Thinking of filing for divorce? When the thought of divorce is brought to the table it can be extremely stressful and cause major conflicts and arguments. It’s not a pleasant environment to be around. Anytime money, assets and children are involved, it can become very sticky.
Divorce and be a financial nightmare, but it can also help remove you from a toxic relationship. It’s very important that you understand your rights and the laws that are applicable to your particular situation when you are considering hiring a divorce attorney. To help you navigate through this process, check out the ten tips below from leading legal experts.
1. Think about how your life will change.
How will your life change when you file for divorce? There are a plethora of lifestyle and legal considerations for couples on the verge of divorce. Some common areas of concern are the changes in living arrangements, the impact on finances, and the effects on children. The biggest tip for couples thinking about divorce is to think about how your life will change, so you will be ready when the time comes.
Breaking free from cohabitation is one of the most challenging aspects when preparing to divorce. Couples need to assess their current living situation and realistically determine how and when they are going to transition from one unified home into separate accommodations. This can be especially problematic when there are significant financial difficulties or if one spouse is unemployed. Additionally, there could be legal consequences should you abandon the marital home prematurely.
The potential impact on your financial future should be a major concern for everyone before filing a complaint for divorce. Each individual divorce has its own unique set of financial issues that can have significant legal consequences. There can be hidden assets, bankruptcy issues, tax consequences, estate-planning considerations, overwhelming debt, and many other major financial aspects in a divorce, especially when one spouse owns their own business. From a legal perspective, you should know where you stand financially before you file for divorce. Once you know where you stand financially, an attorney can provide guidance and give you a perspective on your financial outlook post-divorce.
Finally, considering the impact that divorce will have on your children is something that every divorcing parent has to deal with. Parents often have concerns regarding the care and custody of their children. There are so many unknowns and so many variables in a divorce that involves children. If child custody is an issue in your divorce, you should consult with an attorney that can answer questions and give you advice in regard to your particular situation. Consulting an attorney before you file for divorce can save you a lot of grief in the long run.
2. Educate yourself before you file for divorce.
Education is the most important step before filing for divorce. Learn what laws and expectations apply to your specific situation and set of circumstances. What you’ve heard from family, friends or colleagues may be well meaning, but it is not always accurate or applicable to your circumstances. Sit down with a qualified lawyer who specializes in family law in your area. Ideally chose someone who will look for a solution to your situation, not accelerate conflict, stress or costs. Part of your education is finding the right lawyer. Do research and get referrals for lawyers from therapists who regularly work with clients in divorce. Consider reviewing your local list of Collaborative Lawyers or mediators as these are often individuals who have experience in assisting and protecting individuals and children without creating conflict.
If you own a business make certain to educate yourself about your business operation. Business owners have to manage operations, customers, suppliers and employees and still manage their business during a divorce. Keep clear business records as they will inevitably be reviewed and the clearer the records the easier it will be to educate your spouse and his or her attorney about your operation so they do not form assumptions on their own based on inconsistent or incomplete records.
If you have not managed finances, educate yourself about your financial circumstances as it will develop confidence about how to manage funds and a provide yourself with a baseline of understanding. This is especially useful if your spouse makes sudden changes to accounts or other financial matters as you will be able to document what was available versus what is available. Consider meeting with an accountant or a fee only financial planner to assist in educating yourself and provide help to evaluate settlement options. A fee only financial planner will charge an hourly fee, but does not sell products and can provide useful advice on how to plan and prepare for financial changes.
If you have children — of any age — educate yourself on how to best communicate the divorce to them and ideally work with your spouse to create a joint plan and narrative on how to discuss the divorce and answer questions. Don’t make assumptions about how your children will react and consider engaging a therapist for how a child at each stage of development may react so you can educate and prepare yourself for their reaction and the specific questions they will inevitably ask.
Education provides both confidence and competence and is invaluable in preparing yourself to reduce the stress and anxiety in what can otherwise be a very stressful life event. Education is fully within your control at a time when the rest of life can feel out of control.
3. Document everything.
Document everything, especially anything regarding child access. You can use a print-out calendar, but I prefer a wall calendar. Develop a color code system. For example, when there is a contested custody issue, I usually suggest circling or marking all the days you are scheduled to have the children.
Make comments in each day. For example, if you get them and it goes well, place a check mark on that date. If you are not given access, or the other parent interferes with access in some manner, take a red marker and place an “X” on that day, and indicate in the box what happened (e.g., other parent denied access, etc.).
If access occurs but something happens (e.g., other parent won’t let child bring homework, or other parent keeps calling/texting, etc.) on those days you still want to note something on the calendar. Such calendars can be introduced as evidence to show a pattern and practice of behavior regarding access with the kids.
