Al Nye The Lawyer Guy

A Dozen Things To Consider Before Filing For Divorce

You know the numbers.  It’s projected right now that about half of all new marriages end up in divorce.  It’s a horrible statistic that doesn’t begin to suggest the emotional and financial strain that it puts on families.  Other than the death of your spouse, divorce is probably the most stressful event you’ll ever face.  I’ve had women discussing their divorce in my office become violently ill.  I’ve seen hardened fishermen cry in open court during their divorce hearing.  Make no mistake – divorce is hell.

So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process?  If you believe that a divorce is in your future, here are 12 things think about:

1. Don’t do it.  If you feel there is any chance that you can save your marriage, try it.  See a marriage counselor, talk to a therapist, seek spiritual help, eat some humble pie – whatever, but don’t take the step of filing for a divorce lightly.  In all my years as a lawyer, I’ve never seen a divorce that wasn’t emotionally grueling on the parties and their children.  If there is any chance at all of saving your marriage, give it a shot – even if it doesn’t work, you’ll feel better later on knowing that you tried everything possible.
2. Get a lawyer.  In most states, divorces involve lots of paperwork and a dizzying array of legal decisions.  You need to know your legal rights and responsibilities and should talk to an attorney BEFORE you are ready to begin proceedings.  Be wary of books giving you legal advice.  Divorce laws vary greatly in the United States and you need to speak with a lawyer familiar with the laws in the state where you live.
3. Kids First.  If you have children, it’s never too early in the divorce proceeding to consider their needs.  How and when are you going to tell them about your decision to file for divorce?  Will you tell them yourself, or with your spouse?  It’s important to make sure that they are told in such a way that it is clear to them that they are not the cause of the divorce, that they are still loved by both of you and that they’ll still be taken care of.  Children suffer the most during a divorce so it’s important that their routines be changed as little as possible.  Get or keep involved in their everyday activities.  Don’t say anything negative about your spouse in front of them.  Don’t take out the anger and frustration you may feel toward your spouse out on your children.  Make them your top priority.  Give your children all the love, attention, emotional and financial support you can during this stressful time. 
4. Copy Important Financial Documents.  Anything that has to do with your finances should be copied: 
• Federal and state tax returns;
• Recent Pay Stubs;
• Bank and credit card statements;
• Deeds and real estate appraisals;
• Mortgage documents and statements;
• Investment and retirement statements;
• Wills and life insurance policies; and
• Automobile titles.

Don’t forget to check your home computer for some of this information.  If you use financial software like Quicken or some other program, back up a copy of your entire on-line file and save it to a CD.  Note that this is only a partial list of documents – your lawyer may want even more information.  Again, this should be done BEFORE you file for a divorce.  It’s amazing how these documents seem to “disappear” once you file for your divorce.

