The 6 Steps To Prepare Yourself For a Divorce
Don’t wait to protect yourself! Know your rights early.
Clients often come to see me in the early stages of separation and divorce. Sometimes a client is just looking to know “what if” scenarios if one of them decides to divorce. These clients almost always leave saying something like “wow, I never knew that – thank goodness I met with you,” or “I will definitely take the steps you recommended if we decide to separate.” I have also had clients come to me months or even a year or more after they or their spouse made the decision to divorce. Sometimes that delay has put them in a bad position as they have made decisions I would have cautioned them against had they met with me sooner. If you are considering separation or divorce (or you think your spouse is), speak with an experienced attorney as soon as you can. There are almost certainly things you can do to put yourself in a better situation when it comes time to divorce. These may include dividing bank accounts, opening new bank accounts, collecting information and documentation on your spouse’s financial and personal situation, and a whole host of other things.
Be prepared when you meet with an attorney.
There are several things you can do to maximize your first meeting with an attorney:
- Create a list or spreadsheet of the assets and debts you know exist. Sometimes people don’t have all this information and that’s fine, but having a list of what you do know about is often very helpful. Be sure to let your attorney know if you believe your spouse may be hiding assets, or has been keeping you in the dark about what they have;
- Prepare a list of questions you have. The attorney you meet with should be able to answer your questions at the initial consultation, or if a question cannot be answered at that time, explain why that is;
- Determine what your priorities are and communicate them. Also, give thought to what you would like your post-divorce life to look like. Do you intend to relocate? Do you see yourself as being the primarily caretaker of the children, or more of a shared parenting arrangement? Do you want to stay in the marital residence or have it sold? Do you expect to retire soon, or make an employment change, like starting a business?
In most circumstances, you and your spouse must live separately for one year before either of you can apply to the court for a divorce. Separation generally means one of two things: 1) that someone moves out of a shared residence and either or both parties have the intent to pursue a divorce, or 2) the parties live separately in the same residence and either or both parties have the intent to pursue a divorce. Moving out is a clear demarcation for separation, but living separately in the same residence can be more challenging. If you are considering living separately under the same roof, you can see our checklist of things you should be doing (if possible) to ensure that you truly are living separately here: In house separation
Get important things out of the house.
If there are any valuables or sentimental items that you would be very upset to lose, it is generally a good idea to get them out of the house. Store them at a trusted friend or relative’s house, or in a storage facility. You may also want to download copies of family photos and videos onto a cloud service or external hard drive.
Know that the date of separation is the date of financial separation and act accordingly.
In Virginia, the date of separation is the date of financial separation. Everything that is earned before the date of separation is presumed to marital property. Every debt that is incurred before the date of separation is presumed to be a marital debt. Conversely, after the date of separation all income earned is presumed to be the separate property of the party who earned it, and all debt is presumed to be the separate debt of the party who incurred it. What does this mean in the real world? It means that in most cases, it will be a good idea for you to open new credit cards and bank accounts after the date of separation to keep your separate property separate, and marital property marital. Consult with an attorney on how best to use the accounts created.
Consider the process you want to use.
In Virginia besides litigating in court, there are several processes you can use to get from a separation to a completed divorce. They are negotiation, mediation, and Collaborative Law, and information about them can be found here: Divorce without court: options for a less cumbersome, stressful process. It would be a good idea to review these options and discuss with your attorney which process option you believe may best fit your situation.
When you’re considering separation and divorce, it can be a challenge just figuring out where to start! Fortunately, at Curran Moher Weis, we have the experience and expertise to help you navigate these waters.