How to Manage Best in the Event of Divorce
Divorce is an entity that, in fact, permeates almost all aspects of everyday life. However, the two most important issues that are of significant consequence and that will need to be addressed are that of legality and finance. In each case, there will be a far-reaching and lasting impact that can be best managed with adequate preparation long before the divorce is actually consummated in a court of law.
Once the irrevocable decision to divorce is reached, it is never a bad idea to consult with an attorney or perhaps undertake independent research at a law library to educate yourself with respect to your legal rights and responsibilities. Specifically, find out about your state’s laws in reference to separation and their impact on such issues as child custody, child support and alimony payment, debts incurred after separation, and valuation of marital assets and their increase/decrease after separation. On the financial side, take the time to gather up all financial paperwork and make copies of all such documentation. Analyze the financial aspect of the impending divorce and, perhaps most importantly, freeze access to or outright close all joint accounts.
Leaving the Marital Residence
The following step would be to physically separate, where one party actually takes residence at another address than that of the marital home. While there are no legal issues in this regard, there are and will be significant financial considerations. Therefore, it is important to document all debts incurred, joint bills paid, and improvements to the marital property of residence after such separation. Moving and other related expenses should be accounted for and any and all insurance policies should be kept consistent with current living arrangements. It is at this time that you will want to start thinking about the tax issues involved, i.e., will you and your spouse file jointly or separately come time.
Filing for Divorce
At this point one spouse will file the actual complaint or petition for divorce with a court of law. It is at this time that the formal divorce proceedings have officially commenced. In accordance with applicable law, the non-filing spouse must file an official answer or response.
The next stage occurs when one spouse files a formal request for temporary court orders with respect to issues such as alimony, child custody, visitation rights/privileges, and child support payments. In some cases, the request will include a provision for one spouse to pay for the other’s attorney expenses. It is strongly advised that documentation of any and all alimony and/or child support payments made take place. The reason for this would not only provide evidence of compliance with any Written Agreement or Court Order, but is way of ensuring that tax deductions will be possible.
Procedures used to obtain information with respect to a particular case, known as legal discovery, will then take place. It is at this time that the formal amount of alimony and/or child support payment to be made upon finalization of divorce will be determined. No less important is the conduction of financial fact-finding procedures. It is not unwise to draw up Net Worth and Cash Flow statements that will ultimately be influential with respect to the final division of marital property and assets. You may want to hire professionals such as financial planners, accountants, tax advisors, appraisers and the like to help you accurately establish actual monetary values as well as advise you of all relevant information with respect to tax consequences and other risks associated with the retention or surrender of property or assets. Make a formal list of stocks and note where the certificates are kept. Document savings and checking accounts. Do the same with respect to Deeds and related records for real estate ownership.
Now the actual legal and financial settlement negotiations will begin. This can be achieved through the use of attorneys at law representing the individual parties, a mediator mutually agreed upon by both parties, an arbitrator with the power to make binding decisions that will be transferred to the actual court findings, or through the amicability and cooperation of the actual divorcing parties themselves. It is in the last case where a great deal of money can be saved in terms of actual fees paid to professionals and actual trial expenses, i.e., court costs and expert witness fees (monies paid to professionals who actually testify at legal proceedings). However, it is also very important to make sure that all legal issues (alimony, child custody and support) as well as financial concerns (tax ramifications, potential fiscal advantages and/or pitfalls) are thoroughly addressed and acceptable and equitable conclusions are reached.
A Martial Settlement Agreement will then be formally drafted. This document will incorporate the terms of the Written Settlement or actual Court Order. The Martial Settlement Agreement will then, in turn, be factored into the final judgment with respect to the divorce as reached by the court of law.
Judgment of Divorce
Once the final judgment of divorce is handed down by the court, the divorce is legally over. At this point, it is best to confirm that all legal documents, such as deeds, registration forms, and other ownership documents have been updated to accurately reflect the now formally divorced status. Lastly, go over all financial papers, such as bank accounts, stock certificates, insurance policies, wills, etc., to ensure that these also accurately reflect the completion of the divorce process.
Resources & Tools
COMMUNITY PROPERTY VERSUS EQUITABLE DISTRIBUTION -- There are two basic ways to handle divorce property division: Community Property: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico are community property states. This means that all marital property is typically defined as community property or separate property. When divorcing, community property is typically divided evenly, and each spouse keeps his or her separate property. Equitable Distribution: All other states follow equitable distribution. This means that a judge decides what is equitable, or fair, rather than simply splitting the property in two. In practice, this may mean that two-thirds of the property goes to the higher earning spouse, with the other spouse getting one-third.
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Author: Mary L. Boland, Attorney at Law
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