Pre-Filing Divorce Financial Planning

One common question clients ask is: am I better off to file first for the divorce?

The truth is, the law does not care which spouse files first. There is no inherent advantage or disadvantage to being the petitioner (or plaintiff) or the respondent (or defendant).

Knowing that a divorce is going to be filed and, even better, knowing precisely when it will be filed and served, imparts a huge advantage though. It facilitates pre-filing planning and action, of a time-sensitive variety.

For example, it can dramatically affect a dependent spouse’s ability to weather the divorce storm, stay the course and emerge a survivor … and better.

By the same token, it can dramatically affect some well-off spouses’ ability to execute a plan of what may be described as self-impoverishment, in their effort to minimize what they will have to pay out in child and spousal support as well as what property will be equitably distributed between the spouses.

In that vein, what follow are a few warnings to keep in mind if a divorce may be heading your way:

  1. Joint accounts. Either spouse has the power to clean out joint accounts at any time. That doesn’t mean they ultimately get to keep everything that was in them without sharing with the other spouse. But awaiting ultimate justice can be tough on a needy spouse. By the same token, striking while the iron is hot and proactively accessing an equitable share of joint accounts can turn out to be a lifesaver for a needy spouse.

  2. Joint debt (versus marital debt). Depending on a couple’s circumstances, it may be prudent to close or freeze joint debt accounts. Depending upon a spouse’s circumstances, it may be prudent for them to have credit card accounts in their sole name. It is usually prudent to keep an eye on the balances of any joint credit or debt accounts. Debt is a complex area because a spouse’s rights and obligations as to a creditor may be inconsistent with their rights and obligations as to the other spouse. The legal information provided in the cited article is not entirely correct under Florida law.

  3. The Marital Home. Since it is generally not feasible or desirable for both spouses to remain in the marital home, the couple must decide whether one spouse should remain in it or whether it should be sold. This decision is complicated these days by whether what the couple owes on the home exceeds its current fair market value … and whether they are even able to afford their mortgage under current circumstances.

  4. Buying a New Home. For spouses who are named on the marital home and mortgage, this can be problematic under the best of circumstances if the home is not sold or refinanced and the nonresident spouse released. If the marital home is under water or the couple is otherwise behind on the mortgage, renting is likely going to be the only option.

  5. Managing Money. This is probably an essential survival skill, especially in these times. A spouse who has relied on their partner to handle this function will need to take over this function, fast. Failing to do so may jeopardize their future, even if they obtain an excellent property and support settlement or court award of property and support.

Read more in this Investopedia article syndicated in the San Francisco Chronicle: The Financial Risks Of Leaving Your Spouse.

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Proposed Legislation to Deny Spouses of Service People A Share in Military “Retainer Pay” Fails to Carry

Service men and women may receive what is called “retainer pay”. Not salary. Not pension.

In a divorce from someone who serves in the military, should retainer pay be considered a marital asset that the other spouse shares in?

That is the law across the nation.

In Oklahoma, legislators acted to change the law, but they were unsuccessful. And the proposed legislation must now be tabled … for two years.

Military spouses and former spouses objected to the proposed change in the law.

They argue that the entire family serves.

And must put up with frequent reassignments that make it difficult for the nonmilitary spouse to keep a nonmilitary job and build up their own retirement and other personal savings.

Read more in this [Oklahoma City] Oklahoman article: Oklahoma House panel kills bill that would prevent nonmilitary ex-spouses from getting retention pay.

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In Dividing Marital Property, Beware of Hidden Assets

Hidden assets can potentially skew a divorce settlement to disproportionately favor one spouse over the other.

In most states, divorce law requires a division of marital property that generally tends toward equality between spouses. (These laws may go by different names and may include various exceptions, of course.)

But a family court can’t distribute what it doesn’t know about. And a spouse can’t ask the court to distribute what he or she doesn’t know about.

There are procedures and professionals who specialize in investigating and ferreting out undisclosed assets. But they are not inexpensive.

Whenever possible, it makes financial sense for the in-the-dark-spouse to do as much investigation of their own as possible, before resorting to increasingly specialized procedures and then increasingly specialized professionals.

Sources of tipoffs include:

  • the other spouse’s personal and business tax returns

  • the other spouse’s personal and business financial statements

  • statements for bank and brokerage accounts, including those the other spouse has set up in their children’s or other relatives’ names

  • the other spouse’s personal and business loan and credit card statements, on their own behalf or on behalf of their business

  • the other spouse’s overpayments to the Internal Revenue Service, on their own behalf or on behalf of their business

  • the other spouse’s overpayments to creditors, on their own behalf or on behalf of their business

  • the other spouse’s business books and ledgers

  • the other spouse’s paid bills, personal and for their business

  • the other spouse’s business’ payroll tax returns

  • and so on

Transfers of large sums of money or, for that matter, even smaller sums on a recurring basis, without legitimate purpose, should be red flags for further investigation.

