10 Things You Must Plan Before You File Divorce
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Free Divorce Pamphlet Prepared by Youngblood Law, PLLC
Did you know that most people file for divorce after thinking about doing so for two years or more? Only two things really stop people from moving forward with major decisions: fear and confusion. In the context of divorce, fear of what friends and family will think when they find out about your divorce is normal. Fear of the unknown is also natural and normal. Confusion is closely related to fear of the unknown.
Overcoming fear of the unknown and confusion can be achieved by planning ahead. Unfortunately, most people don’t even know what they don’t know when it comes to divorce. Of course, most people have never been divorced before, so why would they know what they need to be thinking about?
At Yougblood Law, PLLC, we believe a solid plan abates fear and dispels confusion. Once fear and confusion are defeated, people who need a divorce can courageously and competently move forward with their lives and define their new normal after a divorce. Below is a list of ten considerations many people have not considered when they first walk in to see a divorce lawyer.
1. How will your spouse react to the news of the divorce?
If you are lucky, your spouse will want the divorce also. If your less lucky, your spouse won’t be surprised to find out a divorce is imminent because deep down he or she knew it was coming. However, if you are unlucky your spouse will have a severely negative reaction to the news. Whether your spouse will take the news well or badly controls how we serve official notice to your spouse. For example, if your spouse also wants to be divorced we can avoid the embarrassment of having him or her served by a professional process server. On the other hand, if your spouse has the capacity or likelihood of lashing out violently, we would have him or her in a way that protects you and the children.
2. Where will you live after you file?
Related to how your spouse will take the news of the divorce, is where the two of you will live during the divorce proceedings and thereafter. There are essentially three options for living arrangements during the proceedings.
The first option is the parties continue to live together. This works as long as the parties can be at least cordial to each other, and has the benefit of being easier on the finances of the parties in the short term. Continuing to cohabit also provides a level of stability for the children. The down side of cohabiting is the divorce will eventually be final, and the parties will be single again, so any time the parties live together during the divorce is delaying the inevitable move-out and severing of the finances. Also, keep in mind that as the divorce goes forward, many people find it harder and harder to peacefully live together. The stress of the divorce proceedings, financial hardships, and the raw emotions of a damaged relationship often conspire to prevent peaceful cohabitation in the long term.
Option two is for you to move out. This option is often the best choice when you have the means to find a new place to live. Certainly, if your spouse could be violent or emotionally/verbally abusive, then moving out is the way to go. If your spouse is likely to be violent, then leaving children in the home could be dangerous for them, so you’ll need to consider taking them with you.
Finally, it’s possible for your spouse to move out and leave you in the house. In many instances, the spouse will move out and leave the kids in the house for their wellbeing. I see this most often when the parties are rational about the situation, and don’t want to put the kids through more stress than can be helped.
A major consideration when deciding who should stay in the house is who, if either party, can afford to keep the house after the divorce. As a practical matter, it doesn’t make sense for Spouse 1 to move out if Spouse 1 eventually wishes to keep the house and can afford to do so. In this case, it’s likely better for Spouse 2 to move out.
3. Who will pay the current bills?
Generally, the party who stays in the marital residence during the divorce proceedings will pay for the utilities and other household costs while he or she lives there. If the spouse who remains in the marital residence cannot afford to pay for everything, the other spouse may be ordered by the court to help cover the cost of living in the home. This assumes the other spouse can afford to help with the costs. Keep in mind, the spouse that moved out will have to fund his or her own living expenses as well! Related: How Do I Pay A Lawyer For My Divorce When My Spouse Makes All The Money?
4. Can the parties afford two sets of living expenses?
Remember when you moved in with your spouse and you could combine your incomes while reducing your living expenses by moving into a single residence? Getting a divorce reverses that financial situation. Once again, the parties are going to be paying for two residences, utilities, grocery bills, phones, fuel, car payments, insurance, and more—all of this largely with their own paychecks! At Youngblood Law, PLLC, we have some strategic partners and tools we use to help our clients make the most of the money they have. Additionally, see the link in item 3 (above) for information about some ways to get money from the other spouse to help with expenses.
