Breakups can be just as hard on the person who leaves as for the person who is left. But sometimes the emotional timing is different for each. The person who leaves may have been thinking about leaving for a long time, perhaps six months, a year, or longer. He has been trying out the separation in his head for a long time while still participating in the marriage for all outward appearances. He may already have one foot out the door. The other person may not know anything is wrong, and so the announcement comes as a complete surprise. This person then has some catching up to do emotionally. This chapter covers the issue of timing, focusing on financial, practical, and emotional issues, especially for those about to make a decision to separate or divorce.

Practical Timing Considerations

Whether to stay or go is a hard decision to make. It can take a long time to decide—sometimes years. It is not a frivolous or impulsive decision, and you want to get it right. Sometimes people come to a lawyer’s office and even pay a retainer before they have really decided to get a divorce. I call this the inquiry stage. It is OK to stay in the inquiry stage for a while.

But I also have people who come to my office after being together with their partners for 5 years, 15 years, or 25 years. They say they knew they wanted out years before.

“Why didn’t you leave?” I ask.

“Because I thought things would change.”

People sometimes do change, but frequently they do not. Here are some things to think about if you’re trying to decide whether you should stay or you should go:

• Investment:   You’ve got a lot invested in your marriage in terms of time, effort, and cost. Is it time to cut your losses and move on? Or do you stay in the marriage and try to find a way to make it work?
• Children: What will be the impact of a divorce on the children? Children are always better off in an intact marriage with two loving parents. But if there is constant bickering and fighting in the home, would they be better off if you and your spouse separated? A split may mean the children have to move to a new residence, a new neighborhood, and a new school. Many parents time the divorce so that the kids don’t have to change schools in the middle of a school year. Sometimes spouses wait to get the divorce until the children are out of high school.
• Companionship: It’s lonely out there. Even though you may be unhappy living with your spouse, you may dislike being alone even more. Doing things alone, like eating, watching television, or sleeping, can make you feel very lonely. But you can also be lonely in a dysfunctional marriage.
• Familiarity: Have you heard the saying “The devil you know is better than the devil you don’t know”? Some people keep repeating familiar habits after getting a divorce and pick the same kind of partner they just got rid of.
• Dating: Do you really want to enter the dating pool again? If you have been out of circulation for a while, the dating scene can be awkward and uncomfortable. You are older now. You may have children to deal with. You probably have more responsibilities and that can make dating more difficult.
• Finances: Two can live as cheaply as one, but not when they are supporting two separate households. The money available for one household is typically not enough to support two. Something’s got to give, and usually it’s the lifestyle of both spouses. Before you decide to divorce, make a budget and see if there is enough money for both partners to survive.

States Matter:   Where to Divorce If You Have a Choice

Only the state courts can grant divorces. The state where you should go to court to get divorced is the one where you live at the time of divorce, not the one where you got married.

In the event that you and your spouse are separated and live in different states at the time of divorce, you may be able to file in either the state where you live or the state where your spouse lives.

Every state has different laws, passed by their legislatures, that govern marriage and divorce. When you look around for the best place to bring a legal action, it is called forum shopping. Although the term may have a negative connotation in some contexts, it is perfectly legal in divorce. If you have a choice, it may pay to do a little forum shopping in your case.

For example, in Maryland, you must be separated for a year before you can file for a divorce, but in Virginia and DC, the time of separation required is only six months. So, if you live in Maryland and are in a hurry to get divorced, you can move to DC and file for a divorce there.

However, if you have children, child support is required until age 18 (and in some cases 19) in Maryland and Virginia, but it is until age 21 in DC. That could mean your ex can sue you for your children’s college expenses if you get divorced in DC.

And if you have acquired property or the worth of your property has appreciated after your separation, you will want to get divorced in Virginia. The court determines the value of your property according to what it was at the time of your separation in Virginia but calculates according to the trial date in Maryland and DC.

Employment:   Why It’s Best If   Your Spouse Is Employed

Without a prenuptial agreement, when you get married you are entering into a contract that you haven’t read and don’t understand. It’s a contract that has provisions contained in the code of law of your state, and the interpretation of that law is done by the appellate judges, whose opinions are written in books known as reporters.

Part of that contract says that you have to support your spouse and children during the marriage. Furthermore, if you get divorced, you will have to continue to support your children. You may also have to support a spouse who is not yet self-supporting.

If you will be in need of child support and alimony, then you want your spouse to be employed so as to have the ability to pay these expenses. Despite this, many spouses are so angry at their partners that they are eager to make complaints to their spouse’s employer, the IRS, or the police. Before you do that, remember that a spouse that’s fired or in jail cannot pay support.

If you are the breadwinner of the family, the amount of child support and alimony you are responsible for may be affected by the amount of money your spouse earns or is capable of earning. Obviously, it’s better for you if your spouse earns a good income. This will improve the chances that you won’t get hit with excessive alimony payments.

In cases where one of the spouses quit working to be a stay-at-home parent and raise the children, the court can make up a fictitious income for that parent if the judge decides she is purposely not working to increase support. But even in that case, it will take the stay-at-home parent some time to return to the job market. Additional job training may be required. That means the working spouse will have to pay some support during this transition back into the workforce.

Should you quit working or cut back on hours during a divorce to show the court a lower income? No, because the court can base its decision on what you are capable of making, not just what you are actually making. And finances are tough during a divorce, so you will need all the income you can earn.

Finances: What Is the Best Time to Split with Your Spouse?

The timing of your divorce may have a significant impact on how financial issues will be determined. As mentioned, it is important for you to determine the date of valuation for property in your state. Some jurisdictions determine and value marital assets based on the date of separation. Some use the date of divorce.

So, if you are in a state that uses the trial date, anything you save or purchase after the separation may still be considered marital property. If you are the breadwinner, you will want to speed up the timing of your divorce. If you are a dependent spouse, you will be better off the longer the divorce takes.

If you know that your business is about to be sold for a big profit, or you are taking a new job with higher pay and stock options, then you will want to time your divorce so that it happens before those events.

If your 401(k) stock crashes, and you think it might recover, you will have an incentive to buy your spouse out of that asset while it is down. A similar strategy would apply to your business or real estate. In fact, many settlements are reached where one spouse trades their share of the house for the other spouse’s share in a business or pension. I remember one case where the husband traded his interest in the stock of the wife’s company for her interest in the couple’s real estate. He thought real estate was the better investment and would do better than stocks in the future. She thought the stock was better.

If your income is down, and you are thinking about getting a divorce, this might be the right time to do it. On the other hand, if your spouse is a high-income earner, and you are thinking about getting a divorce, you may want to proceed now rather than take the risk of waiting and having your spouse lose his job in uncertain economic times.

The housing market has fallen on hard times, and many married couples now own houses that are worth less than the mortgage. This makes it more difficult, if not impossible, to sell the house in a divorce. There are no doubt couples who want a divorce but are living together in misery right now because they can’t sell their house.

There are also cases where a business owner is about to sell a company or it is about to go public, and she wants to step on the gas and get a marital settlement agreement which places a lower value on her business before the sale or public offering.

The best timing was probably by Kevin Halstead, a 50-year-old British bus driver who had a divorce that dragged on for two years. When it was finally settled, he went out and got drunk with a group of his friends. The next day, he decided he would use his last quid (about $1.50) to buy a lottery ticket. On Sunday, when he got up, he checked the morning paper and—you guessed it—he won. His prize was £1.15 million (that’s $1,773,990).

His wife Helen took the news well. “We’ve been separated a long time. We are the best of friends. In fact, we get on better now than when we were married,” she said. “It couldn’t have happened to a nicer bloke. I wish him all the luck in the world—he deserves it.”

Timing Issues When Your Spouse Wants You to Leave

Bill is sitting calmly in his living room one evening, with no idea that anything is amiss, when there is a knock on the door. He gets up, opens the door, and is surprised to see two uniformed county sheriff’s deputies.

“Can I help you?” he says.

“William P. Fritz?” asks one of the deputies.

“Yes.”

“The court has issued an order for you to stay away from the premises for the next ten days. You have ten minutes to get your personal effects.”

“What? Let me see that order.”

The deputy hands the order to Bill, and Bill puts on his glasses to read it.

“My wife filed for this! She says I threatened her? It’s not true! I was watching the football game, and I shouted, ’I’m going to knock your block off’ to the TV, not to her!”

“You’ll have a chance to tell the judge at the hearing in ten days, Sir. Please get your things. You have to leave now.”

From there, things went from bad to worse. Bill was so depressed that he was paralyzed into inaction. He failed to show up at the hearing where he could have presented his defense. Instead, his wife accused him of threatening her with imminent bodily harm, causing her to fear for her safety. When the judged asked her what Bill’s income was, she said she thought it was somewhere around $100,000 a year. In truth, it was much lower.

The judge ruled that Bill had committed domestic violence, ordered him to stay away from his house for a year, and ordered him to pay alimony and child support of $4,000 a month. Bill lost his security clearance because of the finding of domestic violence. As a result of that, he lost his job. His wife’s lawyer placed a lien on his bank account. Finally, Bill just left town and went underground, still owing alimony and child support.

The lesson you can learn from Bill’s case is that you must confront and deal with legal issues early in a divorce. Bill should have seen a lawyer as soon as he was asked to leave his house. Waiting only compounded his legal problems.

It may surprise you to learn that you can be removed from your house based on your spouse’s suggestion that there has been physical abuse or that it has been threatened. This could, and sometimes does, lead to false claims.

In cases other than those involving allegations of abuse, you do not have to leave the marital home, even if your spouse asks or tells you to go. This is true if you are jointly on the deed or lease. Even if only your spouse is on the lease, some judges will still not let your spouse evict you until all matters are resolved in the divorce.

However, things may be so difficult for you in the marital residence that you want to leave. And leaving may start the clock on the period of separation running in states where timing is a consideration. You do not give up any property rights in the house by leaving. In other words, you are not abandoning your claims to equity in the house or its contents by leaving.

However, there is still a danger:   Your spouse may allege desertion. This could potentially hurt you when the judge considers awarding alimony and distributing all the marital property.

You can avoid this by making a written agreement that says the move is agreed upon and neither party will use it to claim desertion. The agreement, which is sometimes called a move-out agreement, can also cover such issues as how the bills will be paid and dividing the time you spend with the children if you and your spouse can agree on those matters. The move-out agreement usually stays in effect until you reach a complete settlement or the final order of the divorce court.

Timing Issues When Your Spouse Leaves You

In many cases, spouses are taken completely by surprise when their partner leaves. That’s usually because the leaving spouse has been thinking about leaving for a long time, perhaps six months or a year. They mentally have had one foot in and one foot out of the door of the marriage. But since they didn’t know if they were staying or going, they acted as if nothing was wrong. If their spouses had asked them if they were thinking about leaving, they would have said, No.

The left-behind spouse, if they even at all suspected that their partners might leave, had been in denial all this time. Their alarms were turned off. If they noticed something was amiss in the relationship, they would still tell themselves that everything is fine.

So, when leaving spouses makes up their mind to go, they get an emotional head start on the spouses they will leave behind. They are ready to split up the assets and get on with their life. The left-behind spouse is still in the relationship and has another year to six months of catching up to do before they can even think about such things.

Lawyers can help you divide the assets and end the marriage with a divorce. But there is also an emotional divorce. Sometimes the legal divorce and the emotional divorce are on different schedules. It can take a long time to get over your emotional divorce.

Divorce is a stressful, traumatic event on par with death of a loved one. Your trusted partner suddenly becomes your worst enemy, with hostile intent and knowledge of all your weaknesses and secrets. In addition to legal and financial issues, emotions can run wild. Here are some of the emotions you may encounter and how to deal with them:

• Depression: Sadness is a normal human response to divorce. A divorce means the end of your marriage and the dreams you had for a future together with your spouse. It is perfectly natural and common to grieve for your loss. Depression, however, can lead to inaction, and inaction can lead to disastrous results. You can’t protect yourself in a divorce if you spend all day crying or sleeping. If this describes your situation, you need to make an appointment with a therapist now.
• Anxiety:   There is plenty to worry about in a divorce. You will naturally be anxious about the outcome, the money, the bills, the house, and your children. I could tell you not to worry, but you would probably worry anyway. One simple way to deal with anxiety is to write your problems down and think about what you can do to solve them.
• Anger: Rage and anger at your spouse are typical emotions in a divorce. But if you let them get out of control, you can harm your case. We have already seen that physical or verbal abuse can cause you to be put out of the home. The spouse who cuts off support for the other spouse and children out of spite will not win the judge’s favor and will probably get a big judgment for retroactive alimony and child support payments.
• Revenge: It is not at all uncommon to feel like you want to take revenge against a spouse who has hurt you. But remember that living well is the best revenge.
• Uncertainty: The future is always uncertain. But getting divorced can feel like you are standing on the edge of a black hole and stepping forward. You are used to certain routines, and all that is being disrupted. Take it one day at a time. You’ll make it.

We like to think we are rational, logical people and make decisions on that basis. But psychologists say that our logic is just the tip of the iceberg. Below the surface lies our hidden, subconscious emotions, which really make up 90 percent of our decisions. We just don’t know it.

The legal system, however, is based on reason, not emotions. If you are making emotional and not rational decisions, you may encounter problems in your divorce.

Your friends and extended family can offer great emotional support during a divorce. There are also support groups for separated and divorced people. Or you can hire a professional therapist.

Don’t let the things your spouse says upset you. They will probably regret those words or not even remember them later.

If you are feeling depressed or angry or crazy right now, don’t worry. That means you are normal.

Family Finances: Can Cause Trouble When Handled by One Spouse

Some people are good at financial matters. Others couldn’t care less. In many marriages, one spouse handles all of the finances and investments for both. This can be an efficient division of labor while you are married, but it can cause problems in a divorce.

One of the first documents your lawyer or mediator will ask you to complete when preparing for your divorce will be a financial statement. There are many different formats for a financial statement, but essentially they all include:

• your assets, which are things you own
• your liabilities, which are debts you owe
• your income
• your expenses

It’s fine if you don’t know enough about your finances to complete these forms, but that means your lawyer will have to obtain the information through the legal process, which takes more time and expense.

Knowledge is power, and the more you know about the family finances, the more you can control how financial matters will be determined in your divorce. You can prepare a budget based on what you expect your expenses to be after divorce. This will help you know what to seek in the way of support from your spouse if you need it, or what you can afford to pay in support if you are the one with more income.

You need to determine and identify what assets exist, whether those assets are marital or separate property or mixed, in whose name they are owned, and when they were acquired. Don’t overlook retirement funds, which account for about half of the assets divided in divorces.

Likewise, you need to determine all debts; balances due; what the money is owed for whose name the debts are in; and which debts are associated with which assets, like mortgages and car loans, for example.

I use a spreadsheet in a three-ring binder with tabs to organize this information. The spreadsheet consists of a table of contents, which lists each asset and liability and has corresponding columns entitled “wife,” “husband,” and “total” with corresponding values for each. Then, in the tabs I place supporting documents like bank account statements, pension statements, mortgage statements, appraisals, and so forth. This is helpful for gathering information and keeping it organized and accessible. I find that it also adds an element of control and focus to settlement meetings and mediations. It allows you to keep bringing everyone’s attention back to the notebook when they get off track and to patiently plod down the spreadsheet one item at a time. No one can argue with you because the paper statement is right there at the tab. You can even use the notebook to present your evidence at trial.

When Can I Start Dating?

You can start dating at the earliest judgment for your divorce or when your spouse signs the settlement agreement. You are married until you are divorced. So, if you have an affair while you are married, even though you are separated, it is still adultery.

If you date before you have a settlement agreement, your spouse may claim the divorce is your fault. In most states, even so-called “no-fault states,” the judge can consider you at fault in determining alimony and property division.

That is the reason why some people’s spouses hire private investigators to follow them and take pictures. Adultery may be proved by circumstantial evidence. This allows the investigator to testify that you showed inclination to commit adultery and had an opportunity to do so. For example, a private investigator might testify that he saw you holding hands at dinner and checking into a hotel that evening with an unrelated adult of the opposite sex.

If you have signed an agreement, though, adultery will not cause legal harm to your case. That is because you have already worked out alimony and property division, and the court will honor your agreement. In fact, in states where adultery is grounds for divorce, it may shorten the waiting period for it to take place.

Timing Once You Have an Agreement

If you and your spouse cannot agree to terms for settlement, you will have to try your case before a judge in divorce court. That may take days or weeks and require you to present your testimony, witnesses, and documents. The judge will then decide your case and give you an order of divorce that determines custody, visitation, support, and property division. The judge will make an agreement for you in the form of an order.

If you are fortunate enough to reach an agreement, however, then when it is time for trial, your formal pleadings will send this message: “Judge: We have already agreed to everything. There is nothing left for you to decide. Please grant us our divorce.”

In the latter case, the divorce trial lasts about ten minutes, or in some jurisdictions it may even be done by affidavit or deposition. It is almost clerical or ceremonial.

The agreement is 98 percent of your divorce. It gives you almost everything a divorce can give you except the right to remarry. You can begin living as though you were a single person. You can date. Your property is yours to keep. So, the irony is, unless you have someone else beating down your door to remarry, once you have an agreement, you can wait as long as you want to get divorced.

If Rome Is Burning, Stop Fiddling Around

While you don’t need to be in a hurry to get divorced once you have a signed agreement, you may get burned if you tarry too long in coming up with an agreement.

In one case, a man in his 30s had $3 million in stock options in the dot.com company where he worked. At the beginning of the case, he offered to split the options with his wife. Her lawyer declined the offer and began seeking detailed and extensive financial information under the rules of court and requesting hundreds of documents from the spouse.

He produced these over the course of a year. That was the year the tech bubble burst. At the end of this process, no new assets had been found, the options were worthless, and the couple owed $100,000 in taxes related to the options.

Divorce Is a Process, Not an Event

Let’s say you file for a divorce on January 1 of next year. You set up the initial conference the following week, and you hire a lawyer. The lawyer sends a letter to your spouse on January 15 seeking settlement discussions and gives your spouse ten days to respond.

Your spouse hires a lawyer who calls your lawyer on January 25 and suggests the two of you exchange financial information. It takes about a month for this to happen. The lawyers start trading proposals and counterproposals over the next three months.

In June, the parties have reached an impasse, and negotiations are broken off. One of the lawyers drafts a complaint for divorce and files it on June 15. It is served on the defendant on June 30. The defendant answers and files a counterclaim on July 20.

The parties go to a scheduling conference where the judge gives them six months to complete discovery and sets a mediation on December 15 and a pretrial hearing on December 30. After discovery is completed, the mediation does not produce an agreement, and the parties go to the pre-trial hearing. At that hearing the trial is set for March 1 of the following year.

It’s now a year and two months from where we started, and we haven’t even talked about appeals yet.

Summary

In this chapter, we have explored various timing issues in divorce and separation, including the financial, practical, and emotional issues. Next, we will tell you what things you need to do first to protect yourself.