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Home > Divorce Law
Divorce LawDivorce Law

SMITH & GARG, LLC, LONG BEACH DIVORCE ATTORNEYS, LOS ANGELES DIVORCE ATTORNEYS, ORANGE CITY DIVORCE LAWYERS, CALIFORNIA DIVORCE LAWYER


Divorce Preparation Checklist

During the fiscal year of 2005-2006, there were approximately 158,000 filings for either divorce, separation or an annulment in the state of California. There were approximately 39,000 filings for divorce in Los Angeles County alone, according to the 2007 Court Statistics Report issued by the California Judicial Council. These statistics mean that at some point, literally thousands of people either made a decision to end their marriage or had to respond to that decision with some form of action in order to protect their rights. It is doubtful that all of these people were prepared for what came next, but advance planning and a methodical response in preparing for a California divorce and separation are critical. After all, when confronted with a divorce, people are often at the most vulnerable point in their life both emotionally and financially. Proper preparation and planning may help protect you and your rights.

The purpose of this article is to provide you with a general checklist to prepare for divorce proceedings. This checklist is not organized with a designated order or priority. It merely discusses measures you can take during the initial phases of a divorce. However, it is important to understand that each and every divorce is unique and involves a number of different complexities. This article is no substitute for legal and professional advice. You should not rely on the content of this article without consulting a qualified divorce attorney, such as the divorce attorneys at Smith & Garg, PC.

THE LIST

  • HIRE AN ATTORNEY: The divorce process, while seemingly straightforward, can involve a number of different complexities which, if not adequately understood, can lead to extremely detrimental consequences. The first thing you'll need on the road to divorce is an understanding of the legal and financial components of the process. You should thoroughly research the concept of divorce and consult with an attorney to enable you to navigate the complexities of the process and understand the different options you have for dissolving your marriage.


 
  • ABSENT SAFETY CONCERNS, STAY IN THE HOME: If you or your children are in physical danger, you do not need to stay in the home. In fact, it is often better to move out into a shelter and immediately file a temporary restraining order to require that your spouse leave the home.

    However, in cases where there is no threat of physical harm, then it is not advisable to move out of the home without your children. Nor should you allow your spouse to move out of the home with the children. By moving out, your spouse may argue that you have abandoned the family residence or that he or she, as the parent already caring for the child in the family home, should be allowed to continue to maintain custody of the child. Also, if you allow your spouse to move out with the child this may be used to establish the fact that your spouse, not you, is the primary caregiver. Most courts tend to hold that it is in the best interest of the child to remain with the primary caregiver. If you have already moved out, return to the home. In either case, especially if you have not lived in the home for an extended period of time, you should consult an attorney for advice on the appropriate action to take.

    If there are no children involved, you do not want to remain in the family home, and you are financially able, then you should consider moving out. The major issue in this situation is that as an individual your finances may not enable you to do so during the divorce proceedings.

  • DON'T BE AFRAID TO PROTECT YOURSELF: If any domestic violence occurs, call the police immediately and demand that they come out and make a full report. If you are a victim of domestic violence, take pictures of your injuries and keep any medical records related to the event. This evidence can be used to obtain an emergency protective order at the time of the event and to file a domestic violence restraining order before any dissolution filing is made.

  • KEEP A DAILY JOURNAL: In preparing for a divorce, maintaining a detailed and fair record of events will often prove extremely valuable in the end. The record should include arguments, times of visitation with the children, financial transactions, drug or alcohol related events, and any information relevant to the history of your marriage. The entries should be contain dates and times of any transactions or abusive incidents that may help you or identify assets or obtain protection for either you or your children.

  • PROTECT YOUR FINANCIAL INTERESTS: Because divorce proceedings focus primarily on the division of the community assets and liabilities it is vital that you take the time to begin creating your own separate financial identity.
    • OPEN A SEPARATE BANK ACCOUNT: It is important, prior to the divorce process being initiated, that you are able to remain financially viable and that you have access to money in order to live and care for your children. Therefore, you should open a checking account solely in your name without your spouse having access to the account. This will ensure that you are able to pay your bills and your attorney's fees without substantial interference. It is important to note that timing is really important. Often, once the divorce process is initiated, temporary orders can prevent a party from performing actions such as opening additional accounts or withdrawing lump sums of money. Temporary orders are orders from the court used to control the parties prior to entry of the final decree. Your new account should be in place before any temporary orders are entered.

