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How to Find a Good Divorce Lawyer

How to Find a Good Divorce Lawyer

Getting a divorce can be a lonely, overwhelming process. Navigating it alone can make it even more frightening. If you, like a lot of women, experienced a power challenge in your marriage (perhaps your spouse handled all the finances, or was a bully, or hid things, or lied), these are still more reasons why you might choose to hire a divorce lawyer to help you navigate the legal process. A good divorce attorney, advocating just for you, can make you feel less alone and even change the outcome of your divorce. This article will provide you with suggestions and advice on how to find a good divorce lawyer to fit your story and your unique needs.

1. Identify Your Needs

Your ultimate goal is to get divorced. However, while you begin your search for a divorce attorney, you must know precisely what you want out of your divorce. Different family law attorneys might specialize in various family law subject areas. Is child custody the most crucial issue to you? Do you and your spouse own a house together? Or is it a new marriage with little to no property to divide? Perhaps you are looking to pursue a legal separation or a post-nup? These are all areas that an attorney might specialize in, and knowing what is most important to you will allow you to hire the right attorney for your situation and choose the right type of divorce model.

For your information, in general, there are four types of divorces: DIY (or Do-It-Yourself, for Uncontested Divorces), the Traditional Model (for Uncontested or Contested divorces), Mediation (for Uncontested Divorces), and the Collaborative Model (for Uncontested Divorces).

To understand more we encourage you to read “The 4 Types of Divorce and How to Know Which One’s Right for You.”

And make sure you understand the difference between a Contested and Uncontested Divorce.

Divorce Complexity

Another factor to consider is the complexity of your divorce. The nature of the relationship between you and your spouse can lead to what kind of attorney you might want. Like subject areas, different lawyers can specialize in various types of representation. You might consider a lawyer who does mediation if the power is equally shared between you and your spouses (i.e. both of you understand your finances, and there is no abuse or hiding of information or deception in your relationship.) If you have children and want to focus on coparenting, you might want a lawyer focused on an amicable divorce, or a collaborative divorce. If you know your divorce will be highly contentious and likely go to trial, you might select a lawyer who is both a good negotiator (so you settle out of court) but who also has lots of courtroom experience in case you need to go there. Knowing what you need in your situation and what type of personality your spouse is, will ensure you go into your lawyer search in a more defined way.

SAS Tip: We suggest that all women, no matter their circumstances, consult with a Traditional Divorce attorney first. Hearing what your rights are, what you are entitled to as an individual woman/wife/mother, and discussing the biggest issues in your story will help you decide which type of divorce would be right for you. This will better advance your understanding of your particular needs before you elect for mediation or a collaborative divorce (a particular type of divorce model). 

2. Gather Referrals

One way to research potential lawyers is by seeking out referrals. There are two popular types of referrals: social and professional.

Social referrals come from friends and family members who might have gone through the divorce process. Having someone you know and respect vouch for a particular lawyer can be comforting. Plus, they might have some insight on how to find a good divorce lawyer. However, with social referrals, be mindful of your situation versus the referring friend’s situation. This is your divorce, and you may have different goals from a friend or family member who just went through the process. Additionally, you should be mindful of a friend or acquaintance who might not be in the headspace to share her thoughts on her attorney objectively but instead uses your query as an avenue to rehash her grievances.

The other way a referral might work is through a professional referral. This is when a professional you trust refers you to a family law attorney they might know and respect. Professionals often work together closely and appreciate other professionals, so a trusted doctor, accountant, or therapist might be able to assist you in finding a good divorce lawyer.

SAS TIP: Always ask your referral source if they know the name and number of at least three potential divorce lawyers because one lawyer might be retired, not taking new clients, out of your price range, etc.; if so, you still have other options.

Other professionals might also refer you to professional lawyer organizations. Organizations like the American Academy of Matrimonial Attorneys, the American Bar Association, your state’s and city’s bar association, and local legal aid centers can refer you to individual attorneys. This may give you a starting point for the search process.

If you are just getting your ducks in a row as you contemplate divorce, learn what other healthy steps you could be taking and read 36 Things to Do If You Are Thinking About Divorce.

