The Internet abounds with phony information about what someone can do to prepare for a divorce, some are even perpetuated by family lawyers. These ideas range from the ludicrous to the illegal. What’s important to remember is that if you are planning to divorce, common sense is still king. If something seems too good to be true, illogical, or dangerous – it probably is. Ultimately a judge is going to take a look at the specifics of your divorce and they are typically very bright people who have, as they say, “seen it all”. The chances of you successfully fooling them are very low and once you’ve lost credibility with the court you will never get it back.
To help you avoid these pitfalls, here are five pieces of very bad advice you should avoid at all costs:
- You’re going to lose the house, don’t worry about it. Wrong. Typically the house is the largest marital asset you will have. In many cases there is a lot of equity built up in the home which will need to be divided in the divorce. That doesn’t mean the house must be sold, but there will need to be an event where the equity is extracted and divided. That might take the form of a refinancing, or an adjustment to other property given to one of the spouses, but rest assured, you are entitled your fair share of the equity in the home. Also, pay close attention to how your mortgage is addressed in the divorce. If nothing is done you will remain liable on the mortgage, even after the divorce, so make sure the agreement requires that your name be removed from the mortgage.
In some cases, it’s emotionally or physically beneficial for the couple to separate and not live in the same home. Be aware that in some jurisdictions it will be more difficult to transfer the occupancy away from a spouse who is still living in the home while the divorce is pending.
- Clear out the bank accounts! This is a bad move. In most jurisdictions a concept called “community property” will govern the division of assets in your divorce. That’s just a fancy way of saying whatever property was acquired (including cash in bank accounts) during the marriage belongs jointly to the parties. That means 50% of the cash in the bank belongs to your spouse and taking all of it will make you look bad to the court. If you feel like your partner is about to flee with your life savings, it’s acceptable to take 50% of the cash and put it into your own account. It’s also important to remember that not all property is “community property”, things such as property owned before the marriage, inheritances, and gifts given to only one spouse may be considered “separate” property and not subject to equal distribution.
- Quit Your Job to Lower Your Income. This might be the worst advice I’ve ever heard. The fact is your total earning history will be the guide the court uses to determine things like alimony or child support. Simply quitting your job will only document one thing – you’re not smart. Quitting will also impact your future ability to pay your obligations and may hurt your career. The court can “impute” income to you which is a fancy way of saying the court will pretend you’re still earning as much as you did before you foolishly quit your job.
- Run With the Kids. A growing trend among courts is the tendency toward “co-parenting” so unless you feel like you or your child’s safety is at risk it is not appropriate to deny your spouse access to your children. In fact, how you handle separation and whether you give your spouse appropriate time with your kids will factor into a judge’s final custody award.
- Ramp Up the Spending. This is similar to quitting your job before a divorce. Courts are smart enough to recognize this behavior and will always base their decisions on a historical analysis of spending, not what you spend immediately prior to a divorce. Since supporting two households is generally more expensive than one, you should be spending less and saving money.
When considering what you should do before a divorce make common sense your rule of thumb. Courts are wary of unusual behavior and will almost always see through any effort to hide assets or manipulate spending or income.