5. Who will pay the couple’s debts?
Whenever possible, the party whose name is on the debt will be responsible for paying it, and we like it that way. We don’t like it when our client bears the responsibility of paying the other spouse’s debt because if a payment is ever late, it puts pressure on our client. Likewise, we don’t like for the other party to be responsible for our client’s debts, because if he or she misses a payment, it hurts our client’s credit score. Additionally, the creditor will have a signed contract with one or both of the spouses’ signatures on it. When only one spouse is contractually bound to a debt, the creditor has a hard time going after the innocent spouse for payment if the debtor spouse defaults on the debt.
All that said, at Youngblood Law, PLLC, we love it when our client gets some extra money from the marital assets that allows him or her to pay off the debt in his or her name, and we seek to make that happen every chance we get during negotiations. Likewise, we try to get money from the community estate to pay off debt that both spouses are signed on.
6. Can I Keep the Marital Residence?
One of the biggest assets and liabilities many couples have is the marital residence. In many divorces, one party desperately wants to keep the house. However, keeping the house often requires a refinance because a refinance clears one spouse from the mortgage and should free up some liquid money for one or both parties. Of course, whether a party qualifies for a refinance is a separate matter. When our client wants to keep the house, we have some strategic partners who can help us determine right away if our client qualifies for the refinance. If a refi is possible, our partners get it done, and while we have no control over mortgage lenders and make no guarantees, in our experience, if our partners can’t get the refinance done, no one can.
When the party who wants the house is not our client, our mission is to get our client’s fair share of the equity in the home to help fund a new beginning. This could mean forcing the other spouse to refinance the house, or if the house can’t be refinanced, then we will require the house be sold so our client can walk away from the asset free from the debt and hopefully with some cash.
7. Where do your kids live primarily after you file?
There are only 168 hours in a week. When one parent gets time with the children, then the other parent cannot have the same time. Put another way, the more time one parent has with the children, the less time the other parent can have. Unfortunately, some parents actively seek more time with their children for the sole purpose of depriving the other parent of time. Certainly, if abuse or drug use is an issue in the divorce, then limiting the time one parent has with the children can be better for the kids. However, at Youngblood Law, PLLC, we realize that in the vast majority of cases, both parents love their children, and the children need and love both parents, so we seek to preserve the relationships between the parents and children.
Overall, when considering who the kids should live with primarily, we believe the most important factors revolve around minimizing disruption and turmoil for the children. Children are very intuitive, and they will know a divorce has begun or is ongoing, but we do our best to insulate the children from grown-up matters whenever possible. Reaching an agreement that gives both parents a reasonable access and possession schedule helps keep things calm for the children. Alternatively, a contentious fight over time with the children will lead to hearings on the matter and can even result in forcing the children to testify in open court as to which parent they prefer to live with. What could be more hurtful for the kids and parents than making a child choose between parents from the witness stand?
We never encourage our clients to just give in to the demands of the other parent, but we encourage our clients to make decisions that put the children’s needs first. For example, consider if moving the children from the marital residence will force them to change schools. Changing schools can be very traumatic for children, so we only recommend moving the kids to a residence that results in changing schools when the need for physical or emotional safety for the children outweighs the need for stability for them.
8. How much time with the children is best for both parents?
One of the biggest concerns when thinking about a divorce is where and with whom the children will live primarily. There has been a move toward a 50/50 type possession schedule where the children live with both parents an equal amount of time each year. Some courts are becoming more open to this idea, but most courts follow the Texas Family Code that presumes it is in the best interest of the child (often referred to as “BIC”) to live with one parent primarily with the other parent having regular and frequent visitation.
Keep in mind that there are factors that may help inform this decision that are not legal in nature. We have had several clients tell us they desire a week on/week off schedule with the kids, but when asked about their jobs, the clients realized their jobs would not allow that schedule. There was no way their employer would change their work schedule to allow them to take the children to school each morning and pick up each evening—at least not at the same pay level.
Often times changing jobs is not an option either. It may be relatively easy to change jobs for one that offers better scheduling flexibility and pays less, but most people cannot afford to earn less money, especially during a divorce. Alternatively, if getting a higher paying job that required less hours per week were an option, you would have already made that change! So effectively, the job you have is the job we need to plan your access and possession of your children around.
