I WANT A DIVORCE!
These words, often spoken in anger, that are heard in homes, on telephones, in texts, and across restaurant tables every day. Everyone faced with the end of a marriage knows that this is going to be hard. While each divorce case is different, there are certain steps that are useful for anyone in this situation. The purpose of this information is to help you understand the many issues – legal, financial, and emotional – that arise from the decision to divorce. Considering these issues will help you make the best decisions possible for all concerned.
Moving out also creates a cascade of legal issues that can be lessened or avoided by staying in the residence. First, leaving the marital residence might be construed as “abandonment” of the other spouse, under West Virginia law. Abandonment can have an adverse effect on spousal support (alimony), and debt service (paying your household bills)
Second, moving out instantly makes parenting and child support THE significant issue that must
resolved. As adults, your issues are your issues, and should not ever be shared with your children. So let this be a matter only between the adults in your household. Regardless, the first parenting arrangement frequently becomes the status quo and can greatly impact the eventual permanent parenting plan in your case.
The date a spouse moves out will likely be considered the date of separation of the parties. This innocuous-sounding term is actually an important legal conclusion that can significantly affect the value of marital assets and debts when the time comes to divide property. By remaining in the residence until all issues of alimony, custody, and property division have been resolved, one can avoid or minimize the potential legal fallout caused by moving out.
Secondly, you must accurately determine our household finances. This means assessing income, documenting income, and creating a budget. The first step is to assess the total amount of income of the spouses. If one or both people work at salaried positions, this is fairly straightforward. Assessing income can be more challenging, however, if the other spouse is self-employed without a set monthly income. Income from sources other than employment, such as trust funds, retirement accounts, government benefits, and royalties should also be assessed.
For several aspects of a divorce, including child support and alimony, it’s imperative to know the income each spouse receives. Since it’s easier to access the documents and income sources while both spouses still live together, this should be done thoroughly and without delay.
It is likewise necessary to gather income documentation. For salaried employees, this means photocopying pay stubs and tax returns. For the self-employed spouse, it includes additional documents such as bank account and credit card statements, business records, and loan applications. Determining the income of a self-employed person is not always simple, but having access to the appropriate documents can make it much easier.
Once a spouse moves out, gaining access to those documents is much more difficult.
Often the most difficult part of divorce is learning how to co-parent your children apart.
As much as moving out affects each spouse, it has an even greater effect on your children. Often times children feel like they are caught in the middle of their parents’ conflict causing them great distress and worry. Both parents should comfort their children in this transition, to make certain that whatever happens they bear no responsibility in this divorce matter. These are big people problems, not issues they should be burdened with carrying.
Accordingly, your top parenting priority is to minimize the stress put on your children during the transition. There is no single right way to minimize the children’s stress. However, it will depend on the age and maturity of the children, their relationship with their parents, and their temperament and coping skills. It’s also beneficial to enlist the help of a mental health professional and a lawyer to make the transition as smooth as possible for the children, while not compromising any important legal issues which could only cause future conflict.
In many divorces, the establishment of a parenting schedule is the most contentious part of the litigation. Emotions are raw where children are concerned, and these raw emotions can cause disruptive and destructive behavior from one or both spouses toward the other. Because there are often few documents and verifiable facts with respect to custody, an expensive and hurtful battle of “he said, she said” can ensue. Keeping a journal or calendar of your time spent with the children can be very helpful in establishing your role in raising your children, and demonstrate to the Court the significant amount of parenting time each party was exercising prior to separation.
The equitable distribution of your marital property is dependent upon you having an accurate list of the marital assets and debts, along with the documents that support the list. There are ways a lawyer can gather this information after separation, but it’s slow, expensive, and less reliable than gathering the information before separation.
It will help the court and your counsel if you can develop an itemized list of all of the marital assets, detailing the date the asset was purchased, the purchase price, and the estimated current value. For some assets, such as the home, this is fairly straightforward, while other assets will be more difficult to assess. It’s unlikely that most people have kept records of the purchase date and price of every piece of furniture, collectible, and other home furnishing they own. It’s important to make as complete an itemization as possible, however, remembering to also check the contents of any self-storage facilities or safety deposit boxes.
Five categories of assets to consider:
- 1. Marital residence and other real estate;
- 2. Intangible assets, such as financial and retirement accounts, stocks, bonds, etc;
- 3. Business interests;
- 4. Physical assets, such as furniture, artwork, vehicles; and,
- 5. Separate property (property acquired prior to marriage or after separation, inheritances and gifts).
The primary resource in any marriage is, of course, money.
Divorces are expensive, and running low on money can put you at a strategic disadvantage, forcing poor decisions and unwanted compromises.
Understand that your goal and the Court’s goal regarding assets and resources is to maintain a level playing field, not to leave them flat broke. Courts look down on a party that takes more than their fair share of the furniture, cash and credit. After all, your children have to eat in both parents’ homes.
Poor decisions about what and how much to take often have dire legal consequences and should not be undertaken lightly. It’s best to talk to an attorney to avoid making any damaging decisions.
Assets and resources to consider are as follows:
- • Earnings from paid employment.
- • Furniture and children’s toys and equipment.
- • Available cash and liquid financial assets.
- • Credit cards and lines of credit.
Divorce puts a financial strain on everyone, spend only what is necessary and no more. This is not the time to buy classic care or piece of jewelry you’ve always wanted. Those trophies come later, as the best revenge is living happy and well.
So be smart, buckle up your chin strap, and we’ll get through this process, together.
For more information, read about divorce services and support we provide.