Read more in this [California] press release: Getting a Divorce? Watch Out for Hidden Assets

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Wife Seeks Increased Child Support to Cover Hers and Children’s Expenses, Such as $60 Per Week in McDonald’s Meals for Their Son

Australian Husband and Wife have two children.

Husband and Wife split up.

The Australian family court orders Husband to pay Wife $800 per week as temporary support, based upon their pre-separation standard of living.

Later, the Australian family court modifies the support award down to $300 per week.

Wife now seeks increased child support for Son and spousal support for herself. Wife claims that her weekly household expenses come to $1,800.

Among the expenses in Wife’s budget: $60 for their son’s meals at McDonalds over the course of one week.

Husband insists that he cannot afford more than $300 per week.

The Australian family court modifies the support award back up to the originally ordered $800 per week.

But maintains that Wife must adjust her children’s and her own lifestyles and expenses. Such as cutting back on Son’s McDonald’s spending.

Read more in this Australian Herald Sun news article: Mum claims for son’s $60 Maccas habit and this Australian MSN 9 TV news article: Woman bills ex for son’s $60pw ‘Macca’s habit’.

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Discussion of Finances Should Take Place Before the Wedding, Not After

OK. It’s not romantic. But it’s still sound advice.

Finances and related matters are a subject to address before walking down the aisle. Or face greater risk of heading to divorce court.

One aspect of the conversation is how you will handle your finances after the “merger”, as a couple. Especially if you both relate to finances differently as individuals.

Don’t know how your fiance relates to finances? Then the conversation is definitely overdue.

Does one of you have debt? Does one of you own a business? Does one of you have an inheritance? Does one of you have children from a prior relationship? And so on.

If the answer to any of the above is yes, then there are questions for the couple’s finances during the marriage. And others in the event of a divorce.

The other aspect of the conversation is about what happens, financially speaking, in the event of a divorce – or in the event of the death of one spouse.

Statistics confirm marriage is not forever in many instances. Put another way, many marriages will end in divorce, if not sooner, then later.

And it is inevitable that, sooner or later, one spouse will die. Sometimes it doesn’t require the arrival of old age.

You can just wait and see how your lives will go … or you can jointly work out the financial details of divorce or survivorship now, comparatively inexpensively, without being in crisis mode – or anger mode.

This process may entail consulting with some experts before the wedding. And getting an extremely valuable education that many do not obtain until too late … after a death or after being served in a divorce case. With much regret that the education comes too late.

In some marriages, addressing finances may include working out a prenuptial agreement (prenup), sometimes referred to as an antenuptial agreement. This is particularly worthwhile in the following situations:

  1. where either spouse has one or more children from a previous relationship

  2. where either spouse owns part or all of an existing business

  3. where either spouse already owns significant assets, such as real estate, stock or retirement accounts

  4. where either spouse has received or anticipates receiving a significant inheritance and

  5. where one spouse will be supporting the other while he or she finishes their education or professional training

Read more in this Buffalo [NY] News article: Make finances part of wedding plans.

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Mother Sentenced to Jail for Not Obeying Family Court Order To Take Daughter to Visit a Father She Doesn’t Know … in Jail … for Twenty Years

Indiana Mother and Father have Daughter. And separate.

Father has no contact with Mother or Daughter for several years.

Mother receives public assistance for herself and Daughter.

Then Father goes to prison to begin serving a twenty year sentence for armed robbery.

Mother has not initiated any contact with Father and has never pursued child support from him. Similarly, Father has not initiated any contact with Mother or Daughter and has never pursued any relationship with Daughter.

The state files proceedings to recover child support and birth-related expenses from Father and insists upon Mother’s cooperation.

Father files for visitation and timesharing with Daughter.

The Indiana family court orders:

  • that Mother provide Father with an annual two hour visitation with now eight year old Daughter every summer at the prison where Father is confined

  • that Mother “encourage” Daughter to write to Father, and draw pictures and the like for him

  • that Mother allow Daughter to receive communications and gifts from Father

Mother reportedly takes no action to comply with the family court order for timesharing and visitation.

Father files a motion for contempt to enforce the family court parenting order and to penalize (sanction) Mother for her alleged disobedience of the family court visitation order.

The family court holds Mother in contempt of the court’s order … but rules, in effect, that all will be foregiven if Mother promptly complies with the court’s timesharing order now.

Mother is also reportedly experiencing financial distress and, as a consequence, transportation challenges.

Mother apparently fails to comply with the family court parenting order.

The family court acts to enforce its order of contempt … and sentences Mother, Daughter’s only caregiver, to six months in jail.

Mother engages a family law attorney to defend her position and seek relief from the court’s contempt orders. Mother’s family law lawyer undertakes several different legal procedures, but Mother cannot afford to have her family law attorney see the measures all the way through.

