What are my rights during my divorce?

facing_divorcePeople faced with divorce tend to ask the same first question: What are my legal rights? Although at first glance this might seem the most important question, in reality it isn’t. Why not? Your rights, as established by law, are so vague as to be almost meaningless. Let’s review them.

Your rights concern three issues: children, income and division of marital assets.

child_custody_child_supportCustody rights

Each parent has a right to spend some of the time with his/her children. How much time? The law doesn’t tell you. All it says is that, absent some powerful evidence of unfit parenting, you each have the right to time with the kids. How much and when will be determined in one of two ways. First, you and your spouse will negotiate and decide how much time the children spend with each of you. You can decide this by direct negotiation or by negotiating through lawyers. If you fail to agree you will have a trial before a judge and the judge will decide. But going before a judge happens in less than two percent of cases.


Alimony and Child Support

The second issue is support; child support and alimony. There is some law and formula in calculating how much child support you either pay or receive, but the law provides no guidelines for alimony. You have the right to receive alimony if you need it, if there is a large disparity between your income and your spouse’s income and if your spouse can afford to pay. How much is that? The law doesn’t tell us. Just as with the children’s schedules, you will have to negotiate the answer or try the case and have the judge decide. And once again, about 98% of divorcing couples negotiate an agreement, either alone or through their attorneys.

 Property Rights

property rightsNow we come to the third issue. How much of the property do I get? You have a right to some of it but don’t ask how much? There are some rules here that help. If you owned it before the marriage and you still own it, it’s yours alone. If you received it from a third party by gift or inheritance and you still have it, it’s yours alone. But all other property is marital and is in the pot to be divided between the partners.

How much to each? Here the law is singularly unhelpful. In most states there is a statute that sets forth about thirteen criteria the judge is supposed to apply when dividing the property. This law was designed by a committee of lawyers with less success than was had when the proverbial committee created a camel. The law is so confusing and complex that few judges have the brains or the patience to figure it out. So guess what they do? In the great majority of cases they default to what they understand and divide the property 50/50. And what happens in the 98% of cases resolved through negotiation? Same thing: 50/50. So as a practical matter, in the overwhelming majority of divorces each spouse gets half the marital property.

These are your substantive rights. You also have a few procedural rights. You have a right to have your spouse disclose all relevant information. Of course, you also have the same obligation. This is the right of discovery. And it includes your right to have experts value assets when it is not obvious what the asset is worth. But that’s about it. Those are your rights and now that you know them I suspect it doesn’t make you feel much better. Because the things that will make you feel better don’t have all that much to do with your rights — they have to do with real negotiation, closure, and getting on with your life.

Sam Margulies, North Carolina Divorce Consultation & Mediation

I am one of the most experienced mediators in the United States. Since 1980, I have mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.

Check out the books on divorce that I’ve written, and feel free to contact me with your questions about your divorce.


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