12th Sep 2013

Ready, Set….Divorce

How to Reduce Risks & Maximize Results in a Divorce

– By Greg L. Roberts

The emotional trauma associated with divorce often will lead to serious misjudgments that can have a devastating impact upon the final terms of a divorce decree. This article is intended to provide a brief overview of those steps which a spouse facing divorce should consider to avoid risks and to maximize results in the judicial proceeding.

The first step in the process is to seek competent counsel as soon as possible. You need to have sound legal advise early in the proceedings so that you have an appreciation of what the major issues are likely to be and how to position yourself accordingly.

You will need to gather copies of all relevant financial documents. Your review should not be confined to those financial documents which are accessible in the marital home, but also should include a check of your safety deposit box and any other locations where relevant documents may be found. Documents of particular value might include, among other things, appraisals, joint tax returns, bank statements, brokerage account statements, periodic statements issued by pension and profit sharing plans, financial statements and balance sheets, loan applications, deeds, mortgage documents and documents relating to the ownership of/or value of marital businesses. If you are unsure, if a particular document is important, the safest approach is to copy it and let your lawyer determine its relevance and materiality.

In discussing matters with your spouse, you should never commit yourself absolutely to a position before consulting with your counsel. The problem of committing to a position is that it may create an appearance of inconsistency if your position should change during the course of the case. Your lawyer may determine that your concessions are inequitable when balanced against all other issues in the case. You can only evaluate how all of the issues are balanced together after you and your counsel have had an opportunity to analyze these matters together. This kind of in-depth analysis may not be possible until all relevant documents are obtained, depositions have been taken and an appropriate amount of discovery has been completed. As a practical matter, it is essential that you and your spouse be able to communicate with each other on issues affecting the welfare and temporary custody of the children. However, if you are the uninformed spouse vis a vis financial matters the best approach is to allow the lawyers to do the communicating on property and financial issues.

You should gather all valuables which you believe constitute your separate property. This would include any items of value which you acquired prior to your marriage and any such items which you acquired during your marriage by gift or inheritance. Before you remove these kinds of items from the family home, you may wish to consult with your counsel to ensure that the valuables in question are truly separate and not subject to division by the court.

You should check your account balances to ensure that there are sufficient funds available to cover debts and living expenses. If funds are held in joint accounts, you may wish to consider the option of paying off some outstanding bills. As a related concern, it might be advisable to terminate your joint accounts to cover some of your basic living expenses. As a general proposition, these kinds of actions should be undertaken only upon advise of counsel. The withdrawal of jointly held funds or assets could lead to charges of marital misconduct.

Another important consideration is your own personal safety. If your spouse is engaging in threatening or physically violent behavior, you may find it necessary to seek an adult abuse protective order from the court. In addition, you may wish to remove guns or other weapons from the marital home and store them in a secure location.

It may be advisable to consult other professional care-givers to deal with collateral issues. These types of services could include victim’s shelters and/or services, mental health therapists and organizations skilled at serving children placed in the middle of conflict.

A common question facing a spouse in the throws of a divorce is whether to move out of the marital home. In certain circumstances, this action can have an important effect on the ultimate disposition of property and child custody issues. There also may be practical questions associated with the cost of finding a substitute residence. These are critical issues which you should review with your counsel.

Obviously, the effect of a divorce upon children is a paramount concern. Ideally, you should try to communicate with your spouse on matters of school, religious training, temporary custody schedules and similar matters related to the welfare of the children. Initially, a spouse must address delicate questions concerning when to advise children of the divorce and what to say. Consultation with a qualified therapist may be prudent. It will have a harmful effect on the child and custody issues if you try to alienate a child’s relationship with the other parent.

There are just a few of the most basic issues which a spouse facing divorce must address early in the process. If you are in this situation, it is hoped that the approaches outlined in this article will be of some value.

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