3. Do Your Research

Divorce laws vary from state to state. When looking for a divorce lawyer, you’ll want to talk to one in your state of residence. What’s more, search for one in your general vicinity so it’s easier to connect with them ongoing if you need. You can do this by searching by city, county, and state. A regional search will allow you to view qualified attorneys in the area before deciding on a few to contact. Searching for attorneys, or vetting the names you’ve been given online also allows for the possibility of reading reviews and testimonies by previous clients.

SAS Tip: If you are really interested in a lawyer, you might consider asking the attorney for peer or client referrals if you cannot easily find reviews. You want to ensure that your lawyer is known for professionalism and experience in the field – and hearing from those who’ve had firsthand experience with them can give you vital insight. 

4. Set Up Interviews

After you have set your goals, researched potential attorneys, and talked to the safe and appropriate people in your life, it is time to set up a meeting with potential attorneys. Make sure you prepare for each meeting. Read our “Questions to Ask a Divorce Attorney at a Consultation” to know what to bring into that meeting, what questions to ask, and how to make the most of your time, getting critical information and the education you need, and deserve.

SAS TIP: Some attorneys offer free consultations before hiring them. So, make sure to check out their websites to see if free consultations exist and for how long the consultation is. If it’s only 30 minutes, you’ll need more time. And by the way, free consultations are not always the norm, so consider consultation costs when considering legal expenses.

As a result of the pandemic, many lawyers these days will conduct your consultation via Zoom if you wish. While that is possible, and very convenient, we find it’s better to meet with one face to face, so you can read their responses and body language better and get a view of their office and its professional atmosphere.

Shop Around

Don’t just jump to hire the first lawyer you meet either. You should aim to talk with at least three lawyers – if you have the resources. This way you have a higher chance of hearing different perspectives on your situation and finding the one that is right for you. Meeting multiple people will help you steer clear of lawyers who attempt to sweet talk you to get you in the door of their practice by claiming they handle divorces when in reality, that is not their practice. (Some lawyers practice several different types of law.

Go for one that is strictly matrimonial or a family law attorney who handles divorce.) Interviewing lawyers in advance can ensure they know how to navigate the family law sphere and that they will not over-complicate the divorce process. Having confidence and trust that your attorney knows the law is crucial to a successful divorce process.

We hear a lot of talk and fear about lawyers’ costs, which is natural, too. But a word to the wise, make sure you understand why it’s not in your interest to look for cheap divorce lawyers.

5. Listen to Red Flags

Attorneys work in the field of business. Sometimes some attorneys only want to make a sale and do not have your interests at heart. Other times you’ll be interviewed by a founding partner of the law firm who does the “intake” but you’ll end up working with another lawyer in the firm. Make sure you ask about that. As well, be careful of lawyers who are willing to tell you anything you want to hear to close the deal. A good attorney can realistically walk you through the divorce process and your best and worst-case scenarios. You’ll want to work with an attorney who is respectful, understanding, a good negotiator, and professional in their work. If they are dismissing your questions, talking down to you, or about other divorce attorneys or clients, there is a high chance they will do the same to you later on.

If you are beginning a divorce, you’ll want to check out this complete collection of “55 Must Do’s On Your Modern Divorce Checklist.”

Additionally, think about your attorney’s ability to communicate. Are they constantly on their phone or email during their consultation in a way that makes you feel devalued? Are they unresponsive to your texts, calls, or emails? They may have too many clients, or not enough administrative help to service their clients well. Or worse, they may not value you or your time and won’t be able to give your case the attention it deserves. You also want to read their disposition in your initial meeting. You don’t want someone condescending or lacking compassion to walk you through one of the most challenging times of your life.

SAS TIP: Trust your gut. If it is telling you there is something off with a lawyer you have just met, it’s likely true.

6. Make Your Choice

Finally, after all your diligent research and vetting, it’s time to choose your lawyer. This decision represents who you are and who will support and fight for you in the divorce. This attorney is a professional and an expert in their field. They make you feel like “they’ve got your back.” Knowing that your lawyer is by your side, fighting for your best interest is important. The right lawyer will walk you through the process and prioritize you and your wellbeing. Choosing the right divorce attorney is an important decision. It is likely a choice that will dictate much of your future life. However, with diligent research, goal setting, vetting, and listening to your gut, you will find someone who is better equipped at supporting you then simply grabbing someone off the internet.

NOTES

Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected. (more below)

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

Will my spouse get my IRA in a divorce?

Will My Spouse Get My IRA in a Divorce?

