August 10, 2023
Summer is winding down, vacations are ending and the kids are going back to school. This is the perfect time for pre-divorce planning. Here are some things to keep in mind if you are heading down this path or are already on it.
As you begin the process, make sure you first have a confidential email where no one can guess the password or access it on a home computer. Note that work emails are not confidential as they are owned by your employer and not you; if you retain an attorney and correspond with him or her on your work email these records could be sought in a subpoena and they are not protected by the attorney client privilege. Keep this in mind. The same analysis applies to your cell phone.
Talk with friends, family and trusted professionals to generate a list of potential family law attorneys. Schedule consults with at least three. Most family law attorneys charge for their consultations because (1) their consults are comprehensive and (2) they want to avoid being conflicted off of a case where there is the potential for a good working relationship. Put together a list of questions and be prepared to get them answered. A good family law attorney will answer them as part of their consultation, which should help you weed out the good ones from the ones you do not want to work with. Select a family law attorney you feel most comfortable with as you will be working with him or her a lot through the process, sometimes daily if your case is contentious, litigious or complex.
If you are doing pre-divorce planning, make sure you have cash to pay for consults so the charges do not show up on your joint accounts or credit cards.
Family law cases seem to be won and lost these days more than I care to admit based on damaging text messages and social media posts. If you have these text messages and social media posts and they are damaging to your spouse, make sure they are preserved. Save them and then store them in a place that only you can access. Your family law attorney can provide you with the names of experts who can help you preserve this evidence if needed.
It is not uncommon for one spouse to manage the household and the other to manage the finances. If you are the spouse who manages the household, try to get as much information as possible on your assets and debts. If you and your spouse have talked about a divorce then talk about your assets and debts as well. If you are doing pre-divorce planning then take more of an interest in the finances. Ask questions. Meet with your professionals such as your financial advisor and/or CPA. Get copies of your tax returns. No one needs to know why you want this information; after all, it is your life so be in charge of it.
Again, if you are not the spouse who manages the finances then try to get an idea of what is spent each month. Get copies of mortgage statements, bank statements and credit card statements as well as utility bills. This will help you to understand your marital standard of living, which is important if you are eligible for spousal support and in determining child support if you are a high-income earning family.
This is not the calendar you keep all family appointments on. This is a blank calendar that you log each day, yourself, as soon as it happens, when you have parenting time with your children. This is important because during custody disputes it is not uncommon for one parent to assert that he or she is the primary parent and forget the level of involvement of the other parent. The way to refute these assertions is with the blank calendar that you have been keeping specifically for this purpose.
Take videos of the contents of your home, or homes if you have more than one. Most furniture is valued at yard sale value unless it is a piece that requires an appraisal. Start thinking about those pieces that require an appraisal and make a list. Seek out appraisers for these items and keep their contact information handy. It can take a while to find an appraiser. I once had a client with a collection of fine pens; it took a few months to find the right person to appraise the collection because of the range of pens.
Consider putting your jewelry, coins, stamps and other small items that can “disappear” in a safe deposit box. A lot of money is spent on family law attorneys fighting over missing jewelry. Take a video of yourself removing the items and placing them in the safe deposit box and then email it to yourself for a time stamp.
Have a reserve. You will need it to pay your expenses if you are relying on receipt of child and spousal support orders. It takes many months to get a hearing on calendar for child support and spousal support and even longer if you are trying to get an accurate support order and either your, your spouse’s or both of your incomes available for support are difficult to determine. You will also need it to pay for your attorney’s and expert’s fees and costs.
If you do not have a reserve of cash, or credit cards with high spending limits then real property may need to be sold immediately such as the family residence. Family members and friends may need to be contacted for loans as well. It is not uncommon for parents to fund my client’s divorce cases, but this fact pattern must be navigated carefully and these funds from parents must be loans that are to be paid back or they could be considered income for purposes of calculating child and spousal support.
As part of this reserve, think about where you will live and how you will pay for it. Do you need to stay in the family residence or move out and get your own apartment. I say do what gives you the most peace and that may mean moving out; this is something to talk at length with your family law attorney about.
A support system is not your friends or family. They can offer support here and there but a true support system consists of your mental health team. Everyone likes a train wreck including friends and family so share with them carefully. This is critical advice. You may be ready to settle your case, worked hard with your attorney to craft settlement terms, made concessions and then, boom, you share your thoughts with friends or family and they blow the deal. Why? Because the train wreck that they have enjoyed watching is coming to an end. So, be careful. You may need one or two sessions a week with your therapist or mental health experts at the start of your case; this is normal so plan your schedule accordingly.
I have found that my clients who participate in yoga and pilates or run do better during their divorce cases than those who do not; so, this is something to consider as well. CrossFit can also be useful if you are looking for a more rigorous sport; really, any activity that forces you to take your mind off of your divorce and gives you a healthy release is good.
When I think about the top ten things I want my clients to do before their divorce starts, this is it. There may be a few more here and there that we can discuss during a consultation, but keeping these ten in mind will make things much easier for you if you are on the divorce path.
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