As a result, Mother represents self (pro se) in court. And loses on all counts.

The family court credits Mother with time served and requires Mother to serve one additional weekend in jail. Provided that Mother complies with the family court’s visitation order.

The family court makes it clear that it is prepared to escalate enforcement measures if Mother does not comply.

Mother plans to do her time … and then to seek free legal assistance to fight the family court’s timesharing and visitation orders.

Read more in this [Fort Wayne, IN] WANE TV news article: Mother chooses jail over visitation.

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Virtual Slap on Wrist of Domestic Abuser-Convicted Wife-Murderer Draws Sharp Criticism from Public Interest Organizations and Attorneys Alike

New Zealand Husband’s and Wife’s long term marriage reportedly breaks down.

Wife reportedly plans to divorce Husband.

Husband is believed to have “eavesdropped” on text messages in Wife’s cell phone, and gotten wind of Wife’s intentions.

Husband allegedly murders Wife with a shotgun.

Husband apparently defends that he did not mean to hurt Wife. With his shotgun.

Husband is convicted of murdering Wife.

Husband is sentenced for murdering Wife.

11 years. $65,000 restitution to Wife’s parents and two children.

Critics of the sentence, who reportedly include numerically significant members of the New Zealand legal profession, are, quite vocally, predicting that a sentence so light virtually invites murder as a pragmatic alternative to divorce.

Meanwhile, domestic violence experts are speaking out to draw attention to the prudence of abuse victims:

  1. not tipping off their abusers as to their intentions of leaving them and

  2. having a solid plan for their children’s and their own safe escape from the relationship and the home, including important papers and personal items

It is believed that Wife’s family may also be considering a civil suit for additional damages from Husband and/or appealing Husband’s sentence.

Read more in this New Zealand Herald article: Meads sentence sets ‘dangerous precedent’.

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Proposal to Start Preparing Parents to Co-Parent Well In The Event of Their Breakup … Immediately Upon the Birth of Their Child

It’s no secret that co-parenting breaks down in too many divorces and separations.

Just how bad is it?

Well, in the UK, it is being proposed that, as soon as a child is born, the parents’ education in proper co-parenting upon divorce and separation begin.

Parents would immediately be given a brochure about good co-parenting in the event of divorce or separation at the time of their child’s birth.

The theory seems to be that, if parents are indoctrinated long enough, it will stick no matter what.

It would be interesting to see whether that would bear out.

Mediation would be mandated in child custody cases. As it is here in Florida.

It is also being proposed there that grandparent visitation rights be legislated.

Other proposals in the UK include expediting the legal process in child welfare cases.

Read more in this UK Telegraph article: New parents should be handed divorce advice for their children.

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Mother Reportedly on Third Arrest for Drunk Driving, This Time With Daughter in Car, Wants Daughter’s Custody Returned to Her

Father is deceased.

Texas Mother allegedly drives in her car with her five year old Daughter.

Mother is arrested for driving while intoxicated. For the third time, reportedly.

Texas family court awards temporary custody of Daughter to Father’s sister (Aunt) in November of 2009.

Mother, who is on probation, is awarded visitation and timesharing with Daughter.

Eighteen months later, Mother now seeks custody of Daughter, asserting that she is much improved.

Certain issues in the case are on appeal.

The family court may terminate Aunt’s temporary custody.

Read more in this [San Antonio] KENS TV 5 news article: Mother with DWI convictions fights for custody of her child.

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Appellate Court Affirms Reduction of Alimony But Rejects Second-Guessing Family Court’s Denial of Termination of Spousal Support

South Carolina Husband and Wife divorce.

The family court awards Wife permanent alimony and spousal support.

The family court also awards Wife a portion of Husband’s pension toward her share of equitable distribution and property division.

Some time after the divorce, Husband presses a modification action to terminate alimony or, at the least, reduce alimony.

Husband contends that there has been a substantial change in circumstances in that Husband (and Wife) are now receiving payouts from Husband’s pension. Husband argues that Wife’s alimony should be reduced dollar for dollar by the amount of the pension that she is now receiving.

The family court now rules that there is a substantial change of circumstances. And reduces, but does not terminate, the amount of alimony payable to Wife.

The family court also awards Wife her attorney’s fees in this modification proceeding.

Husband appeals the family court’s ruling on his modification case.

The appellate court holds that the alimony rulings made by the family court are within the family court’s exercise of discretion and affirms the family court’s rulings.

The appellate court also holds that the original property division award of the pension cannot be factored in to any modification, because the family court originally took it into account when it fashioned the original property division and alimony awards. Lastly, the appellate court upholds the award of attorney’s fees to Wife.

Read more in this [Orangeburg SC] Times and Democrat article: Court upholds divorce order.

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