During my years of practice as a family law attorney, I have met with hundreds of clients who asked me the question, What do I do before I separate from my spouse? In the alternative, I have also been asked, What should I have done? For those clients who have asked me after the fact, close to 50% of them would have fared much better had they come to see me prior to separating from their spouse.
See an attorney first. My first recommendation to someone who is considering separating from their spouse would be to see an attorney right away. There are many misconceptions about what happens in a divorce matter, and everyone seems to have a friend, relative or co-worker who has had some terrible experience, which most likely was innocently exaggerated for effect. That being said, in order to avoid the fear and speculation of inaccurate, anecdotal advice, it is always best to see an attorney first and learn your true rights and responsibilities in a divorce situation.
In addition to simply talking to a lawyer before you separate from your spouse, you can also do the following things to save significant attorneys’ fees, delay in your divorce proceedings and quite frankly, some emotional distress.
Make copies of all financial records, including, but not limited to:
- five years of all personal and business tax returns, supporting schedules and documentation
- current pay stubs
- car titles and loan payoffs
- mortgage statements for all real estate and copies of appraisals if they are less than three years old and settlement sheets for all real estate purchases and refinances
- three months of bank statements for all checking, savings, money markets, mutual funds, retirement and investment accounts
- life insurance premium notices and cash value statements
- certificates of deposit, stocks and bonds, safe deposit entry logs and loan documentation
- credit card statements for three months and any other financial documentation relating to any asset or debt
Obtaining copies of this information at the outset can save you significant attorneys’ fees by possibly avoiding formal discovery and also identifying the assets and debts contained within your marital estate preliminarily.
Take an inventory of your personal property. You do not need to inventory every fork, spoon or towel, but try to account for all items of furniture and furnishings, as well as household items of value. A written list is helpful, although pictures and/or videotape is better, particularly if they are date-stamped to identify what items of personalty (personal property) existed at a particular time.
Understand your debt position. You should know what obligations exist at or around separation, including the type of debt, the account number, the contact information for the lender, and most importantly, how the debt is titled. Just because an account is in your spouse’s name alone does not mean that you are not obligated to pay for it. Many credit cards that are individually titled include a spouse as an authorized user, which for many creditors is the same as being the account holder. It is important to know how an account is titled so that it may be dealt with post-separation with regard to limiting your liability.
Decide whether to take it or leave it. When dividing items of personal property, in general, you can take with you the items you brought to the marriage, and you should leave the items that you did not. Any items jointly received during the marriage should be divided reasonably. The Court expects that one party will not leave with all of the personal property, nor will all the property stay with the one who stays. If you leave, you should take a reasonable amount of property with you to establish a separate residence, knowing that you will have to purchase additional items. However, you must leave a reasonable amount of personalty for your spouse to maintain residence in the marital home while also having to purchase some additional items. Make sure to take all items that mean something to you, such as family pictures, children’s items, etc. These things may have little to no monetary value for purposes of dividing the marital estate, but they may be invaluable to you personally. Often the Court cannot do anything to remedy one spouse destroying or "losing" sentimental items with no monetary value.
Remove your name from utility accounts. If you are leaving the marital residence and you are the listed account holder on a utility, notify the utility company that you wish to have the utility taken out of your name and turned off in 30 days. You or your counsel will then notify the spouse remaining in the marital residence that they have 30 days to contact the utility company to establish the account in his or her name alone. Doing this alleviates you from any post-separation responsibility for utility expenses incurred by the other party, but also allows the other party sufficient time to establish an account in his or her name alone without losing service and incurring charges for having it turned back on.
Review your direct deposits. If your income is being directly deposited into a jointly titled bank account, you should consider stopping that direct deposit so as to protect your earnings post-separation. Please note that this is not appropriate in all circumstances, particularly when there will be a support obligation owed and/or certain expenses are paid based on your specific earnings. You should also not stop your direct deposit if it would result in insufficient funds for outstanding checks. However, if you follow my previous recommendation of obtaining sufficient financial records, you will have an understanding of what expenses are being paid from the account in which your earnings are being direct deposited, and you should be able to stop the direct deposit without disrupting the payment of certain expenses and/or insuring that appropriate monies are being paid per your legal obligation, if any.
Establish separate accounts. When separating, you are not required to keep all accounts and assets intact. Provided there are sufficient funds to meet the immediate expenses to be paid from certain accounts, it is more than appropriate for you to remove a reasonable amount of monies from joint accounts in order to establish a separate account in your name alone or to secure a separate residence and the items necessary to establish that separate residence. Please note that this is not carte blanche authority to wipe out all accounts and leave the spouse who remains at the marital residence without the ability to satisfy expenses, but instead, permission to utilize marital monies to establish your separate residence, or to live on pending establishment of support.
Remember that your neighbor’s cousin’s brother’s divorce is not the same as yours, no matter how much you may relate to his or her story. Also note that my recommendations are general recommendations that apply in most cases. It is important to speak with a legal professional regarding your specific circumstances, and how these recommendations may or may not be appropriate for your situation. Rather than reacting to the horror stories of others who have gone through divorce, speak to a family law attorney. That way, you will not be one of the unlucky people asking the question, What should I have done?
Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Family Law.