Legal Mistakes You Can’t Afford to Make During Your Divorce
Overview
Tune in as Marcy Hahn dives straight into guiding you through the initial legal considerations you should be thinking about if you are facing a divorce. In this episode, Marcy walks you through what you need to know about prenuptial and postnuptial agreements, types of divorce and what to consider when you are looking for the best divorce attorney for you and your situation
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Legal Mistakes You Can’t Afford to Make During Your Divorce
The first thing that you should think about is whether or not you have a prenuptial agreement or a postnuptial agreement.
In today’s episode we’re going to cover the initial legal considerations that you should be thinking of if you’re facing a divorce. The first thing that you should think about is whether or not you have a prenuptial agreement or a postnuptial agreement. Those agreements are agreements that are entered into with your spouse either before or after your marriage, that deal with how your assets and liabilities are going to be divided and how you may be entitled or not entitled to spousal support, and other types of income. So if you have one of those agreements, you should get it out, dust it off, read it through, and make sure you understand its provisions and be sure to talk to your lawyer about it.
Most people don’t realize that there are a bunch of different ways to go through the divorce process. Many people think, Oh, I’m just gonna hire a lawyer, file in court, serve my spouse and fight it out before the judge. There are a number of different ways to get divorced and you should really determine the way that is best for you. So, for example, people enter into a mediated divorce where both parties hire counsel and they hire a private mediator. They work out the terms of the settlement and then they have it entered by the court. Some parties decide that they would rather enter into an agreement for binding arbitration. That’s where they each hire counsel but then they hire an arbitrator who’s going to make decisions that are going to be binding for them in terms of their property settlement and the issues regarding their kids.
The second thing you should do is research the various ways of obtaining a divorce.
Another type of divorce is a collaborative divorce. And we’re going to have a couple of episodes that are going to flesh out some of these different methods, so there will be an episode coming up on collaborative divorce itself. Basically, in a collaborative divorce you enter into an agreement with your spouse that neither one of you is going to file in court. You both agree that you’re going to work out your issues in a series of mediations that are going to keep you out of court. This is going to keep all of your private information about your family out of the public’s eye. It’s going to be a process that really empowers you to make the best decision for your future family that you possibly can. Collaborative divorce is something that many professionals are now trained to do, and it’s a way to avoid the pain of protracted litigation and the expense of protected litigation.
Another way of getting divorced is actually the traditional litigated divorce. There will also be an episode coming up where we go through and explain the steps of that traditional divorce process but, in a nutshell, that’s sort of the old-fashioned way to get divorced. As you go through the process of figuring out how to get divorced, it’s really important that you research these various options and really think about which one is right for you, which one is right for your family and for your kids if you have them.
The other thing that I always recommend people do is if you’re thinking that a traditional litigated divorce is your best option… as in, you just want to go and fight it out in court, I really urge you to consider spending a few hours sitting in the courtroom of the family law court in your community
This is where the family law judges are making decisions everyday about people’s lives and people’s families. These judges are very bright and they are very dedicated professionals. They do an amazing job. However, as a practical matter, the dockets are loaded with hundreds, thousands of cases, and there’s just no way that they can know your family circumstances better than you know your family circumstances. So, before choosing the traditional litigated method, I just recommend that people go sit in their county court or view it online if that is the only way to see the motion call. It is important to really see how the judges work and what kind of fights are happening before them, and think about whether that is the right fit for you. So once you research these different types of divorce, and you decide which one is right for you, you should interview more than one divorce lawyer who specializes in the method that you choose.
I can’t emphasize enough how important it is for you to hire somebody with whom you feel comfortable. You’re going to spend a lot of time with this divorce lawyer and it’s just going to be really important that you pick somebody whose style fits your approach and that you feel comfortable with, that you trust and that you really think is the right person to help get you from point A to point B. As much as you may just want to hire somebody and be done with it and just have the stuff behind you, taking the time to talk to more than one person is really worth it because each attorney is going to have a different style, a different approach and a different philosophy. It’s important that you find somebody that specializes in the divorce method that you’re interested in, and also that specializes in just being the right partner for you.
