Factors to consider before filing for divorce

SHOULD I FILE FOR DIVORCE?

Posted on September 20, 2011 by Beth

SHOULD I GET A DIVORCE-FACTORS TO CONSIDER.
You can’t take it anymore. You’re done with the fighting, the crying, the name calling-Done. Depending on your circumstances that may be the right step. But even if you know you want to leave, divorce isn’t as easy as signing the papers and making him move out. And separating impulsively can inflict far more pain (and financial blood-letting) than necessary. So before you scream, “I want  out!”, consider the following 10 questions to help you decide what your next move should be…
Divorce is so common in our culture that it may seem the natural solution to tough marital times. After all, only 52% of married couples in the U.S. make it to their 15^th anniversary.
But your divorce probably won’t look like the ones in the movies: You’re unlikely to walk away with a hefty alimony payment, a fabulous loft apartment or a passionate Italian lover. And even if you can sustain your lifestyle after a divorce, a breakup without planning can result in a lifetime of regret.
“I had a client, a lovely man, who was married for over 27 years,” says Attorney Wolt, law partner at a law firm specializing in divorce and family law in Fort Myers, FL. “His Wife was ignoring him, so he started [divorce proceedings] as a wakeup call.”
Unfortunately for him, his Wife embraced the idea. “He didn’t realize it was going to go that far,” Wolt says. “He’s been divorced for two years now.”
Lesson: Be careful what you wish for.

1. Can you salvage the marriage?
If boredom or greener pastures are fueling your quest to flee, consider alternatives first.
Book a romantic cruise (don’t forget his ticket!), enroll in couple’s therapy, take up a hobby you can both share. Now is the time to try everything you can to shore up your marriage. Why? Because any option other than divorce will be less costly – financially and emotionally.
However, if abuse, infidelities or fundamental differences in lifestyle, morals or character pockmark your marriage, breaking up may be the best option.
2. What’s your motivation?If extracting revenge or righting a wrong is motivating your interest in divorce, rethink that strategy.
Vengeful divorces often end up in court as spouses wrangle over property, child custody and support. Contested divorces are expensive and ugly and will succeed only in draining funds that can be better spent rebuilding your life.
As Wolt advises her clients: “You can pay your mortgage, or you can pay mine.”
A better plan is to leave with your dignity intact, especially if you have children – the vitriol can unfairly poison them, too. (For more on how to avoid hurting the kids in a divorce, read Divorce Poison (HarperCollins, 2001).)

3. Can you afford a split?
Whip out the classifieds and visit a few apartments, condos and houses for a reality check. Then review your joint checking accounts and add up the cost of running your existing household, suggests Wolt. Why? Because every penny counts when your existing household budget must support two of everything: two rents or mortgages, two utility bills and so on.
Also, don’t forget to factor in the cost of medical insurance that’s now covered by your spouse’s employer or business. “It’s cut off at divorce,” Wolt says, “ with the exception of the possible COBRA policy currently limited to a maximum of 36 months  if your spouse’s employer is required to offer it; and even if available, a lot of women get real sticker shock when they see what their premium is going to be.” (See related story: In Marriage We Trust?)
4. Do you know your net worth?
Gather records of your assets, debts and tax returns. If you’re like most people, your house and retirement funds will constitute your largest assets.
Don’t forget stock certificates, life insurance, money market accounts, frequent flier miles, business interests, and any other investments. This is the first information divorce professionals will need to evaluate your circumstances.
5. Should you meet with an attorney?
Not all people need to hire a divorce lawyer, but you should at least pay one to look over your completed documents before filing them. Says Wolt, “I can’t tell you how many times a client has walked into my office wanting to enforce an agreement they put into words only to find out that the way it was written is not enforceable or is too vague to identify what they actually agreed to.  Wolt & Associates sells Family law forms for a very affordable price. If you have few or no assets, no children, or if you can agree on custody issues and how to split the assets, a do-it-yourself dissolution can be preferable to investing thousands of dollars in legal fees. Even so, consulting an attorney about your legal rights before you take the divorce plunge is wise. It is also wise to pay a consultation fee to have everything reviewed before filing.

And remember, just because you have the right to do or keep something doesn’t mean you must. In some instances, peace of mind can often prove more valuable than a piece of furniture.
6. Do you know the state laws governing divorce?
What’s yours and what’s not will be determined in large part by your state’s marital property laws. Florida is an equitable distribution state. The standard applied is:. “The judge will look at all the assets and decide how they should be distributed,” Wolt says. “It may not be equal but it will be equitable,” which means a judge will take the following into account: age, health, employment, earning potential, sources of income, debt, length of the marriage, and tax consequences.an
7. Can you count on support payments?
Not necessarily. A complex mix of Florida state law and your marital and personal circumstances will determine whether you receive one of the four categories of alimony available, which include bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. (See related story: 10 Money Mistakes Women Make).
You can Google Florida Statutes and tab down to 61.08 Alimony.— to read the Alimony statute in Florida.
A similar set of factors will determine child support amounts, as well. Family law attorneys usually use specialized software to help estimate whether you’ll receive or pay support, how much support, and for how long.

