When Does Divorce Begin?
Practically every married person has thought at one time or another, “Wouldn’t it be great to be divorced from this turkey I’m married to?” It’s a normal and natural reaction to the difficulties experienced in living together in one of the most complex arrangements ever invented by human beings. For couples whose marriages are intrinsically in excellent shape, the desire to divorce is only a fleeting fantasy twinge. However, if the idea of divorcing becomes a daily visitor in your mind and the pain of remaining together escalates in intensity over time, then legal divorce may very well be the next realistic step.
A divorce, however, doesn’t begin when you visit a lawyer for the very first time. The legalities of divorce are the end product of a divorce that has occurred in your feelings for a long time before that visit to the lawyer occurs. Think about it: one of the reasons you married in the first place was that you believed your spouse was the number-one person in your life. This was the person you cared more about you and loved you more than anybody else. When those beliefs die inside of you, marriage turns into a world of pain. Consequently, your emotional divorce will take place when your belief that that person is no longer number one in your life…that relationship has irrevocably died. In many cases, this type of death can take place many months or years before a legal divorce is initiated.
Hiring an Attorney
If you don’t already have an attorney, it is important that you get one as soon as you or your spouse decides that you are going to get a divorce. If you are on the fence about a divorce, an attorney can help you understand the process, the costs and the possible outcomes.
Divorce lawyers can provide sound legal advice and help you avoid costly mistakes when your marriage ends. The divorce process involves so many legal technicalities that can affect your well-being – as well as your children’s’ – that it makes sense to at least make a call to a lawyer. Don’t take any action that can affect your rights before seeking legal counsel.
Think about it this way: the overall process can be confrontational. You and your spouse may not agree about how to divide your property or who will gain custody of the children. You may think that your spouse should pay you alimony, while your spouse may think that you do not deserve financial support.
When you and your spouse cannot agree on basic divorce issues, you will need to hire a lawyer to protect your rights in a divorce, to advise you about the best way to get your fair share of the marital property and to help with child custody issues.
Remember, you are not shopping for a friend when you interview potential lawyers. While you want to work with somebody who is pleasant and easy to work with, you must be more interested in professional competence and their ability to get you the results you need. Assemble a list of questions to ask divorce lawyers and consider downloading our chart, “How to Hire a Domestic Relations Lawyer.”
Divorces are frequently long, drawn-out affairs, so choose a lawyer who will wear well over the weeks and months to come. You want a lawyer who will aggressively seek what is in your best interests and is not intimidated by other attorneys or even the judge. You do not want a lawyer who is more interested in their own legal reputation than in your case.
Here are some tips on working with your attorney:
- Remember communication is a two-way street. Just as your attorney should provide you information, you must provide honest and complete information to your attorney. This includes filling out your financial statement, your marital history and other requirements under the rules of discovery.
- Help your attorneys to prepare for your divorce by completing pre-filing homework and bringing your attorney the required documents and information. If you don’t feel fully comfortable with the process, read Attorney Irwin M. Pollack’s Special Report, “The Big Picture on Divorce in Massachusetts.”
- Don’t be concerned if your attorney is friendly with the opposing counsel. In fact, this often works to your advantage. Even if the attorneys are collegial, they will each work for their own client’s best interests. Attorneys who cooperate with each other are better able to negotiate and settle out of court, which will result in lower legal bills for you. Attorneys who are enemies and drawn into an emotional fight can translate into higher legal fees.
For assisting clients during a divorce, lawyers charge hourly rates. These fees vary widely across Massachusetts. Be sure to find one that fits your wallet. Be aware, too, that most lawyers require that you pay a retainer up front before they do any work. Sometimes these retainers amount to thousands of dollars. As the lawyer spends time working for you, the bill is paid out of your retainer.
Safeguarding Money
If you suspect that your divorce will be a knock-down, drag-out fight or if you’re certain that your divorce won’t go smoothly, take the following steps prior to the start of your divorce. Protecting yourself from financial harm and having ready access to the financial resources you may need during your divorce is important.
Open Accounts In Your Own Name
If you share a savings account with your spouse, withdraw only some of the money in the account – Attorney Irwin M. Pollack usually suggests 45 percent, depending on your needs and the amount in the account – then deposit it in a new account in your own name at a different bank. Open your own checking account in the same way.
Close Your Joint Accounts
Close any joint credit card accounts you have with your spouse. Also, if you and your spouse have a line of credit with a bank or credit card, cancel or reduce it by writing a letter to the bank and requesting the same.
If you can’t close a joint account because of an outstanding debt that cannot be paid off immediately, write the creditor to explain that you won’t be responsible for any additional debts on that account beyond the current outstanding balance.