    • TRANSFER MONEY INTO YOUR NEW ACCOUNT: Once you have opened your new account, you need to fund it with some money so that you can afford to cover your living expenses and attorney fees. As California is a community property state, you must remember that you are only entitled to 50% of whatever is in the community accounts. Because the funds belong to the marriage community you must keep an accounting of how much you removed from the account and be able to document that the funds were used for living expenses and fees. You should never fully empty the accounts or hide the fact that you are removing a portion of the funds from your spouse. Before removing any amount, you should consult your attorney to discuss the exact amount that should be moved into your separate account.

    • STOP DIRECT DEPOSITS: In addition to transferring funds to the new accounts, you should also begin having any direct deposits sent to your new account. All income that you receive after the date of separation is your separate property. The same rule applies to retirement contributions; thus you should also have these contributions sent to your separate account. During dissolution proceedings, you will have to provide the court with a date of separation. Any action you take to separate yourself from your spouse - including establishing separate accounts, no longer depositing income in the joint accounts, or moving out can be used to demonstrate you or your spouse's intent to end the marriage. After this point, everything that you earn is your separate property.

    • MONITOR YOUR CREDIT REPORT: A credit report is a summary of your credit history and a record of your bill-paying practices. In divorce, you can use a credit report to determine the amount of debt you share with your spouse. You may also use it to determine if your spouse incurred any joint debt without your knowledge. There are numerous companies which offer services to monitor your credit report. It is advisable for you to sign up with one of these companies and have a monitoring agency send an e-mail alert to you if there is any activity and put a fraud alert on your credit report. Both of these steps will help guard against harmful actions by a potentially vindictive spouse.

    • APPLY FOR YOUR OWN CREDIT CARD: Do this at your new bank or through a low-interest, major credit card company. Use your new mailing address on the account, and make your monthly payments on time to establish good credit or improve bad credit.

    • STORE VALUABLES IN A SAFE LOCATION: Take an inventory of your personal property. Whether you own antiques or second-hand furniture, create a list of your personal property. Identify when and who acquired the item, its fair market value and whether you'd like to receive the property in divorce. Take dated photographs of all expensive, sentimental or significant pieces and attach them to your inventory. If you have very valuable property, consider hiring an appraiser. Once you have an inventory of your personal property and valuables, we recommend that you get a safety deposit box and store them. After you store the items, notify your spouse that you have done so. The goal is to preserve the assets, never to hide them.
  • SUPPORT YOURSELF: In establishing yourself as a separate individual from your spouse, it is important that you are financially sound, especially if there are children involved. This will require you to remain employed, finish any education or professional training you are currently enrolled in, and if you were the non-working spouse, immediately begin a job search. A new job can provide stable income, health insurance coverage, and other benefits.

  • ENSURE YOUR HEALTH INSURANCE IS UP TO DATE: It is important, prior to separating, that you make sure you have health insurance in place. Getting a divorce will be mentally and physically challenging. If a health concern arises, it is important that you are protected. It may also be advisable to get a physical to ensure that you are healthy and to spot any potential problems.

  • ESTABLISH PRIVATE METHODS OF COMMUNICATION: When you are getting a divorce, it is important that you be able to communicate without fear of the other spouse gaining access to your communications. It is recommended that you obtain a new cell phone, a new and independent email address, and if possible, a post office box where you can receive your mail without granting your spouse access.

  • START GATHERING FINANCIAL RECORDS AND COPY THEM: As soon as you know that you are going to be pursuing a divorce or have been served with divorce papers, it is crucial that you prepare a detailed list of all accounts you have individually and collectively with your spouse. The list should include the name of the account, the account number, who is listed on the account as being financially responsible, the balances, and the addresses and contact information for the creditors or financial institutions.

    Since divorce and separation is typically a battle regarding income and assets, obtaining the relevant documents about your particular finances will be a very important task. Be sure that you obtain copies of any documents related to your finances as soon as divorce seems a possibility. Start a filing system with these documents and continue to keep records of all meetings, phone calls and financial transactions related to your divorce. Do not limit the information to those of joint accounts, also obtain information regarding any separate accounts that may have been funded by community money. If you are unclear about what is "important", please see the Divorce Preparation: Financial Document List provided by Smith & Garg, PC.