8. Should you meet with a certified financial planner?
If you have assets-Absolutely. No matter how much or how little there is to divvy up, a visit to a qualified financial planner or certified divorce planner (CDP) can help you understand your finances, such as the worth of your pension plans, a business, or other complex assets.
If you decide on divorce, a financial planner can help you forecast your financial needs. Be sure to ask up front the fee for this service and the time expected to provide it.
9. Should you keep the family home?
This will depend in part on the housing market where you live, the amount of equity in your home and the cost of maintaining the house. While you might be attached to the house, it may not make financial sense to keep it, Wolt says. “It’s very expensive to run a house by yourself.”
Before you proclaim the house your territory, consider first the cost of upkeep, repair and taxes. As part of your divorce agreement, you may also need to buy out your ex-spouses share of the house. Sometimes, it makes more financial sense to downsize.
10. How strong is your support network?
No matter the reasons for your divorce, the transition is bound to be bumpy. Rely on your friends, family, colleagues, church, neighbors, therapist, and anyone else willing to offer you support and keep you from feeling isolated. Join a divorce group, accept invitations, go back to college, travel, get a dog – whatever it takes to enrich your new life.
Should You Divorce Him/Her?
To divorce or not to divorce… that is the question. According to the American Law and Economics Review, more than two-thirds of divorce cases in the U.S. are filed by women. Infidelity and physical or verbal abuse are often the cause. However, other women simply feel like they’re not getting the most out of their marriage. Are you one of them? Take this divorce quiz and find out.

Telling the children about divorce

How to Tell Your Child About Your Divorce

Children are naturally curious and often lack the ability to articulate their feelings. Therefore, it's usually necessary to have these conversations over and over again. Be patient, which is hard when you may be very stressed.

Below are some basic points to keep in mind when telling your child about your divorce:

• Plan to tell your children together. It is very important to have them view you as a unified front "their parents". Your children will suffer less stress and anxiety if you can both let them know that you are thinking about how this is going to effect them and alleviate their fears of the unknown.
• Make sure your children knows that he/she is going to be loved by both parents. Try to keep the conversations about the children and not yourselves. They need confirmation that you both love them and that nothing they have done or not done has caused this.
• Explain to your child why there is going to be a divorce. Be extremely careful not to place any blame on the other parent-even when they are at fault. never forget that your children know that parent is half of them. If a parent is "bad" they feel they too bad or at fault.  The worst thing you can do is to let a child feel as if they need to align with you and take sides against the other parent. This usually backfires much later in life and leaves the parent who alienated the other parent often alienated by their child. Do practice and agree on what you are going to say and be sure it's an age appropriate explanations.  Most children are going to wonder “what happened” and have a right to an answer, so share your feelings with your child and encourage them to share their feelings AND be willing to listen and validate their feelings.If one parent is really at fault and the children see this, I still recommend not blaming. What a wonderful opportunity to teach your child both forgiveness and being non-judgmental. "Everyone goes through a journey and Mommy and Daddy are going through theirs. I'm sure they will get better." is a good example.
• If you have more than one child, talk to them as a group initially. Once all know the news take them individually so that you can learn what each child is feeling and thinking. Each child will respond differently,  and may have different questions and concerns. Each should be able to express their concerns individually in a conversation with Mom and Dad.
• How you talk to your child is as important as what you tell him/her. Be aware of your body language, your tone of voice and your behavior when the other parent is speaking. Don’t interrupt your spouse when he/she is speaking or allow conflicts between the two of you color the conversation you are having with your child.
• Keep in mind that there is a difference in a child’s emotional understanding and intellectual understanding. They will process the new emotionally at a different rate than is processed intellectually. Processing the new will take more time emotionally than intellectually. Due to this, you will be expected to have more than one conversation about the divorce based on your child’s emotional needs.
• Encourage your child to ask questions but don’t be surprised if there are none. As the child process the information there will be questions. Let your child know you are available to answer questions as they come up.
• Be able to explain to your child what will happen to them once you separate or divorce. Provide plenty of details about where the child will live and when and how they will see the parent who will be moving from the family home. Your child will feel more secure if you are able to assure him/her that your divorce will not interfere with their stability or relationship with either parent.
• Be willing to have the conversation over and over again. As your child ages, the questions they have will be different. There may be many conversations, some years down the road about your decision to divorce. Your child will become more sophisticated with age so be prepared to answer the hard questions that come with that sophistication. You will move on from your divorce, your child won’t. Just because you no longer think about it doesn’t mean your child doesn’t. Give them the right to the answers they need to help them deal with a situation that will impact them emotionally for years, if not decades to come.