Given the constraints of a work schedule, it is often easier to offer a reasonable visitation schedule that allows both parents to earn income and provide a stable household for the children. Of course, if you are the one who will pay child support it benefits the children directly for you to continue to earn at your current capacity. Consider this when planning for how much time you actually have available to spend with your children. What’s better: to have a great, stress free weekend with the children, or to have legal possession of them during the week but have no time to actually spend with them because of your demanding work schedule? Perhaps, the focus should be on quality time with the children rather than total time.
9. Who will provide healthcare insurance for the children?
Generally, the parent that is currently providing healthcare for the children will continue to do so. If this insurance is offered through the parent’s employment, the other parent may be required to pay some monthly money to offset the cost of the insurance. If neither parent has health insurance for the child, then the parent that the children reside with primarily should put the children on a state plan or enroll the children in a private plan. The other parent will also pay some monthly money toward this cost as well.
10. What is your strategy for the divorce?
When it comes to divorce, one of the most important decision to make is about the overall strategy. We find that there are three basic strategies people adopt for their divorce suit.
- Burn It All Down: This strategy is typically employed by a person who is deeply angry with his or her spouse. Characteristics of this style of divorce include multiple court hearings and a drawn-out process that takes many months and loads of money to complete. In fact, many processes have to be repeated because after each hearing the spouse is dissatisfied with the result and wants another bite at the apple, so he or she wants another hearing on the same matter. The person is generally very critical of the other spouse around the children, and everything that the person does is planned around gaining leverage in the divorce.
At Youngblood Law, PLLC, we do not work with this type of client, and we do not employ this strategy. We actively work to protect the assets of the marriage for the benefit of our client and the children. We actively seek to preserve the relationship of the parents for the benefit of the children. While a person getting a divorce right now may be angry, we realize that the anger will pass, and the assets of the community and the relationship with the co-parent and children will endure. We will not be a party to burning the estate and relationships to the ground.
- I’m looking out for Number 1 (and if it happens to destroy the other spouse so be it): This strategy is more neutral, and we can work with this type of client. Here, the client typically recognizes the marriage is over, and wants to make sure he or she can move on comfortably. The risk with this strategy, when children are involved, is that the focus still tends to be on the needs of the parent, not the best interest of the child. We will work to guide this client to a future-focused approach to decision making that will help create win/win solutions the client can be proud of in the long run.
To be clear, at Youngblood Law, PLLC, we take our fiduciary duty to our clients very seriously, and we always seek to put our clients in the best possible position after the divorce. This means if we can take advantage of a situation to help our client we absolutely do so. However, we do it for the purpose of helping our client, not to deliberately damage the other parent.
- I’m focused on the future, not the past: This is our preferred strategy for divorce. The average divorce in Texas takes over a year. We don’t want our clients dwelling in the toxicity of the failed marriage for that long! We want our clients to be looking to the future. This is also the main reason we embrace the collaborative divorce process. For more information about collaborative divorce, see our blog series here.
Of course, we realize a divorce can’t be thoughtfully pursued without examining the history of the parties, the history of the marriage, the financial records, and more historical facts, but we use this historical evidence to convince the court that our plan for the efficient dissolution of the marriage is best for all the parties. Our plan is focused on the future. Our plan is built around what is best for the children and our client.
When a client comes to us already in the state of mind that he or she simply wants to move forward as quickly, efficiently and painlessly as possible, the client is speaking our language because we actively seek to preserve the relationship of the parents for the benefit of the children, and we actively work to protect the assets of the marriage for the benefit of our client and the children. A client in this mindset is a great fit for Youngblood Law, PLLC, and we provide the greatest value for this client.
Youngblood Law, PLLC is a Fort Worth, Texas family law firm that helps good people who are treapped in a bad relationship find the freedom to pursue their new happily ever after. This essay is intended for educational use only, and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information, contact us at (817) 767-0582, find us on the web at youngblood-law.com, or on your mobile device, open your browser and type in lawfw.biz and press Go.
Paul Youngblood #beforeyournext #lawfw #youngbloodlaw #somedayistoday #collaborativedivorce #beingdivorceddoesntsuck
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