4. Have realistic expectations from the beginning.
Approach the divorce realistically. For instance, if you live in a community property state such as Nevada, then the courts will follow the law in apportioning a 50% interest to each spouse in community property. Some people don’t grasp the concept that the law is the default division that a court will follow, regardless of their feelings. For example, a wife may feel like she’s entitled to all the income and retirement benefits she accrued during the marriage, because in her mind, she did the work and earned more than her husband. In her mind, her husband should only be entitled to the income and benefits he accrued through his own job.
Unfortunately, that would not be the case in a community property state. He would be entitled to 50% of what she accrued during the marriage. Similarly, a husband may file a divorce awarding nothing to his wife, because he worked during most of the marriage to support her and feels she should get nothing out of the marriage. Expending any time or effort arguing for that unrealistic result would be pointless.
People are often more optimistic about their case than reality, particularly when they don’t understand the law or common practice in courts. For instance, in Nevada, courts generally prefer granting joint custody to parents absent compelling circumstances. A lot of parents believe that they can get sole custody out of a divorce simply because they see the other parent as unfit, but they lack any evidence or arguments to meet a legal standard of unfitness. They may present more trivial arguments such as the father having an unpredictable work schedule or dressing their child in mismatched clothes frequently.
If too frivolous of an argument, that parent could even have to pay the other parent’s attorney fees. So, in sum, people should understand their rights under state law before filing for divorce to avoid unnecessarily prolonged litigation, time, expenses, and disappointed expectations.
5. Develop an exit strategy.
Meet with a family law attorney to understand the laws of the state in which the divorce will occur and to develop an “exit strategy” for ending the relationship and pursuing divorce. While family, friends, and the internet are tempting substitutes, each family is unique and information may be incomplete or — worse yet — inaccurate.
You also need to learn about the different process options for initiating and resolving the divorce; there are many, with varying costs, which then leads to developing a divorce budget. Divorce is an emotional process, but also a legal one, with legal consequences to actions taken. While the urge to “do something” may be strong, taking action is best done deliberately.
6. Focus on the priorities.
When a person begins to consider divorce, it is important to begin to focus on the priorities and look at the outcomes they would like to achieve. Try to look forward, not backward.
In California, divorces are finalized in one of two ways: you agree on everything or a Judge decides for you. That means every item you can’t agree upon will be decided by the person sitting on the bench.
My first tip to people is have a realistic set of goals on the outcome you would like to achieve and what issues you might be willing to be flexible about.
For property division, I urge clients to create three lists: Thinks you need, things you want, and things you don’t care about. In Community Property states (where assets are typically going to be divided equally) these lists are very handy. Providing these lists will help your attorney negotiate the property division. If you want the car that is more expensive, but are willing to give up the entertainment system, the values can be offset against each other. It is also important to know what items you are most interested in getting so that the attorney can focus on a strategy early on about how to accomplish that goal.
When it comes to custody and visitation, jurisdictions may differ but in California, absent abuse situations, both parents are likely to get significant time with the children (depending on the child’s age). This may be difficult for some parents to accept but is something that they need to know about early.
Lastly, as it relates to spousal support, most people believe that the supported spouse will receive half of the paying spouse’s income. This is highly unlikely. Permanent spousal support in California is not based on a mathematical formula but on a complex set of factors. No program or calculator will provide a permanent support figure and it is important to know that the temporary figure and permanent figure are very likely to be different.
7. Attempt to remain as civil as possible.
My best advice for clients is that they should do what they can to remain civil with their soon to be former spouse. While this advice, if taken to heart, will have immediate benefits in terms of personal sanity, it can also save clients a significant chunk of change.
It’s no secret that divorces are expensive, but if court or arbitration can be avoided, and a settlement reached amicably, clients can avoid significant expenditures and debt. While the California Family Code seeks to encourage divorcing parties to settle, once a case goes to court, lawyers who bill by the hour have an incentive to prolong the proceedings, often at the expense of the feuding couple.
In some cases, clients who go out of their way to impede the settlement process (as well as their attorneys) can be slapped with added fees. CA Family Code § 271(a) states, “the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party furthers or frustrates the policy of the law to promote settlement of litigation.” If there is any hope that a divorcing couple can remain amicable, and settle their case without going to court, I always do my best to offer encouragement in that regard.
8. Keep your emotions under control.
When it comes to divorce, crazy costs extra. If I’ve learned one thing in all my years of experience as a divorce lawyer, it’s that letting your emotions run wild during this process will cost you money and time and prevent you from getting everything you should in the end.
When a client is focused on everything that has happened in the past — wrongs that have been committed and hurts that have been inflicted — it can lead to destructive decisions that damage the case. If you let anger get the best of you and end up in a physical confrontation with your spouse, that’s going to cost you. If you hide your kids to frighten your spouse, that’s going to cause problems for you. Deciding to move out of the house in a fit of rage is really going to wreak havoc on you — you almost always want to stay in the marital residence if you can.
