One therapist asked about how clients contemplating divorce can “get their ducks in a row” before they commence a law suit. Because the preparation for each client varies, this question definitely needs to be discussed individually with an attorney, and this consultation needs to take place sooner rather than later – if possible, before the decision to separate or divorce has actually been made.
That being said, knowledge of the broad range of these actions will perhaps equip therapists with sufficient information to convince a client to protect his or her legal interests early on.
- Financial Documents. The more financial documents one spouse has, the less documents have to be obtained from the other – it is just that simple. And obtaining those documents through lawyers during litigation takes time and costs money. Typically, if the spouse who pays the bills is contemplating leaving the marriage, he or she will begin taking all the financial documents to the office. Thus, this task needs to be done early.
- Debts. The general rule is that all debts incurred during the marriage are marital debts. Thus, if a spouse is incurring debts solely in his or her name, the other spouse is liable for those debts as well. Many people assume that both spouses will not be responsible for debt incurred in the name of just one spouse. This is not the law. The law does not provide protection for a spouse who chooses to remain ignorant about the family finances.
- Title. Whether an asset is titled jointly or in the name of one spouse is not the determining factor in deciding whether that asset is marital property. For example, a house bought during the marriage and paid for using the income of one or both spouses during the marriage is marital property, regardless of whose name is on the deed. Make no assumption that because the house is titled solely in one spouse’s name that the house will automatically belong to that spouse.
- Leaving the marital home. A spouse who abandons the marital home before filing for divorce may be giving the remaining spouse an advantage in gaining the right to remain in the home. The abandoning spouse is not giving up the right to be awarded a share of the value of the home but may be giving up leverage in getting the house itself.
- Fault grounds. Fault grounds include adultery, physical cruelty, and alcohol or drug addiction. The standards for proving these grounds is higher than many people assume.
- (a) Adultery. For adultery, it is not enough to have numerous phone calls between your spouse and another member of the opposite sex. The law requires “inclination” and “opportunity.” The spouse must be romantically inclined towards the other person – evidence of them kissing, steamy emails, etc., and opportunity – which means sufficient time alone to be sexually intimate.
- (b) Physical cruelty. The standard for physical cruelty is several instances of physical injury or one instance of extreme physical injury. The best proof of these injuries would be medical records, pictures, or eye witnesses.
- (c) Alcoholism or drug addiction.
- Custody issues. When child custody is contested, the court seeks to determine initially who has been the primary caretaker of the children. In doing so, the court looks at many of the ordinary day-to-day tasks of parenting: who takes the child to the doctor, who bathes the child and puts the child to bed, who knows the names of the child’s teachers, who helps with homework. When one parent is a stay-at-home parent, this primary caretaker role is easily defined, but when both spouses work, the roles are not so clear.