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5 Things To Consider Before Filing for Divorce

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January 22, 2018

The stress of the holidays are over, but often a new strain looms on the horizon: separation or divorce. Divorce is exhausting, both emotionally and financially, so I spoke with Mischelle Luckett, managing partner of Luckett and Ashford, to get her advice on ways to prepare and items to consider before moving forward:

Do you suggest hiring an attorney before telling your spouse you want a divorce?

While you don’t need to have an attorney on retainer prior to informing your spouse of your plans to divorce, I would suggest at least consulting with an attorney. This will give you a realistic expectation of what to expect as your begin the divorce process, as well as any additional options you may have. (e.g. legal separation). An attorney can provide key topics to discuss with your spouse and the aspects to consider related to those topics that are tailored to your needs and the facts of your case.

Is there a difference between separation and divorce?

Yes, there is a difference between separation and divorce. A legal separation does not terminate the marriage. Rather, the couple lives separately under terms agreed upon by the parties and approved by the court, or either dictated by the court in instances in which the parties could not come to an agreement. The terms of the separation can be similar to a divorce, such as asset division, child support and maintenance (formerly known as alimony). Should the couple decide to divorce later, this will require additional legal proceedings.

How do you determine custody percentages for children?

Some states have moved away from terms such as “joint custody,” “sole custody” or “custody.” However, all states recognize the principles that the term custody embodies, which is decision-making responsibility for the minor children’s healthcare, education, religion, and extracurricular activities. Courts tend to prefer parents share decision-making responsibility for their children equally. However, if the parties do not agree to do so, the state’s family court will decide what is in the “best interest of the child.” Some of the factors used to determine the “best interest of the child” are: the mental and physical health of all individuals involved, including the child and both parents; how much each parent participated in past decision-making responsibilities for the child; and the child’s needs.

Parents are encouraged to create their own parenting time schedule that will best suit the needs of their family. If the parents are unable to agree on how to allocate parenting time, a judge in the state’s family court will allocate parenting time as the judge deems to be in the “best interests of the child.” Each state approaches this matter differently, so it’s important to consult with a local family law attorney.

Can a child decide who they want or live with?

A judge may take the child’s wishes into account when creating a parenting time schedule, considering the child’s maturity and ability to express reasoned and independent preferences.

Do you have any advice on what to prepare before filing?

To build your financial strategy, you should analyze both your spouse’s and your own cash revenue for the previous six months. Determine if you have enough money for legal fees, housing, and other necessary short-term expenses during the divorce process, or whether you need more time to gather the funds. Also, assess any other monetary holdings you and your spouse have, such as stock, business interest, and other investments. If your budget allows, you could hire a financial planner to assess your current fiscal standing and, hopefully, make for an easier divorce settlement. Another crucial step is to collect all documents. This includes tax returns (especially your spouse’s), bank statements, wills, trusts, loan documents, and insurance policies. You should also gather documents that can verify separate property, such as inheritance or family endowments.

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