petition for modification of a court order.

The House

It is likely the house is the largest asset belonging to a couple. Unless there are compelling reasons for one spouse to keep it, the marital home is usually not worth fighting over. Children may provide that “compelling reason,” but if you want them to stay in the same school district, moving to another home in town is often a better solution. The spouse with primary custody of minor children may receive a use and possession award for the home, which terminates within three years after the divorce.

The court considers the house an asset, like any other marital property. If you fight for the house, you will not receive other assets that may benefit you more post-divorce. Ask yourself if you can afford the mortgage, taxes, and other upkeep on your own. Keep in mind that refinancing a home is often difficult after divorce. If you can’t afford your dwelling, selling and splitting the proceeds is the best option. Your credit history may have already taken a hit because of the divorce. You do not want to make it worse by potentially missing mortgage payments.

Personal Property

Unless you own especially valuable artwork, jewelry or antiques, fighting over personal property is a waste of time. Much of what you are squabbling over has little but emotional value. If there is furniture, recreational items, or appliances you both want, try to compromise. You could end up paying exponentially more in legal fees or court costs than any of the property is worth.

Your Business

A business owned by one spouse and acquired during the marriage is considered marital property. The court decides the fair market value, often based on forensic examination of the company’s records. This is your livelihood, and well worth the fight if the business is successful. If you can buy out your spouse’s share, it is in your best interest to do so. Sacrifice other assets to keep your business. Otherwise, you and your spouse are “partners,” and your spouse could even sell his or her half to a third party.

Retirement Assets

If your spouse has substantially more retirement assets than you – whether they consist of 401(k)s, pensions, IRAs, deferred compensation or profit-sharing plans – you should definitely fight for your fair share. Over time, these assets may be worth more than any type of your marital property.

Federal law comes into play for the division of 401(k) and similar plans, but state law governs the disposition of IRAs. It is vital that such assets are transferred correctly. Otherwise, the spouse receiving the retirement funds could get hit with a big tax bill. Retirement assets are among the most complicated issues in a divorce, and their handling requires professional expertise.

Contact an Attorney

During this most personal of battles, you need a divorce lawyer who understands your situation and can get you the best settlement. Thankfully this is one of the first steps that most recognize is a necessity in these situations, but it is worth the reminder to protect yourself.

ABOUT THE AUTHOR: Jane Meggitt
Jane Meggitt is a Writer for Blackford and Flohr, a criminal defense and family attorney in Maryland.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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