Practical Considerations before you get a Divorce

When you consider divorce, you need to consider many practical aspects.  These things include the following:

1. Minor Children

If you have minor or dependent children, you need to consider with whom they will stay and what contact the other party must-have.

It would be best if you also considered their schooling and other needs.

This is also one of the most litigated aspects of divorce as parents usually are genuinely concerned with the wellbeing of their children.

The court will always take the “best interest of the minor children” principle into consideration.

If parents cannot agree to where the children will reside (primary caregiver) or what contact the other parent will have, then the Family Advocate needs to be involved in the matter.

Also, the maintenance of the minor or dependent children must either be agreed to or the court must decide it.

Even if the parties have an agreement in place regarding the minor children, the Family Advocate must endorse the agreement.

2. Division of Assets

Depending on the marital regime and donations between spouses, the parties must decide how the assets will be divided, except if it is a marriage out of community of property.

Generally, the parties will divide the property between them in a specific way, despite the marital agreement.

Some of the assets that come into play are the immovable and movable property, pension funds and living annuities.

If the parties cannot agree to the division of the assets and liabilities, then the marital regime will come into play.

In some cases, Liquidators are appointed to divide the assets and liabilities between parties as they cannot reach an agreement between themselves.

3. Spousal Maintenance

The spouses must consider if spousal maintenance is payable, and it is always good to be guided by your divorce attorney in this regard.

The courts do not automatically grant maintenance to spouses after divorce, and you need to prove your claim, or you must agree to the spousal maintenance with your spouse.

When the court must decide if spousal maintenance is payable, they look at the specific circumstances of the case.

This includes looking at, amongst other things, at the following to determine if spousal maintenance is payable:

• The ability of each individual spouse to generate an income.
• The professional qualifications of each spouse.
• The work experience of the parties.
• The agreement between the parties prior to the divorce.
• What each spouse will 'own' after the divorce. I.e. if you get an R10 Million settlement, you may not need further spousal maintenance.

4. Gifts between spouses.

If you give a present to your spouse, it is presumed to belong to your spouse, and it must not be taken into consideration when the assets are divided. Yet, we often have parties fight over gifts and who they belong to.

5. Where you will stay during and after the divorce

You must consider where you will stay while the divorce is ongoing. Always discuss your moving out of the communal home with your divorce attorney first before you move out of the home.

You must also consider where you will live after the divorce.

6. How you will pay for your divorce attorney and how you will pay for your monthly expenses.

Legal fees can be very costly, and you must prepare a budget to ensure that you can get through this process while keeping your sanity.

These are the primary things that must be considered if you are thinking of getting a divorce. It is always good to make a written list of things that you need to consider so that you can discuss it with your divorce attorney.