Question: My husband and I have been married for a little more than twenty years. We have acquired a fair amount of property over the years. We both worked and have decent retirements, although his is quite a bit more than mine. About six years ago, I inherited some money from my parents, and I used part of it to renovate our house and put a big chunk into our kids’ college tuition accounts.
Since the kids have left home, our marriage has faltered, and my husband and I have recently discussed a possible separation or divorce. We both agree that we want our separation to be as civil as possible. What would be the best way for us to go about separating without having a major court battle? Is there any way I can get him to pay his share of our kids’ tuition?
Answer: As for the payment of college tuition, there is nothing in the law that would require your husband to pay. A parent does not have the duty to provide child support for a child over the age of 18 unless that child is disabled. If, however, you and your husband can agree on the payment of college tuition and make that part of your divorce judgment, the court will have the authority to order and enforce payment of college tuition or expenses. So you have plenty of reasons to keep the divorce process civil and hope that the two of you can fashion an agreement that includes shared payment of college expenses.
In order to divorce, you will eventually have to go to court, although it may not be necessary for you to appear in court. To make your marriage official, you had to get a license from the county; to get a divorce, you will need to get the signature of a county judge on your divorce paperwork. Getting the signature of a judge does not require a battle in court. There are ways in which parties can divorce and keep things amicable.
Mediation is the most efficient and cost-effective means of resolving a divorce. Mediation is a voluntary and confidential process in which both parties reach agreements under the supervision and guidance of a family law professional, usually a lawyer specializing in family law. The mediator does not render judgment or ensure that each party gets exactly what he or she is entitled to. Most mediators will educate parties on the general terms of the law, but if parties agree on a certain division of assets or a certain amount of spousal support, the mediator will then work with the parties to create a marital settlement agreement that reflects their agreements.
The mediation process assumes that each party is able to advocate for oneself and assert his or her rights. In certain relationships where one party holds a lot of sway over the other or is “in control” of all affairs, mediation can place the more vulnerable or “outside” party at a disadvantage. If that is your situation, mediation would not be advisable.
Another method to dissolve a marriage that does not require a major court battle is “Collaborative Divorce.” Under the Collaborative Divorce process, each party chooses his or her own attorney. But the two attorneys agree that if any party decides to take the matter to court, both attorneys will step out of the case. The parties would then have to retain new attorneys to take over. The collaborative process provides incentives for attorneys and their clients to stay at the table and work through the matter. In addition, the parties can share the cost of certain experts who can assist in valuating complex business interests. Ultimately, a collaborative divorce results in the parties resolving the matter through a negotiated agreement that becomes a judgment of the court.
You and your husband’s plan to keep things civil and hopefully amicable is commendable. But as they say, “Even the best-laid plans …” Although mediation and Collaborative Divorce enable parties to avoid litigation, sometimes parties end up in court. If that happens to you, do not despair because, even then, parties still have the opportunity to settle without the need for a full trial, and most of them do.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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