Divorce Preparedness: What do I need to do before filing for divorce?

When deciding if you are going to file for divorce, there are some things you need to know, and many things you should consider, before filing for divorce

I. Why am I filing for divorce?

Divorce is a lengthy, costly, and emotionally taxing process.

Be sure that you, your spouse, and your children are adequately prepared to go through this process.

Divorce may not solve the problems you experience. Many people come out of divorce worse off than before.

Except in obvious situations where your marriage is causing you serious physical or emotional harm, if you have not at least tried marriage counseling before your file for divorce, you should. Don’t divorce wondering if your marriage could have been saved for the benefit of you, your spouse, your children, the family (individually and collectively).

You should also consider the reasons that you are seeking a divorce. While you do not have to have a “good reason” to divorce (you can, in fact get a divorce without a good reason), if you can’t come up with a good reason, maybe divorce isn’t the cure for what ails you.

When filing for divorce in Utah you must allege grounds for divorce. These grounds can be found in Utah Code §30-3-1(3) and are:

(a) impotency of the respondent at the time of marriage;

(b) adultery committed by the respondent subsequent to marriage;

(c) willful desertion of the petitioner by the respondent for more than one year;

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;

(e) habitual drunkenness of the respondent;

(f) conviction of the respondent for a felony;

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;

(h) irreconcilable differences of the marriage;

(i) incurable insanity; or

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

II. Should I hire an attorney?

While you are legally permitted to handle a divorce on your own and without hiring an attorney, it is wise to seek a knowledgeable and qualified attorney to assist you in the process to help ensure a fair outcome for you. When deciding on a particular attorney, it is important to hire an attorney that fits your style and works well with your personality, one who understands and pursues your legally permissible and reasonable goals, and one who is not afraid to level with you. Divorce lawyers have a well-deserved reputation for being snakes, so choose your attorney carefully. Very carefully. There are good, honest, skilled attorneys out there, but they are harder to find than you think. Be prepared for your search for the right lawyer to take a bit longer than you’d thought.

III.  Collect your financial documents, and keep track of your income and spending

Under Utah Rule of Civil Procedure 26.1, once you file for divorce you will need to provide a “financial declaration” to your ex-spouse and their attorney. A financial declaration is a document in which you are required to list your income, accounts, expenses, debts, property, and assets. Additionally, you must attach certain financial documents to the declaration. Failure to provide these documents can result in sanctions (penalties assigned by the court) and a less-than-favorable outcome in your case. To expedite the process of obtaining a divorce, it is often a good idea to begin collecting these documents before or as soon as you file for divorce. These documents include:

• For the two tax years before the petition in this case was filed, complete federal and state income tax returns, including Form W-2, Form 1099, and Form K-1, and supporting tax schedules and attachments filed by you and by any entity in which you have a majority or controlling interest.
• Pay stubs and other evidence of all earned and un-earned income for the 12 months before the petition in this case was filed.
• All loan applications and financial statements prepared or used by the party completing the financial declaration within the 12 months before the petition in this case was filed.
• Documents verifying the value of all real estate in which the party has an interest, including the most recent appraisal, tax valuation and refinance documents.
• All statements for the 3 months before the petition in this case was filed for all financial accounts, including checking, savings, money market funds, certificates of deposit, brokerage, investment, and retirement.

You would also be wise to gather these documents as well, both before your file and during the pendency of the divorce proceeding until the case is disposed of by settlement or trial:

• Each and every pay stub you receive.
• New loan applications and financial statements you may prepare or use.
• Documents verifying the value of all real estate in which the party has an interest, including any new appraisals, tax valuation statements, and refinance documents.
• All the monthly statements for all your financial accounts, including checking, savings, money market funds, certificates of deposit, brokerage, investment, and retirement.
• Real Property. Mortgage statements, loan documents, most recent appraisal, and documents showing the basis of valuation for your real property.
• Personal Property. Evidence of items listed, such as certificates of title, receipts, loan documents, basis of current value, etc.
• Business interests. Articles of incorporation or LLC organization and operating agreement, corporate bylaws, minutes, books, profit and loss statements, tax returns, shares, expense ledgers and receipts, and other business records.
• Financial Assets. Bank, credit union, brokerage, and other financial institution statements, share certificates, contracts, etc.)
• Debts and obligations. Credit card statements, loan documents, leases, bills, etc.)
• Monthly Expenses. Proof and verification of the monthly expenses for yourself, for your children, and (if you have it) for your spouse, such as receipts, credit or debit card statements, bills, personal expense ledgers (especially if you’ve been keeping them for years before the divorce action was filed

