Top Ten Things to Do Before Filing for Divorce in 2021
By: Jim Beglis
Divorce is difficult in even the best of circumstances. And while many people wish the process happened overnight, for most couples it can take quite some time. Whether you are considering separation, are certain you want a divorce, or aren’t sure what you might eventually want, that extra time can be helpful in making sure you are in the best place you can be if and when you do divorce.
1. Interview Attorneys Early On
Consulting with an experienced family law attorney early on in the process of a divorce can be crucial to protecting your best interests. Even if you are just in the beginning stages of the process and considering your options, an attorney can tell you what the best course of action for you is in your state—because what might be irrelevant to a divorce in one state might be harmful to a litigant in another. Whether the issue is alimony, what constitutes separation, or whether the court might split up your grandmother’s set of cocktail glasses, an attorney can advise you specific to your state’s rules.
2. Establish Credit in your name or Increase a Low Score
Once you are divorced, you’ll need to have credit in order to rent an apartment, get a car loan, or secure a mortgage on the house. If you never established credit, you can take the time before you file to do so. Start by looking online with credit companies and determine what’s best for you—whether it’s getting a credit card of your own, even if you have to put funds aside to secure it. Many people assume that they can establish credit through their spouse once they are married—that may not be the case, and you should establish your own credit before you can no longer rely on a spouse’s. In addition, if you have bad credit, spend some time increasing your credit score. No matter what your individual situation may be, getting your credit in shape is important to your financial health now and in the future.
3. Categorize Assets and Debts
When a couple divorces, their property will be split between them unless a premarital agreement says otherwise. But how their property will be split is going to depend on both state law and when the property was acquired. In many states, separate property belongs to the spouse who obtained it—for instance, if a spouse already owned a car when she got married, she may keep that car on divorce in many states. This also goes for debt—which many people don’t think about. Debt can be split between the spouses—even if only one spouse acquired it during the marriage. Of course, state law has a bearing on this, but many times if one spouse runs up a credit card the other may end up paying for part of it. Knowing ahead of time what property will get split and what won’t can help you plan for your financial life after your divorce.
4. Move out of the Bedroom
This may seem like a natural part of separation, but moving out of the marital bedroom has some important legal consequences. In many states, the day you stop sharing a bedroom and stop acting as married couple can be the day you are legally separated—even if you remain under the same roof. At this point, the property and debt you acquire may be separate and therefore not subject to division. The date of separation can also start the clock on the divorce—in many states, there’s a waiting period before any divorce can be final. In some states, that runs from the date of filing—but in others, it runs from the date of separation. The longer you share a bedroom and act as a couple, the longer your divorce can take.
5. Anticipate your Financial Future
Most people understand that divorce can have harmful financial consequences. Each party will have to support themselves, retirement and savings accounts get split up, and sometimes the marital home must be sold. But many people don’t understand the consequences that go beyond the division of property. When you marry, unless you have a prenup, you agree to financially support your spouse. This duty to support each other can carry through the separation and even after the divorce, depending on the state you live in. Not only that, but the potential payment can be more than you might assume. Some states provide calculators or guidelines to help calculate what you might be looking at paying or receiving, and an attorney can help advise you as well.
6. Research the Requirements
We often think that the process of a divorce is up to the court—especially in how long it takes. But every aspect of a case is governed by the statutes that apply in your state. The waiting period is statutory as is the residency requirement to file. You can’t move to another state in order to access different divorce laws, and state statutes are set up to prevent that. As a result, you need to prove residency in a state and even a county for a period of time in order to file there. Other requirements can bear on the kind of divorce you file. While most people file for a no-fault divorce, fault based divorces still exist across the country. If it benefits you, it may be something to consider. Also, some states require parents to take a parenting seminar as part of a divorce proceeding—especially if children are involved. You may need to pay for and complete a parenting course before your divorce is final.
7. Consider Custody
Divorce with children can be even more difficult on everyone involved—especially if their parents fight over custody. Many people assume a lot of different things about custody—that the mother will automatically keep the children, or that the court will split custody down the middle. These preconceived notions are often wrong—and what a court will do is largely a matter of state law. States don’t automatically favor mothers by law, and while some states do favor split custody, others are changing that based on the desire for stability for the kids. Sometimes, states have a guideline for who might get custody—sometimes these are referred to as custody or parenting time guidelines. These might take things into consideration that the parties didn’t realize—like the health of the parents or the wishes of the child. Knowing how custody might play out can help you plan many different aspects of your divorce.
8. Keep Proof of Income
The court will take both parties’ income into consideration when determining alimony and child support. But what if you or your spouse has multiple streams of income—including some that isn’t from a full-time job? What about side jobs or the occasional part time gig? All of this income—whether it’s taxed or not—is counted for the purposes of support. Spouses aren’t allowed to hide income or assets from each other or the court—but providing proof of what a spouse makes overall can be difficult in this gig economy. Over time, you can keep records of your own side jobs or those of your spouse to establish a total income that includes everything relevant. Sometimes, such income can documented through email, texts or other things that show the party’s income stream over time, even if it varies.
9. Reconsider a new Relationship
Many people want to move on quickly from a relationship that’s over—and for some, that means starting a new one. In many states, especially in the context of a no-fault divorce, dating someone else while separated from your spouse isn’t a problem as it’s not relevant to what happens in court. But in other cases, dating during a separation can hurt you. In some states, this behavior can impact alimony and can be the basis of a fault-based divorce, both of which can change the economic position of the parties. In addition, introducing minor children to a new romantic partner while your divorce is pending can have negative consequences on the custody and visitation aspects of your case. If you live in a state where dating can be used against you—you may want to put the brakes on any new relationships.
10. Protect your Mental Health
Ultimately, the most important thing to protect in your divorce is your mental well-being. Obviously, if you’re determined to file, you may feel best moving on as quickly as possible—even if that means not fighting over the last of the baseball card collection. While you do need to think about your financial future and protect yourself as best you can, you also need to remember that at some point the process will be over. And maybe that means coming to an agreement on things like custody or the division of property.
No matter what you decide is best for you and your relationship, and no matter where you live, a seasoned professional in family law can help you at every step of the way. They know the intricacies of your state’s law, and can give you the best advice on how to use it to protect all of your interests.
To learn more about divorce, visit our Divorce Law page.
Related: Divorce Law
James P. Beglis is a partner at WhitbeckBennett, focused primarily on family law, guardianship / conservatorship, and estate planning cases. James has specialized in divorce, custody, visitation, support and all other types of family law matters for most of his almost two decade career. Practicing family law and domestic relations-related matters in every jurisdiction throughout Northern Virginia. To learn more about Jim Beglis, click here.