When considering a divorce, there are a few fundamental steps that can help you avoid major pitfalls. Not every divorce is the same, but these five fundamental steps are a good starting point regardless of your situation.
1. Discuss your marriage problems with a counselor first.
Divorce may not be the answer. I know many, many people who realize too late, and after they’ve divorced, that their problems weren’t solved by divorce. So if you’re unsure whether you should leave your marriage, speaking to a marriage counselor or family therapist, can help you to diagnose what went wrong, and more importantly how to move on. Though it would be good to get your spouse involved, don’t wait forever on your spouse. Going by yourself is better than not going at all. If you need a qualified counselor and don’t know where to find one, we would be happy to provide you with a referral or two. Or you may find a good counselor through your church or employer.
2. Get a lawyer involved early
No, we’re not saying you need to hire a lawyer and start litigating. Even if you don’t want a lawyer or think you cannot afford to have an attorney handle your entire case, it is important to speak to a lawyer early to get some direction before you start discussing divorce with your spouse. Mistakes made now can cause serious complications during divorce proceedings and for years afterward. Forewarned is forearmed. It is best to understand the legal impact of your decisions before you make them—there’s no need to make this time more stressful than absolutely necessary.
3. Know the consequences of moving out before you move out of the house.
As discussed in our free e-book on moving out, there are some serious consequences to leaving the marital home. You should consult with a lawyer before moving out of the marital home if it is at all possible. Unless there is a threat of domestic violence, it’s almost always best to stay put and try to ride out the process. The spouse who moves out early stands a good chance to lose the house, but it’s not always the case. An attorney can help you make the best of the situation, even if you have to move.
4. Discuss all the dirty details with your lawyer
A lawyer can’t really understand your situation or help you unless you tell the lawyer the truth. Attorney consultations are confidential and privileged. Even if you don’t hire that lawyer to represent you in a divorce action, what you tell a lawyer in a consultation cannot be divulged by that lawyer later.
So if you’ve had an extramarital affair, if you’ve had a DUI, if you and your spouse engaged in fisticuffs, if you’ve smoked pot recently, etc., tell the lawyer you consult about it, so that the lawyer can explain your options to you, to tell you what steps you might be able to take to mitigate the damage. Things that you think are inconsequential can cause major problems. Big concerns can often be cut down to a manageable size. Your attorney can help you to prepare for these problems and can help you to chart a course to reach your goals. The easiest way to waste money, make yourself miserable, and make your attorney less effective is to fail to disclose relevant information to your attorney.
5. Batten down the hatches.
Even divorces that start out with smiles and the best of intentions can suddenly and unexpectedly turn into ugly, nasty fights. It’s best to head off disputes where possible, and to protect and to defend yourself if you can’t prevent the fight. Nowhere is this easier than with assets. If your aunt gave you an heirloom clock before you got married, you have an extremely good chance of having that clock awarded to you by a Utah court. If your spouse has hidden it or destroyed it during your divorce proceedings, however, that’s a problem that even the best lawyer likely can’t fix. Keep your separate property under your control (and know the difference between separate and marital property too), whenever reasonably possible.
Take possession of a fair portion of your marital assets during separation, especially those assets you will use, including furniture and vehicles, as well as assets that might be easily sold, pawned, hidden, or given away by your spouse, including jewelry, coins and collector’s items, cash, and bearer bonds. To protect assets you cannot control, you may want to obtain a restraining order to protect marital assets by barring the transfer, sale, concealment, damage, and destruction of marital property and other personal property without your prior written consent or by order of the court.
Your credit rating is also at risk. Consider closing joint credit accounts with your spouse to avoid an unpleasant surprise in your monthly statements. Consider 1) protecting your own credit rating by freezing or closing joint credit cards and blocking your spouse’s access to other joint credit such as a home equity loan; 2) closing joint bank accounts and opening accounts in your own, individual name; and 3) transferring utility and other debts and obligations into the sole name of the party who resides in the marital residence, uses the car, etc.
Opening a bank account in your own name is an easy way to keep track of income and expenses during separation. It’s a good way to protect your money and income from a selfish or predatory spouse. Even if you haven’t yet closed your joint banking accounts, you can position yourself better for a fight over how money should be divided if you do most of the dividing yourself. It’s been said (well said) that good behavior in a marriage is bad behavior in divorce. Where possible, spend a fair portion of marital funds before you dip into or deplete your own assets.
These are a few of the ways you can set yourself up for success in your divorce. This is by no means an exhaustive list. For more information about other issues that arise in divorce, visit divorceutah.com to review Utah family law statutes and cases on separation, child custody, division of retirement benefits and responsibility for debts, alimony, and other questions. You’ll find forms and guide sheets and other resources help you prepare for and get through a divorce successfully. Every divorce is different and an experienced lawyer can help you with yours. Even if you’re not considering retaining an attorney right now, a consultation is well worth your time. 801-466-9277