Thursday, April 10, 2008

Tips to Help You Get a *Fair* Divorce

Yesterday, J. Benjamin Stevens, in one of my favorite blogs, the South Carolina Family Law Blog, had an interesting post with some good ideas to help you attain a good result from a divorce. There are some differences between Texas and other states' laws, but many of the points are very appropriate for anyone facing a divorce. Here is what he wrote, along with a few comments of mine

"The following tips can help you get a fair divorce and save you a great deal of time, stress, and money:

  • "Once you have made the difficult decision to end your marriage, begin to focus on the financial issues as soon as possible." That's excellent advice. It may take a while to gather the records you need and the finances are very important both immediately and in the long run.

  • "Get a good attorney to ensure you receive an equitable settlement, and get the best attorney that you can afford." That is very important. I have previously written about how to choose an attorney. You should make sure you have one who is qualified for the type of issues in your case. Experience and local knowledge are very important. Usually, a Board Certified Specialist in Family Law is a very experienced and knowledgeable attorney in that field.

  • "Remember that most states determine the value of the marital assets (including retirement accounts) based on the date the case is filed with the Court." That is not correct in Texas. Here, the value is determined at the date of division. If there are losses or gains in value (for example, stocks or retirement accounts) after the date of separation or the date of filing, they are taken into account when the value is determined by a judge on the trial date. If a case is settled in negotiation, the attorneys usually try to use the most recent values of assets and debts.

  • "Consider when to file your case and whether it might be worthwhile to file sooner or later if you know when significant financial events will occur, such as receiving a bonus at work." Usually, that is not a factor in Texas since the value of the estate is determined at the time of division and there is a 60 day waiting period, beginning with the filing date, until the divorce can be granted. Occasionally, the date of filing can be significant, but most often timing can be affected by health, safety, emotional stability, financial need, or some other factors which can come into play. Sometimes filing is delayed so that the other party can adjust to the idea of divorce. Someone about to file for divorce should consider the whole situation before jumping into the process.

  • "If the mortgage is listed in your name (or both names) and your spouse will receive the house, insist that he/she refinance to remove your name from the mortgage as soon as possible." That is a good way to protect your credit. Leaving the house in both names without changing the mortgage is really dangerous.

  • "Make copies of all recent financial statements, so that your attorney will have an accurate listing of the accounts, balances, etc." I would include virtually all financial documents, including all credit cards, bank records, stock information, retirement account records, and any other financial records. Gather up for your attorney all the records you can find and let the attorney decide what is needed and useful.

Original "Source: "Parting Ways? Your Guide to a Fair Divorce" published in the Erie Times-News."

Bonus Comment: I recommend that you avoid using the word *fair* in discussing anything to do with divorce. Aside from the fact that fair is vague and impossible to pin down, courts just don't spend a lot of time evaluating fairness. Most importantly, what's fair to you is not likely to be considered fair by your spouse, and what your spouse thinks is fair would probably not pass a fairness test for you. It's really more useful and practical to figure out what your needs and goals are and try to meet them. That gives you a more specific target and you will know if you came out well.

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