Divorce can have a serious impact on your life and in particular your retirement plan. More often than not, when you go through a divorce, a large percentage of your shared assets include your retirement accounts. This often leads to the question, “Will my spouse get my IRA in a divorce?”

In this article, I will discuss what it looks like to divide IRAs in divorce, and whether you should use your IRA to pay for your divorce. I’ll also discuss smart retirement strategies for women, and importantly, what you should do with your IRA post-divorce.

How Does Divorce Law Divide IRAs?

Unlike 401ks or other qualified plans, IRA accounts are divided under what is called a transfer incident to divorce when a divorce is completed. 

Any financial firm that handles your IRA may do things a little differently, but what’s important is that they will not require a qualified domestic relations order (QDRO).

With your IRA, your divorce will need to be finalized and a divorce decree will be necessary.  The good news is that this is not a taxable transfer because it is part of a divorce settlement.  However, if the receiving spouse decides to withdraw money from the account, this will incur taxes and may incur early withdrawal penalties.        

How much will each spouse receive? It is important to learn whether you live in an “equitable distribution” or “community property” state and what that means for dividing up your retirement accounts. Other factors may come into play such as contributions made to the account during the marriage. If your spouse is willing, you may be able to offer cash or securities in non-retirement accounts instead of giving up a larger part of your IRA. It is important to consult and ask this of your attorney as well as a financial advisor who specializes in divorce, like a certified divorce financial analyst or certified divorce financial planner.


Learn more about divorce property division and equitable distribution or community property laws here.


Should I Use My IRA to Pay for My Divorce?

Paying for a divorce can be incredibly costly and since retirement may seem to be a long time away, it is tempting to withdraw money for legal and other expenses of a divorce. However, you must know, withdrawals from an IRA before the age of 59 ½ may result in a penalty if you don’t qualify for an exception.  

In addition, draining your retirement account could also jeopardize your financial future.  

Make sure you have considered all other avenues before using your IRA for legal fees. IRAs are tax-advantaged accounts that can help your savings grow and your investments can compound over time. Depleting these types of accounts too early can have a huge impact on what you are able to accumulate over the long term.  


If you are dealing with divorce you’ll want to know how to structure and sequence the many To-Do’s facing you. Check out “The 55 Must Do’s on Your Modern Divorce Checklist.


Retirement Saving Strategies for Women

Women face various and unique challenges that can seriously affect their ability to save and invest along the way. First, women on average remain the primary caregivers for children or aging family members and therefore move in and out of these roles throughout their lifetimes.

Second, women tend to lean toward a more conservative approach to investing which can limit the growth of their wealth over time. Because of the gender pay gap, women are not able to contribute as much on average to their retirement accounts which results in lower wealth over time. Finally, women’s lifespans are increasing along with the costs of healthcare which means their dollars need to stretch longer than they have in the past.  

Here are a few strategies that women can use to combat some of these issues:

  • Contribute as much as possible to employer-sponsored retirement plans while working.
  • If you do not have a retirement plan through work but have earned income consider opening an IRA and maximizing contributions.
  • If self-employed, even part-time, consider a SEP IRA
  • Participate in a Spousal IRA (if eligible)
  • Create a budget and make sure you are staying on track.
  • Work with a financial advisor to help you find the appropriate mix of investments to help you achieve your long-term goals.
  • Consider rolling over any 401(k) or other employer-sponsored retirement plans from previous employers into an IRA for more investment choices and streamlined account management.  

To understand more about what women face when dealing with divorce, consider reading “What Divorce Does to a Woman.”


Your IRA Post Divorce

After the accounts are divided and your divorce is complete, the first thing you should do is review your beneficiary designation. It is all too common for an Ex to be left as a beneficiary on an account long after a divorce has been finalized. While your assets outside of your retirement accounts will pass to your beneficiaries based on what you specify in your will, a retirement account will pass to the designated beneficiary on file at the brokerage firm that holds your IRA.  

Seek Advice from a Financial Professional

Before and during your divorce it is smart to consult with a financial advisor to make sure you optimize your best financial situation for the splitting of assets. And certainly, after you finalize your divorce, it is important to seek the advice of a financial professional who can help you understand your new priorities and work with you to achieve your desired retirement lifestyle. 

Everyone faces similar challenges when creating a long-term retirement plan, however as mentioned earlier, women often juggle multiple roles both at home and at work, they tend to lean toward a more conservative investment approach and on average have a longer life span than men. All of these factors make planning for your retirement more important and more complicated than ever.    

