Deciding to dissolve your marriage is one of the most difficult decisions you will ever encounter. Marriage dissolution is fraught with emotions. One of the easiest things to do when faced with difficult emotions is to avoid. When proceeding with divorce it is important you do your best to separate your emotions and recognize that a large part of your dissolution is a business decision. Since the day you were married, you and your spouse have co-mingled assets and debts not much differently than a small business partnership would. You need to think like the manager of a business when dealing with many of the decisions surrounding your divorce.
As a first step, I recommend anyone moving forward with marriage dissolution to consult a lawyer even if you have few assets or debts and no joint children. This is not to say that every divorce needs to be the War of the Roses. In fact, most of the clients I represent are involved in pretty amicable splits and few actually result in trial. Frankly, I attribute much of this good lawyering, both from me and opposing counsel, as well as significant effort from both the parties.
Being provided a fiar and honest assesment of the facts keeps legal fees down and helps clients negotiate to a fair and equitable resolution. My clients recognize that it is crucial to know their rights and to understand what they would be entitled to if they went before a judge. They find security in my advice by knowing they are making educated decisions as they proceed with each step of the process.
My advice to seek legal advice becomes more pertinent when you review the list of issues to consider when considering dissolution set forth below. This is not an exhaustive list. Depending on your specific fact scenario, there may be many more issues and questions to consider. Any good family lawyer will address each of these issues with you, and many more.
- Who will the children live with (usually what is considered physical custody)?
- If the children live with you, how often will your ex-spouse be able to visit them? How often will the children be able to stay overnight?
- How will you and your ex-spouse make decisions about the children, such as their health, education and welfare?
- Who pays for the children’s day to day living expenses? Health care? Day care?
- Who pays for additional costs? Travel? Private education? Sports?
- Do your children have special needs?
- Who will be entitled to claim the children as exemptions for income tax purposes?
- What about spousal maintenance? Will you receive it or need to pay it? How much and for how long?
- Will the support payments to be made by one of the parties to the other? Will either of the other parties’ support or the support of their children increase or decrease in the future due to the changed financial circumstances of either of the parties, economic conditions or other factors?
- Will one of the spouses keep the house or will it be sold? How will the proceeds be divided?
- Can the spouse keeping the house, realistically afford the home? Paying the mortgage? Taxes? Insurance? Repairs?
- How much realistic equity is in the house, if any? Is the house underwater? Is bankruptcy or foreclosure a necessary option?
- If one spouse keeps the house, will one of the parties deed their interest in it to the other?
- If one spouse keeps the house, will it need to be refinanced?
- If you decide to sell the house, will both spouses be involved in the sale and closing? Who decides the selling price?
- Who will be responsible for the costs of preparing the house for sale?
- Who will be entitled to deduct the mortgage interest charges and real estate taxes for income tax purposes?
- Who will be responsible for any income (capital gains) taxes which may be imposed as a result of the sale?
- Will you keep life insurance for the benefit of your children? Who will be the beneficiary?
- Will either party be obligated to provide medical or other insurance for the benefit of the other and if so, for how long?
- Will either party be obligated to provide medical or other insurance for the benefit of the children and if so, for how long?
- Who will be responsible to pay for any medical, dental, drug or hospital expenses of the children that are not reimbursed by any policies of insurance that either of the parties may have?
- Will you be able to stay on your spouse’s medical insurance, or visa versa?
- What will be the cost of new medical insurance?
- Who will be entitled to receive any refund that may be due on any past joint income tax returns filed by the parties?
- If there is a deficiency on any past joint income tax returns, who will be responsible for it?
- If you file joint income tax returns for the present year who will be responsible to pay any taxes due and who will be entitled to receive any amount refunded?
- How will you divide your pensions or other retirement or investment accounts?
- Do you own any additional real property? How will it be divided?
- Do you own any other personal property of value? How will it be divided?
- How will you divide your cars? What are they valued at? Is it fair for you just to take the cars in your respective names?
- Do you have any non-marital property?
- Do you have any other debts?
- How will the debts be divided?
- Will one person assume the debt, but allow the other person to remain liable on the debt if there was a default? or will you be required to refinance your debt?