What do you do now that you have reached the point of no return? When you know you have done everything possible to make your marriage work and are ready to start thinking about the dissolution of your marriage, here are some legal tips to make a tough situation a little easier.
Take A Deep Breath.
The first thing to do when faced with a situation as stressful as dissolving a marriage is to take a deep breath. Now more than ever, be good to yourself. Take some time to relax and begin to heal. Once you are ready to deal with the legal aspects of your marriage ending, take a deep breath, sit back and assess the situation.
Will your spouse be contesting the divorce? Or have the two of you agreed on most issues? Do you have children? Do you need financial assistance from your spouse while making the transition back into the workforce? Do you have separate property, property that is your own that you want to make sure does not end up with your spouse? Do you have any jointly-owned or community property?
Do you and your spouse own real property together? Do you have significant debt that you need to apportion between the two of you? Do you need your spouse to continue your health insurance coverage for a period of time until you can obtain coverage on your own? These are some of the important questions to ask yourself at the outset.
It is a good idea, once you are able, to sit down with a notebook and a pen and write down all of the things that you believe may be issues in your divorce, including alimony, child custody, visitation, child support, and the division of assets and debts. Also, make separate lists of the property that will be at issue in your divorce.
Make a list of your separate property, which is a property that you contend belongs only to you. Under the laws of most states, this is a property that you owned before your marriage, or that was given to you and only you as a gift, or that was an inheritance bequeathed only to you. It also generally includes items that you purchased with separate property funds.
In most cases, you will list at a very minimum your clothes and personal effects, jewelry that was given to you, and items you brought with you into the marriage, such as your family heirlooms. Make another list of all of the property you and your spouse own together or that you both are entitled to share. Include on this list anything and everything you can think of, such as savings and checking accounts, investments, retirement accounts, pensions, automobiles, furniture, and real property, including the home you live in and any other vacation or investment properties you may own.
In some cases, it is difficult to determine whether something is separate or community property. And, sometimes, the property will be mixed, which means that perhaps you own a share of it as your separate property, and you and your spouse own a share of it jointly. For example, consider a situation where, a year after you were married, your aunt left you $15,000. Let’s say that you generously used the $15,000 as a down payment on a home for you and your spouse to live in together.
After you move in, monthly mortgage payments on the home, as well as property taxes, insurance, and maintenance costs, are paid from the combined earnings of you and your spouse, which are community funds. Generally, you would have a separate property interest in the home in the amount of $15,000 plus a proportionate share of the equity. The remaining interest in the home would belong to you and your spouse equally as community property.
If you are not sure whether something is separate or community property, or whether it may be both, put this on a separate list to be determined during the dissolution process.
Consult With An Attorney.
Unless you and your soon-to-be-ex-spouse have no children, no assets and no debts to speak of, and maybe even if you do not have such issues, you should at least consult with an attorney. Here’s why: More so than in any other legal situation, emotions run high when a couple is going through a divorce. You cannot expect to think clearly and rationally at this time in your life. An attorney will be what you cannot be expected to be right now: Objective and clear-headed.
Most attorneys offer free consultations. It is a good idea to take advantage of this and consult with an attorney to, at the very least, determine whether you even need an attorney. A good attorney will listen to your situation, explain the procedure and laws in your particular state, and let you know what your options are.
If you and your spouse agree on everything and have minimal property, assets, or debt issues, then the attorney may suggest that you use a simple marital settlement agreement and file the divorce yourself. He may offer to assist with drafting the agreement, or he may refer you to a legal typing service for assistance in drafting and filing the proper forms.
Once you have made a decision as to how to proceed, and if you choose to file the divorce yourself without the use of an attorney, be very sure that you hire a reputable and experienced legal typing service to assist you with the paperwork. Keep in mind that paralegals and legal typists or legal document assistants are not attorneys and are prohibited by law from giving legal advice or directing you as to which forms to use or how you should proceed.
There are also a number of good books on the market that will help you if you decide to prepare the forms yourself. Keep in mind, however, that you should not attempt to do your own divorce or go through a legal typing service unless you and your spouse agree on absolutely everything in writing and have no issues to be ironed out. In most cases, you also should not attempt your own divorce if you have children and/or significant assets or debts.
Keep in mind, too, that if your situation changes midstream, that is, if you and your spouse agreed on everything before, but now he or she is contesting something, you should stop what you are doing immediately and consult with an attorney.
Timing Can Be Everything.
In most states, there are various alternatives for those seeking dissolution of a marriage. The option you choose, and the legal rights you have, may very well depend on the length of your marriage or the date you file.
For example, most states offer a simpler, usually quicker, and less expensive summary dissolution option for couples who have not been married long (generally under five years) and who have no children, no real property, and minimal assets or debts. This option can be much less expensive, less stressful, and less time-consuming. If this option is available to you, make sure you plan ahead so that you can file within the time limits required by your state.
