“I think I need a divorce. What do I do?”

December 22, 2011

This is the most basic question I hear from prospective clients.  It’s daunting;  it’s emotional.  None of us expected to be here.  But here we are:  it seems we can’t, or don’t want to, stay married to this person any more.  What are the first steps?  Here are my suggestions, both as a lawyer and as a person who has been through the divorce process:

1)      Take an inventory.  Make sure you understand what you have, and where it is.  If you’re the spouse who normally handles the finances, this part will be relatively easy;  if you’re not, this may be tricky – especially if you’re not ready to let the other spouse know that you’re considering divorce.  (But if your spouse handles the finances and won’t share that information with you, that’s a pretty big red flag right there, don’t you think?)  Major items you will need to identify are:

  1. Cash on hand – bank account statements
  2. Real estate – mortgage statements, including home equity loans
  3. Retirement accounts, such as 401Ks, pensions, and IRAs
  4. Other investments, such as mutual funds and brokerage accounts
  5. Personal property, such as cars, boats, furniture, jewelry
  6. Debts, such as car loans, credit cards, etc.

As you identify your property, try to determine if it’s “separate” or “community” property.  Put very simply, separate property is anything you owned before the marriage, or anything you obtained by gift or inheritance during the marriage.  Community property is anything earned or purchased during the marriage.  Some accounts may be a mixture of separate and community property, like a 401K you had before marriage and have added to during the marriage.

Don’t try to hide or transfer assets, alter documents or information, change beneficiaries on accounts or insurance policies, or spend large amounts of money.  All these actions may be illegal, probably won’t work, and could get you in big trouble later.

2)       Educate yourself.  There are many good books about divorce, and its effect on your children and your finances.  My recommendations are here.  For me, having more knowledge about the process helped me be calmer and make better decisions.  I knew how to answer my children’s questions, and how to prepare myself financially for what was coming.

Don’t rely on books to give you specific legal advice.  Books are wonderful for general parenting and financial advice; however, unless a book is specific to Texas and updated annually, any statements about the law might be either inaccurate or out-of-date.

3)       Assemble your “Divorce Team.”  For most of us, losing a spouse means losing our main source of support, and it takes more than one person to fill that void.   Your attorney can give you legal advice, but you may also need financial, tax, or real estate advice.  So you may also need an accountant, a tax expert, or a real estate agent.  You’ll also need emotional support, so you will want to line up friends, family, and possibly a counselor or religious advisor.  While you are the decision-maker and driver of your divorce, you will need a team of advisors and supports to help you through.

Don’t recruit people to join you in an “I Hate My Ex” club.  In my experience, that is neither helpful nor healthy.  It is more helpful to find people who will support you, not people who will put down your spouse.  This is especially important when you have children.  Besides, what if you change your mind and stay married?  It will be harder to make your marriage work if you’ve turned all your friends and family against your spouse.

4)      Think about what life might look like after divorce.  What do you want to happen?  Do you want to stay in the house, or move out?  Do you want your kids with you most of the time, or will that be impossible because you travel for work?  Will you be able to support yourself financially, or will you need child support or spousal maintenance?  Will you need to go get a job?  Will you need day care?  You may want to write out several different scenarios, in case one turns out not to be possible.

 

Don’t ask the kids what they want, or talk to them at all about your plans.  It’s inappropriate, can be frightening for the children, and may reflect badly on you later.

5)      Decide if you need an attorney.  I am frequently asked, “Do I really need an attorney? Can’t I do it myself?”  And legally, you don’t need a lawyer.  You can do it yourself.  But, as in most things, you get what you pay for.  As the late Hal Davis said, “The cheapest way to get a haircut is to go to Wal-Mart, buy the clippers, and do it yourself.  But most of us choose to pay someone with training and expertise to do it for us.”

No one wants to pay an attorney to help us get divorced.  Divorce causes (and is sometimes caused by) serious financial distress, and the cost of good legal counsel is significant.  But a divorce affects your most significant assets:  your home and your retirement accounts.  Chances are you didn’t handle the closing on your house by yourself;  nor did you set up your 401K.  In my opinion, if you have any financial assets or real property, it’s worth the investment to pay someone to do it right.