Divorce is an emotionally turbulent time, but it’s vital to keep a cool head, avoid making assumptions and deal in facts. Your friends and family may mean well and want to be supportive but sometimes they can make it worse by getting emotional with you. Find professional counseling if you need help maintaining perspective. Get sound legal advice from a qualified divorce lawyer before you make major decisions that can affect your future. And don’t go looking for the meanest, toughest lawyer you can find just to make your spouse as miserable as possible — focus on what you really need to move on.
Find an attorney who will help you outline positive goals for your future, then work to achieve those goals as quickly and affordably as possible. Your divorce will be over eventually and you’ll be glad you kept the crazy in check when you’re finally able to start fresh. Don’t spend all your time, energy and money getting a divorce — save it for the next chapter of your new life.
9. Weigh the true cost of divorce.
Everybody always wants to know what a divorce is going to cost, and some say it’s too expensive. The analysis I suggest you use is, compared to what? Compared to the rest of your life? Compared to your financial independence and freedom? What is too expensive? Now, you should be getting as much value as you’re paying for, if not more. You should have a great relationship with your attorney, and have a trust built in, and be able to voice concerns, voice complaints and discuss your goals with your attorney.
The best attorneys give you all the options, weigh the risks, and provides you with a strategy, not just we show up and we argue. There needs to be a strategy throughout the divorce that your attorney is telling you and showing you and that is based on your goals and what you are entitled to in the law.
If you’re not moving forward, you’re moving backwards and you’re regressing. That is going to shorten your life and the quality of any other relationships you try to have.
10. Consider mediation as an option.
The mantra of my firm is “In life there are options. In divorce there should be options too.” Rarely is one size-fits-all the best option, especially when it comes to ending your marriage. Understanding the divorce process and selecting the right attorney who is committed to being your partner and your advocate are two of the most pertinent decisions you will make when deciding to split with your spouse so you should know that you have many avenues and options available to you.
One of the first things I educate my clients on is the fact that it is not necessary to go to court in order to secure a divorce. Yes, you may very well end up in court, but the case does not have to start there. Pace yourself, evaluate your situation, and plan ahead and strategize.
Making educated choices will save you time, money, and unnecessary stress — not to mention therapy bills. Traditionally, there are three ways to divorce — mediation, collaborative law, and litigation. Mediation involves the use of a neutral mediator who will help you and your spouse navigate divorce decisions together, often with an attorney assisting in the background. Collaborative law utilizes a team of attorneys, a neutral financial expert, divorce coach(es) and a child specialist (if applicable) to ensure you reach an agreement that works for everyone. If these two voluntary processes are not a good match or do not result in a favorable outcome, litigation is the next option. However, even with litigation, there is not a hard and fast rule that says you will end up in court. But the option to do so exists.
Of the three divorce process options, mediation is typically the least expensive as well as the route that has fewer opportunities to be acrimonious. Husband and Wife voluntarily choose the process with the goal of working together to reach an agreement. A neutral mediator helps the couple navigate the issues and make decisions. Furthermore, since mediators do not take one side over the other, each party usually has an attorney outside the process to advise them along the way. It is important to note that mediation is a self-selecting process and may not be right for everyone. To determine if mediation is right for you, you want to consider a few important points.
Firstly, you must consider the financial transparency of your relationship. If your husband handles the finances and you are in the financial dark and believe he is going to hide money and not be truthful, mediation may not be the best process choice for you. There are ways to overcome this obstacle in mediation, but it is a concern you should discuss with your attorney when determining the best divorce process option for you.
11. Determine whether a settlement is possible.
Before filing for divorce in court, it is wise to consider whether a settlement is possible. When you’ve made the difficult decision to separate and divorce, an amicable and collaborative settlement is always least destructive to the family, and less expensive than a litigated divorce. Maintaining amicable familial relations is always critical to successful co-parenting in the future, if kids are involved. If the parties can work together to negotiate a carefully craft a detailed parenting plan, with their children’s best interests at heart, such a document will always be better than what a court would dictate. A judge or magistrate will be the first to tell you that they do not know your family, or your child.
Litigation is by definition adversarial and will pit each party against the other. The process leads to hurt feelings and animosity. These wounds can take years to heal, if they ever do. There is nothing that will hurt a co-parenting relationship more than having the other parent cross examined on the witness stand. It is best to avoid litigation whenever possible. Even when the couple does not share a child, a negotiated or mediated settlement is preferable to a litigated divorce. First, the couple can create their own settlement, without reference to the powers of the court. For example, in some jurisdictions, the court cannot transfer debt, or order payment of college tuition, or order one party to maintain life insurance for the other. However, in a settlement the parties can negotiate these terms in any way they see fit. Similarly, when alimony is involved, a court may have limited options when making an award. For example, if the financially dominant spouse has a fluctuating income, and they’re ordered to pay monthly fixed alimony, it may be extremely difficult from a cash flow perspective. However, in a settlement, the parties can negotiate alternate terms, which might include adjustments to alimony, or lump sum payments, or uneven payments based on commissions or draws. Sometimes avoiding litigation is not possible. However, considering settlement first, is always the best option.
