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I’m Divorced – Now What?
If you have not done so already, and if you believe your divorce case will be contested, start looking for evidence. Check desk drawers, safety deposit boxes, bank boxes, or other places where documents might be hidden. Although you may not want to tell them about the divorce this is a good time to visit with your family banker, stockbroker, or accountant to discuss the family financial situation.
Depending upon how intense things get, we may want you to supply us with copies of the following documents: income tax returns for the past 5 years; financial statements, These are most often filed when borrowing money and are very important; employment contracts or any explanations of benefits from you or your spouse’s place of employment; canceled checks and charge records; retirement plans, including IRA’s; deeds; real estate tax bills or appraisals; insurance policies, including life insurance, medical insurance, health insurance, or homeowner’s insurance; bank accounts and bank statements; safety deposit boxes (you will want the bank to verify an inventory, if possible); securities (stocks and bond certificates); partnership agreements, corporations, or other documents showing any business interests; any inheritance or trust interests; wills by you or your spouse; any written agreements or notes between you and your spouse; and any evidence you have such as photographs or letters.
It is very important that you keep records of payments you make or receive for alimony and child support. If you are paying, pay by check and keep all canceled checks. If you cannot prove you paid it, you might as well have not paid it. If you are receiving payments, keep a running account in a permanent place. If you cannot prove what you did get, the court might not believe you when you testify about what you did not get. It is easier for both parties to have payments deducted from the paycheck of the person who is paying. I strongly recommend this.
When you must prove something in court, you may have witnesses corroborate your allegations or show the court other proof of your allegations. Corroboration usually means at least one other witness. In a contested case / case proceeding on fault grounds of divorce, you may need more than one witness. We can issue a subpoena for witnesses if you request it and give us their name and addresses. The subpoena will help the witnesses get off work to appear in court. If the witnesses do not appear in court, you can usually have the case put off until you can get them to appear in court.
Our advice is simple on this subject: Unless and until you and your spouse have signed a written separation agreement resolving all issues, do not date. No, it’s not illegal just to date (but adultery is a crime). Nevertheless, your spouse can (and will) use your seeing other people (even if not romantically) against you. Your spending time with the “another woman” or “another man” (even though that person was not even around when you and your spouse separated) will make negotiations much more difficult.
Dealing with feelings of “How dare he spend money on that hussy while I have nothing” or “I knew there was another man involved. I’m not going to give her another friggin’ dime.” is only going to make things worse.
If applicable, your children will not like your dating at all. And, yes it is their business. They desperately want to see you and your spouse back together. Your dating at these trying times for them sends the signal that their opinions and feelings don’t matter. You can hold out a year. Modern psychologists recommend a break between serious relationships of at least this long. Plus, you are married. Is this the message you want to send to your kids?
In Virginia, a woman may go back to using her maiden (or any) name at any time. However, sometimes it is hard to convince the Social Security Administration that a person has a new (old) name. A woman can have the court order the restoration of a maiden name (or any former name, in the event of multiple marriages) in the final decree, even is she is not the plaintiff. We suggest that you think carefully about restoring your maiden name when there are still minor children (unless you are returning to a former married name when there are children of that former marriage). If you want to do this, let me know.
Your well-meaning family and friends my offer you advice about your case. Frequently such advice is not accurate, and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and are different from any other case. If you have a concern, let us know, but we hope that we have gained your trust enough that you will not try to second-guess our advice.
All too often people use the cell phone not to communicate but to destroy communication. The angry spouse may call to scream insults or send provoking texts. The first case is the easiest to deal with — hang up. If you choose to stay on the cell phone and to listen, then you have made a bad choice and you should not complain about it. Hate-texts are tough–if you respond while upset, you have lost. The answer may be to save texts (and voicemails) to use in court to bolster your case. Do not engage in the provocation. Save it and show it to your attorney. Whether you have a cell phone or telephone, make sure you know how to save and download voicemail. The telephone company offers services in my area that may be very worthwhile to you at this time, including the following: Call tracing — This traces calls so we can prove to the court who made the call. Call block — This locks out calls from certain numbers. You can block out your ex-spouse-to-be and many of your ex-in-laws-to-be. Call forwarding — One client reported solving the problem by ordering call forwarding. When she went to bed, she would forward her calls to Dial-A-Joke.
