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In dividing property, the court determines whether property of the parties is considered “marital” or “separate” property. Generally, marital property is subject to division while the separate property is retained by the party claiming it to be their own separate property. By and large, property of the marriage is divided equally between the parties. It is a common misnomer that the wife retains a larger share of the marital estate than the husband; the division of the marital estate depends on a number of factors and is not arbitrarily determined based on the sex of the party. There are, of course, instances where the court may award a larger portion of the marital estate to one party. It is strongly advisable to speak with an attorney to explore what circumstances may necessitate a larger property award to one spouse over another.

In dividing property, the court determines whether property of the parties is considered “marital” or “separate” property. Marital property is that which the parties acquire during the marriage. Generally speaking, the wealth accumulated by the parties during the marriage is considered marital property, regardless of which party actively contributed to the source of that wealth. For example, if one spouse earned an income during the marriage while the other was a homemaker, half the wealth accumulated by the working spouse belongs to the nonworking spouse.

Child support is determined by a formula based largely on the income of the parties and the custody determination. Parties cannot bargain away or waive the right to child support; child support belongs to the child and a parent cannot decide s/he does not want child support. The formula is mandatory unless the parties can show there is a justifiable reason to deviate from the formula. 

If the child spends more than 128 overnights with the parent that pays child support, child support may be reduced based on a calculation using the joint economic responsibility formula, which means that the support obligation will go down.

In general, courts favor granting both parents joint legal and physical custody absent a showing that one of the parents is unfit. Merely stating that the child prefers one parent over the other or that one parent is a better parent than the other is not enough.

Joint custody may be joint legal custody and/or joint physical custody. Joint legal custody is routinely awarded to both parties and refers to both parents’ right and obligation to make decisions about their child(ren)’s upbringing, including schooling, medical care and religious upbringing. The parents must work with one another and consult with one another about these types of decisions. If the parties cannot agree and work together, the parties may file a motion with the court to decide. Neither, however, can make a decision on their own without the consent of the other party.

Child custody is the most emotional and difficult aspect of the divorce process. There are different forms of custody, including sole custody, joint custody, shared custody, primary custody, etc.

There are two prongs of custody: Physical and Legal. Physical custody pertains to where the child resides. Legal custody pertains to the parent’s right and obligation to make decisions for his/her child, such as medical care, schooling, religious upbringing, and all other legal decisions.