Notes:

Christine Healy is a Senior Financial Advisor and Resident Director with Merrill Lynch.  Licensed in all states, she holds the Certified Divorce Financial Analyst® Designation and dedicates a portion of her practice to guiding individuals through the financial implication of divorce. Licensed in all states, you can contact Christine here to support your needs and goals as a woman dedicated to rebuilding your best life after divorce.

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

*To learn what a divorce decree is, read here.

Divorce papers by Graham for Unsplash

Divorce Papers: What the Heck Are They?

While no two divorces are exactly alike, one aspect always stays the same: the paperwork. You hear the term “divorce papers” casually thrown around all the time in movies, TV shows, or by gossipy neighbors. But what actually are divorce papers?

It is tricky to know exactly what they are because it is such a broad term. They technically refer to all the papers needed for the divorce process. The actual number of documents included in the complete paperwork varies from couple to couple. However, four primary papers almost always accompany the divorce: the petition, the summons, the answer, and the judgment. 

Paper #1: Starting the Divorce Petition

First things first, someone needs to begin the divorce process. The petition is the first step in the divorce. This means that one spouse needs to officially ask a court to end their marriage. This is the legal step that sometimes follows a separation. So, if you are the person initiating the process, you will fill out a form called a petition (sometimes called a “petition for dissolution of marriage” or the “complaint”). This form varies from state to state and can sometimes be found online or in person at the court.

In some states, the complaint is not a standard form, but an individualized statement. The petition has general information about both spouses and the length of the marriage. This is your first chance to indicate what you want from the judge. In this first form, you might be required to list out any community or separate property and how you would ideally split it. However, just because you indicate this is how you want to split it, it might not be divided as so. If children are involved, the spouse starting the divorce process will need to indicate what they would ideally want in terms of custody and care. When this form is finished, it is turned in or “filed” with the court, and you need to give a copy to your spouse. This divorce paper filing is the first step in the divorce process.


If you’re not ready for divorce papers but are contemplating separation or divorce, 

you might want to start here: “36 Things to Do If You are Thinking About Divorce”.


Paper #2: Informing the Other Person – The Summons and Service

Now, as lovely as it would be to go through the entire process without your spouse, legally, they need to know that you have filed for a divorce. They learn that you have filed for divorce through the service of the divorce paperwork. 

“Service” is when someone (every state has different laws on who this person can be) gives your spouse the first divorce papers. 

The service aspect of divorce is often a dramatic or awkward plot point in the media, with someone providing the protagonist with the divorce papers at a very inconvenient time. Regardless of how it gets there, your petition must make it to your spouse to give them notice and allow them to participate in the process.

If you’ve been the ONE hit with divorce papers, check out “What to Do When You Get Served with Divorce Papers.”

There are generally two papers being served, the petition and a summons. The summons tells the other person that you have filed a divorce and usually tells them what they need to do next and how long they have to do it. This might include the amount of time they have to respond if there is a preliminary court hearing and general directions for the process. Every state has different rules regarding the summons and court process. 


Do you ever wonder who else in the world could be thinking “divorce”? 

Read “What Percentage of Marriages End in Divorce?” to understand more about the nuances of the question and to realize, you’re not alone.


Paper #3: Responding – The Answer

After your spouse is served with the initial paperwork, it’s time for them to ask the court for what they want. There are two main ways an answer can happen. The first is that your spouse just doesn’t respond to the petition and summons. This means that they have chosen to stay out of the divorce process, and you will skip right to a “default judgment.” A default judgment is when the judge will finalize the process based on the petition.

The other option is for your spouse to participate in the case and fill out and file an answer. The answer is a written response to the petition. It tells the court exactly what they want out of the proceeding. The answer will either agree or disagree with the terms set out in the petition. Some states require an appearance form along with the answer. This tells you and the court that your spouse is taking part in the court case and that they want to go to court (think of it as the counterpart to the summons).

Like the petition, the answer and appearance forms must be filed with the court clerk, either in person, online, or by mail, and served to the other person. You must know what your spouse intends to argue for in the negotiation or court process.

Paper #4: The Final Decision, The Last Step, The Judgment 

After the long process of papers, negotiation, and stress, all you want is for the divorce to be done and over with. However, a divorce is not finalized until the judge gives the final order, called a judgment. 

