Preparing for Separation and Divorce
Dec 23, 2024Preparing for Separation and Divorce
Are you considering making a fundamental change — a divorce or legal separation — in your primary relationship? Or is a divorce or separation being propelled by your spouse, or becoming necessary because of circumstances beyond your control? No matter how you answer those questions, making these changes in your life is usually much more nuanced and complex than you may think it will be.
One of the first steps is educating yourself, clarifying your goals, and evaluating all the variables so you can step into the process with as much confidence as possible. What follows is a summary of some helpful steps — and decisions to be made — as you prepare for separation or divorce.
Start keeping a journal
Keeping a journal — making notes and collecting records — can be of significant value to you (and your attorney) as you move through the separation and divorce process. Remembering dates and times can be difficult without such notes, and sometimes important emails, text messages, and other digital records can support your case if your divorce becomes litigious.
… But be mindful about what you say
Likewise, understand that your digital record (emails, text messages, and social media activity) could be used as evidence for either party in a divorce proceeding. Think before you post or click “send.” Start becoming more mindful in all your communications. Utilize apps wisely and remember that most communication platforms will keep a permanent record of your exchanges.
When communicating with a spouse, keep messages short, focused, and businesslike. Consider how messages could be perceived by a judge or your children and edit accordingly. If you are feeling upset and emotional, take a break. Revisit your message later with a clear mind and soften any language that could come back to haunt you later.
Consider your options
What kind of divorce process do you want (and need)? Before jumping into anything, step back and consider your options.
Legal Separation: In some situations, couples may wish to avoid becoming legally divorced and pursue legal separation instead. A legal separation is obtained via the same process as divorce but results in a Decree of Legal Separation, a court order providing the same protections of a divorce — including agreements about child custody, child support, spousal support, and property division — but allows the flexibility for parties to later withdraw the legal separation, to remain separated indefinitely, or to convert their decree of legal separation to one of divorce. It is functionally the same as a divorce with a couple of key differences, including that you are not free to remarry.
Uncontested Divorce: When you and your partner agree on the key issues — such as property division, allocation of debts, child custody, parenting time, spousal support, and child support — then your divorce can be accomplished via a joint petition and a global settlement agreement. In an uncontested divorce, both parties agree on the grounds for divorce and—with the assistance of attorneys— agree on and draft their own settlement documents, which can then be filed with the Court for approval. In New Hampshire, where Orr & Reno is located, you can file a joint petition even when you don’t agree on every single issue, though whether to do so is a determination that is best made after consultation with a lawyer.
Contested Divorce: When spouses cannot agree about one or more of the issues that need to be resolved in the divorce and require a judge to decide the disputed issue(s) for them, it is a contested divorce. If one spouse is uncooperative, or when extensive and complex assets are in play, or if there was abuse in the marriage and negotiation is problematic, a contested divorce may be your only option. In a contested divorce, any issues that the parties are unable to resolve themselves will be decided issues are resolved by the Court.
While there are many similarities among states regarding the division of property, spousal support, child support, and custody of minor children, there are also significant differences. That is particularly true for New Hampshire. It is important to familiarize yourself with the laws in the state where in which you are getting your divorced before making decisions that could unknowingly affect your case.
Alternative Dispute Resolution (ADR): An increasingly backlogged court system has fueled the rapid development and popularity of alternatives to litigation. Mediation and Collaborative Divorce are alternative divorce processes often used by couples who, for a variety of reasons, wish to keep their divorce out of the courtroom and agree on the terms of divorce, themselves, rather than having them dictated by a judge.
- Mediation, facilitated by a trained mediator, can be highly effective in helping a couple identify issues, explore solutions, negotiate, and reach an agreement about the key issues in their divorce. The mediator does not decide the outcome but helps each party reach a mutually acceptable agreement. When an agreement is made, it is signed by both parties and submitted to the Court for review and approval.
- Collaborative Divorce is a specific ADR process through which the parties, with the assistance of attorneys, a joint mental health professional/coach, and a joint financial professional, work together to reach a global settlement agreement that is mutually acceptable to both parties. It begins with the parties committing to one another to settle their case out of court and to avoid litigation, completely. The kind of divorce process you ultimately pursue will impact your next steps, including your decision about hiring legal counsel.
Evaluate finances
Before initiating a separation or divorce process, it is essential to understand your financial situation in detail. Collect your tax returns, investment accounts, retirement plans, and bank, mortgage, and credit card statements. Identify all your monthly expenses so adjustments can be made when creating a budget. You may need to make some lifestyle changes when you no longer have two incomes funding one household. The law requires you to disclose all financial assets during a divorce, and you should refrain from trying to hide money or property. Also refrain from draining shared bank accounts. If you and your spouse cannot agree about financial matters, the court will decide how to divide your assets. Unlike other jurisdictions, under New Hampshire divorce laws, all property is “marital property,” irrespective of whether the assets are held individually or jointly and irrespective of whether the assets existed prior to the marriage or were acquired during the marriage. (NH Statutes, Title XLIII, Section 458:16-a).
Find counsel
Not all divorces require full legal representation. Some couples with relatively simple cases may be able to figure out the legal steps involved and how to file the necessary forms to complete the process. This process is described in New Hampshire at the state’s Judicial Branch website. Even when parties are not working with counsel, for many reasons, it is always recommended that they have settlement documents reviewed by an attorney before filing them with the Court.
Most couples, however, choose to engage an attorney at some point in the process, even when the divorce is amicable and cooperative. A divorce attorney is your advocate and advisor throughout what is, for most individuals, a difficult, stressful, and emotionally complex process. This person ensures that the settlement is fair, your rights are recognized and protected, and the best interests of any children involved are accounted for.
When choosing legal representation, consider the attorney’s approach and reputation. Are they known for settling cases or for protracted litigation? It’s essential that their strategy aligns with your goals and that you are comfortable with their style of advocacy and personality. The attorney you choose should be communicative and approachable. You want to work with someone who will keep you informed and can be reached when you have questions.
Utilize online reviews, request referrals from friends and family, and explore websites and social media for practice areas and client testimonials. Assemble a list of your top candidates and arrange an for initial consultations with them. Prepare questions beforehand so that, during the consultation, you can thoroughly familiarize yourself with their approach, fees, and how their values and style align with your needs and family dynamics. It is generally always advisable to consult with multiple attorneys before deciding who to retain to ensure you are choosing the best attorney for you and your case.
The right attorney can not only help you navigate the complexities of the divorce process but also empower you to emerge stronger on the other side and prepared for the next chapter in your life.
If you’re you are considering separation or divorce, depending on your situation it can be very important to have engaged legal counsel as early in the process as possible. Let us know if you would like to set up an initial consultation with a family law attorney at Orr & Reno.