DON’T move out of your residence until you talk to your lawyer
So at this point, you’ve hired your lawyer and there are certain things you really need to consult with your counsel about before you take action and one of them is moving out of your residence. DON’T move out of your residence until you talk to your lawyer. If it’s your marital home, moving out before an arrangement is made regarding division of property can impact your ability to be awarded the marital home. If you have minor children it can impact your parenting schedule with the children. I always advise my clients not to agree to a temporary parenting schedule that they wouldn’t be willing to agree to long term. And if you’re choosing to move out – it’s not that you can’t move out and in some circumstances, involved in domestic violence, it may be a requirement that you move out. We’re going to talk about that in another episode too. But if what you’re thinking is, Oh, I just have to get out of here, I just have to move, really don’t do that without talking to your lawyer and without having there be some type of a plan for how you’re going to deal with your children’s parenting schedule between two households.
The other thing that I see a lot of people do is they try to place a locator device on their spouse’s car or they hire a private investigator to track their spouse.
The other thing that I see a lot of people do is they try to place a locator device on their spouse’s car or they hire a private investigator to track their spouse…or they decide to start recording all of their phone calls and conversations with their spouse. Make sure you consult with your lawyer before doing that because each jurisdiction has unique rules about whether or not those types of recordings can actually be used as evidence in court. And you’re going to want to do that in a very mindful way. So we’re not going to have judgment on this podcast about, you know, do this, don’t do that, you have a variety of choices in your life and you can choose to make these choices. And if you do choose to make these choices, you just need to be aware of the consequences. And if you’re gonna go down this path of a private investigator or recording phone calls, you just want to make sure you talk to your counsel, so that you know whether you’re in a single party consent state, a dual party consent state and whether or not going through the expense of tracking that person is actually going to lead to admissible evidence.
Another thing that you should be thinking about is you should be asking your lawyer how does marital property division work in your jurisdiction?
Are your assets and liabilities likely to be divided equitably? Are they likely to be divided evenly right down the middle? Some jurisdictions have rules regarding the equitable division of property where they take into account many different factors that the court will look at when they decide who gets what. Other jurisdictions may have more of a cut and dry approach where it’s like, nope, if this was earned, or if this was debt that was incurred during the marriage, we’re going to split 50/50 down the middle. So make sure that you understand how the marital property division law works in your jurisdiction.
The next thing that you should become knowledgeable about is spousal support.
It’s also known in some jurisdictions as alimony or separate maintenance or maintenance support. You should learn how those rules work and how the child support rules work in your jurisdiction. Some jurisdictions are going to have guidelines that base child support and spousal support on income and with respect to child support, the number of overnights that you have with your children. Make sure that you understand the factors that go into child support and whether you’re likely to be the person who’s paying the support or the person who’s likely to be receiving it. The next thing that you should be asking your lawyer about is how does custody, parenting time or sometimes it is called parental responsibility, how does that work in my jurisdiction?
– Am I likely to have joint custody of my kids?
– Am I likely to have sole custody of my kids?
– How is parenting time going to work? How are we going to deal with the holidays?
These are things that you’re going to want to think about and ask your lawyer about. These are also topics that will be covered in future episodes.
consult with your attorney to determine whether you should revoke any powers of attorney or medical powers of attorney that you may have executed throughout your marriage.
So the other thing that I always advise my clients to think about is to make sure you consult with your attorney to determine whether you should revoke any powers of attorney or medical powers of attorney that you may have executed throughout your marriage. So if during your marriage, you’ve decided that you want your spouse to be the person who is your patient advocate for medical decisions, and you want them to be involved if you’re incapacitated and making decisions about your care and who your doctors should be, kind of medication you’re taking and whether or not, God forbid, the plug should be pulled. If you have a situation where that is in place for you, you might want to think about revising that once the divorce process is underway. Some people just don’t change it right away. They wait until after they’re divorced. And certainly after you’re divorced, that’s one of the first things that I would recommend you do is change your estate plan and change all of your beneficiary designations. But some people change it during the process, or they try to revoke those powers of attorney during the process, and that’s something that you should also talk to your counsel about.
You should be thinking about whether or not you want your maiden name restored
The last thing to be thinking about is if, during your marriage, you took on your spouse’s last name – you should be thinking about whether or not you want your maiden name restored. This is a decision that you’ll have to make before your consent, judgment of divorce, or your judgment of divorce is entered. If you’re not sure about it, each state has a way that you can change your name later, but it tends to be more expensive and tends to be more of a hassle to do it later. So it’s definitely something you’ll want to be thinking about as you go through this process is whether or not you want your maiden name to be restored. That’s it for today. And until next time, be kind and be true to yourself.
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