By Hope Tuber
When seeking a divorce, you should always attempt, in good faith, to settle your matter if possible. By entering into a separation agreement, you are able to control some if not all of the terms. If settling is not possible, then you are leaving your fate to the Court.
In a custody battle normally, an attorney for the child (AFC) is appointed to represent the best interests of the children. While appointing an attorney for the children is strongly encouraged such an appointment is discretionary and not mandatory. Without an attorney for the child, a court must decide custody without the benefit of an attorney representing the children. Courts are hesitant to decide the fate of children without knowing their desires, as without an attorney it can only surmise what their wishes are after perhaps through questioning and having the children put in the uncomfortable position of choosing a parent to live with. When determining custody, the Court will rely on all relevant factors including the parents’ ability to provide a stable home environment for the children, the children’s wishes——the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.
When it comes to distributing property, the Courts will decide what is “equitable” which may not necessarily equate to 50/50. When you leave it to the Court to distribute assets remember that there is no requirement that the distribution of each item of marital property be on an equal or 50/50 basis. A trial court has substantial discretion to fashion awards based on the circumstances of each case and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors.
Finally, a Court will consider the parties’ financial circumstances, their respective ages, the length of their marriage, any loss of income, and the ability to increase earning potential considering age and prolonged absence from the work force when determining maintenance. In other words, maintenance will be left up to the Court.
As you can see, if you and your spouse cannot come to a settlement, the Court will decide. Once the Court decides, if the decision is supported by the evidence presented at trial and well-reasoned, it is unlikely that the awards will be disturbed.