  • MAINTAIN ALL COMMUNITY PROPERTY AND BILLS: As a married couple, both you and your spouse owe the marital community a fiduciary duty to maintain all community property. However, during a divorce, this duty may be neglected by one spouse's irresponsible or malicious behavior. Be sure that you are not that spouse.
    • BE AWARE OF OUTSTANDING BILLS AND OBLIGATIONS: Even though you are in the process of getting a divorce, regardless of any temporary order splitting up your debt, both you and your spouse are obligated to creditors equally. This means that creditors can try to obtain the amounts owed from either you or your spouse. Additionally, if you and your spouse are jointly obligated on an account, slow or non-payment of those obligations by either of you will have a lasting effect on your credit and could cost you thousands of dollars. Therefore, it is vital that you are aware of any outstanding bills and obligations and ensure that they are paid. This may require you to pay the debt on your own to maintain creditworthiness. You should discuss this issue with your attorney to determine if it is possible to seek reimbursement to the community from your spouse.

    • MAINTAIN YOUR MORTGAGE: Just as it is vital to keep track of outstanding bills and obligations it is equally important to maintain your mortgage and keep it up to date regardless of which spouse will ultimately be responsible for the payments. The goal is to walk away from the divorce with only one spouse's name on the mortgage. This can be arranged by selling the home or having one spouse purchase the other's share. However, the sale may not occur right away, or may not be possible to sell the home and you are required to make joint payments, you should make sure the mortgage company sends you a duplicate copy of each statement to your new mailing address. These actions may help you to thwart a spouse's attempt to sabotage the payments and cause a negative impact on your credit score. Therefore, you should be cognizant of when and how each payment is made.

      Finally, if the home is to be sold, do not take your name off title to the property. If you voluntarily remove your name from title, usually via a quitclaim deed, you are removing your ownership rights, which does not equate to removing your responsibility for mortgage payments.

    • ADDRESS YOUR VEHICLE SITUATION: One major concern during the pendency of a divorce is who is entitled to use the automobiles. Generally, depending on how long a couple has been married, they have multiple cars that are jointly financed. As with the mortgage, if the car is in both names, then both spouses are liable for any payments due on the vehicle. It is advisable to sell the car or to insist that the spouse who holds the car refinance it in their name alone. Without refinancing, missed payments may negatively affect your credit rating.

      As with the mortgage, if the vehicle cannot be quickly sold, and if refinancing is not possible, do not take your name off title. Instead, insist on a time frame to sell or refinance the car and be sure to provide the financing and automobile insurance company with your mailing address to forward you copies of the latest statement and potential default notices. The key is to maintain all payments until the final disposition of all property in the dissolution proceedings.
  • GATHER COPIES OF ALL CRUCIAL DOCUMENTS: In addition to copies of tax returns, account statements, and bills, it is vital that you also obtain all records of any agreements, estate planning or assets that you and your spouse obtained during your marriage. These would include wills, property appraisals, deeds, premarital agreements, or any other documents that describe an asset, its value, and who has rights to it. You should make copies of these documents and store them in a safety deposit box. If you are unclear as to what types of crucial documents you should keep, take a look at Divorce Preparation: Crucial Document List provided by the family law attorneys of Smith & Garg, PC.

  • CANCEL JOINT CREDIT CARDS & ACCOUNTS: The biggest divorce nightmare dealing with money is when after all is said and done, one spouse is left repaying all the debt to creditors. Spouses will often complain about another spouse charging up a current joint credit card to the limit just prior to a divorce. To avoid this, it is recommended that you cancel or limit the joint credit cards and credit lines. You should consult an attorney before taking this step, and prior to any cancellation, you need to inform your spouse - preferably in writing. The goal is not to hide asset, or cut your spouse off without a means of support. The goal is to protect community assets, your own credit score and avoid potential spending sprees by your spouse.

  • KEEP TRACK OF ALL MAIL COMING IN: When mail arrives at your house, make a list of the sender and of the return address. It is important that you know the names and addresses of banks, accountants, stockbrokers, insurance companies and lenders. If the mail is also addressed to you, make a copy of the document and keep a separate file.