This final judgment follows some form of discussion (whether it is a contested or uncontested divorce) about what each person will get from the divorce. Judges, lawyers, and most people prefer to keep divorces out of the courtroom, so they will often explore other negotiation options, like mediation and arbitration, before going to court.

Official Decision by the Court

After the couple has come to some form of an agreement, a judge must give the court’s official decision that officially grants the divorce.  This is most often done with lawyers or a mediator submitting the divorce draft agreement to the court for the court to then review and stamp (usually) with approval.

We recommend that every woman, no matter how she divorces, seek a private consultation with a divorce attorney. Learn your rights and what you are entitled to (even if you elect for DIY divorce) before you start splitting things up. (Yes, no matter what your spouse says.) We’re not saying spend a bundle, but you’ll want to know why you don’t want to search for cheap divorce lawyers in the process.

This final judgment or divorce judgment is the final paper in the divorce paper repertoire. However, like all aspects of life and divorce, it is not always so straightforward. After the judgment, there is always the option of modifying the terms of your divorce by a court order. You might want to modify aspects like property division, debt division, or alimony. In order to change a final ruling in a divorce, there generally needs to be some substantial change of circumstances. This can include: a job loss, one spouse has remarried, or one spouse is earning significantly more than they were at the time of the divorce.

Paper #5: Other Common Papers

Every divorce is different, so they will all have different papers that come with them. These can include property division forms, more complicated child custody or visitation forms, or alimony/marital maintenance forms. Every state has a different procedure and might have other forms accompanying a standard divorce. 

Conclusion

Divorces are full of complex paperwork. It is important to keep track of them and stay organized and informed on the different papers needed to complete a divorce in your state. This is key to making the process go as smoothly as possible. 

Notes

Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 


Choose not to go it alone.

Since 2012, smart women around the world have chosen SAS for Women to partner with them through the emotional and oftentimes complicated experience of divorce. SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you and your precious future. Join our tribe and stay connected.

Essential things about Divorce in Illinois

6 Essential Things to Know About an Illinois Divorce

Divorce is confusing. What makes it even more confusing is that every state has different divorce laws. There is little to no standardization in divorce law across the country. To help yourself in the process, it is crucial that you know the specific divorce laws for your state, and an Illinois divorce has its own intricacies. Understanding the relevant laws allows you to focus on yourself and stop unneeded stress in its tracks. 

Let’s look at six essential things a woman must know about an Illinois divorce.

1. Grounds for Illinois Divorce

Grounds for divorce means the reason behind the divorce. In Illinois, one person does not need to be at fault for ending the marriage because it is a “no-fault” divorce state. No-fault means that you do not need to prove that one person’s bad acts caused the divorce. Illinois divorce takes away the legal finger-pointing for ending a marriage because the law does not require one person to take responsibility for the divorce.

Luckily, this means there does not have to be a reason for the divorce aside from wanting it. This also means that a court will generally not consider things like affairs or abandonment when looking at property division and child custody. However, this does not apply in cases of domestic violence. (If you are dealing with any form of abuse, you will want to read “Leaving an Abusive Marriage? There are Steps to Take.”

 A court will grant a divorce if there is an “irreconcilable difference,” meaning there are such significant differences or difficulties in the marriage that it is “irretrievably broken.” You can show irreconcilable differences in one of two ways: by proving that there is no way to repair the marriage, even though you have tried, or through a six-month separation. A court will consider spouses who have been separated for six months either within the same household or living apart as evidence of a breakdown of the marriage.


Check out, “What are Irreconcilable Differences? Do They Apply to You?”


2. Alternatives to Divorce: Difficult but Not Impossible

Divorce is the most common way to end a marriage in Illinois. It is very difficult to qualify for an alternative to divorce. However, the two alternatives to divorce are annulment and separation. An annulment says that a marriage was never valid and must fall into a strict category. The court must find that this marriage is not valid and was never valid, and the state should never have recognized it. There are only four reasons the court can annul a marriage in Illinois.

  • One spouse could not consent to be married. They cannot consent because of a mental disability, there is the undue influence of drugs or alcohol, or they were forced or tricked into marriage.
  • One spouse cannot have sexual intercourse, and the other spouse did not know about it at the time of the marriage.
  • One spouse was under 18 and did not have parental or judicial consent.
  • Or the marriage was illegal. In Illinois, the couple is closely related by blood, or one person is still married to someone else.

