Obstacles to Good Preparation
For most people, just making the decision to divorce can be very difficult and emotionally exhausting. Thinking about taking specific actions to prepare for the divorce process can seem overwhelming. However, in many cases, preparation can be the pivotal factor in a divorce process that produces a fair, just and hopefully expeditious result.
Collecting the Financial Documents
All divorces require full financial disclosure. However, in many cases, both spouses do not have equal knowledge and understanding of the family finances. Once the divorce has been filed, some people find that they no longer have access to the financial information and they are left in a vulnerable position if the other side is not forthcoming regarding all of the finances. Any money that was earned by either spouse during the marriage and the increase in value of all investments are marital property. Both parties have the right to all of the financial information. If you do not handle the finances or you may be unaware of all of your family financial information, it is a good idea to make copies of all financial documentation for the past three years before the divorce process begins. You should know about all bank accounts, investment accounts, credit card debt and any other assets and liabilities. It does not matter who’s name is on the account, it is still marital property if it was acquired or increased in value during the marriage and you have an equal right to these documents.
If there is a vital piece of financial information that is not disclosed, you do have five years from the date of the Petition for Dissolution of Marriage to re-open the case. However, you might not find out about it at all or even if you do, and you re-open the case, there will be significant legal fees involved. So, it is best to have all the financial information in hand before you file. Even though you might find it uncomfortable to venture into these documents and make copies, it is your right to do so and it might be very important for your financial protection.
Provide for at least Three Months of Financial Independence
Here is a scenario I have seen too many times: A stay at home wife and mother wants to file for divorce after 20 years of marriage. The couple has joint checking accounts, savings accounts, investment accounts and joint credit cards. The wife tells me that her husband would never cut her off financially. I give her my advice but she is confident that nothing will happen. She files for divorce and within two to three days, all accounts and credit cards have been cut off and she has no access to marital funds. The wife is shocked. Her Husband has never done anything like this before. Sometimes people behave in totally uncharacteristic ways when they are presented with a divorce. You just never know.
The funds still belong to her, but she can’t get to them until we get a court order. Even though this is a financial emergency, the Courts in Colorado will not set a date right away to deal with a purely financial problem. In most cases, you will have to wait for a Temporary Orders Hearing. This can take up to three months to set.
To be on the safe side, it is important to know what amount of money you are going to need for a three month period. This includes money to pay the mortgage, car payment, utilities, food etc… You should assume that your spouse could stop paying for anything. You should also include the money you would need to retain an attorney and possibly other experts as well including counselling for yourself or your children. Take the time to do a budget and consider contingencies. Then, right before you file, remove 3 months of expenses from your accounts and set up an account with only your name on it. Also open a credit card with only your name on it if possible. I would let my spouse know that I did this once the Petition for Dissolution of Marriage is filed. I would have to know all the circumstance to say if and how this should be done. You should discuss this fully with your attorney. However, generally, I would send an email that tells my spouse the amount I have removed and that it is still marital funds and will only be used for day to day expenses but that you needed to feel secure about funds for the time being because you have no current earning capacity.
Counselling and Keeping a Journal
Sometimes, it is clear, even before the divorce is filed that there are and will be issues around parenting time and decision making for the children. If there is trauma in the household, physical or emotional abuse or just overt confrontation on a regular basis that the children are exposed to, consider counselling for your self or more importantly for the children. If you get the children into counselling before you file for divorce you have a number of advantages. First, while you are married and have no Court Orders, a counsellor or therapist can begin assessment and treatment with the permission of only one parent. If, later on, you have Court Orders that include joint decision making, the therapist will require the permission of both parents. Also, if there are parenting issues going on for the children, you will have someone who is an objective expert working with the children and able, after a period of time, to give an expert opinion on what is going on and what they see is in the best interest of the children.
Secondly, if there are problems with parenting, you should be making a journal of any relevant interaction. You can do this prior to filing for divorce and have a record leading up to the point when you might ask the other spouse to leave the home environment. Again, the right thing to do here depends on all the circumstances and you should talk about the best preparation steps with your attorney before you file.
In conclusion, my best advice is to meet with a family law attorney before you file for divorce and discuss what is in your best interest to do in preparation for divorce. Your attorney might not have this conversation with you automatically. You need to bring up preparation and ask for a full assessment of your situation.
If you have further questions in relation to preparation for divorce please feel free to give me a call at Matthews & Matthews PC. Our number is 303-329-3802/