  • AVOID RETALIATION AND BINGES: It is certainly understandable to have an urge to drink or seek revenge during a divorce. However, DON'T ACT ON THOSE URGES!!! This is the time when you need a clear head in order to objectively evaluate your options and allow your attorney to work out details and advocate on your behalf. It is strongly recommended that you do not use alcohol excessively, use drugs, destroy your spouse's property, assault your spouse, or verbally/mentally abuse your children, in-laws or spouse. You want to remain civil and give no reason for the court or your spouse to distrust you.

  • GET YOURSELF AND YOUR CHILDREN INTO COUNSELING: In addition to remaining calm and not acting rashly, it is also a good idea for you and your children to enter counseling. From a therapeutic and strategic standpoint, if you are preparing for a divorce this action will help with your emotional needs and assist your children with the transition. An attorney will assist you with legal tactics and rights, but often on the emotional and psychological level a different type of professional is required.

    Counseling is especially important if you have abused substances in the past and/or during the course of your marriage. You can anticipate that in a child custody dispute, the subject of substance abuse will arise. Therefore, you should be proactive and begin attending substance abuse classes in an effort to improve yourself and outwardly demonstrate your efforts to be a responsible parent.

  • KNOW YOUR SPOUSE'S BUSINESS: Although this is often overlooked or taken for granted, you should be sure that you are familiar with your spouse's business, including his or her associations. Obtain the names of your spouse's business associate, business account information, and employer.

  • PREPARE FOR AN ATTACK: As any attorney or other person who has already gone through a divorce will tell you, in addition to being legally attacked, you may also suffer an attack to your reputation and relationships with your friends and relatives. You should be extremely candid with your attorney regarding anything that may be negative in your past or that could be negatively inferred from your behavior during your marriage. Often, some negative rumors, such as alcohol, drug, physical, or sexual abuse, can be devastating to you emotionally, and may influence your rights in dealing with child custody or visitation issues. It is important to prepare yourself for the attacks that may come from your spouse or those that were once close to you.

  • GET IN THE GYM: Finally, in addition to being financially and emotionally prepared for a divorce, you should also take this opportunity to physically prepare yourself. A divorce is the end of a marriage, but it is the beginning of your new life. This is a time to remake yourself and begin anew. You should focus on putting positive influences back in your life and on your health. So take the time to get back in the gym, walk, run, or find a new outdoor hobby that you enjoy. It will improve your health and clear your head when you are dealing with the stress of the process.

    • There are a number of measures you can take to prepare yourself mentally and financially to protect yourself before and during a divorce. However, that preparation should be catered to your particular circumstances. Again, this article is not a complete list of all actions that you should take; and you should always consult an attorney regarding your particular situation and what you should do to help yourself. In any case, you should prepare yourself with the information and advice to enable you to make rational decisions in the upcoming months and potentially years. The family law attorneys of Smith & Garg, PC understand that in a perfect world such preparation would never be necessary. However, should you fall into the 50% of unsuccessful marriages, read this article and consult a competent attorney regarding your options.

    DIVORCE PREPARATION: FINANCIAL DOCUMENT LIST

    • Checking Account Statements
    • Savings Account Statements
    • Retirement Account Statements
    • Certificates of Deposit
    • Mutual Fund Statements
    • Brokerage Account Statements
    • Bond Certificates
    • Commodity Account Statements
    • Employee Stock Ownership Plans
    • Stock Certificates
    • Children's College and custodial accounts

    DIVORCE PREPARATION: CRUCIAL DOCUMENT LIST

    • Property Appraisals
    • Agreements regarding your property
    • Automobile Certificates of Title
    • Business Agreements
    • Copyright Records
    • Judgments
    • Credit Reports
    • Defined Benefit Plans
    • Employee stock ownership plans
    • Estate Planning Documents
    • Insurance Policies
    • Membership Applications
    • Mortgage Documents
    • Patent Ownership or Registration Documents
    • Powers of Attorney
    • Prenuptial or post-nuptial agreements
    • Real Property Deeds
    • Real Property Tax Assessments
    • Receipts for major purchases
    • Title Reports
    Call Smith & Garg, LLC today at 1-877-517-4275 or complete our Contact Form and let us assist you with your divorce law needs.