If you are considering a divorce, it may be hard to know where to start. Divorce is not only an emotional process, but also a legal and financial one. If you think your relationship may end in divorce, your first step should be to consult an experienced divorce attorney. Even if you have not fully made a decision, they can help you to understand what the likely outcomes may be in terms of financial and custody arrangements. While nothing can replace a skilled attorney’s advice tailored to your particular situation, there are common steps that apply to many couples.
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Residence and Children
It can be beneficial to remain in your marital residence to save the costs associated with maintaining two households and to preserve some stability if you have children. Remaining in the home together also allows time to agree on a budget and a parenting plan. However, some circumstances will weigh in favor of living separately, especially in situations involving abuse when you may need to leave for your safety. Spouses may benefit from the cooling off period that separation provides and find it easier to negotiate amicably away from an emotionally charged living situation.
Separation is not necessary to initiate a divorce, but it can be a natural first step for many spouses. If you choose to separate from your spouse before divorce, you will want to keep in mind the legal implications of separation. There are three kinds of separation: trial separation, permanent separation, and legal separation.
Trial separation describes spouses living apart while deciding whether or not to divorce. Depending on the length of the separation, trial separation may have no effect on property rights during a divorce. Permanent separation describes spouses living apart after deciding to end their marriage. Generally, property and debts acquired after the date of permanent separation are assigned to the spouse who acquired them. Finally, legal separation is a formal state of separation awarded by a family court. Spouses who have legally separated are no longer married, but they are not divorced and not free to remarry. Legal separation can function as an alternative to divorce in some states.
When One Spouse Does Not Want to Separate
Some states will take into account whether a spouse "abandoned the marriage" by moving away when the other spouse did not want to separate. Fault can sometimes affect property division or marital support; check your state’s divorce and separation laws to be sure.
If there are children from the marriage and you live separately, you will need to work out some kind of provisional custody agreement. Generally attorneys will advise you to give your spouse reasonable access to the children, barring any safety or other serious concerns. If you are concerned about violence or abuse towards you or your children, your divorce attorney can help you file for an order of protection. Throughout the process it is generally wise to document anything odd or concerning.
Divorce usually has many financial implications. It will generally be more complicated the longer you have been married. However, if you have a pre- or post-marital agreement it may make things much more straightforward. One of the most important things to do at the outset is to gather all of your financial documents. You will want to have your own copies of bank statements, retirement account statements, mortgage statements, and any other relevant financial document. If you have any valuables, you may want to get them appraised. A complete financial picture can help protect you if your spouse attempts to conceal assets or otherwise prevent you from negotiating a fair division.
Along with the assets, you will also want to gather financial information about your shared and individual debts. Student loans, credit card debt, mortgages, and other obligations are important to document as they will of course affect the overall financial picture. If you have a business with your spouse, or if either of you has your own business, the financial situation may be extremely complicated. Your divorce attorney can help you find a business valuation specialist to work with.
States have different laws around how property is distributed after a divorce. In many states, any property acquired during the marriage will be split equally between the parties. However, there are many exceptions to this rule, and a qualified divorce attorney in your state may give you a better sense of how property will be divided.
You may also want to take affirmative steps during the divorce process to protect your assets. These could include opening a new bank account in your name, closing joint credit accounts, and agreeing on a new budget with your spouse. Spouses in a divorce have a fiduciary duty to take care of joint property, so you should continue to maintain other joint assets, such as real estate or a business. You may also consider renting a storage unit or safe deposit box to protect important personal property.
In sum, the best first step is to gather information about your financial and marital life and determine what effect a divorce may have. While the prospect of dissolving a marriage may seem overwhelming, having a thorough understanding of the law and perhaps an experienced divorce attorney by your side will help protect your future.
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