5. Find out what you own.  Take stock of your possessions.    Get out a pencil and paper and write down everything that you own – you may not want to count every spice in the cupboard, but write down major items like automobiles, appliances, jewelry, furniture, antiques or anything else that is valuable.  You may want to omit all items under, say, $100 and list the remaining items.  You might also consider taking a video of the interior of the house and noting some of the more expensive possessions.  Pictures – say with a camera phone – also work well.
6. Find out what you owe.  The importance of getting a clear picture about your income and expenses can’t be emphasized enough.  To a large extent, divorces are about money.  You say all you care about are the children?  Well, you need money to support them.  You want to stay in the marital home?  Do you have the ability to pay the mortgage?  Many times only one spouse is directly involved in the day-to-day payment of expenses.  If you’re that spouse, you probably have a good handle on the debts and expenses of your family.  If you’re not that spouse, you need to get up to speed in a hurry.  Either way, it’s time for you to develop a household budget and know exactly where all the money is going.  If possible, take a look at your Quicken report or your bank statements or checking account register and determine where you’re spending your money and what your debts are at this time.  Keep in mind that many people spend quite a bit of cash each week – so you need to factor that into your budget.  Knowing your budget and expenses is extremely important in the beginning of the case when spousal support, child support or both might be an issue.  It’s also crucial later on when you’re discussing settlement or going to trial.  Once you’re living on your own again, you need to know this information to intelligently assess your needs.
7. Determine your spouse’s income.  My experience is that many husbands and wives don’t really know what their spouses make for money.  If your spouse has a regular salary, get copies of his or her W2’s and pay stubs.  In addition to their regular income, do they receive bonuses, tips or other fringe benefits – like reimbursements for car or housing expenses, employer paid insurance benefits or free meals?  Who pays for health insurance and are there any employer contributions?  Take into account employment sponsored retirement accounts, IRAs, 401(k)s or annuities.  If your spouse is self-employed, owns a business or ever gets paid in cash, it’s often difficult to accurately determine income.  Get as much information as possible and present it to your lawyer for review.  You may need the help of an accountant or other expert to help in this area.
8. Figure out what happens when you move out.  Someone generally leaves the marital home to find another place to live.  Once again, BEFORE you decide whether or not to leave, talk to a lawyer.  It can have adverse consequences to be the one to leave the marital home and some lawyers routinely advise clients to stay in the marital residence if at all possible (absent abuse).  Depending on your state laws, being the one to move out could weaken your position later as it relates to child custody or your ability to ever return to your home.  Once someone does leave, you need to figure out how to pay the family debt.  You and your spouse are going to have to allocate your debts – if you can’t agree on how, the court will do it for you.  If you’re still paying on debt that you brought into the marriage, this may be considered “non-marital debt” and be your responsibility in addition to the other debt. 
9. Divide up bank accounts.  It’s best if you do this with your spouse or at least after notifying your spouse.  But if you fear that your spouse is going to immediately empty out all your joint bank accounts upon being told about the divorce, consider withdrawing half – but not all – of the money you have in your savings accounts.  If you can withdraw half of the money from the checking account without causing a financial mess, you may want to do that too.  Put the funds in a separate account in a different bank and don’t spend them if at all possible!  You’ll undoubtedly have to divulge what you did with the money so keep track of it.  As usual, check with your lawyer before taking this step.
10. Know what you can earn.  Living in two households is always more expensive than living in one.  Whatever you make, it won’t seem to be enough.  If you earn a regular salary, is there a way for you to work overtime to supplement your income?  Do you have any other way to legitimately earn more?  If you’ve been out of the workforce for a while, what type of income can you realistically expect when returning?  Do you need extensive training or more education before you return to work?  Is your earning limited because you have small children and can only work part time?  If you work full time, will that significantly increase your child care expenses?  If your job requires extensive travel, will you continue to be able to do it and still see the children on a regular basis?
11. Take a look at your credit history.  Do you and your spouse have credit cards in your own individual names?  If not, you may want to apply for them now to establish your own credit history.  If your credit is poor, take steps now to improve it.  Unfortunately, my experience is that money in a divorce often becomes so tight that bills get overlooked or not paid on time and the credit rating of both spouses suffers.  If at all possible, try to not let this happen.  You also need to consider canceling credit cards if one spouse routinely runs up huge credit card bills.  Another alternative is to reduce the spending limit.  Be sure to talk to your lawyer about this as well as your spouse.
12. Save, save, save.  This is advice that you should do long before you even consider getting a divorce.  Save as much money as you can in your own name so that you have easy access to cash in the event you need it.  If your spouse is the primary breadwinner and moves out and refuses to pay the bills, you need to pay them until a court issues a temporary order indicating who is responsible for payment.  Many times, even when filing an expedited request for a hearing, it takes weeks or even months to get into court on a temporary support request. If you’re the person moving out, you’ll need money for a security deposit on an apartment or to buy appliances and other household items.  Start saving now to ease the financial burden that nearly all couples go through when obtaining a divorce. Finally, don’t forget the major expense that you and your spouse will both have when getting a divorce: legal retainers.