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Legal and Financial Divorce Considerations

submitted by BrokenLife

In some cases of infidelity, particularly where the cheater is unremorseful and/or lacks empathy for the betrayed spouse (even continuing the lies and betrayals), divorce is the only sensible course of action. How does one begin?!

I’m not an attorney, but I may be able to provide some useful guidance to the "divorce newcomer" since I’m on this particular path myself. Nonetheless, divorce laws differ from state to state, and your circumstances (relationship with the STBX and/or finances) may be very different from mine; so it’s crucial to consult with a competent attorney who’s familiar with your situation and the laws of your jurisdiction.

I think the best way to find a good attorney is through referrals/word of mouth. Fortunately for this process, we all know someone who’s been through a recent divorce. Even better: get a referral from a divorce attorney, if you’re fortunate enough to know one socially or otherwise. Get some names from these people, and start making phone calls. Find out the attorneys’ hourly rates and whether their initial consultation is free. The best attorneys are not necessarily the most expensive ones. Take advantage of some free consultations in order to "interview" candidates and see who you feel comfortable with. These consultations will also give you a general idea of the types of things you should be doing to prepare for the divorce process and to protect your assets/interests.

It is critical that you do a thorough inventory of your finances (bank accounts, investments, debts, insurance, pensions, etc.) and that you know what you own and where all your assets are. Your attorney may advise you to take half of everything and put it in new accounts, just in case your STBX tries to take everything before you can act. I didn’t do that, since I’ve always kept the books, my STBX was much less likely to know how to access the accounts (or what we even had), and I didn’t want to make my STBX feel threatened (and start playing dirty tricks).

Make sure that you make copies of all account statements, recent tax returns, etc. You never know when such documents might "disappear," and that way you can prove the existence of assets that might also "disappear." The tax returns may be important for proving income levels for the calculation of support amounts. It would be a good idea to get a safe deposit box (at a bank your STBX doesn’t use) for these documents - and, especially, for any adultery proof that you may need for filing "fault," if that’s what you’ll need to do.

If you need/want to file a "fault" divorce, find out what the laws are in your state. In some states, you are considered to have "forgiven" the adultery if you’ve cohabited with the cheater after the affair’s discovery. You’ll need to document the affair AFTER you last sleep with your STBX in such states. Filing fault can get you a quicker divorce in some states; also, threatening to do so might get you a better settlement. That is, your STBX may agree to more favorable terms if you agree to file no-fault.

I don’t know how things are done in other states; but in Virginia, all you need for a no-fault divorce is 1) a separation agreement (which also spells out the terms of the divorce) and 2) a one-year separation, in cases where there are children. The separation period required is only six months where there is "fault" or where there are no children.

My STBX and I recently executed a "trial" separation agreement, which is only different from a "regular" separation agreement in that it has to be invoked in writing by either one of us before the support payments begin, our assets are divided, a decree can be issued, etc. My attorney suggested that several months ago, when there still existed a small chance for reconciliation, thinking that I’d get better terms if my STBX thought the divorce might not happen. I’m not sure if that did me any good, but it may be an option to consider.

Here are some things to think about when writing your separation agreement (with your lawyer, of course):

  1. Custody
    • Legal - joint vs. otherwise; who has a "say" about how the children are raised
    • Physical - joint vs. otherwise; who the children live with
    • Visitation - liberal vs. limited; spell out all, including how to split holidays, birthdays, school breaks, etc. and where the children will be dropped off/picked up.
    • Morality clause - "rules" for parental dating
  2. Support payments
    • Spell out what income amounts are to be used for the baseline
    • Define (specifically) how/when amounts are to be recalculated (e.g. annual review at tax time), and what day the new amount will begin being paid (e.g. May 1)
    • Specify what day of the month payments will be made, when they begin, and what circumstances will terminate them
    • In addition to child support, additional anticipated expenses (e.g. piano lessons, sports equipment, private school, child care) should be divided appropriately
  3. Division of assets/debts
    • Specify who gets which car, furniture, bank account, IRA, etc. or how such assets are to be divided - and when it will happen
    • Provide for the transfer of deeds or titles (e.g. "within 90 days")
    • Define who will be responsible for repaying which debt and whether the marital home will have to be sold or refinanced
    • Provide for the closing of joint credit cards and the prevention of the incurrence of additional joint debt
    • Forbid the dissipation of joint assets during the separation
  4. Taxes
    • Specify whether the spouses will be filing jointly or separately, while still able to use a "married" filing status
    • Provide for the division of any refunds from filing joint returns
    • Determine how the dependent exemptions will be shared - i.e. who gets to deduct which kid in which year
  5. Pensions
    • Specify who gets what pensions - spouses may be eligible for ½ the "marital share" of each pension (i.e. the share represented by the number of years they contributed to the pensions during the marriage, divided by the total number of years the parties will have contributed to the pensions at retirement)
    • Specify whether the spouses will get the present value of the pension share they’re entitled to now (which involves a complicated calculation which can vary greatly, depending on who does it and what assumptions are made) OR receive their share of the pension(s) at the time of retirement
    • Provide for the creation of the QDRO (Qualified Domestic Relation Order) required for the payment of pension funds to the non-employee spouse at retirement
    • Determine the beneficiaries (e.g. the ex-spouse, with the children listed as secondary beneficiaries) for any survivor death benefits
  6. Life Insurance
    • Ex-spouse receiving support should be the beneficiary of the other’s life insurance policies
    • Ideally, the ex-spouse receiving the support payments should obtain his/her own policy on the other party, to ensure that he/she is the beneficiary (the policy overrules any divorce agreement on the subject)
  7. Health Insurance
    • Determine who pays for the family’s policies, particularly the coverage of the children, and for how long
    • How unreimbursed medical expenses will be divided
  8. Legal Fees - how they’ll be divided

When it comes to dividing assets, it can be very cumbersome and costly (in terms of appraisals) to try to place a value on every single item you own. In most cases (even furniture), your stuff is worth a lot less than you would expect. My STBX and I just decided that he would take "his" stuff and some selected pictures and pieces of furniture (but not enough to really "disturb" the kids home). Because of my lower earnings capacity (and his guilt too, I’m sure), I was able to convince him to not expect compensation for the fact that I’d be keeping so much "stuff." We also saved a lot of money on appraisers, etc. that way.

I think it’s very important (if possible) to keep things civil, unemotional, and honest so that no one has to feel like there’s a score to settle. Most of us have been betrayed and hurt terribly. However, it’s best to regard that as water under the bridge and focus on dissolving the marriage in the most dignified manner possible under the circumstances. A big legal battle will mostly hurt the kids and enrich the lawyers; try to find a way to divide your assets between the two of you, instead of giving much of it to the lawyers and courts. When dealing with your STBX, keep in mind your negotiating position and the welfare (emotional as well as financial) of your children.

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