This installment brings together collective bits of wisdom and caution informing best options and choices that may arise before the divorce process gets really rolling. The early issues raised reflect practical common-sense problems and various responses that we as mediators have seen come up time and again. We cannot, of course, advise concerning any such items in a vacuum and do not offer universal answers or panaceas. In this regard, it might make sense to perhaps consider involving a mediator early to help pilot through the early upstream rapids of a deteriorating marital situation.
We do believe, however, that it might well be useful at the very least to begin the orienting experience with respect to such matters. If they are not handled skillfully in the early stages, they have the propensity to make later efforts at consensus more difficult or problematical. With the benefit of the over one hundred years of mediating and other dispute resolution experience of our staff, we believe these items are worth considering.
These comments center on three subjects we very often see presented to parties considering the possibility of divorce, but where matters have not evolved to an action point as of yet. Again, these comments are necessarily general in nature and no specific advice is offered. With these caveats in mind though, we think that parties might find these observations useful when it comes to navigating while in the foggy pre-divorce, marital discord period, that can seem to go on forever.
Leaving the marital home
One question that comes up time and time again is whether a party should vacate the marital home prior to any court orders to that effect. Absent serious marital conflict or safety concerns, our experience is that one party’s departure from the family home is not always optimal or necessary.
Both parties have a major stake in the marital home. It is where you reside and where you are best able to parent your children without any disruption. But when there are safety concerns within the home, either to you or to the children, the appropriate course of action is to escape the situation. This allows an opportunity for de-escalation and, contrary to some concerns, the courts don’t usually fault a party for vacating the home when he or she has a good reason to do so. Put another way, you do not usually give up rights to your property or to your interests in the children when you make the decision to remove yourself from a volatile living situation.
However, keep in mind that collateral financial implications of removing oneself from the marital home may be another matter. Instead of supporting one household, you may need to support two. For instance, you might need to decide whether you can afford to pay rent and other expenses while continuing to be responsible for your share of a mortgage. Although your departure from the home may calm things, it can and often does create a host of financial issues to consider.
To serve or not to serve
Are you ready to hit the eject button? So many things must be aligned for the legal process in a divorce to begin. Absent emergencies, safety concerns, and financial considerations, you might choose to take the time to allow the dust settle and make a plan to exit your relationship with grace and dignity. Imagine you are a pilot flying your own plane. You encounter some turbulence. You put your seatbelt on and take a few cleansing breaths. You already know how to place your mask on for yourself first, and then on your children or fellow passengers. You do not need to hit the eject button just because you experience some turbulence. You try to remedy things and regain control, and if and when that time comes, you have prepared all involved for a soft landing. When the time is right to start the legal action for divorce or separation, taking a step back and behaving rationally in planning for the safety and stability of all family members is being your best self.
Hiding accounts or misrepresenting assets
There are serious penalties for hiding money, minimizing assets and not being forthcoming with the Court. Intentionally omitting or forgetting accounts, however small or large, can land you in a boatload of trouble and only benefit your soon-to-be former spouse. Transferring property or other assets to a third party during the pendency of a divorce is prohibited by automatic orders and is easily discoverable. A good attorney is experienced at following a money trail and any attempt to mislead or to misrepresent your financial situation will put you at a disadvantage from the get-go. The Courts tend to be especially harsh with those it believes have attempted to defraud the other party.
Also, be aware that such things as fraud can cause a divorce case to be reopened at any time if your former spouse can establish that an asset, account, or benefit that existed at the time of the marriage was never disclosed to the Court. This means more money spent on litigation, and if established, the loss of the asset and attorneys’ fees.