One of the hardest parts of getting a divorce is making smart decisions. Smart decisions often start with a couple who is willing to mediate their divorce and find areas of compromise during this process. Sometimes couples will fight over things of little financial value because of sentimental attachment, or, worse, they know the other spouse has an emotional attachment. But even in the most civilized divorce negotiation, there can be times when a spouse has to draw the line about what is acceptable and what is not.
Some may assume that every part of the marital estate is up for serious negotiation, but this is not true. Nor is every arrangement going to seem fair to both parties. Colorado, for example, is a state that divides assets “equitably and fairly” which is not the same as a half-half split. This leaves some room for negotiation, but the chances are that the spouse who earns more money will end up with more money regardless of how hard a spouse and their attorney fight for half.
Is it worth fighting for?
The answers for families will be different with an attorney providing the best analysis of the specific situation. But some may find these answers and others surprising and helpful:
- Fair custody agreement: Most states believe that it is in the best interests of children if parents share custody (allocation of decision making and parenting time). A parent will need a very good reason for changing this thinking if the other parent is making suitable accommodations to raise the children in a safe and nurturing environment. Is full custody worth fighting for? Maybe, but not without reasons supported by facts. Those reasons can include a basic inability to make sound parenting decisions, substance abuse, extensive travel for work, and mental health issues which make joint decision making or shared parenting time unwise.
- Child tax credit: The primary caregiver often gets this, but it can be smart to arrange for the spouse who earns more to get that credit. Of course, this accommodation would need to benefit both sides in some way. Is it worth fighting for? It is if it saves money.
- Fair spousal maintenance: Spousal Maintenance is certainly negotiable and should fit the circumstances of the family. There are specific formulas that the states use for generally determining fair support based on income and expenses. Nonetheless, different approaches can save money on taxes, and these can benefit both sides in the long run. Is it worth fighting for? Yes.
- The house: This is likely the most significant asset belonging to the couple. It also may be too expensive for one parent to pay the mortgage, taxes and upkeep. Setting sentiment aside, selling the home and splitting the money for two more modest homes in the same school district may make more sense. Is the home worth fighting for? Probably not.
- Retirement assets: Pensions and 401(k) accounts increase in value over time and may become worth more than any part of the marital property. Having that nest egg is crucial to living comfortably in later years as well. Are retirement assets worth fighting for? Yes.
- A business: Like it or not, any business started after the marriage is marital property and thus is subject to equitable division. The founder or owner should fight for ownership or control – they can do this by exchanging for other assets of similar value. Is the business worth fighting for? Yes.
Negotiating these issues can be difficult
Areas of dispute can be litigated in a court of law, or the couple can choose the less confrontational and less expensive format of mediation. This still enables couples to fight for what they hold as necessary, but it allows them to craft a divorce arrangement that fits the needs of the family rather than leaving the matter up to a judge.