12. Understand your finances.
When considering divorce, it’s important to first understand your finances. What does the community have, and how is it supported? Do you own property or a business? Are there investment or retirement accounts? Have either of you received inheritances? What do each of you earn?
Not all relationships have financial transparency, and too many people come to me wanting to know their options, without knowing their current financial picture. In order to know what your life might look like after a divorce—including how you will support your household without your spouse or partner—you need to know what the community has now.Look through your records and make a list of every asset and debt you know of that is part of your estate. Once you understand your financial situation as best you can, consult with an attorney. Be completely honest and ask every question you have.
Some find it helpful to prepare a list of questions before the consultation to ensure they cover every concern. Know that family law attorneys realize the divorce process is foreign to you, and we’re here to help.If you do decide to proceed with the divorce, choose an attorney who is a good fit for your goals. For example, if you want to proceed as amicably as possible, tell your attorney that and make sure they’re on board. Communicate your needs and expectations as a client, and ask how the attorney will meet those needs.
A good attorney-client relationship is one of mutual trust and respect. Chose an attorney with whom you can cultivate that relationship, and you eliminate one potential stressor while going through your divorce. Also, no matter how amicable your divorce may be, chances are it will still be emotionally challenging. Don’t be afraid to add a therapist to your support network of family and friends.
13. Consider the collaborative divorce process.
The best advice for a person considering divorce is to consider the collaborative divorce process. The court system is not designed for the intricacies, dynamics and emotions inherent in separating a family — litigation will only increase the damage done by the divorce. Instead, the collaborative process takes the divorce outside of the court system and uses a problem-solving approach to re-assemble the family.
In a collaborative case, both clients and the attorney for each client sign an agreement in which they agree not to use the court system to litigate any part of their divorce. The attorneys agree to a limited-scope representation, in which they are limited to representing their client in the collaborative process only. If the clients choose to terminate the collaborative process and pursue litigation (which is rare), neither attorney can represent the client in litigation and the clients would need to hire new attorneys. This type of limited-scope representation keeps everyone involved — including attorneys — invested in using a problem-solving approach and keeping conflict low.
A collaborative approach is especially important when the couple has minor children. Divorce is difficult enough for children, and the added conflict of an adversarial process has a negative impact on the children. In the collaborative process, not only are the attorneys helping to keep conflict low and use a problem-solving approach, but the addition of a child specialist to the team also helps keep everyone focused on doing what is best for the children. Attorneys are rarely experts in child development and the impact of divorce on children. A child specialist is an expert in those areas, and is best suited to help the parents develop their parenting plan and set the foundation for a successful co-parenting relationship in the future. Not only are child specialists best suited, but it adds efficiency and cost-savings to the divorce because the parents work with one person (the mental health professional trained as a child specialist) to develop their parenting plan, rather than the two attorneys.
14. Make sure there is no chance of reconciliation.
First, make sure you have exhausted all efforts at working things out. Divorce can be emotionally and financially draining so it’s important that you go into it with confidence that there is no chance of reconciliation. Sometimes just a few marriage counseling sessions can have a substantial impact on a couple’s relationship and provide the couple with the tools they need to weather any storms.
If there is no hope for the marriage, consider mediation. Mediation is the process whereby a couple will attempt to work out the details of a divorce themselves, through a third party neutral. If the parties can work out all of the details in mediation, then they typically will save substantial time and money as opposed to the traditional route of litigating the matter in court through attorneys. Regardless of whether mediation or litigation is the avenue pursued, it’s important to educate yourself about your finances.
Make a list of any and all accounts, debts, and substantial personal property that you are aware of and gather documents that substantiate those accounts and property. Take photographs of valuable tangible property to document the condition and location. Make copies of tax returns that have been filed during the marriage. Having this knowledge and the supporting documentation is one way to identify what the income of the parties was during the marriage and whether any assets have gone missing when it’s time to allocate the marital estate. It can also save that party from having to engage in costly discovery.
Additionally, when it comes to the children, enlist the help of a qualified therapist to identify the best way to tell them about the divorce. Many parties are so wrapped up in how everything is affecting them that they fail to see that it can be a very trying time for the children as well. This list is not exhaustive and doesn’t consider each individual’s unique circumstances so the last thing a person should consider is contacting a family law attorney to discuss options and other important details about the process of divorce.