Expert Beacon | Brad M. Micklin
Right after the New Year is when divorce filings are at their highest. Essentially there really is no perfect or ideal time to get a divorce. Most couples convince themselves that they should give your kids one more holiday season with the family intact. Then, once the tree is down and the New Year confetti cleaned up, the reality of the situation hits home.
The determination to seek a divorce is one of the most difficult decisions of your life. While almost no one looks forward to going through a divorce, there are steps you can take to make the process less emotionally traumatic for everyone involved.
Do make sure you are absolutely, positively certain the marriage is over
Before filing divorce documents, ask yourself again: Is the marriage completely over?
Have you tried a separation period? If you are unsure, there are other options such as legal separation. This does not end the marriage, but it does lay out a “separation agreement” that is signed by the husband and wife.
This document can lay out how all matters relating to the end of your marriage will be handled. The agreement should deal with custody of children, visits, support of children, your support (alimony), dividing your assets (including pensions), what will happen to the marital home, including who will own the real estate, who will live in the marital home, dividing your debts, and taking back the name you had before you got married. A Separation Agreement is good only if both spouses sign it. It usually is made part of the divorce judgment.
If you decide that divorce is the best option for you, then it will be time to think about the following issues:
- Child support
- Division of assets (for example, pensions, bank accounts or stocks)
- Alimony or spousal support
- Division of personal property (that is, who will get which personal property, such as the car or furniture)
- Division of real property (what will happen to any real estate including the marital home)
- Who gets to live in the marital home
- Division of debts (for example, credit cards or electric bills)
- Taking back the name you had before you got married
- Possibly, an order for protection from abuse
You should speak with an attorney for advice and more information on the differences between divorce, separation, etc. You may decide, for the time being, to have a written “Separation Agreement” between you and your spouse detailing the decisions and arrangements you have made while you are living apart.
Photocopy every important, relevant document from the last three years of your marriage. This includes tax returns, mortgage payments, bank statements, pay stubs, stock certificates and bonds – to supply your divorce lawyer or mediator. These documents will be necessary for deciding terms of the divorce such as spousal and child support.
You need to know what you have before you can evenly divide it.
- Your inventory should include details (including a description, year acquired, price paid and current value) on:
- Real estate that you and your spouse own
- Motor vehicles you own or lease
- Personal property, particularly items of significant sentimental or monetary value, but also household items
- Cash accounts such as savings, checking, money market, certificates of deposit and bonds
- Retirement accounts
- Securities accounts such as mutual funds and stocks
- Life insurance policies
- Ownership interest in businesses
- Taxes that are owed or refunds that are due
- Debts, including mortgages, credit card balances, student loans and other loans
Communicate with your spouse. Many problems regarding property and custody crop up during the divorce period simply because spouses do not communicate.
Communicate with the court. Disclosure of all property and assets is a cardinal must in all divorces. Failure to disclose now may result in you settlement being thrown out later.
Communicate with your attorney. Ask as many questions as possible of your attorney and your spouse’s attorney. Leave no stone unturned as you want to be as clear as possible on all the issues and don’t want surprise later.
Do not rush
After finally making the decision to get divorced, you might feel an urge to just get it over with as soon as possible. But making rushed decisions can hurt you in the end. Talk to a lawyer and an accountant before making any moves—they’ll be able to advise you on the best legal and financial courses of action. Don’t sign any papers without first reading them and understanding the consequences. And don’t rush to settle your divorce if it means that you’re getting a poor deal.
This is not the time to go on an extended vacation. Courts often do not care what your schedule is, and you don’t want to have to disrupt your travel or vacation to go to court. Try to keep yourself as accessible as possible as your attorney, your spouse, and sometimes the court will need to get in touch with you to keep the process moving.
As well, this is a bad time to accept a new job offer out of the state or country. Changing jobs and residences can only complicate things. New issues can confuse the process causing further delay and greater expense for both parties.
Finally, don’t attempt to get married to another person during the divorce. A third party in the mix only confuses matters and can make the battle rough, especially in fault states.
No matter how temporary these agreements are, the court may view your meddling with the plans as disrespect to the court, your children or your spouse. It could affect decisions later on.
Think you can give your mom your coin collection for Christmas and keep it out of the divorce? Don’t.
Courts are suspicious of people that provide wildly different documentation to the court of their assets than the spouse said they had. Gifting property away to friends or relatives and arranging to get it back later will only lead to another trip to court.
Uncle Sam will play a big role in your divorce. So, don’t ignore the tax ramification of a potential settlement. Make sure you take into account:
- Will you file a joint return or separate returns for the tax year in which your divorce is finalized?
- Which spouse will claim the children as dependents on their tax return?
- How will alimony and child support payments affect your taxes?
- Will you be taxed on capital gains from the sale of your home?
- Are you eligible for a child care credit?
Divorce is not easy. That’s why it’s important to make sure it is the right step for you and your family.Once you’ve made the decision to proceed, resolve to have a level head and respectful demeanor. How you handle the divorce process will affect your children and can sway the court if unresolved matters require a judge’s attention.