When clients think about the idea of divorce, they often assume that it will be a long, drawn-out and painful process. However, the truth of the matter is that it doesn’t need to be that way, and with the right guidance, support and expertise, it can be a quick and pain-free process. There are typically two types of divorce: a contested divorce and an uncontested divorce.
- Uncontested: This type of divorce is usually quick to resolve as both parties agree on the terms of settlement and work together to create a harmonious experience as much as possible.
- Contested: This type of divorce can take much longer before the parties reach any kind of settlement between themselves or in the absence thereof. Usually, these divorces end up in a trial for the court to make an Order.
Settlement & Documentation
A divorce commences when one party from the marriage serves the other with a summons – this is either done after both the husband and wife agree to dissolve the marriage, or if one of the two decides that he or she wishes to leave. During the divorce proceedings, both parties need to agree on the claims and settlement of assets owed to each individual.
Issues that need to be addressed include the claim on immovable and movable property, finances and investments, spousal maintenance, child maintenance and custody (if there are children involved), pension funds, and life policies.
When the divorce is contested, much of the above will be discussed with, or in the presence of, your lawyer. Your lawyer will assist you in moving through the process where an offer to settle is made and either accepted or rejected by the other party. In this case, mediation is vital. Not only does it subdue a lot of the pain and anger, but it allows for efficient decision-making to take place as your lawyer is not directly involved in the situation and therefore able to gain a better perspective on the entire experience. This is vital when there are children involved.
Book a Consultation & Know your Rights
The terms under which you entered into the marriage will determine the terms under which you are both able to exit the marriage. Two main structures will determine the division of the couple’s estate once the divorce proceedings commence:
- Community of Property: This is a type of marital agreement where the spouses decide to enter into a joint estate, and all assets and liabilities are equally shared. Usually, when a person gets married in a community of property, the spouses automatically become co-owners of all their combined assets. If married under a community of property then both spouses are legally entitled to half of everything during the divorce, unless otherwise agreed upon.
- Marriage with accrual: When choosing to marry out of community of property with accrual, it means that both spouses have separate estates when they get married and that they don’t share in any profits or losses for the duration of the marriage. When the accrual is included, a spouse will be entitled to share in the growth of the two estates at divorce. Experts suggest that this is the most appropriate and ideal way to marry. All the assets that each party owns before the marriage can either be excluded or included in the accrual. If no assets are excluded in the ANC, the value of each party’s estate at the commencement of the marriage is deemed to be nil.
Booking a consultation with a lawyer will enable you to work through your marriage contract and determine the best way forward. At Simpsons Attorneys Inc. we wish to guide you through this process and endeavour to act in your best interests at all times.
Be Mindful of Emotions
When children are concerned, divorces need to be handled with even more care than usual. During this proceeding, it is important to determine who the children will be staying with or whether the parents will be sharing custody. During the negotiation stage, your lawyer will also assist you in settling on the maintenance amount and payment conditions. An amendment can be made to this if there is a material change in either of the partner’s financial circumstances. When creating a parenting plan, both partners need to understand that it needs to be constructed with the child’s best interests at heart. This plan may also be reviewed from time to time to be in line with the developmental changes of the child.
A parenting plan may consist of:
- Where and with whom the child will live primarily.
- The exercising of contact with the other parent (the alternate residence).
- Maintenance for the child.
- Schooling and upbringing of the minor child.
It is very important to proceed with care when handling divorce cases that involve children. If you are a parent who is facing this decision, know that you don’t have to do it alone. Here at Simpsons Attorneys, we are focused on providing real, heart-led advice. Above all, we are dedicated to serving and fighting for you, and we will do so in the most empathetic way possible.
