Living Situations to Consider When Getting Divorced

A. Will I have to move out of my home once the divorce process starts?

A lot of people think that someone has to leave once divorce paperwork is filed. This is not the case. In fact, many couples continue to reside in the marital home during the pendency of their matter. It is usually in their financial best interest to do so.

B. Can I force my spouse to leave the house once the divorce starts?

Although spouses can continue to reside together, most would rather not. Some want to force the other out. They are, after all, getting a divorce, right? Assuming circumstances do not warrant a protective or restraining order, the only way to “force” a spouse to leave the home is to file a motion asking the court to make it an order that they leave. This is called a motion for exclusive possession. Once filed, a hearing will eventually be held (assuming no agreement is reached beforehand) where the spouse who filed the motion will have to prove to the court reasons to support a finding that it would be equitable or in the best interests of the child(ren) to oust the other spouse from the marital home. The reason(s) have to be compelling. The other
spouse has to be engaging in conduct that is harmful or unbearably disruptive either to the parties or to the child(ren). The fact that a spouse just can’t stand the sight of the other any longer is not going to be enough. It’s not enough even if the other spouse is rude, causes inconvenience, plays mind games, or conducts themselves in otherwise childish manner. Your attorney will help you determine if the motion is worth pursuing.

C. Can I move out of the house once the divorce is filed?

Many people think if they leave the marital home they will be “charged” with abandonment. If you take off without word and no one knows where you are, and you have no contact with spouse or kids and you do not continue to assist with any marital or parental expenses for many months – if you “Got out of Dodge,” then it is possible you will be considered to have abandoned your spouse. The good news is that hardly anyone contemplates doing that. They just want to not continue to reside with the other in the house while a divorce is pending or about to be started. Assuming you are not taking children with you, this is allowed. Ideally, one would discuss this plan with the other spouse, provide the new address and make arrangements for finances and visitation with the child(ren) at minimum. Other considerations would be continued access to the marital home, continued responsibilities for maintenance of the marital home, continued responsibilities for getting children to and fro, actual payment of the bills, how the parties are going to communicate, etc. Your attorney will assist in identifying all issues, communicating, and reducing all agreements to writing which is normally best practice. Now, if you plan on leaving the marital home WITH the child(ren), then you should really consult an attorney first. If the other spouse does not consent, then your actions can result in a lot of extra time, money, and effort, unnecessary displacement of your child(ren) and an overall bad start to your divorce

I often get a call from someone contemplating a divorce. They want to know what steps they should take before they start. Since that is impossible to answer accurately without more information, I request it. Are they talking about kids, finances, safety issues, evidence, procedure? What, exactly, do they want to know? Here are some of the most frequently asked questions and a brief excerpt of my response. Disclaimer: all cases are different and these answers may not apply to your case, these are not complete answers, nothing herein should be construed as legal advice. Here we go:

FINANCIAL CONSIDERATIONS OF DIVORCE

1. Some people want to protect money or property from the other spouse. They want to know if they can transfer/hide these assets. This is a big no-no. Not only can an attorney not advise you on how to do this, it would be unwise to do so. It is very hard to eliminate traces of assets that once were. A good attorney will almost always be able to spot the flags of missing assets. And if they can’t find the trail, then a financial auditor will. Once caught, your credibility is shot, making the rest of your case an uphill battle. It is a much better use of your time and money to identify and develop a basis to support your claims for the best possible outcome.
2. Some people are afraid they will not have access to money once the process is started. This is a valid concern, especially if the other spouse is controlling with the finances and/or the concerned spouse does not earn an income.
   1. If the concerned spouse has access to the bank accounts (if they are joint) and there are any excess funds (funds not needed to cover auto withdrawals and necessary monthly living expenses) then it may be advisable to withdrawal a reasonable amount out and deposit into a separate account in their name. What is reasonable depends on the circumstances. It is important in this instance to keep good records of how the money is spent and to use it for only for reasonable and necessary expenses. Retainer fees for your divorce attorney fall under this category. If there is a real fear that this action may cause the other spouse to become violent, then this is not the best choice.
   2. If there is no access to joint bank accounts or no excess funds to withdraw, then credit cards could be a source for both cash and attorney’s fees. If the credit card is controlled by the concerned spouse, it’s better to just charge what they need for initial expenses, until some temporary support can be obtained. If the credit card is controlled by the other spouse, the concerned spouse may only have a small window to obtain a cash advance or make a charge to obtain an attorney before they are removed as an authorized user.
   3. If the concerned spouse has access to other liquid assets (mutual funds, stocks, etc) these would be able to be cashed for necessary living expenses and attorney’s fees. Again, keep good records as you will eventually need to account for any liquidated funds.
   4. Retirement accounts would normally be the last accounts to use as there is greater chance the tax and penalty implications will be greater. The concerned spouse should consult a tax professional (someone who is not going to report to the other spouse) to determine which liquidation will produce the least financial harm.
   5. If none of the above is an option, then the concerned spouse needs to look to borrow the funds. It is advisable to consult with an attorney and try to determine what a realistic retainer is going to amount to. Then try to figure out what your monthly needs are and plan on at least two months cushion although three would be better. It is in your best interest to be as honest and accurate as possible with whoever you are borrowing from as to what you need. It is usually best to put your loan in writing if you are expected to pay it back.
3. Some people are uninformed with regard to the household income, assets or bills. They are worried that their spouse is going to try to hide or change information once the divorce process starts. In these cases, it is in the concerned spouse’s best interest to try and obtain copies of all financial records prior to starting the case. Obviously, the search and copying of these records should take place while the other spouse is gone. The copies should be kept in a safe place, apart from the marital home. Ideally, they should go to the attorney representing the concerned spouse.
4. I get many calls requesting what amount of child support or alimony will have to be paid/will be received pursuant to an impending divorce. No attorney should try to answer this question over the phone. There are various, specific pieces of information that need to be obtained just to do basic support calculations. Then there are many factors that need to be considered (based on the specific facts of your marriage) to determine the likelihood of the results of those calculations.

In short, there is no simple calculation that will answer the questions. At minimum, a full consultation with some intense questioning will likely produce enough information for me to calculate some broad ranges of numbers for child support and alimony, with more accuracy toward child support

It is not unusual for prospective clients to inquire about annulments when they are contemplating divorce. There are some common misconceptions about them, however. Most people think that the length of marriage is relevant; very short marriages, they think, qualify for this relief. That is incorrect. It is the validity of the contract of marriage that is relevant, not the length of the marriage. And many don’t understand there is a difference between a civil annulment and a religious annulment. These are two very different proceedings with different rules, standards of review, processes and results.

In order to obtain a civil annulment, one has to prove that the marriage was void or voidable at the time it took place. There are several reasons a marriage could be void or voidable.

Marriage based on fraud – when first heard – is the one claim most people think they can prove. However, regret over a new spouse’s behavior, hygiene, political views, sordid past, parents, health issues and lack of money will rarely carry their burden of proof. In marriage, just like any other contract, the buyer must beware. The fraud must be significant and usually must involve a misrepresentation that goes to the essence of the marital relationship. Most acts or omissions one would think would satisfy an annulment based on fraud, don’t.

Some other factors on which annulments are based are easier to prove if they truly exist: insufficient age of the parties, blood relations of the parties, the fact that one of the parties was already married at the time of the current marriage, incompetence or coercion of the spouse to enter into the marriage contract, or failure to follow the licensing procedure.

So no, what happens in Vegas doesn’t necessarily stay in Vegas.