Legal Separation

The other alternative is a legal separation. Legal separation does not legally end the marriage, and it is not as simple as just separating from your spouse by living apart. It is a very technical term. A legal separation will allow the court to rule on child custody, support, and maintenance issues. It will not allow the court to rule on property division, and you cannot get remarried if you have a legal separation.

People might opt to get a legal separation in cases in which they might rely on their spouse’s benefits (like health insurance, social security, or pension), you are not fully ready for a divorce but know you legally need to be apart, or your religion prohibits divorce. If you get a legal separation, you can still file for a divorce if you choose to in the future (which you will need if you plan on eventually remarrying). For more on this, read “Choosing a Separation or a Divorce.”

3. Maintenance

Maintenance (also called alimony or spousal support) is rare in most divorce cases. First, the court will decide if this divorce requires alimony. The court will consider both parties’ emotional, physical, and mental conditions when determining if and how much maintenance it should award. As stated by Illinois law and the Bar association, the Illinois guidelines for maintenance are that maintenance awards are generally 30% of the paying spouse’s gross income minus 20% of the receiving spouse’s income. The court can always disregard the guidelines based on fairness factors that it deems important.


Understanding your finances and just how you will split things up is a good thing to speak to a financial person about. Check out, “Smart Moves for a Woman: A Financial Consultation for a Divorce.”

You may also wish to understand “Why You Don’t Want to Search for Cheap Divorce Lawyers,” when you are googling for legal support.


4. Residency and Waiting Period

To get a divorce, you or your spouse must be a resident of Illinois for at least 90 days before filing for a divorce. Only one person must be a resident of the state to file in Illinois.

Unlike many states, Illinois does not have a waiting period required to fill out the documents for a divorce. When you want a divorce, you or your lawyer can file it with the court immediately to start the process. 

5. Property Division: Equitable, Not Equal

Marital property includes every single thing (and debt) that you and your spouse acquired during the marriage. This consists of all physical items, like cars and houses, as well as intangible things like stocks, investments, and bank accounts. There are few exceptions to marital property. These include student loan debt, inheritance, and gifts. 

Illinois follows the equitable approach to property division. The equitable approach means that the court will divide all marital property equitably, which may or may not be an equal 50/50 split. The court can determine what is equitable based on the circumstances surrounding the items, and the marriage. It can consider each person’s financial contributions in getting the property and their personal financial situation.


Learn more about “Divorce Property Division: Community Property States v. Equitable Distribution States” if you are weighing which state to file your divorce in.


6. Child Custody 

Like most states, Illinois courts look at the child’s best interest in determining custody arrangements. The judge will look at all the factors to determine the best placement for the child. Illinois strongly believes that it is best for the child to have consistent and long-term contact with both parents after a divorce. Additionally, unless the child is older, they generally do not have a say about where they want to live; that is for the judge to decide. 

Unlike other states, Illinois law refers to child custody as “parental responsibilities.” Parental responsibilities refer to two different aspects of parenting, legal decision-making and parenting time. Decision-making accounts for who decides the child’s education, health, religion, extracurricular activities, etc. Unless the parents really cannot work together at all, both parents typically hold this power jointly. The other aspect is parenting time, in which the court will determine which parent will primarily physically care for the child.

Conclusion 

Illinois has many specific laws regarding divorce in the state. In order to make your divorce process as simple as possible, you need to fully understand the laws and nuances of your state. If you are wondering what other steps you could be taking to ensure your divorce goes as healthily as possible, we encourage you to consult “The 55 Must Do’s on Your Modern Divorce Checklist.”

Notes

Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation.

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

Irreconcilable differences

What are Irreconcilable Differences? Do They Apply to You?

Legal language concerning divorce is often hard to decipher. So when you stumble upon the term “irreconcilable differences,” it can take some time to get to the bottom of it. What is it? Should you use it in your divorce? What benefits can it bring you?

Read on to find out.

What’s the Meaning of Irreconcilable Differences?

Some of you may recall a 1984 movie of the same name. One of the lead characters, a 9-year-old girl, asked the court for divorce from her parents on the grounds of “irreconcilable differences.” Her main argument was that she’s tired of being neglected, forgotten, and taken for granted.

Our reality isn’t too far from this comedy-drama film. We use this phrase to denote that the spouses cannot find any reasons to continue living together.

