March 1, 2017 – Advice, Assets, Collaborative, Divorce, Family Law, Legal Separation

I’m Getting a Divorce and I Have a Few Questions

1. Can we both use one lawyer? Most lawyers will not agree to represent both parties. “Collaborative” divorce is a recent trend which allows both parties to consult with one lawyer to try and come up with an agreement for divorce. The biggest problem I see with the “one lawyer divorce” is that you don’t have independent counsel to explain your options to you. Without that, you cannot possibly make an “informed” decision about what best for you when dividing your property, deciding about spousal support, and making decisions regarding your children. If you have only been married a short time, with nothing to divide and no children, the “one lawyer’ approach can make sense. Otherwise, you are making decisions that will affect the rest of your life without having the benefit of counsel from someone dedicated to looking out for your best interests.

2. Can I just stop the divorce? Clients sometime ask me to help them stop the divorce that their spouse has initiated (or at least to slow it down). They don’t want the divorce, or they don’t want it right now. Many divorce clients feel that if they have not done anything wrong, their spouse won’t be allowed to have a divorce. That is no longer true (at least not in Shelby County, Tennessee). As practical matter, even if only one side wants a divorce, and even if the spouse opposing it has done nothing of that would constitute grounds for divorce, a judge will find a reason to grant the divorce.

3. What is a “Legal Separation”? A “Legal Separation” is a legal status created when a court issues a Decree of Legal Separation. It is not what happens when married people simply decide to live apart. Legal Separation generally allows people to live as though they were unmarried, while claiming all of the legal benefits of marriage. In order to be “legally separated” you have to go through virtually all of the same steps for that must be done in order to obtain a divorce. In Tennessee, after a Decree for Legal Separation has been in place for two years either side can ask the court to enter a Final Decree of Divorce, thus ending the benefits one or both sides desired when they into a legal separation as opposed to a divorce in the first place. The two most common reasons couples opt for Legal Separation over divorce is to avoid divorce for religious reasons, or to allow one party to continue to carry Health Insurance for the other.

4. Should I move out of the house? Generally, no. Unless there is a threat of physical or severe emotional abuse, or when children are exposed to harmful behavior, moving out of the home before a written settlement is reached is almost always a bad idea. If you want to move out, you should first work out the details for payment of debts related the home, spending time with the children and for having access to documents and other important items left in the home. If a client insists of moving out, I ask them to first go through the entire house (including garages and attics) and photograph everything before they move out. Trying to divide household goods several months after you have been out of the house for months can be difficult without having pictures to remind you what was there. A related question: Should I changed the locks on my house after my spouse has moved out? If the house in both names, a spouse who has moved out can move back any time he wants. The only exception is when a court has ordered the spouse not to go back to the home. If locks have been changed, they can legally break a window or door to gain entrance to the home. (NOTE: It is not a good idea to break a window or door even if you have the right to; you can get shot doing that sort of thing.) If you want keep your spouse away out of the house, ask your lawyer to have a judge give you an order to that effect. If the other side has already moved out, that is usually not difficult to get.

5. Should I try to pay off my debt before filing for divorce? It depends on what your goals are. If you wish to receive alimony, you may want to keep debt and place to help show the need for alimony. The same can be true if you wish to reduce the likelihood that you pay alimony; you may want debt to show that you can’t afford to pay alimony. “When”, “if” and “how” you pay off debt is going to be a part of the overall strategy that you and your lawyer should discuss along with your other goals. A related question: Should I file for Bankruptcy before filing for divorce? The answer to both questions is the same, although bankruptcy involves another court and some additional issues to deal with.

6. Should I change my Will or my insurance? The answer this question is almost always “No”. Tennessee and many other states, prohibit you from doing so after a divorce is filed, unless the court approves of you making the change. If you do it immediately before filing of divorce, it may be seen as mean and spiteful behavior on your part, and can easily create many unanticipated problems and unnecessary, additional attorney’s fees required to deal with the problems that have been caused.

7. Can I make my spouse file a joint tax return while the divorce is pending? You cannot. The judge can, and often will if it is clear that the party refusing to file a joint return is doing so simply to make the other pay more. If you cannot agree, you should be able to get a qualified tax professional to advise what will net both parties the best results.

8. How much will divorce cost? A good lawyer can tell you how much it “should” cost, but not how much it will cost. The final cost will depend on how the Husband and Wife decide to act during the process, on how the lawyers advise their clients, on how the judge reacts to the behavior of the parties and the lawyers, and on the effect that other “influencers” (guardians for the children, psychologists, expert witnesses) who may be players in your case. Although you may see some lawyers advertise “flat fee” divorces, they are options only in very limited cases. If you have only been married a short time, with no assets to divide and no children, and you are still getting along well enough to be civil to each other, then the paperwork should be very basic and the costs to complete the divorce should be easy to calculate. (See #3 above.)