Information is a key element in preparing for a divorce. Everybody should be actively involved in each aspect of his or her own life, including your financial matters. Consider preparing for a divorce by gathering and maintaining records regarding the income and assets of both parties and the marriage. Knowing the truth will help you navigate the divorce.
Before a divorce can I prepare so I will be at an advantage?
Yes. Preparation is the key to a better result in almost every venture, including a divorce.
What sort of financial information should I be gathering before the divorce?
In most marriages one of the parties handles the finances and the other partner is less knowledgeable, or almost totally in the dark about the family finances. Start learning how the family finances work.
In preparation for the divorce you should copy:
- Recent bank and investment account records.
- The past three years’ income tax returns.
- Several of your spouse’s recent paycheck stubs.
- The last printout relating to employee benefits (including retirement type plans).
- Any fairly current documents with numbers and dollar signs.
But remember, one has the right to this information as part of the normal discovery process.
My spouse owns a business. How can I learn about it?
Of course if you have access to the office, you should copy as many (at least for the past year) business records as you can, which would include the check registers, the monthly or quarterly financial statements and tax returns for the past three years. If the business recently made a loan, a copy of the financial statement given to the lender will be revealing.
Before the divorce starts and before suspicions are raised, you may be able to obtain valuable knowledge and copies of documents from the company’s bookkeeper. More and more business (as well as personal) data are computer stored. This is the place to look if you have the ability.
Is it important that I investigate about my spouse’s “social” activities?
Probably not. Illinois is a “no fault” divorce state. The Illinois Divorce Act specifically states that the financial awards, such as maintenance, property distribution, and child support are to be made “without regard to marital misconduct.” Thus even a spouse’s adultery will not result in a financial advantage to the other spouse.
If, however, the “social activities” occur when the marriage is in trouble, and money is spent on these activities, the money has to be paid back, so an investigation may be appropriate. The easiest place to find this evidence is in credit card and telephone (especially cell) charges. The hiring of a private investigator is very seldom cost effective and my advice is it should only be done under the supervision of your lawyer.
Before the divorce should I tidy up our affairs by paying off debts?
No. When it comes to distribution of assets you will seldom receive a “kiss” (credit) for paying the debts, but instead the division of assets is likely to be made without regard to your having paid the debts. If you are the primary earner in the family, the likelihood is that the divorce judgment will require you to pay most of the debts.
If you are the primary earner, you can anticipate you may be stuck with the debts. A better scenario for you is to sell the house or some other valuable asset, pay the debts from the top of the sale proceeds and divide the rest of the proceeds with your spouse. Under this scenario you and your spouse will, in fact, be sharing the debt payment in ratio to the division of the asset which is sold.
I have been a stay-at-home parent for the past 20 years, with 12 and 15 year old children. I have been told that I should not now look for work because it will have a negative impact on a maintenance award for me. Should I seek work?
Consult with your lawyer. But my answer is that in most circumstances it is appropriate to seek work during a divorce. Look at your situation realistically. Under the current child support guidelines (that will change effective July 31, 2017), most likely child support will be set at 28% of the payer’s net income. The real question is whether the judge would impute income to the spouse who had been the “stay at home” parent. Some judges impute income (at least to some extent). And sometimes a job that provides some degree of income could be less than the income that the court might impute. On the other hand, this is not a black or white issue and it is critical to consult with an experienced divorce lawyer on this choice.
Where, however, the non-child custodian parent has a high income, and the asset distribution to the primary residential parent will be high, there may not be a need for employment. Obtaining employment in anticipation of a divorce, or during a divorce, is a critical move, and one on which you should follow your lawyer’s advice.
I anticipate the possibility my spouse and I will not be able to agree who should have primary residential care of the children. Can I prepare for the anticipated custody litigation?
Yes. First, divorce lawyers may recommend that one keep a journal with dates, times, places and names of what of significance happens to the children. An important factor in allocating parenting time (formerly called granting custody and visitation) is the parent who, historically, has been the primary care giver to the children.
If a spouse commits bad acts in the presence of the children, these bad acts may be noted. What is important is to keep the journal factual with the foundational elements: Who was there, where and when did it occur, and what happened.
If I move out, am I abandoning the house?
No. If the level of discomfort of living together is so high, or there is an actual concern for your physical or mental welfare, you should move out. If, however, there are children involved and you and your spouse may not agree upon how to allocate parenting time during your separation, moving out can backfire. You must also consider the affordability of maintaining two households. Again, this is a critical issue to address with your divorce lawyer.
Should I consult with a lawyer ahead of time?
Probably. If you anticipate a potential divorce, but not an immediate one, you will put your ducks in a row much better with the aid of a lawyer, keeping in mind that your dealings with the lawyers are strictly confidential. Often clients will receive reassurance because what they have often heard about divorce is fear-based and not entirely rationale. Understanding one’s rights and options in a divorce can be empowering.