You’re Thinking of Getting a Divorce; Here’s What I’d Like You to Know

Most clients who come to me already have decided that they want a divorce, or their spouse has already made moves to split up. But if you aren’t sure what you want or need, I may recommend you see a therapist to assist you in identifying problems and how you might resolve them. Consider keeping a journal; this could come in handy (more on that below).  

If therapy and marital counseling help repair your relationship: Congratulations; we don’t need to work together.

If those steps clarify that you need to leave your marriage to build a happier life, then here are some things I’d like you to know.

What Does This Look Like?

If you don’t have children and have a relatively simple financial situation, you probably can undergo an uncontested divorce. That means before any papers are filed with the court, the parties, after they both have knowledge of the financial circumstances of the marriage – including all assets, liabilities and income they have jointly or solely – can negotiate directly, sometimes through a mediator. Each party is better served with an attorney, but when they cooperatively share information, no subpoenas or other formal court actions are necessary to resolve all issues in the divorce, and the process moves quickly to a judge approving a settlement after filing the action and the final pleadings. This saves time, money and emotional energy.

If you have to determine custody of children or have complicated finances – or if there is physical abuse alleged – divorce papers should be filed as soon as possible. (A request for a temporary hearing should be filed along with the divorce papers in case of alleged abuse.) 

In a contested divorce, each spouse will have to complete financial disclosure forms, attend status conferences in some court jurisdictions and most likely attend mediation sessions prior to going to court for a final decision. If child custody is at stake, there will be more forms to complete and sessions with guardian ad litem or perhaps child psychologists who will help the judge determine what custody arrangement is in the best interest of the children.

Follow the Money

It’s critical that if you find out, if you don’t already know, how your spouse and you pay for your joint life. We need to know what your assets are, who and how much you owe, how much each of you earns and who pays for what expenses.

The current billing arrangements are important at the beginning of the process, as judges want the parties to maintain the status quo until they decide how to split assets and obligations. As the divorce process continues, what each spouse has will be factors in how the judge will divide the marital assets.

It’s important that you can identify any separate property you brought to the marriage, inheritance or gift that you kept titled in your own name. That is generally considered yours, but money that was shared with your spouse to buy a jointly tilted house, for example, will likely be considered part of the marital estate.

Both spouses will be required to share any financial documents they have in their control or custody. If they don’t, a judge can order them to do so. We also can subpoena information from banks, employers and investment advisors, but the more this information is produced without a fight, the less expensive the process will be.

A few other points about money:

• If a dependent spouse commits adultery that caused the divorce, a judge can rule that they are not entitled to alimony.
• If a client has been out of the workforce for a long time, I may ask them to work with a career coach. This process can help my client identify ways to make a living, and the coach’s assessment could be useful in proving my client’s financial needs.
• If a client needs help managing money, I will suggest they meet with a financial advisor.
• If you rely on your spouse’s employer’s healthcare plan, you will need to research how to obtain coverage for yourself.
• It will be important that your financial condition allows you to borrow money for a home or rent an apartment.

What About the Children?

The custody arrangements common 30 or 40 years ago, where children stayed with a primary custodial parent except for one weekend every two weeks, generally don’t exist today. Most parents share custody, with children perhaps spending 60% of their time with one parent over the other. But some are split down the middle so that the children move back and forth every week. 

Unless you are suffering physical abuse, many family lawyers, including me, suggest their clients try to stay in the marital home as long as possible. This keeps you actively parenting and seeing your children every day before a decision on custody is made. Child psychologists criticize this advice, however, because children living with their parents’ tension and uncertainty can be harmful.

To make your best case to get the custody arrangement you want, I can offer common sense advice: Be as active in their lives as possible. We’ll need witnesses who can attest to your parental skills and commitment, such as pediatricians, parents of your children’s friends, coaches, teachers and others. 

Judges will almost always order parents to share responsibility over decision-making about children’s education, religion, medical issues and extra-curricular activities. However, a judge will determine which parent gets to make the ultimate decisions in those areas in case of a conflict.

Emails, Texts and Other Evidence

As I mentioned earlier, keeping a journal about your activities and your spouse’s behavior can help you assess the marriage before taking any action. It also can establish evidence about your activities and that of your spouse. This information can be useful in presenting your best case to a guardian ad litem or child psychologist reporting to the judge.

However, a journal is tricky. If you’ve been a regular journal keeper much of your life, your spouse can demand to look in it for evidence that could be useful to their arguments about your conduct or financial position. If a client has kept a journal, I will ask them to stop writing in it and instead start a new journal to keep me informed of these activities. Records kept to inform your lawyer are covered under our attorney work product privilege.

One might think our digital lives would mean evidence of bad conduct by your spouse would be found easily via emails and texts. It’s not particularly hard to get emails from a spouse’s workplace, but if we’re seeking emails from a personal account on Gmail, for example, they are hard to obtain.

For texts, finding the actual content of messages is nearly impossible, as companies don’t keep that data for more than a few days and they don’t produce the information when subpoenaed. But the existence of the texts – such as their times and sizes – can be obtained. Similarly, we can show when your spouse made cell phone calls to a third person, and data from cell towers can recreate their movements on a particular day.

You can ask for a phone or computer to be reviewed, but forensic experts charge a lot of money to review these devices for evidence.

What’s This Going to Cost?

Legal costs are hard to predict, as they depend on what your spouse, their lawyer and the judge do – and how much work my firm has to do in response. Also, unlike most other legal cases that debate what happened in the past, the biggest issues we are contesting involve what will happen in the future regarding child custody, child support, alimony and other issues.

I have seen child custody fights cost hundreds of thousands of dollars. I advise clients to recognize how much they want to fight over things. I also suggest collecting a group of questions and then asking me in one call or email, consolidating the time my colleagues or I will spend on the matter to help reduce costs. You also can keep costs down by being very organized in producing your financial information that is to be exchanged with the other side.  

Tina Shadix Roddenbery has more than 33 years of experience guiding clients through the process of divorce and other family law challenges, including custody, support modification, legitimation and contempt procedures.