Every year there is a surge in divorce filings from January to March. Why? Most couples, specifically those with children, are reluctant to break up during the closely-spaced holidays of Thanksgiving, Christmas and New Years; particularly, with the office parties and other events that are almost holiday rituals, like Black Friday shopping. After all, there is a whole year to get divorced before a reset of these holidays and hopefully start the next year with a clean slate as a single person. This blog explores seven key considerations in preparing for a “Happy-New-Year” divorce filing.
The children: Perhaps the most important consideration for parents with children is when is the right (or least-bad) time to file? In between semesters of school? In the summer? Next year when the schools change because of children moving from elementary to middle school or to high school? There are a host of child-focused considerations that should factor into every parent’s decision as to the timing of a divorce filing. However, staying in an unhappy marriage undoubtedly spills over onto the children. Should a counselor be considered? Where? Is he or she covered by insurance? The key take away is that a parent considering divorce must consider the timing for the overall well-being of the children, how they will heal from the divorce, and their overall situation.
The marital residence: Depending on the generation, the ages and duration of children in a “family” home, any disability of a spouse, a marital home, and who maintains it during the divorce proceedings and when it is sold, most divorce lawyers have observed the marital residence become the divorce war-trophy. Perhaps this was best portrayed in the older movie the War of the Roses. The homemaker and primary parent may well want the home for the children and believe it will be ordered by the court preliminarily and in the final division. Often times, this is not financially realistic or the home is something that both parents identify with for different reasons and upon divorce filing, will fight over it beyond the financial viability of doing so—negatively impacting both parents’ financial ability to move on after the divorce. Biding your time and selling the home by agreement or acknowledgment that it is too expensive, small or otherwise may ultimately benefit both parties and help them in the post-divorce world. Working together is much better than fighting the issue in court.
Make essential purchases: At the time of filing, either party may ask for a restraining order. This prevents purchases, except for normal living expenses, such as food, insurance, and house and car maintenance. Also, major purchases are generally not agreeable or are frowned upon by trial courts. For this reason, careful consideration should be given to necessary and major expenses long before a divorce filing. For instance, filing for divorce only to have a “clunker” break down—finally—the day after filing is a recipe for disaster. Or waiting for elective surgery and having a major health issue during divorce is another cost and time-consuming event. While no divorce can plan for every contingency, it is important to consider the “what-ifs” of known life circumstances to avoid a major problem during the divorce, as the worry and time that takes is, itself, enough to bring into ordinary life. This noted, lavish or luxury spending has no place in preparing for divorce.
Obtain your own credit identity and accounts: During the course of a marriage, many couples come to rely on joint credit or use the credit of one spouse. That is significant for the spouse lacking sufficient credit or access to accounts if the other spouse terminates them at the time of filing. Also, while disfavored and almost always a bad idea, some divorcing spouses withdraw all of the money from the joint account. A short-term credit shortfall may cause everything from the inability to purchase food to a negative credit report entry. A better divorce is one that prepares for the obvious. It is obvious that if the divorce goes through, joint accounts will have provisions to become individual accounts, but it is better to untangle these in advance, or at least have your own account, before filing. If the element of surprise is necessary (a detail to discuss with counsel) a PO box and forwarding order may also be in order.
Gather important documents: In the chaos and confusion that often surrounds divorce, key documents may become lost, such as passports, social security cards, DD-214s and professional licensing information. The difficulties in replacing these documents can be significant in time and money. They should be secured before filing. In acrimonious cases, the other spouse holds these hostage or claims he or she does not know where they are for some strategic benefit or just to “even the score.” Spending time and money litigating this in court can be avoided with advanced planning.
Prepare a marital asset and liability list: You should gather important documents, tax returns, bills, pension/retirement statements, and the like. These are necessary to determine how the marital estate is divided. As importantly, a complete asset and liability list are necessary to reach an agreement on who pays what and possesses same during the divorce. Sometimes bad things happen during the confused state of a divorce, such as a home burning down—that is not the time to learn the insurance lapsed because a spouse forgot to pay it. With the asset and liability list, it is easier for an attorney to assess the marital estate and determine what it comprises of and how it might be divided under the law in terms of settlement or trial.
Determine your post-filing plan: Lastly, when divorce is filed, friends sometimes take sides. In-laws might not be available or willing to help with a quick home repair or lend money for an unexpected expense. Thus, it is critical during the divorce and after to consider the reasonable views of your support network and how and where you will live after the divorce. Failure to do so may wind up with a simple task, like getting a child from point A to point B, creating unnecessary havoc and stress.
While divorce is never pleasant, staying in an unhappy marriage is not either. The reality is that about half of marriages result in divorce. It is traumatic but is much less so if it is planned for like any other event in life. This blog provides several tips as to how to plan for a divorce and work with your counsel to harmonize with the needs in your case, which is key to such a plan. Dixon & Moseley, P.C. advocates handle divorce cases throughout the State. This blog is intended for general informational purposes only and is not a solicitation for legal advice or a legal advice. It is an advertisement.