DeSantis Law Group, INC

3558 Round Barn Blvd.
Suite 200
Santa Rosa, CA 95403

DeSantis Law Group, INC

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The first step a person should take when it appears divorce is on the horizon is to speak with an attorney. Sometimes when people prepare for a divorce on their own, they end up making mistakes which can have significant repercussions down the road when the divorce starts. Consulting with an attorney before doing anything else can help a person create a plan for the divorce while avoiding mistakes. When we are helping a client who plans to file for divorce (or thinks their spouse may be planning to), we generally focus on gathering information, protecting the kids, and getting clear on the client’s goal.

Get Clear On Your Goal And Your Spouse’s Goal

Does either spouse want to reconcile? Is there interest in pursuing a trial separation? Is either spouse set on getting a divorce? If there is no concern about potential domestic violence, kidnapping or other abuse, then it may be a good idea to start a conversation with the other spouse about where things stand. It can be a lot easier to plan for the future when there is clarity about what each person wants the future to look like. Burying one’s head in the sand while waiting for the other shoe to drop is not helpful.

If saving the marriage is the goal, there must be communication and collaboration with the other spouse. Turning a failing marriage into a happy one often requires developing a plan to work on the relationship. Marital counseling can be a really good place to start that process.

If saving the marriage is not desired by one (or both) spouses, then the spouses can discuss how they want to try to dissolve the marriage together. The more that spouses can work together in a way that is mutually beneficial, the better.

Bottom lineHave an honest, open conversation with yourself about what you want. One question we ask our clients is: “Have you done everything you can think of to try to save this marriage?” If the answer is “yes”, then the client is probably ready to move forward in the divorce process. If the answer is “no”, then it’s worth considering whether additional effort should be made before initiating a divorce. We tell clients never to initiate a divorce as a bluff, because things immediately start to shift when a person is served with divorce papers, and sometimes that shift builds additional walls which are insurmountable.

Get Emotional Support

There are many emotions that people go through before and during a divorce, such as:

  • Relief
  • A sense of newfound freedom
  • Excitement about a new life
  • Sadness because it’s the end of an important part of that person’s life
  • Fear of the unknown
  • Anger
  • Regret
  • Guilt
  • Hurt
  • Jealously

Getting help from support groups, friends, family, therapy and the like can be very helpful during the transitions.

Plan For The Changes Which May Be Coming – Financially & Logistically

Finances – Figure out how you will survive financially. Prepare for the worst-case scenario by assuming that there will be no more sharing of income and expenses. One spouse might be required to share income or expenses later, but at least to start, assume there will be no financial assistance from the other spouse. Do the real research about what things cost and determine how much income you can count on.

Logistics – Where will you live? Will you stay in the family home or do you need to move out? If you move out, where will you go? What will your rent be? How much will it cost to move your things out? Will you be further from work? If so, will your commute expenses increase because your commute is now longer? Who will pick up the kids? Who will drop them off? Will you need to find a childcare provider?

Gather Information

It is critical to gather information about assets, debts owed to creditors, and each person’s income. It is also helpful to be able to show what the monthly expenses are. This information is required to be exchanged between the spouses in a divorce and can affect things like child support and spousal support. Following is a general outline of the kinds of pieces of information that are helpful to gather:

Make an inventory of assets
1. Get copies of important documents such as:

  • Bank and investment account statements (going back at least 2 or 3 years if possible)
  • Insurance policies (auto, life, health insurance, disability, etc.)
  • Deeds
  • Vehicle titles
  • Estate planning documents (Will, Trust, Durable Power of Attorney, Advance Health Care Directive, etc.)
  • Spouse’s social security number and driver’s license number

2. Document items in the house (make a video or take pictures). Open drawers!
3. Document the contents of any safe deposit box and home safe (video or photos)

Make an inventory of debts
1. Get copies of documents such as:

  • Mortgage and other loan documents
  • Credit card statements
  • Monthly bills

2. Gather information about income and expenses:

  • Paystubs
  • W-2 forms
  • 1099s
  • K-1s
  • Tax returns

Use a scanner if making copies is too difficult!

Concerned your spouse may start taking money from accounts or hide assets before the divorce has started?

If one spouse suspects the other may start taking money from accounts or conceal other property before the divorce has begun, the worried spouse might ask for an emergency court order to protect the property. Alternatively, the worried spouse could protect the property him/herself by moving money into an account in the worried spouse’s name.

If one spouse moves money into an account in his/her name, it is very important to keep careful records and only spend the money if it is absolutely necessary for living expenses (like food or rent). Keeping good records/receipts and spending money only for necessities is important because the spouse protecting the money has to account for that money. Moving money or other assets can be tricky because you don’t want to run afoul of the fiduciary duties that you owe to your spouse. It’s best to consult with an attorney before taking action.

If the divorce has started, there are automatic temporary restraining orders which prohibit many types of unilateral acts affecting property (unless done pursuant to a court’s order). Thus, consulting with an attorney before moving assets around is best.

Protect The Kids

Get the kids into counseling. Even if there is no decision to get a divorce, the kids know something is wrong between the parents. Kids are smart and they pick up on emotions and energies to a much greater extent than they will often confess (and to a greater extent than adults realize). The kids need a safe place to share how they feel about what is happening at home, regardless of whether the parents ultimately get a divorce.

If there is concern about kidnapping, it is best to consult with an attorney immediately to determine your options and to avoid inadvertently breaking the law in an effort to protect the minor children. Some possible actions to take include:

  • Filing for an emergency court order
  • Staying at a shelter that protects adults with children from abusive situations
  • Staying with family or friends who would be willing to help keep the kids safe from the other parent

Is There Any Benefit To Filing For Divorce Before Your Spouse?

There is no real advantage to being the first person to file for divorce. CA law is pro-marriage. In our state, public policy promotes marriage so we do not make getting a divorce easy. For this reason, CA has a mandatory minimum waiting period of 6 months and 1 day before a divorce can be completed. This mandatory waiting period is really a forced cooling-off period, intended to give people time to really think about whether they want a divorce.

For more information about Divorce Cases an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (707) 900-4500 today.

The ideas discussed in this article are for general informational purposes only and should not be construed as legal advice. The reader should consult with an attorney to determine what is in the reader’s own best interest.

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