Regardless of whether you end up negotiating your divorce settlement or duking it out in litigation with your ex, these 5 critical issues need to be addressed in your separation and divorce.

By M. Marcy Jones

There are many ways to get divorced, but no matter how you end your relationship legally there are 5 issues that need to be considered and incorporated into your separation and divorce. These issues are custody, visitation, child support, property division, and spousal support. Keep in mind that every state has different laws, so the information here is generic but should be generally applicable wherever you are. Each overview will at least give you the basics and help you begin thinking about your personal situation so you can outline the steps you will want to take to achieve your overall goals.

While considering these issues, remember to ask yourself these questions once again:

  • What do I want my life to look like when my separation and divorce is done?
  • What kind of relationship do I want with my spouse when the divorce is done?
  • What kind of relationship do I want our children to have with each of us when the divorce is done?

If you don’t have children, skip ahead to the sections on Property Division and Spousal Support.

Issue #1 – Custody

Clients usually come to me confused about what the word “custody” means. A number of legal terms need to be understood in order for custody to make sense—like sole legal custody, joint legal custody, sole physical custody, primary physical custody, joint physical custody, etc. What happens is people sometimes get hung up on the terminology without really understanding it, and this lack of understanding can cause unnecessary problems. Once again, this is a place where the legal system has the effect of setting people up for failure. They hear these terms and become aligned with a certain “position” without really understanding the terms, which can make it harder to reach an agreement.

Obviously, custody can be a highly emotional issue for parents. Where children will live and how you will co-parent in two households is complicated. Once parents have an understanding of the legal definitions of custody, they’re better able to focus on the best parenting arrangement or schedule for their children.

I have found that placing emphasis on what the parenting schedule will look like and how it will work for the parents and the children, rather than what it’s called in legal terms, is a more productive approach to resolving the custody situation. Then it is no longer about one parent or the other getting something (like physical custody), but now about the schedule and the actual time when the children will be with each parent.

Issue #2 – Visitation

Visitation generally refers to the situation when the children have their primary residence with one parent and “visit” the other. For many parents, the term itself is a hot button, and I advocate not using it. I’ve had many fathers tell me they have no intention of being an “every other weekend dad” and “visiting” with their children. It was important to them that they continue to have significant and consistent interaction with their children. For this reason, I prefer not to use the term “visitation” and instead speak of the arrangements in terms of each parent’s “time” with the children, the “children’s schedule with each parent,” the “parenting plan,” etc.

The semantics are important. If using different language helps to reduce the emotion of the situation, then we need to use different language. It’s that simple. The point is to keep the parents focused on what is best for the children, and to keep the children healthy, happy, and emotionally balanced. If this is their goal (and 99 percent of the time it is the goal for divorcing parents), then why get caught up in what all of it is called? By using neutral language, we keep the focus where it needs to be.

Issue #3 – Child Support

Child support is money paid by one parent to the other to help support the children. This amount is intended to help support all aspects of the child’s life, including food, housing, utilities, clothing, incidentals, school-related expenses, etc. The amount of child support paid will depend primarily on the parents’ income and the custody arrangement. Both parents have a legal obligation to provide financial support for their children until the children turn eighteen and are legally adults.

Issue #4 – Property Division

The division of property in a divorce can be complicated. The parties need to figure out what they own and what they owe. The difference will be the marital estate. Then they need to determine how to divide the marital estate.
The simplest way to explain the division of property is to say we determine the fair market value of the marital assets, then deduct the amount of marital debt, leaving an amount we call the marital estate, which is the amount to be divided between the parties.

The next question is how to divide the property, whether it is an even 50/50 split or some other division. Most courts initially assume an equal split; however, based on the evidence and consideration of a number of factors, the court may award a different division, such as 55/45, 60/40, etc.

Issue #5 – Alimony or Spousal Support

Spousal support, also known as alimony, is money paid by one spouse for the support of the other. In some jurisdictions, it’s based on a guideline calculation similar to that done for child support. In other jurisdictions, it’s based on one spouse’s ability to pay support and the other spouse’s need for it. So if one spouse can show a need to receive support, but the other spouse does not have the ability to pay any support, then no support will be ordered by a court. Likewise, if one spouse has the ability to pay support but the other cannot show a need for it, no support will be ordered by a court.

The best way to see whether there is a need and/or an ability to pay is to have both spouses complete detailed income and expense budget sheets. Having this information is helpful to the clients in coming to an acceptable agreement. If an agreement is not reached, this information is used in court by each side to argue his or her case.

Again, when this matter is handled outside of litigation, the parties are free to create whatever arrangement works best for them. They can agree to a certain amount for a specific period of time. They can change the amount over time. They can agree to a lump sum amount in lieu of monthly support. They can agree for the support to be taxable or non-taxable, deductible or non-deductible. In short, the clients have complete control when they are outside of litigation.

Graceful Divorce Solution coverM. MARCY JONES is an author, speaker, lawyer, and advocate for change. She has practiced family law since 1995. She went to Washington & Lee University School of Law after her own divorce and with two young children at home, and has worked as a domestic violence prosecutor and then in private practice. Marcy is a settlement expert and conflict resolution advocate, specializing in collaborative practice. She is also a trained mediator and certified personal coach. She lives in Lynchburg, Virginia. For more information, visit her website at and