Category: pre-divorce

Pre-Divorce Planning – Part II

Pre-Divorce Planning – Part II

I was told by an older attorney years ago that “failing to plan, is planning to fail.”  As trite as that sentiment may be, it is also very accurate.  I am certain that over the years, I have won cases I probably should have lost simply because the other side did not properly plan and prepare their case.  Previously we began our discussion of pre-divorce planning.  Let’s continue with more tips on how you can plan to protect you, your family and your resources before a divorce case gets started.

  • Take down all social networking sites, websites, etc.: First, let me be clear.  The deletion of pictures, posts, etc. from a social media account, especially during litigation, could be deemed to be destruction of evidence for which you could be sanctioned by the court.  However, there is nothing improper or illegal about deactivating your account.  Be aware that the account will still remain on the social media site’s server and could possibly still be accessed.  The interconnected world we live in makes it very easy to learn all sorts of information about a person. One of the first things I do whenever I get a new divorce case is immediately run Google search of the opposing party. You would be amazed what I have found. There is no reason to make it easy for your spouse’s attorney to mine such data about you. If you have a blog, Facebook, Twitter or any other such web page, deactivate it immediately. Even if there is nothing particularly damning on it, your spouse may have your password and be able to log into the page and make changes to besmirch your reputation.
  • Open a separate checking account: Most married couples have joint bank accounts, which means that both parties have equal access to the accounts. Nevertheless, people regularly come into my office and are surprised to find that their spouse has raided the account and absconded with all of the contents. Protect yourself by opening a separate account and withdrawing one-half of the proceeds of the joint accounts to give you something to live on for a while. Keep in mind that if you withdraw the entire account, you will most likely have to repay your spouse for his/her share. Additionally, it is usually a good idea to open the account at a different bank than the one at which you and your spouse have historically done business. Smalltown banks have a tendency to get to know the parties as a couple and, in spite of laws to the contrary, routinely give out information to opposing parties because they are not aware of the pending divorce.
  • Get a complete physical: There are several reasons to do this. One, divorce is one of the top five stressors you will ever go through and it is more important than ever to make sure you stay healthy. Two, a person’s physical health is an element considered by the court for numerous issues such as child custody and maintenance. Three, it is vital that you get yourself checked if you have any reason to suspect that your spouse has been unfaithful. If he/she has infected you with a sexually transmitted disease, you need to find out before the divorce is over so your lawyer can ensure that the philanderer pays the expenses of treatment.
  • Immediately start gathering information: The unfortunate truth is that the only truth in the courtroom is what you can prove. As soon as your spouse finds out you are planning to divorce him/her, you may find that various documents and files start disappearing. As a general rule, if a document has a dollar sign on it anywhere, your lawyer needs a copy of it. This includes, but is not limited to:
  • Real estate closing documents – deeds, mortgages, notes, tax records, etc
  • Credit card statements
  • Bank statements
  • Loan documents
  • Income tax returns (last 3-4 years)
  • Paycheck stubs for both parties
  • Title statements
  • Investment account statements (Mutual funds, IRAs, stock certificates, etc)
  • Retirement & pension account statements
  • Statements of insurance benefits (health, life, and disability)
  • Keep in mind that if there is a particular asset you believe to be a non-marital asset, the burden is on you to prove that it is non-marital.
  • If there is a certain document you cannot locate and you believe your spouse has in his/her possession, tell your lawyer about it and he may be able to get it through the discovery process.
  • Plan your custody case: If you have determined that you will seek primary custody of your child(ren), you need to start planning your custody case immediately. One useful exercise is to pretend you are sitting down with the judge and you have an opportunity to explain to the judge why you should have custody of your child. Ignoring all of the rules of evidence or what is proper in court, just write down everything you would say; get it all down on paper. After you have brainstormed your argument, read back through and think about how you and your lawyer can prove each point, remember truth is not important in the courtroom if it cannot be proven. What facts will need to be established with eyewitness testimony? Are there any facts that need documentary proof? Where can you find those documents? Plan ahead or plan to fail.
  • Complete a financial disclosure/data packet: This will assist your attorney and is a required pleading in several jurisdictions. It helps act as a quick reference for you, your attorney, and, most importantly, the judge. You can download one here.

These are just some of the steps you can take to improve the chances of success of your divorce case. As always it is vital that you talk with a skilled family law attorney to formulate a plan specific to your circumstances.

Photo courtesy of Andy Rogers
Planning For Your Divorce – Part I

Planning For Your Divorce – Part I

It’s over.  You can’t take it anymore.  Maybe it is an abusive relationship.  Maybe you have finally found proof that your spouse is cheating.  Maybe you have just come to the realization that you are not happy and cannot be happy in this relationship.  Whatever the reason, you have decided that divorce is definitely in your future.  How do you plan for it?  Here are some concrete steps you can take to start building your case and defending yourself.

