The determination to seek a divorce is one of the most difficult decisions of your life. While almost no one looks forward to going through a divorce, there are steps you can take to make the process less emotionally traumatic for everyone involved.
If your marriage has deteriorated to the point that you’ve decided you want a divorce, chances are that your spouse probably has an idea that something is coming. If you plan to retain an attorney, it’s best to do so before you advise your spouse that you’re filing for divorce. A friendly letter from your attorney advising your spouse that you have filed a for dissolution of your marriage, stating that you wish the process to remain amicable, and advising him or her that they may want to also seek legal representation can go a long way towards setting a calm and non-confrontational tone for the legal process. If you don’t plan to hire an attorney, you should set aside time to talk to your spouse calmly about your desire for a divorce and the reasons therefore. If you feel that you might be in physical danger upon breaking the news to your spouse, you may want to obtain a civil order of protection and have him or her removed from your residence ahead of time.
The only task probably more daunting than telling your spouse that you want a divorce is telling your children. If possible, both parents should tell the children together, as a family, in a calm and loving manner. No matter what kind of acrimony exists between the parties, it is essential that the parents present a united and amicable front to the children. No blame should be assigned to either parent and most important of all, the children must understand that the divorce is not their fault. Many parents choose to enroll their children in grief counseling other prior to or immediately after advising them of the impending divorce. Having a support system outside the family, such as a therapist, counseling group, or close friend or family member can oftentimes make divorce much easier on children.
Often, in order to save money or to make the transition a gradual one for the children, the parties choose to continue to reside in the same house during the divorce. While ability to co-parent the children and share the household expenses has its advantages, it is essential that the parties lay down ground rules for continued cohabitation. For example, will the parties be allowed to bring dates into the marital residence? How will time with the children be handled? How will the parties divide up the household expenses? The best way to address these issues is often with a lawyer or mediator. Any agreements reached by the parties should then be drawn up in a legally-binding contract and entered before the court.
In the event that the parties are unable or unwilling to continue to reside in the same household, a decision must be reached as to who stays in the home and who is forced to find other lodgings. In situations where children are involved, the general rule is that the children and their primary caretaker (usually, but not always, the mother) stay in the home while the other party moves out. Where children are not involved and the parties cannot agree, the court will look at a variety of factors, including the likelihood of physical or emotional harm to one or both of the parties if they continue to reside together, which party has the financial or familial means to obtain other accommodations, which party contributed to the most to the purchase of the home, and the potential hardships to each of the parties should they be forced to reside elsewhere.
Most jurisdictions require both parties to file a financial affidavit, disclosing everything from their annual income to any expected inheritances. To this end, it is helpful for parties to begin gathering their personal financial documents:
In amicable situations, some spouses even fill out their financial affidavits together to make the process as smooth as possible. Always remember to make two copies of each document
Where both parties can agree on the amount of marital expenses owed per month, devising a monthly budget for each party is simple and extremely helpful for the following reasons:
As soon as a divorce is filed, many attorneys advise their clients close any joint bank accounts, open their own individual accounts, and to keep their funds separate from those of their spouse. This is a useful tool not only in preventing the misuse of joint funds by one of the parties, but also because it gives each spouse a better idea of what their income flow will be once the divorce is final. However, where only one party earns the family income, the court may order all joint accounts to remain open and available to each party until the final divorce decree is entered. If this is the case, both parties should keep track of all documentation of their purchases and bills in order to avoid the appearance of extravagant spending.
Where both parties earn comparable incomes, the court will usually order them to evenly split the household expenses, with the caveat that the party remaining in the home usually pays the monthly rent or mortgage. Additionally, each party usually pays the financing on the vehicle in their possession. Where one party makes significantly more income than the other, the court will usually divide up the marital expenses proportionally, with the higher paid party paying a higher percentage of the monthly bills. The distribution of household expenses should be written into a formal court order, thereby making it enforceable in the event that one party does not live up to his or her financial obligations.
As soon as on party ceases to reside in the same home with the children, they are required under state law to pay child support to the residential parent (the party who continues to reside with the children). In most cases, the amount of child support owed is a set percentage of the non-custodial parent’s net income (their income before taxes), though the court has the right to deviate from the standard percentages where it deems necessary. In addition to child support, the custodial parent may also seek a contribution to daycare expenses, summer camps, school tuition, and extra-curricular activities. Because temporary child support orders are often simply incorporated into the final divorce decree, the temporary order should be sufficient in amount to sustain the children after the divorce is final.
Unlike child support, spousal support is not an absolute right. Rather, it is granted at the discretion of the court depending on the circumstances of both parties. In determining whether or not to grant spousal support, the court will take several factors into determination, including the education level of the party seeking spousal support, the ability of the party seeking support to provide for themselves financially, the education level and annual income of the party from whom spousal support is sought, the age of the parties, and the length of the marriage. The most common type of spousal support is “rehabilitative” support, which is temporary in nature and is intended to terminate once the party needing support is adequately able to provide for him or herself. “Permanent” spousal support is less common and intended to remain in place for the rest of the parties’ lives.
Before a final divorce decree is entered, the parties may have to file state and federal income tax returns. Whether it is in the best interests of the parties to file jointly or separately is a decision best made with the assistance of an attorney, mediator, or accountant. In most cases, it is most beneficial to the parties to continue to file jointly for as long as possible. Any tax refunds or additional taxes owed are usually split evenly between the parties.