Depression is varied. All forms of depression are valid responses to going through a divorce. Even if you are the person initiating the divorce, it’s normal to feel lonely, lethargic, or low. You will have to decide whether your state of being is disrupting your activities or public interactions to the point where it is time to seek the help of a mental health professional. (And visiting a therapist anyway might not be a bad idea. Hey, why not try it?) Even if you are not clinically depressed, steps you can take to help yourself include: outdoor activities you enjoy, gentle and kind self-talk, writing a song or doodling about things you are grateful for, and taking an altruistic approach when you spend time with friends.
Human beings, among all the animals of the earth, have a unique ability for worry. Even during good times people find things to worry about. When going through a divorce, you will find many things to worry about, and you will have good reason to worry. Even if we tell you not to worry, you will worry. Let us suggest that instead of worrying about your problems, you worry at your problems. Instead of letting your mind be consumed with worrying about how bad the situation is, you should concern yourself with what you can do to solve the problems. You cannot change your spouse; by now you should have learned that. But you can change how you respond to the behaviors that annoy or trouble you. “Why is s/he doing this to me?” is a question that is better phrased “What am I going to do now that s/he is doing this.”
Remember when your parents used to tease you when you asked, “Can I have some ice cream”? The answer would be “Yes, you can have ice cream, but you may not have any ice cream.” This difference between “can” and “may” is the difference between having the power to do something and having the right to do so. Your spouse has the power to do lots of things (as do you, and basically to an equal extent). However, only the judge can ultimately decide who has the right to do the act, possess the property, rear the kids. Determining rights is what the divorce suit/settlement discussions are all about.
“Can he close out the bank accounts?” “Can she take the car and park it at her parents house?” “Can he take the kids and run off forever?” The answer to these and the myriad “can he do this” type questions is generally “yes,” and often it is “Yes, and so can you.”
Just because your spouse has the power to do something does not mean you should build impenetrable walls to prevent him or her from doing so. First of all, he or she probably has no intention of doing the dirty deed in the first place (despite threats). How many murderers do you know? How many times have you said you would like to do something horrible, but never intended to carry it out? (“I’m going to kill him. . .”) Secondly, by building such walls, you then begin to look like the “bad guy.” Before constructing walls on a particular issue, discuss it fully with your attorney.
We know that parents sometimes kidnap children. Spouses do come home in the middle of the day when the other is at work and clean out the household furniture. It has happened to clients in our office. But the situations are exceptionally rare (despite the threats being frequent). Further, the situations about which threats have been made almost always resolve themselves–especially after the judge learns about it–favorably to the offended spouse. Despite admittedly sleepless nights (for us as well as our clients) no child of a client of ours has been permanently kidnapped. And despite the pain, and the benefit of hindsight, the client still agrees that the initial grants of visitation that allowed the child snatching to occur in the first place were still appropriate, and would not have done it any other way.
We expect you to be cooperative and truthful. If you are not, we will not represent you. We also expect you to handle your financial commitments to our office in a prompt and businesslike manner. Please notify the office of any change of address or telephone number or of any new information that may affect your case.
You will receive copies of many of the documents that were prepared or received by me. Due to court appearances, trials, depositions, negotiations, and other commitments, we are difficult to reach on the telephone. You may talk to our legal assistant about your situation. The assistant will be easy to reach and can give you information or take messages. The legal assistant cannot answer your legal questions, but can relay them to us and get back to you with an answer. Try to work with with the legal assistant. It will make things easier and it will hold down the cost of your divorce, since the assistant’s time is billed at a much lower rate.
