Thinking about divorce? Here's a list of Don'ts and Dos!
Updated: Mar 18
By this time I’ve done hundreds of divorces and most people have very similar questions. They have also been given lots of bad advice in the time leading up to actually filing for divorce. I’ve compiled a list of important items to share with you, just in case you want to know (even if you aren’t thinking about divorce now, keep this in the back of your mind).
Things not to do:
Change the locks: So in a fit of anger after a fight your spouse left the house and slept somewhere else. You are assuming they left and are not coming back. DO NOT CHANGE THE LOCKS! Your home, whether owned or rented is the marital home and your spouse has every right to come back and live there. They can even break in to gain access if they wish. If there is domestic violence involved and you are afraid you must get an Order for Exclusive Use of the Marital Home before you can change the locks.
Move money: Do not liquidate the 401(k), do not empty the bank accounts, do not open a new account and start transferring funds in anticipation of needing money after the divorce. All of the money is marital and will be equitably divided during the divorce. Moving funds could cause your spouse to file for divorce and get an order to protect the assets and actually shut down all of your accounts. Just leave things the way they are. It also sets your case up in an aura of distrust, which will make settling your case more difficult.
Change your direct deposit: You should continue to deposit your paycheck into the same account you have always used, and pay household bills the same way you have always done throughout your marriage.
Change beneficiaries on policies, 401(k) accounts, bank accounts, etc.: Again, everything should remain the same as it has been during the marriage. The time to change these things is when the divorce is final.
Remove items from your home: Everything in your home is marital in nature, therefore you should not remove items in order to hide them from your spouse or to ensure that you get to keep them. Everything will be divided equitably during the divorce. Moving items out of the house (like moving money) sets your case up for a lot of distrust between you and your spouse which causes a lot more litigation (read this as costs and attorney fees). It is easier to reach a settlement agreement if both parties are not accusing each other of stealing from one another.
Date: So, if you are leaving your spouse because you have found someone else, it is too late for this piece of advice, however, if you aren’t dating now, don’t start until your divorce is final. This is not a moral issue but a settlement issue. Every single time a client has started to date during the divorce process it has made it so much harder to settle the case. The goal during the divorce is to get a fair and equitable settlement as quickly as possible so that it costs you less money. If you start to date your spouse will just dig in their heels and make the process so much more difficult and you may end up giving more in the process just to get out.
Post on Social Media: I don’t care how awful your spouse is, keep it to yourself, or better yet, get a therapist. Posting your issues on social media can and will be turned against you. It is my favorite thing to use in a child custody matter to show how the other spouse is turning the children against my client. Just don’t do it.
Move out (and take the kids): While there is no such thing as abandonment per se, moving out will not cost you your rights in the marital home, the kids should not be moved from the home unless there is a safety issue. If safety is involved there are certain steps to take before moving out. It is presumed that parents have joint legal custody and equal rights to the children. After all, you have all lived together. It is better to document the time each party spends with the kids and what they do with them in order to fashion a proper parenting time agreement. Having said that, just because Mom does all the business end of parenting and Dad does all the fun things (or vice versa) does not mean mom is going to end up with sole custody. Courts recognize that divorces cause a change in circumstances in a family and the parties will be living in separate households. Mom is going to do less of the business end and Dad is going to do more, just by necessity. You should not move out with the kids until you have a parenting time agreement put in place. A judge can order you to return the kids back to the marital home.
So those are all the things you shouldn’t do. What should you do?
Start collecting documents: Tax returns, pay stubs, bank statements, credit card statements, investment account statements, 401(k) statements, pension statements, insurance policies, mortgage statements, property tax statements, deeds, titles to cars, medical bills, etc.
Document kid issues: Calendars, health concerns, report cards, medical files.
Protect inheritances: Inheritances are not marital, as long as you do not commingle it with marital assets. If you receive an inheritance place it in a separate account in only your name. Do not deposit it into your joint bank account for any reason.
Safety issues: If there is domestic violence in your relationship please seek immediate help. First Step is an awesome resource. Personal Protection Orders are a necessity. There are many things that can be done once a complaint for divorce is filed in order to protect you throughout the process.
Consider this post your free consultation. If you have other questions specific to your particular situation please give us a call for a more in depth analysis you’re your matter.