The end of a relationship is hard, no matter how it ends, or what the circumstances are. And hashing out the details of a divorce settlement can be particularly tricky, even in the friendliest of circumstances. Divorces are complicated and almost never as cut and dry as you might think that they are or will be. Although there are a number of factors that need to be considered when working out a divorce settlement, you might also want to know about cheating and other things that surprisingly won't impact a divorce settlement because, all too often, it's not quite as clear-cut and obvious as you'd expect.
What sorts of factors are taken into consideration while working out a divorce settlement can vary based on state laws and other issues. So just because your friend's divorce settlement went a certain way doesn't mean that yours will be similar.
And yet, in some states, divorce settlements take different things into consideration than you'd think that they would. It's difficult even for many attorneys to predict what the settlement might look like because there are so many.
"In North Carolina, the court considers a wide variety of factors including health, age, length of the marriage, the need of a custodial parent to maintain the marital residence, non-monetary contributions of either spouse, and several more," Libby J. James, a family law attorney at Horack Talley, in Charlotte, North Carolina, explains to Romper by email. "There is even a 'catch-all' factor that is pretty much anything the court should otherwise consider. This is important because a lot of the time, clients get frustrated when an attorney says she can’t predict an outcome. There are so many factors and the weight a given judge may place on any one factor varies widely. It can be very subjective. The same goes for alimony. There are multiple factors that a judge has to consider, which makes predicting an outcome difficult."
But some of the factors that you'd expect would have some kind of impact on your divorce settlement might not actually be as influential as you might think. There are still a lot of factors, but in some cases and in some states, they might not be the factors you'd assume.
If you or your partner receives an inheritance or large gift from someone while you are married, you might think that that automatically means that it's a marital asset, but that actually might not always be the case.
"The law says that as long as the inheritance or gift is received and kept separate and apart from other marital assets and not commingled with marital assets, that that asset is the recipient party’s non-marital asset," Guimond-Quigley says. "So if one party gets a million dollar inheritance from one of their parents during the marriage. As long as they keep that in a separate account and don’t commingle it with other marital assets and don’t add marital assets to it, then it’s gonna be their non-marital asset and the other spouse does not have any claim to it."
If you want to make sure that that inheritance will likely end up yours in the event of a divorce, it's important that you make sure to keep it separate from your shared accounts or accounts that you use to pay your shared bills and the like.
Though it could complicate things if you (or your partner) spent marital money on the affair or if you live in a state where "fault" comes into play, in some states, cheating really won't impact your divorce settlement.
"[I]f the spouse has simply committed adultery, has a girlfriend or a boyfriend, and has not spent money on that person, but has just had that extramarital affair or relationship, that’s not grounds for the other spouse to receive more of the estate or to have some sort of edge in the finance allocation of the estate," Guimond-Quigley says. "And I think that sometimes people think that bad behavior equates to getting less money and it just doesn’t necessarily impact it that way."
An Asset Is Titled In Just Your Name
"A lot of people also think that because a certain asset is titled in their separate, individual name, that they’re going to receive that in the divorce and that’s actually not the case always. If the asset is deemed marital, meaning it was acquired or accumulated during the marriage with marital funds, it doesn’t really matter whose name it’s in," Guimond-Quigley says.
Again, this is about an equitable division, so just because everything is in your name doesn't mean that all of that will be yours.
Who Filed For Divorce
"For a divorce to happen, only one party to the action needs to desire one," Jessica Woll, the managing partner at Woll & Woll, in Birmingham, Michigan, tells Romper by email. "Generally, courts will try to reach an equitable division of the parties’ property. An equitable division often means an equal division, but equitable does not always equate to 50/50. While fault (i.e. cheating) can be a consideration in property division, fault must be particularly egregious for such action to have an impact on a settlement."
Filing for divorce doesn't mean that you're likely to receive more or less in your settlement than your partner will. Again, in many cases, the focus is on things being equitable. While that might not be the case in all situations, it's something about which you should be aware.
A Period Of Separation
Many couples don't go from a happy marriage and living together straight to a divorce. If you and your partner choose to separate and live in different homes before getting divorced, you may be surprised to learn that acquiring marital property doesn't necessarily end when you separate.
"I think people think, ‘well, once I set up my own house and I’ve got my own stuff, then everything that I accrue during that time is mine, and if I win the lottery, it’s all mine at that point too,’ but that’s just not the case," Guimond-Quigley says. "So moving out into separate residences isn’t by itself enough, typically, to stop the clock on the marital estate, at least in Illinois. So parties need to kind of be careful with that line of thinking because anything usually accrued in that time will be part of the marital pot to divide."
Divorces are difficult and complex, to be sure, but some of the things that you'd think would loom large in settlement talks might not actually have as much (or any) of an impact as you'd think they would.