We must have all the facts to represent you properly. Tell us everything you know and what evidence you have to support it. “My husband took a trip out of town — here is a copy of the ticket.” Something that may not seem important to you may be critical to your case. If you get on the stand and the other side knows something that we do not, the information could be used against you, and we would be unprepared and unable to defend you against it. However, if you give us the information, no matter how bad it may appear, then we can take the proper steps to prepare a defense to avert what could otherwise turn out to be a disaster.
Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission. (Note the difference between what you tell us and expect to be kept confidential and that which you tell us and expect will be presented to the judge.)
All papers filed in your case and all testimony in your case are theoretically matters of public record, and the public has a right to see or hear it. However, the only people you are likely to see at court are other people who are getting divorced themselves that day, and they are far more concerned with their own problems than with your case.
If you and your spouse or ex-spouse agree to change the terms of a court order you must change it with another order. Don’t trust that your spouse will recall any agreements made which vary from the court order. If you need to change child support, you can petition the court for a change. If you show a change of circumstances, then the court may modify those provisions. The changes of circumstances that most impress the court are those changes that you do not expect: “I lost my job because the company went bankrupt.” The courts are less sympathetic to “I just don’t want to work as hard as I used to work.” When a change occurs, contact your attorney immediately so that the proper petitions can be filed. You may not under any circumstances unilaterally change support without the court’s permission. If you absolutely cannot pay the full amount (and our advice to you is to find a way to do that), pay something! If your kids were living with you, you would find a way to keep them fed. Just because they are not living with you doesn’t mean you can let them starve. Judges are very protective of the orders they enter, and they will always be upset when you change things without their permission, even when you think you have a good reason to do so.
After the divorce, you and your ex-spouse will have two separate households. You will have to maintain those two homes on the money with which you maintained one earlier. “Two” cannot live as cheaply as “one,” especially when “two” are two separate households. Furthermore, if your ex-spouse has been a jerk all of his or her life, it is very unlikely that going through a divorce will make him or her less of a jerk. A drunken wastrel will probably continue to be a drunken wastrel, and nothing we nor the court can do will be likely to cure the problem. Divorce does not make a nice guy a permanent bad guy. But more importantly, if your spouse has always been a great parent, don’t let the fact that you are in the midst of a divorce change your perception that he/she is a great parent. After the divorce, you will be separated, but to the extent that you are still tied together by visitation, child support, alimony, or debt payments, you will still have to deal with the problems together. Do so maturely, even if you feel the other side is not.
This is a difficult, but terribly important issue to address. If you suspect your spouse may have been exposed to the AIDS virus or another venereal disease, you should have yourself tested. Your exposure is not only to your spouse but also to everyone who had sex with anyone who had sex with your spouse. The most frequent avenue of exposure we deal with is sexual contact. However, that is not the only means of contracting AIDS. Exposure to blood, needles, etc. is also a risk. Consult your physician and let us know the results of any test. If you are unsure if you need to be tested, you need to be tested.
If you cover your spouse or children on your insurance, do not drop them from the policy until the divorce is final, or at least without first consulting with your attorney. You are probably responsible for their medical bills until then anyway. Even after the divorce, the employed spouse may want to keep the spouse and children covered. If you are paying child support, a large unexpected medical expense for the child could be assessed against the non-custodial parent as additional child support. The same could happen with alimony and an ex-spouse. A recent federal law allows most employees to cover their spouses for up to thirty months for a small additional premium. However, the employer must be notified prior to the Final Decree.
Close joint accounts and notify the banks, charge cards, and others by a certified, return receipt letter that you are no longer responsible for your spouse’s expenses. You may want the company to reopen an account in your own name. This is a good time to request it.
You may want to divide joint accounts or put them entirely in your name. (This latter course may make the judge angry with you, so do so with hesitation, but it is often easier to give money back than to get it back.) Regardless of your decision, if you are the breadwinner do not put your dependent spouse out in the cold without some money to get by on. Except in unusual circumstances, this will tend to aggravate the judge who will make you pay anyway.
Do not cut off the utilities on your spouse or your spouse and children without giving them plenty of notice. Make sure you can prove this notice to the court because leaving your spouse and children home without heat or light in December seldom sits well with the judge.
