Tales of one spouse walking away with everything in a divorce, leaving the other with crumbs, are usually just that -- tales. Even in equitable distribution states where judges don’t necessarily have to divide marital property 50/50, they rarely stray very far from that equation. Even settlements arrived at between spouses are usually similar to what a judge would decide. Otherwise, a spouse can roll the dice and trust that the court will give him a better deal.
Who keeps the home usually comes down to which spouse can afford it. If there’s equity in the property, the spouse retaining it usually refinances enough to move the existing mortgage into her own name, plus additional money to pay her spouse his share of the equity. This may result in a mortgage payment that is higher than the one the couple shared when they were married. Not all spouses have the earning power to accomplish this. If one spouse does, he’s usually the one to keep the home. If neither spouse can swing it, couples typically list the home for sale and divide the proceeds between them.
Automobiles and their associated loans normally remain with the spouse who has historically driven each. Most settlement agreements include “hold harmless” language, meaning that if both spouses' names are on the loan, the one keeping the vehicle discharges the other from any liability for the debt. Joint credit card accounts are usually closed and assigned to each spouse for payment so that each assumes roughly an equal amount of debt. If one spouse greatly out-earns the other, the accounts might be divided proportionately to each spouse's income. The terms of a settlement agreement usually don’t bind creditors, however, so they can pursue both spouses who sign on a loan or account if the one responsible for it doesn't pay. One way to avoid this is by paying off debts at the time of the divorce through the sale of other assets, such as the home.
When spouses have retirement accounts that are close in value, it’s typical for them to waive any right each might have in the other’s benefits. Otherwise, an attorney or certified public accountant is usually hired to calculate the marital portion of benefits and transfer shares between spouses so that each comes away with assets that are roughly equal in value. This might necessitate a qualified domestic relations order, commonly called a QDRO. QDROs can cost several hundred dollars to prepare, and the spouse receiving the share of a retirement benefit usually pays this fee.
Custody and Visitation
Parents who are in agreement to keep their children out of the line of fire can share physical custody. If parents live reasonably close to each other and both reside in the same school district, the children can move from home to home on a weekly or monthly basis. When that’s not feasible, children typically spend either every weekend or every other weekend with their non-custodial parent. Some parents incorporate one weeknight per week as well. Holidays are typically rotated on an every-other-year basis. For example, Dad might have the children on Thanksgiving in all odd-numbered years, while Mom would have them in even-numbered years.
All states have their own equations for calculating child support based on parents’ incomes, and it usually doesn’t do a divorcing couple much good to stray far from the number arrived at by using this formula. In most cases, a court will overrule such an agreement if a judge feels that it does not adequately provide for the children to the best of their parents’ abilities.