IV. Consider your goals for child custody, and parent-time.

Custody of your children, the parent-time you will be allowed, and the child support you may be required to pay following your divorce are extremely important. It is valuable to consider your goals for these things prior to divorce, and it is wise to consult an attorney about your options with regard to custody before filing for divorce. One option for parents – in many cases the best option for parents – is to pursue a Joint Custody arrangement. Joint Custody gives parents equal opportunities to parent and spend time with their children. When making a Joint Custody determination, the court will look to several factors. These factors can be found in Utah Code §30-3-10.2 and include:

• whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
• the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
• whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
• whether both parents participated in raising the child before the divorce;
• the geographical proximity of the homes of the parents;
• the preference of the child if the child is of a sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
• the maturity of the parent and their willingness and ability to protect the child from conflict that may arise between the parents;
• the past and present ability of the parent to cooperate with each other and make decisions jointly;
• any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
• any other factors the court finds relevant.

Collect the proof that you are a fit and loving parent. And if you’re weak in certain areas, strengthen yourself. Get verifiable proof (proof!) that you spend time with your children, know their teachers’ and friends’ names, go to their athletic events, school plays, etc. Keep a calendar. Take a few pictures (you don’t need hundreds, but you do need enough to illustrate what kind of parent you are consistently). Schedule and attend doctor’s and dentist appointments. Fair nor not, these are the kinds of things the courts consider when determining who is “the best parent”[1] to exercise custody.

V. What will child support and alimony be?

Most people are worried about how divorce will affect them financially, asking “Will I have enough money to live on?” Other questions they ask include, “Will my lifestyle diminish?” “Will I have to go back to work, if I have been a stay at home parent to this point?” Eventually the questions come down to: 1) how much alimony will I pay/receive; and/or 2) how much child support will I pay/receive?

Remember, however, that a court order awarding child support and/or alimony is only as good as its enforceability. Depending upon an ex-spouse to pay you money is not the wisest or most secure financial plan.

Still, if you want to get an idea of what alimony and/or child support could be, read these Utah Code sections (Utah Code Title 78B, Chapter 12, Part 2 and Utah Code § 30-3-35(8-10)) and use these calculators (remember: these calculators can provide you with estimates, not a perfect prediction of what will happen in any particular case):

Utah ORS Child Support Calculator

Divorceutah.com alimony calculator

VI. What is my living situation going to be?

Unless you plan to continue living with your spouse while you seek a divorce, one of you will have to make alternate living arrangements. This may mean living with a relative or close friend while you go through the divorce process, or it may mean moving in to a new house or apartment. When going through the divorce process, the court will determine who–if anyone–will retain possession of the marital home, or if the home should be sold and the equity (if any) divided between the parties. Remember, you and your spouse can agree to some or all of the terms of your divorce. If you and your spouse are able to come to an agreement about what should be done with the marital home, this can be settled without court intervention.

VII. Be prepared to compromise.

Whether you settle or go to trial, odds are that you will walk away from a divorce with some aspects of it resolved more favorably for you than for your ex-spouse, and with some aspect resolved more favorably for your ex than for you. With so many issues to be addressed in a divorce, it’s unrealistic to expect the court to give either side everything he/she wants. Rather than going into a divorce with a “win-it-all” mindset, you should be prepared to compromise. Know what is most important to you and decide what you may be willing to compromise.

VIII. Think like a judge, not like a spouse.

Reconcile yourself to the fact that what you think is fair is not necessarily what the courts think is fair. Learn, understand, and accept how the laws of divorce function, then work within that legal framework to determine what you can realistically expect to happen in your divorce as a matter of how the law is applied.

Then—without forgetting what you learned and understood about divorce law—reconcile yourself to the fact that the legal system frequently fails to function properly and will fail you many times in the course of your divorce action (this is one of the reasons why so many people settle their divorce, as opposed to going to court to settle their differences). You will need to roll with the punches, be resilient, claw your way to what should be easy victories, realize that luck does have a lot to do with it, and learn to adapt to bad calls by the ref (i.e., the court), if you are to have any measure of success in the divorce litigation process.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] “the best parent” is a travesty, yet still a very popular concept in family law. Honestly, the idea of “the best parent is both parents” doesn’t even cross some judge’s minds. This does not mean you should reject the idea of joint custody or give up on it, but be aware that getting to joint custody, though easier than it’s ever been historically, it is still a much harder fight than you imagine.