Filing bankruptcy may relieve a debtor of many debts, but the responsibilities of paying alimony and child support should still remain. However, if you get a notice that your spouse has filed for bankruptcy, contact us immediately.
Subject to many qualifications, alimony paid in cash is deductible to the party paying it and taxable to the party receiving it. One such qualification is alimony as agreed to in a separation agreement which both parties entered into after 2018. The IRS treats this spousal support as non-taxable income for the receiving spouse, and as income that is not tax deductible for the payor spouse. Child support is not deductible to the party paying it or taxable to the party receiving it. However, a court may be required to consider one party’s tax savings from child-care deductions when it calculates how much the other party must pay in child support (§ 20-108.2(F)). Beware of signing joint tax returns with your ex-spouse to be. Although your agreement may provide for your ex-spouse-to-be to be responsible for any tax liability, the IRS can turn to you. By the time the IRS does the audit, your ex-spouse may be bankrupt and you may be the only one left to pay the taxes. The impact of taxes can make a great difference in divorces. We are not tax attorneys. We do not give tax advice. If you need tax advice, we must associate a tax attorney or a certified public accountant in your case.
Virginia law may modify wills that were made prior to a divorce (§ 64.2-412) or to the birth of a child (§ 64.2-419). You probably need a new will now. If you wish to pursue this, please ask me. If you have given your spouse a power of attorney, cancel it as soon as possible. Until you do, your spouse has control over your property and can sell it or give it away (not lawfully, mind you, but the power to mess you up still exists). If you remarry and you or your new spouse has children, you really, really, really need a will. Please call. (See also Estate Planning During Divorce.)
If you are to received a share of your spouses military retirement pay, you need to contact DFAS and request specific instructions on the proper procedure to obtain these benefits. (NOTE: you must take action to elect participation in SBP within one year from the date of the divorce.) Here is the address we last had:
Defense Finance and Accounting Service
Post Office Box 99191
Cleveland, Ohio 44199-1126
The latest phone number we have for the Defense Finance and Accounting Service is:
(1) 888 332 7411
Here is DFAS’ webpage for applying for benefits under the Uniform Former Spouses’ Protection Act: https://www.dfas.mil/garnishment/usfspa/apply/
Once more on this warning:
If you are the recipient of Survivors Benefits, you must note this fact to the military in writing within one year of the divorce or else you will loose these benefits. Use the above contact information.
Employer sponsored 401k plans, pension benefits and the like are frequently divided by the parties as part of a comprehensive settlement. But unlike a regular bank account which is divided simply by writing a check or making a withdrawal in the appropriate amount, federal laws require a quite complicated legal document to divide up retirement accounts. This order is called a Qualified Domestic Relations Order (QDRO–your attorney will probably pronounce it qua’dro–). If you know that you and your spouse agreed to split the retirement, or the judge decreed after a trial that you are entitled to a portion of it, and you don’t remember seeing a QDRO, be sure to ask your attorney “where is it?”
If there ever was a conflict of interest, it has to be two people getting a divorce. It is inappropriate for an attorney to represent both parties in a divorce, although some attorneys do. If you and your spouse have agreed on everything, it may be possible for our office to do all the legal work, but we will represent only one of you. If you and your spouse disagree later, we will be able to continue to represent our client unless directed otherwise.
If you and your spouse have agreed upon terms of a separation agreement and you want one attorney to draw up the agreement in a more formal fashion, we can act as your “scribe,” but in that case, we are representing neither of you. We will give no substantive legal advice. If either of you ask a legal question that may affect the rights of either one of you, we will have to send you both out to seek the advice of separate attorneys.
Do not sign anything involving this case unless you have spoken with your attorney about it. You may be signing something that could harm you later on. Furnish your attorney with the names, addresses, and telephone numbers of any and all witnesses, and tell him or her what they know. Advise your attorney immediately if you hear of anything that might affect your case. Never lie or withhold information from your attorney.