  • Run a copy of your credit report: Often-times when a person gets divorced, he/she discovers that his/her spouse has used that person’s name (and good credit) to secure loans, credit cards, etc. without that person’s knowledge. It is much better to find out about any unknown debts earlier rather than later. You can easily get a copy of your credit report for free off of the internet. Be sure you request that your report include addresses of all creditors. You may also consider signing up for a credit fraud protection service to alert you to activity on your credit report.
  • Open a PO Box and Separate Email Address: Control of information during divorce litigation is critical. If your spouse is able to intercept your mail, it will not only hinder your ability to gather information your lawyer needs, it may interfere with your lawyer’s ability to communicate with you. Setting up a separate P.O. Box and having your mail forwarded will save you a great deal of heartache.  If you share an email address with your spouse, get your own.  There are many free services such as Gmail, Yahoo, etc.  Do not plan on using your work email.  Legally, your employer controls that email and may be subject to a subpoena from your spouse’s attorney where your ex can then get access to all of your work emails.
  • Change all passwords: Ever increasingly we find ourselves conducting our personal business on the internet. Emails are exchanged. Bills are paid. Accounts are managed. To properly protect yourself, as soon as you know you will be filing for divorce, change every one of your passwords to something that your spouse will not be able to guess. If you are one of those people that only uses 2-3 passwords for everything, think of something new; preferably ones that include random letters and numbers.  Using password locker software such as Lastpass or 1Password is also useful.
  • Start carrying a calendar: I have found that slender week-at-glance type calendars work well. These calendars generally give you ample room to write and keep track of visits you or your spouse have with your child(ren), incidents between you and your spouse, appointments with your lawyer, court dates, etc.  If you use a smartphone, you can also use the calendar/notes app on the phone; however, be aware if you back up your phone “to the cloud” that if you share a user account with your spouse, he/she may be able to access your notes.
  • Change your beneficiaries: Let me be clear, if your divorce is filed and a court has entered a “status quo” order, you may be prohibited from changing any beneficiaries.  However, nothing prevents you from changing them before you file for divorce unless your HR department or agent refuses to let you make these changes. You should also review your will to ensure that your estate goes to your intended beneficiaries. If you do not have a will, you should get at least a simple will. If you die without a will before the divorce is final, your spouse will probably inherit the lion’s share of your estate.

These are just a few ideas to think of in planning your divorce case.  We will continue this discussion in a future post.

Photo courtesy of thebarrowboy

Should I Get a Prenuptial Agreement?

Should I Get a Prenuptial Agreement?

Many people who have felt the sting of a divorce decide to once again take the plunge and tie the know once again.  When they do, they often want to minimize the chance of going through the divorce experience again.  That is where a prenuptial agreement comes in.

Prenuptial agreements are also called antenuptial agreements, premarital agreements, or prenups.  Prior to approximately 1990 they were not even allowed in the Commonwealth of Kentucky because it was believed that they would actually encourage divorce.  A Kentucky Supreme Court case allowed couples to determine how their assets and debts would be divided in the event of a divorce thereby bringing Kentucky into line with a number of other states on this issue.

The issue of whether you should even bother with a prenuptial agreement really depends on your situation.  If either one of the soon-to-be-spouses has significant assets that they wish to keep separate from the other spouse, a prenuptial agreement is a definite consideration.  If neither party is coming into the marriage with any significant financial holdings, there probably is no real need for one.

If you have determined that a prenuptial agreement is something that you want to consider, it is important to understand what can be covered and what cannot.  Moreover, the actual drafting and way the document is executed is important as well.

A prenuptial agreement can cover a number of issues such as:

  • What property is each party’s non-marital property
  • What property will remain each party’s non-marital property
  • How marital property will be determined in the event of a divorce
  • How each party’s property will be divided in the event of a divorce or even death
  • How debts will be divided in the event of a divorce
  • The effect commingling assets will have in the event of a divorce
  • How income and appreciation in value of assets will be treated in the event of a divorce
  • What happens to each spouse’s retirement benefits in the event of a divorce
  • Whether maintenance will be awarded and how much

A prenuptial agreement cannot deal with any issues involving child custody or the payment of child support.  Those issues will have to be decided upon either by agreement of the parties in event of a divorce with approval by the court or the court will have to make the final decision.  The reason for this is that the court is the final arbiter of child custody and, more specifically, the child’s best interest in the event of a couple’s divorce.  That decision cannot be predetermined prior to the marriage even taking place.  Additionally, child support is typically seen as a right of the child which cannot be bargained away by either parent prior to the divorce.  In fact, many judges are loathe to allow child support to be waived absent a showing of good cause in the event of an actual divorce.

In a future post, we will discuss the actual execution and enforceability of a prenuptial agreement.  For now, if you think a prenuptial agreement may be right for you, it is important that you meet with your family law attorney, estate planning attorney and financial adviser to discuss your options.

Photo courtesy of scienceatlife