It is very clear to me from my conversations with my clients that attorneys do not agree on the best strategy for how to approach the beginning of the divorce process. While my ideas are not unique or necessarily always correct, they are intended to lay the foundation for a divorce that ends with the parties still able to co-parent children and participate in the major life events that will bring them together for decades such as graduations, anniversaries, funerals, and weddings. Here are a few thoughts intended to reach the goal of the end of the marriage without the end of civility which really all stem from one fundamental principle:
- Do not assume that you know your spouse. So many people come in to our offices and hear our advice about how to talk to the children about the process, how to plan for parenting time andhow to protect financial assets and scoff at our suggestions as they insist their spouse would never do that. I always insist that the person you are divorcing is not the same person you have been married to even if your marriage has spanned decades. They will do things you never thought possible. As a result, you should protect yourself and your children from the repercussions of unimaginably bad behavior preferably prior to it occurring.
- Transfer any liquid jointly held assets to an account in only your name. This is particularly critical to the spouse who has little to no income or who does not have control over the financial assets to transfer as much money that is liquid as possible to their own name immediately preferably before the divorce is started. We are adamant in our direction to not spend the money or give it away, but to have it so that you know only you can do something with it. We have had far too many people insist their spouse would never do such a thing only to have them return to our office when all of the money is gone from a checking or savings account or the home equity line has been taken to its highest level in cash. Do not take so much that a mortgage or car payment will not be paid due to insufficient funds. We do not recommend closing the line of credit as you may need those funds in an emergency and may not be able to qualify for the credit again without the consent of your spouse. Take as much as you can liquidate including any balance on a home equity line of credit so that it is protected from your spouse's potential conduct and so that you have funds available just in case. Preventing an act of vindication is far easier than trying to fix it once it is done. If the money from a home equity line has been taken out and used for gambling or a trip or has simply been given away, there is little likelihood that anyone will get it back. The end result of this sort of an event is even more hostility and anger than a short term lack of access. Also, if one party is without the means to pay bills while a petition for temporary relief is pending, that causes much anger and frustration that lingers long after the process is complete.
- File a petition for temporary relief as soon as possible. We have been to seminars where judges from multiple counties have routinely given the same advice. One panel of judges unanimously agreed that this type of petition should be brought at the onset of every single case not matter how well everyone is getting along. The petition for temporary relief would include an injunction prohibiting both parties from selling, loaning, gifting assets or taking on additional debt. The petition will outline who will pay what bills during the divorce process. It can also provide a parenting time plan so that each party knows when they are responsible for the children. This essentially maintains the status quo or current situation. It is almost always a more peaceful divorce process if there is some order at the onset. The ramifications of a divorce where a car is repossessed for nonpayment or a house gets close to or into foreclosure are much deeper and more hostile than those that result in an equitable division of assets and debt without those complications.
- Do not use one attorney. While you and spouse may normally agree on many things, the areas of disagreement will grow rapidly during the early stage of divorce. If you use one attorney, one of you will feel cheated and like they did not get a good deal at some point down the line. Ethically speaking, an attorney can only represent one of you so by default one is without representation. At a minimum, have an attorney of your own review any documents that you sign before you sign them. Also, it is a good idea to have an attorney get an appearance on file immediately if a petition of dissolution of marriage has been filed and served. You should do this even if your spouse insists they will not take any action that is adverse to you. Having two attorneys increases the chances that everyone will feel confident that their interests were represented which should provide for less resentment once the process is completed.
- Set up a parenting plan right away. If nothing else, it is a good opportunity to try it out and see how it feels. Maybe the traditional one night a week for dinner and every other weekend will be a perfect fit. But, maybe one of you really wants Sunday night off or really needs to be coordinating return to school every Sunday. We often hear that one spouse will not ever spend time with the children so we don't need to set this up. This is incorrect more often than not and fits into the notion that you no longer know your spouse. By setting up a schedule early, you can both see how it will work out and the children will have a chance to become accustomed to a new parenting plan. Also, you will see some behaviors emerge during that parenting time that you may need to address in the final parenting agreement or order. So many times we hear of a parent "who would never do that" having romantic partners over while the children are present, taking trips with the romantic partners and children, drinking while driving and more. It is much less expensive and less traumatic to address these issues affirmatively and proactively in the original divorce process than to continue litigation in the post decree stages though petitions for contempt and/or modification of the original order. Efforts to reduce post decree line skirmishes will make the lifetime following divorce much more peaceful.
- Conduct at least some basic discovery. At a minimum, we think it is a good idea for the parties to exchange financial affidavits stating what they have and what they owe and what their sources of income include under oath. The goal is to make sure that every asset and every debt is accounted for in the final judgment of dissolution of marriage and the marital settlement agreement. This is a prime time for someone who was always forthright to hold back on giving information on that one account that they think you don't know about that they would like to keep. If you find this out later, it will be very damaging to the long term relationship. Obviously, our advice is to fully disclose all financial accounts and interests at the onset, but unfortunately not everyone follows that advice.
Elizabeth Wakeman is an attorney at Zukowski, Rogers, Flood & McArdle where she focuses primarily in the areas of divorce and family law. Elizabeth has participated in alternative dispute resolution in multiple formats. She has also trained lawyers in ADR techniques, and she serves as a mediator for the 19th Judicial Circuit in Lake County and the 22nd Judicial Circuit in McHenry County.
Editor's Note: To ensure your long term interests are taken care of, we recommend that you hire your own lawyer and the appropriate financial experts.
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