Here is something every parent needs to understand about divorce…what you say to your child is less important than what you do once you decide to divorce. That first, second and third conversation are important but, “actions speak louder than words” so the way you parent and the example you set by your behavior will determine what the lasting effects of divorce on your child.

I have a great idea for a novel-should I wait until after I file for divorce to start it? YES!!

Husband who started, completed and submitted a book for publication AFTER the petition was filed is NOT required to share royalties with Wife. All future royalties from post-dissolution labor should be excluded from income to be split with a spouse. Morenberg v. Morenberg 36 FLW 1639

Can I put conditions on my spouse that if met would change the visitation schedule in the future?

In Talbi v. Essoufi, the 2d DCA found language included in Final Judgment that prospectively modified custody unenforceable unless a substantial change in circumstances was pled.  In this case, the parties agreed to a change in the parenting plan IF the Mother completed a list of specific tasks. Upon completion, the Court found that a substantial change in circumstances also had to be pled and proven in order for the court to make changes to the prior Order. Therefore, if should never be assumed that a prospective modification will automatically take place because the parties agreed that a change will take place upon the happening of an event. In order to consider modifying a prior Order, the party must plead a substantial change in circumstances that was not contemplated at the time the original Order was entered. In other words, if you and your spouse think a situation may come up in  the future and want to include language to cover that event should it occur, it's likely the court will not later make a modification even though that's what you both intended -unless you can plead and prove that there's been a substantial change in circumstances that was not contemplated at the time the original Order was entered. Because the prospective language makes it clear you did anticipate the events at the time the original order was entered-there's likely going to be a problem meeting this legal burden. You're better off to leave any prospective language out to avoid this catch 22. 36 FLW D1641b

Be careful about paying money to a spouse prior to a written agreement

If paying a spouse monies towards debts owed while a divorce is pending be sure to clearly identify the payment on the face of the check and do not pay until an agreement is written up. See Rotta v. Rotta where a Husband paid $400,000.00 to his Wife and had even written on the face of the check-"on account"; and it was considered a "gift" by the court. Apparently if you're still legally married and you give your spouse any monies that you later want credit for, you need a clearly written and signed agreement agreeing what the monies are for and that the paying spouse will get a credit towards equitable distribution should you late divorce. Otherwise, it's a gift. In my opinion, only the dissenting Judge got this one right when he stated to rule as the court did created a huge windfall to the Wife 36 FLW D1669b

Is speed and accuracy important when getting a Qualified Domestic Relations order?

In Samaroo v. Samaroo, 193 F.3d 185 (3d Cir. 1999), the 3rd Circuit Court of Appeals found that a QDRO entered after the death of the qualified participant that granted his former wife survivor benefits was not valid. The outcome of that decision was that Mr. Samaroo's second wife received all of Mr. Samaroo's benefits when he died, while the first Mrs. Samaroo got nothing, despite the fact that her Marital Settlement Agreement and Final Judgment granted her a portion of the retirement account.

One moral of this story is that where an event such as death or retirement triggers payment of benefits, a QDRO entered after the date of that triggering event cannot reverse that triggering event, and benefits that have vested in a third party likely will be lost. Had Ms. Samaroo's attorney taken action to (1) properly secure her benefits and lay out a course of action for having a QDRO entered; and (2) referred Ms. Samaroo to the proper QDRO attorney to get the job done, this case probably would not exist.

Another moral of this story is that when you do not properly deal with QDROs and similar orders in your cases, your clients are often left vulnerable. As attorneys, we try to avoid that 1 out of 100 situation where an appeal or a malpractice case might ensue, so why wouldn't you take every action possible to make sure that your client gets the benefits to which they are entitled?

Finally, do not be a liability to yourself. Who do you think Ms. Samaroo blamed for her predicament? When your client's expectations are not met, they probably won't refer cases to you. If your client loses money because you or the person you chose to prepare the QDRO attorney was slow or imprecise, you may have an even larger problem.So whether your a layman or an attorney, contact our firm to prepare your Qualified Domestic Relations Orders. We provide prompt precise action.

most caring divorce lawyer in town

". .a lawyer's Understanding the nonlegal parts of a client's problem will often be more critical than his or her legal understanding."" It's what will sets a given lawyer off as special".- Thomas Morgan, law professor George Washington University. My psychology degree and experience sets me apart by allowing me to address the client's non-legal and legal issues and competently address all their needs.