Someone in your life getting divorced? Here’s what to tell them. In a perfect scenario, they would start doing these eight things a year before filing.
How many times has this happened to you? You’re at a cocktail party or out with friends, and someone turns to you and says, “Hey, you’re a lawyer. My mother/brother/father/sister/aunt/niece/daughter wants a divorce. What should they be doing?”
Hopefully one of your first responses will be to refer them to a great family lawyer, but you can also offer some practical advice that will help that mother/sister/niece/etc. be in the best possible situation when the divorce documents are filed with the court.
Here are eight things to tell someone who is planning to file for divorce, along with an ideal time frame for each.
A YEAR TO SIX MONTHS BEFORE FILING
1. Get your name on all accounts.
Texas is a community property state, which means that all income and possessions acquired after the date of the marriage is held in common, no matter whose name is on the paycheck, title, dividend statement, or whatever. Upon dissolution of the marriage, the courts will make a “just and right” division of these assets.
We divorce lawyers tend to find that one of the spouses holds the keys to the money kingdom while the other partner handles other responsibilities. If you’re not the keeper of the money, it’s time to insert yourself into the process in whatever way you can. This will help ensure you have an equal shot during the division of property.
However, you go about it, get your name on all financial accounts and make sure you have passwords to those accounts. Review financial statements and familiarize yourself with where the money is coming from and where it’s going. Keep in mind that most banks hold records for only seven years, so if you have statements going back further than that, make copies and keep them secure.
Gifts and inheritances are considered separate property and remain with the original recipient. Likewise, anything you brought into the marriage and have maintained yourself is separate property. So, if you came into the marriage with $100,000 in the bank and kept it in your name, that’s yours to keep if you can trace through “clear and convincing evidence” (the legal standard) the line of ownership from before the marriage to present day.
2. Collect important documents.
Important papers have a way of walking off during a divorce, so now’s the time to gather them up and make copies if necessary. Do you know where your children’s birth certificates are? What about the passports? Where are all the mortgage documents? If you need to, contact your real estate title company to obtain copies for yourself.
3. Be the parent of the year.
The court is going to look at who’s been the main caregiver of the children to decide where they need to live primarily, and you want at least a 50-50 shot at that argument. So, now’s the time to be a super parent and get at least a year’s worth of good evidence on your side.
Even if the division of labor in your family has had your spouse taking on most of the kid-related responsibilities while you focused elsewhere, get involved now. It’s not that you’re being disingenuous—after all, it’s also the right thing to do to be a good, present parent. But, you also need to look like that to outside observers.
So, take your kids to the doctor. Help them with homework. Do bath times and school pickups. Attend every school conference and handle email correspondence with teachers. Arrange playdates. Bottom line, you need to be an equal (or greater than equal) participant in all of it. Now’s not the worst time to become the coach of your kid’s Little League team or parent of the Brownie troop.
4. Line up access to cash.
When that divorce petition gets filed, you’re going need a way to rent an apartment, pay for gas and groceries, pay a lawyer, and more. Hopefully you’re on all the financial accounts (see step one), but what if your spouse wipes out the accounts and removes you from the credit cards? You need a safety net. Now’s the time to squirrel away a separate fund or open a credit card in your name—you may even want to give that card to someone else to hold for you. Unfortunately, often it is women who don’t have access to money in divorce situations, which makes it imperative to establish up a rainy day fund now. Divorce is your rainy day. It’s a storm.
5. Protect sentimental stuff.
Back up all your personal data in the cloud, including the pictures, videos, and music on your phone. I’ve seen spouses get angry and delete pictures and music in order to hurt the other partner. If you’re on a joint Apple iTunes account, go ahead and set up a separate account in your name. Likewise, with your photo cloud. Even if there’s no acrimony or revenge-seeking, it just makes life easier after the split.
6. Educate yourself about the divorce process.
Divorce is not something to embark on blind. I recommend that my clients visit texaslawhelp.org to start familiarizing themselves with the process. Judge Emily Miskel of the 470th District Court of Collin County, a brilliant family law judge in North Texas, also has an extremely helpful website at judgeemily.com.
THREE TO SIX MONTHS BEFORE FILING
7. Pick your lawyer.
The sooner this happens the better, but by at least three months out you need to choose your family lawyer. Make sure you pick a great one. Schedule your first consultation so you can get your strategic plan together. At this point your goal is to look like a duck: calm and collected on the surface but paddling like hell underneath.
WHEN FILING IS IMMINENT
8. Finalize your plan.
By the time that divorce petition is filed, you need to have an “ABD” plan—all but done. That means you have your main plan and your contingency plans in place. Know where you’re going to live, what the plan is with the kids, how you’re going to pay your bills, and what your legal strategy will be. The moment of service is just the tip of the iceberg in terms of everything that’s been going on behind the scenes up to that point.
HEY, LIFE HAPPENS
Of course, all of the above reflects an ideal scenario. And as we all know, life rarely unfolds according to our ideal scenarios. If someone is just a couple of weeks out from filing for divorce, they can always pick up at step seven or eight and do their best with the rest. You might simply urge the person asking your advice to tell their niece/stepmom/sister not to say anything about wanting a divorce until they consult a lawyer—you’ll still be doing them a big favor.
It’s kind of like planting a tree: The best day to plant a tree is 25 years ago; the second-best day is today. Wherever someone is in the process, being smart and strategic will set up the best possible outcome for all.