And of course, if you have children, you can’t put a price on making sure that part of the divorce is handled correctly.  Having a person with experience in developing parenting plans and arranging child support is very important, and can help you avoid common mistakes divorcing parents make.

Many people seem think that hiring an attorney is equivalent to buying a gun.  I hear clients say, “He said if I hire an attorney, he’s not going to give me anything!”  I don’t see it that way.  I think a good divorce attorney is like a good real estate agent helping you buy a home, or a good accountant helping you with your taxes.  They know what they’re doing; they do it all the time; they can walk you through it.  A good divorce attorney is the same.  Hiring a lawyer need not be the opening salvo of a war between you and your spouse.

If you absolutely can’t afford to hire an attorney, there is help available.  If you qualify, you may be able to find help through Legal Aid.  The Collin County Law Library has a packet of information and forms for obtaining a divorce.  And the Texas Young Lawyers Association has a very helpful website, texaslawhelp.org, with forms and instructions.

Don’t rely on programs or forms you find on the internet.  Such programs are rarely accurate on the law, especially if they are not specific to Texas.  And those sites are never familiar with the local rules and practices in your county, which is crucial to getting through the process smoothly.  A local attorney will know the judges, be familiar with courthouse staff, and know things which an internet form service cannot tell you.

6)      Make an appointment with an attorney.  See my article on choosing a divorce attorney for some tips on finding the right attorney to speak to.  Expect to pay the attorney for his or her time, although some attorneys do offer free consultations.  Bring with you:

  1. the documents you gathered in step one;
  2. social security numbers, driver’s license numbers, and birth dates of you, your spouse, and your children;
  3. any significant documents, such as prior legal proceedings (divorces, adoptions, etc.)

Don’t expect an attorney to give you legal advice over the phone.  For one thing, if we don’t completely understand your situation, our advice might not be correct.  And we earn our living by giving advice; most of us can’t afford to give it away for free.

7)      Explore your options.  The attorney should be able to assess your situation – assets, debts, property, and children – and give you an idea of what to expect from the process.  An attorney can tell you whether the post-divorce scenario you prepared in Step Two is possible.  For example, you may wonder if you can move out of state with the children, or whether it will be possible for you to keep a car when it is in your spouse’s name.  These are case-by-case questions, answerable only after an attorney looks at all the facts.

Don’t set your heart on a certain outcome – sole custody of your children, getting the house, a thousand dollars a month in alimony.  Try to think in terms of interests – having a good relationship with the kids, being financially secure – and not a particular aspect of the divorce settlement.

8)       Decide how you want to proceed – litigation, collaborative divorce, or mediated divorce.  In all these options, you will need the guidance of an attorney; each one is best for some situations, and not appropriate for others.

Don’t assume that your divorce will be just like your neighbor’s, your sister’s, or your friends.  Every case is different, every couple has different goals, and people have different attorneys and judges involved.  So there is no such thing as a “standard” divorce.

9)      Be prepared for a process, not an event.  A divorce in Texas must take a minimum of 60 days from the filing of a petition to the entry of a decree.  However, I have never had a divorce get done in 61 days.   I always tell my clients that their divorce will cost more and take longer than they want it to, because most people want to get divorced yesterday and pay nothing.

And the truth is, the time is takes to get a divorce, from the first visit with the attorney to the signing of the final documents – is valuable.  It takes time to adjust emotionally – and that applies to you, your spouse, and your children.

Most divorces are not decided in court.  They are settled by the parties and their attorneys, in settlement conferences, mediations, and meetings in the courthouse hallways.  So chances are you won’t have a dramatic, TV-worthy moment where the judge bangs his gavel and pronounces his verdict.  Instead, you’ll have e-mails, phone calls, and meetings.  And eventually, everything will get done.

This blog post turned out to be much longer than I intended!  But I hope that those of you who stayed with me to the end found it helpful.  Divorce is like many things in life;  none of us expect it, most of us don’t want it.  But if you approach it positively, it can be a transformative and valuable experience.  One of my dear friends says that an event can either make you better, or bitter – and a divorce is one of those experiences.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: