THINGS TO CONSIDER PRIOR TO TELLING YOUR SPOUSE YOU WANT A DIVORCE
December 4, 2018 - By Bob Nachshin and Heather Saint
Perhaps you have recently discovered your spouse is cheating, or have reached the conclusion that you and your spouse have grown apart and/or have fallen out of love, and you are now contemplating divorce. Or maybe you have decided you want a divorce, but anticipate that your spouse will make the process difficult, or even act maliciously. What are things you can do now, prior to confronting them, that will put you at an advantage or proactively protect your rights? Here are some common questions that arise in these situations:
- Can I kick my spouse out of our home? Or should I be the one to leave?
In hostile divorce proceedings, remaining together in the same home might not be desirable for obvious reasons. But who should stay, and who should leave? The party who feels wronged may want to kick the other spouse out of the home, but can they?
In a majority of divorce cases, there is no way to force a spouse out of the family home without a court order. Both spouses are, at least initially, considered to be equally entitled to the home. If your spouse will not leave voluntarily, then there are essentially three options: continue living together in the home, move out yourself, or seek a court order requesting exclusive use of the residence while the divorce is pending.
Moving out on a temporary basis while proceedings are pending should not drastically impact your rights regarding that home, however, there are certain precautions that can be taken to make certain that your spouse can’t use your temporary living arrangement against you in regards to child custody or property division matters. For a detailed discussion on this issue check out the previous blog post ‘3 Things to Consider Before Moving Out of the Family Residence’ as a ‘further details’. [imbed link with title]
2. If I leave, can I take our kids with me?
Since, presumably, both children are legal children of you and your spouse, both you and your spouse have equal legal and physical rights to the children. Leaving the family home and unilaterally deciding to take the children along and uproot them from their daily routine is not a decision the court will likely view in a favorable light—although certain circumstances may call for this, such as needing to get away from an abusive spouse/father, which is why all custody matters are considered on a case by case basis. While courts typically prefer that minor children remain in their family home, legally speaking either parent can “leave” with the children, absent a court order to the contrary, but the other parent shouldn’t be denied access to the children, again, absent a court order.
3. Can I empty our bank accounts?
If you anticipate that your spouse will retaliate when you break the news to them, then you might also be considering whether or not they will do so by draining joint accounts or maxing out credit cards that put you in a poor financial position. Or, you might be considering something similar, as revenge. As a precautionary measure, if you have a genuine concern, you can withdraw half of the joint account and deposit it into a new, individual account. Make sure to also keep a close accounting of all expenses and do not spend needlessly in the event you need to provide this information during settlement or in court. However, doing this runs the risk of the court ordering sanctions against you or penalizing you if they suspect it was done maliciously or resulted in a gross misappropriation of community funds (i.e., wrongfully depriving the other spouse of their half of marital funds or assets). However, upon separation, it is recommended that you open an individual account to deposit and keep separate your postseparation earnings.
Additionally, credit cards held jointly or under your name (but with your spouse as an authorized user) can be another source of vulnerability. If you suspect that your spouse may max out credit cards on unnecessary purchases in retaliation, then it may be in your best interest to cancel the cards or reduce their spending limit as a precaution.
Things you should do in anticipation of divorce:
If you anticipate that the upcoming divorce proceedings will be made difficult by your spouse, consider taking the following preemptive steps to protect your legal rights:
- Collect and make copies of financial records, joint and individual. This includes any important financial documentation or other records of importance that you may no longer have easy access to. It would also be smart to take an accounting of family valuables above a certain value, and home furnishings that are likely to be subject to division.
- Take anything that is indisputably yours (and that you are worried your spouse will take or destroy out of spite or for leverage) and move it somewhere safe, probably out of the home.
- Complete important purchases and sales before filing for divorce. Such purchases and/or sales are prohibited pending divorce and would require either a court order granting permission or the written consent of the other spouse. Included in the summons attached to every divorce petition there is a list of Automatic Temporary Restraining Orders (“ATROs”) that both spouses are bound by. ATROs are basically a list of things that spouses are prohibited from doing during a divorce and they exist to protect against one spouse from wrongfully depriving the other of their share of the marital estate. For example, spouses are prohibited from selling, buying, or encumbering/disposing of any marital property outside the “normal course of business.” This can include things such as buying a car or selling a vacation home.
Ultimately, no two marriages are the same and courts consider most matters of divorce on a case by case basis. If you are considering divorce and you have additional questions or seek further guidance please don’t hesitate to contact us at the Law Offices of Robert Nachshin where we do all that we can to make sure this difficult process goes as smoothly as possible for you.