Stash Your Important Personal Property
If you’re concerned that your spouse may try to damage, destroy, or steal any of your personal property in anger or out of a desire for revenge, find a safe place to keep your valuables. That can be a safe-deposit box in your name, the home of a trusted friend or family member, your office file cabinet, or any other place where your spouse doesn’t have access to it.
Before You Tell Your Partner…
Before you move forward with divorce, the savviest lawyers would advise you to make some preparations. Heartless? Maybe, but if you plan to ask your spouse for a divorce, or if you think your spouse might want one from you, there are some matters you should take care of first. Attend to these issues before either of you decides to call it quits and you’ll be ahead of the game:
- Consider your legal options
- Consult and hire an attorney
- Know your spouse’s annual income
- Realistically asses what you can earn after divorce
- Learn all about your family’s financial situation
- Realistically assess your family’s debt
- Photocopy all financial records
- Take stock of your family valuables – and the pictures!
- Learn how much it costs to run the household
- Determine where you will live following separation
- Start saving money
- Build up your credit
- Stay involved with the children
- Withdraw your money from the bank
- Consider cancelling charge cards
- Decide how to tell your spouse
- Decide how to tell the children
- Take property that belongs to you and safeguard it
- Don’t make any unnecessary major purchases
- Make sure that your spouse is the first to know your plans
- Stay in the marital home if possible
Issues for Divorce Court
The major issues in a divorce case are custody, support and the division of property. There are many aspects to each.
Child Custody
The court is required to enter an order stating that the parties shall have joint legal custody of the children unless the court makes written findings of fact why this case is different. Joint legal custody only means that both parties have a say in deciding major issues involving the health, education and religion of the children. The most important factor in deciding physical custody is determining who has been the primary caretaker for the child or children. Attorney Irwin M. Pollack and his staff attorneys often suggest their clients assess their child care skills. While this caretaking component may be displaced, the primary consideration in Massachusetts is always the best interests of the child. Learn more about custody and parenting issues on our blog.
Child Support
Some years ago, Massachusetts began using Child Support Guidelines. This formula, based primarily upon the income of the two parties, the number and ages of the children, the amount of child care costs, and the amount of health insurance costs for the family, is presumed to be correct unless one of the parties proves that presumption incorrect. If successful with that argument, the judge may deviate from the Guidelines. Go to our Child Support Calculator.
Spousal Support
Unlike child support, the question of how much is to be paid in alimony can often be a very difficult question to answer. There are no hard and fast rules in Massachusetts that judges follow. In many cases, our lawyers are successful in reducing alimony because of how we argue our cases.
There are, however, some general principles that hold true. In a short-term marriage, alimony is much less often required. In long-term marriages, alimony would tend to be used to equalize income. If there will be a fairly long term payment of child support, alimony is less likely to be ordered until the children are emancipated. Most often, the obligor will attempt to reduce alimony.
Property Division
The first step to be accomplished with respect to the division of assets is to make an income and asset analysis on our worksheet. Then, ascertain their value. Ultimately, the court will seek to make an “equitable” division of all the property. Whatever the parties own together will be included in the “basket” of goods to be divided. With a short-term marriage of five-to-seven years or less, the court will want to put the parties back into the position they were prior to marriage. In a long term marriage, the starting point in division will be a fifty-fifty split.
When it comes to dividing big ticket items, if the two parties cannot agree on a value, an appraisal will ordinarily be ordered. If one of the parties doesn’t accept the appraisal, a judge may order the asset sold and divide the proceeds.
As it relates to the marital home, the judge would likely prefer that the children be allowed to continue to reside in the former marital home for some period of time after separation. For this reason, the sale and division of the house is often postponed.
Negotiating is critical in resolving differences during the settlement process. When it comes to divorce law, the rules of give-and-take are essential.
If you are contemplating divorce or are currently involved in the process, undoubtedly you fear failure and the unknown. You are not alone. If you don’t know where to start or what to do, contact us. We defend our clients’ rights, and we can point you in the right direction, too.
Divorce is a difficult, uncertain event with far-reaching, long-lasting effects. We understand and extend to clients personal attention, an appointment when you need one, and access to a network of professionals.
We are compassionate and uncompromising when it comes to protecting your rights. We will work hard with your best interests in mind, take the time to listen, and stand by you throughout your divorce.
Our practice includes advice and representation in divorce matters involving paternity, restraining orders, custody and parenting plans, support and alimony, property division, separation agreements, business valuations, tax issues, divorce estate planning, prenuptial agreements, adoption, guardianships, same-sex divorce issues, Complaints for Modification and contempt and matters relating to The Department of Children and Family Services (DCFS) and The Department of Revenue (DOR). Call us, toll-free, at (800) 910-DIVORCE or contact us for a no-obligation consultation.