If your marriage is lengthier than permitted under the summary dissolution statutes, you will have to file for a conventional dissolution. In this case, you may still need to consider issues of timing. Most states base alimony and some other issues on the duration of the marriage. For example, in California, if a couple has been married for ten years at the time the petition for dissolution of the marriage is filed,
the court will consider this a lengthy marriage and take that into consideration in making decisions regarding support and division of property. Some speculate that it was for this very reason, to avoid the impact of California’s laws regarding lengthier marriages, that Tom Cruise suddenly filed for divorce from Nicole Kidman practically on the eve of their 10-year wedding anniversary.
There are other timing factors to consider in filing your dissolution as well. For example, most states have residency requirements that require that you have lived in your state and in your particular county for a certain amount of time before you can file for divorce, generally three to six months. This is probably not the time to move if you want to get through the process as simply and as quickly as possible.
Also, most states have cooling-off periods and do not allow final judgment to be entered in the dissolution until a certain amount of time has passed, generally six months to a year. So, there are many reasons to file promptly to start the time running and to file in the place where you lived at the time you separated.
If time is of the essence in your particular situation, and if your state has particularly stringent residency or waiting periods, you may wish to consider speedier alternatives. If you and your spouse agree on all issues, a Nevada divorce, for example, can generally be obtained in approximately one week after establishing residency in the state for a short, six-week period of time. A quick overseas divorce in a United States territory, such as Guam, might also be an option to consider under such circumstances.
Wherever and whenever you decide to file, make sure that the manner in which you file will culminate in a valid judgment of dissolution that will be recognized in the United States and in the particular state in which you live.
Follow Proper Procedures.
Once you have decided on the proper place to obtain a dissolution of your marriage and have filed the paperwork, and assuming you and your spouse have agreed to all issues, it is usually a simple matter of waiting.
One way to speed things up if you and your spouse agree is to have your spouse served with the Petition for Dissolution, allow the time for him or her to respond to lapse (generally 30 days), and then file a request that the Court enters a default judgment. You may or may not be required to attend a hearing. In most cases, the Court will order that judgment be entered in accordance with the petition on the earliest date allowed based on the laws of your state and the date the petition was filed.
If you have issues to work out, then one or more hearings will be held to determine these issues. You may be required to attend a mediation hearing, either based on the laws in your state or based on an order of the court if the judge thinks it will be helpful in your particular case. If children are involved, the judge will take time to gather evidence and assess the situation to ensure that fair custody and support orders are entered that are in the best interests of the children.
Once everything is worked out, the judge will enter judgment and give you a date when your divorce will be considered final. Under some circumstances, for example if one spouse is in prison or unavailable for some reason, or under other appropriate circumstances, the court may order a dissolution of the marriage as to marital status only and will reserve jurisdiction to decide the remaining issues at a later date, when both spouses are available.
Be Selfish and Be Selfless.
During the dissolution of a marriage, emotions generally run high. If you made the decision to end the marriage and are ready to move on with your life, while your spouse is not, you may feel guilty. If, on the other hand, your spouse left you and you do not really want the marriage to end, you may be very vulnerable to manipulation by your spouse.
This is one of many good reasons to involve an attorney in your case. Family law attorneys will tell you horror stories of spouses plagued by guilt who gave away everything they owned. Oftentimes, they regretted making that decision a year later, when they found themselves in the very difficult position of starting over from scratch financially, while the spouse they felt guilty over is happily remarried and living in style.
They will also tell you horror stories of spouses who were in the position of wanting to do anything and everything to try to get their spouse back and save the marriage, and in the course of attempting to do so, were vulnerable and easily manipulated into making agreements that were definitely not in their best interests.
This is a time for objectivity. Realistically, it is nearly impossible to see anything from an objective point of view during a time like this. Listen to your attorney, your friends, and your family who are there to look out for your best interests when you may not be able to do so. Take care of yourself. Although it may seem like the end of the world right now, time will heal the pain you are feeling. When you come to the end of the rainbow and are beginning to heal, you do not want to find that you have given all the gold away to a spouse who left you high and dry.
On the other hand, although you most certainly have to watch out for yourself, divorce is also a time to be generous and selfless. This is particularly true when children are involved. In any dealings that have to do with your children, keep in mind that the most important consideration is their well-being, safety and happiness. Work to achieve what is best for your children. This situation is very likely rough enough on them.
However much you may hate your soon-to-be-ex-spouse right now, your children love him or her. And, if you are the custodial parent, they probably miss their other parent very much. This is a huge adjustment and a traumatic event for them. They are probably also dealing with issues of abandonment, hurt, confusion, and possibly misplaced guilt.
Do everything you can to make it as easy as possible for them. Remember that, if you and your spouse fight over your children in an attempt to get things your way or to make yourselves happy, everyone will come out a loser, especially the children you both love so much.