Most divorces are settled without going to trial because the parties are able to reach a resolution to the case in mediation or by another informal method. A small percentage of cases must go to trial because the differences cannot otherwise be settled. Whether the case settles informally or goes to trial, the following categories may be issues in a divorce:
The overarching consideration in a custody determination is the best interest of the child. A court will try to determine which parent was the primary caretaker of the child during the marriage. The court will also regard any relevant conduct of the parents. If custody is contested, the court will want to appoint a Guardian ad Litem (GAL) in the case. In larger counties such as Richland and Lexington, the GAL is usually an attorney. The job of the GAL is to supply the court with the information it needs to make the custody determination.
Before the court awards alimony, either temporarily or permanently, the court must determine (1) whether the spouse seeking alimony has a need for alimony and (2) whether the other spouse has the ability to pay alimony. The court uses 13 factors in determining whether to award alimony and how much to award. As a general rule, the court will not award alimony in a marriage that has lasted less than 10 years, although exceptions to this rule do exist. Alimony can be modified in the event of a substantial change in circumstances unless the parties agree that they both want the alimony to be non modifiable.
In most cases, the calculation of child support is determined by using the gross income of both parties, the number of overnights the child spend with each parent, the cost of health insurance for the child, and any day care expenses. Both custody and child support can always be modified in the event of a substantial change in circumstances.
Equitable distribution (property division) is the division of both marital property and marital debt. The court goes through the following steps in making this division: (1) identification of assets and debts; (2) valuation of assets and debts, (3) assessment of the parties’ contributions towards the attainment of the assets and debts, and (4) apportionment of assets and debts. The court uses 15 factors in making this division. As a general rule, the court will typically make a 50:50 division of both assets and debts in a long term marriage. The equitable division award is final and cannot later be modified in most cases.
The assessment of fees can be a major factor in a divorce. These fees can include attorney fees, GAL fees, expert witness fees, private investigator fees, mediation fees, and/or psychological or custody evaluation fees. Again, the law requires the Court to look at a number of factors to determine IF fees should be awarded. Then the court must look at another list of factors to decide HOW MUCH to award.