Let’s look at the definition of irreconcilable differences provided by California Family Law, § 2311.

“Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”

Several states, such as New York and Massachusetts, also use “irretrievable breakdown of the marriage” to refer to the same notion.

What are Examples of Irreconcilable Differences?

Among the most cited examples of irretrievable breakdown of marriage are the following:

  1. Disputes about having children.

Every person has certain expectations when they get married. But unfortunately, not all couples discuss the future of their relationships, especially children. And when the honeymoon period ends, it turns out that one person wants to have two or three kids, while the other doesn’t want any. Even if everything else is perfect, these child-related differences can strain a marriage.

  1. Change of views and lifestyle.

A real-life example of lifestyle changes is when one spouse becomes unemployed and has no intention or ambition to find a new job. Even if money is not an issue, it’s very annoying to the other spouse (especially if it’s a woman) to see their partner lying on the couch all day long. (Check out, “Breadwinning Moms Face an Uphill Battle When Married and Divorcing”.) As for men, many of them leave their beloved wives when they stop feeling attracted to their wives physically. It’s an unfortunate reality.

  1. Disputes about how to raise children.

If parenting styles were the same for everyone, there wouldn’t be many conflicts between the parents. But instead, each parent draws on their unique childhood experience and wants to implement it when raising their kids. If the spouses can’t compromise on how to combine two parenting styles, their relationship can worsen with each new collision.

  1. One spouse mistreats the other.

One of the spouses is contemptuous of the values and desires of the other. They show their displeasure with the other spouse’s behavior, status, and earning capability. Over time, this attitude begins to cause strong rejection in the oppressed person and becomes the reason for divorce. Note that we’re not talking about physical or emotional abuse in this example. There are specific grounds for divorce provided in family law when a person suffers cruel treatment.

  1. Issues with in-laws.

It’s not uncommon for a husband’s or wife’s relatives to interfere with the couple’s life. It is especially noticeable in families forced to live together with their in-laws. If the partner whose extended family gets in the way of a happy marriage lets it slide, the other spouse will want a divorce sooner or later.

  1. Sexual incompatibility.

Another example of irreconcilable differences in marriage is incompatible sexual drives. Couples can split because of a lack of sex or its unsatisfactory quality. Such issues occur in almost 15% of marriages. But since the spouses don’t want to publicly announce the real reasons for divorce, they use irreconcilable differences.

  1. Different religious or political views.

Many conflicts can also arise from different political views. For example, according to the IFS studies, marriages between a Republican and a Democratic Party supporter make up only 9% of all U.S. marriages. And if we talk about religion, the problems of an interfaith marriage most often include conflicts about the child’s faith and difficulty communicating with the in-laws, already mentioned above.


To understand how to sequence things, what comes first, what comes second, and how to protect what is fair to you, check out our important “55 Must Do’s on Your Modern Divorce Checklist.”


Irreconcilable Differences & No-Fault Divorce

The last state to adopt no-fault grounds was New York. It happened in 2010. These days, irreconcilable differences are widely used as no-fault grounds for divorce in all fifty states. The main reason for this is the desire for privacy and faster divorce proceedings.

Filing for Divorce Based on Irreconcilable Differences

Starting a divorce on no-fault grounds is undoubtedly easier than blaming each other for a marriage breakdown.

The conditions to file for a no-fault divorce include:

  1. The petitioner (the person who files divorce papers with the court) must state “irreconcilable differences” as the reason for marriage dissolution in the petition. Some states, such as New Jersey, require these differences to occur and continue for six months before filing for divorce. If neither party objects to the no-fault grounds, the court will proceed with the case.
  2. The couple must meet the state’s residency requirements so that the court can have jurisdiction over the case. It almost always refers to a specific period that one spouse must live within the state’s borders before starting legal action. For example, in California and Texas, the waiting period is six months, and in Georgia and Missouri, it is 30 days.
  3. Spouses with irreconcilable differences must agree on divorce terms and draft a settlement agreement. It should include provisions concerning child custody and support, property division, and alimony. The spouses should also file a Parenting Plan, specifying the child’s time with each parent, financial aid, and other child-related issues.

Do You Need a Lawyer?

In theory, family law allows anyone to commence a legal action without a lawyer. The same goes for legal representation in court. It’s not necessary to hire an attorney to present your case to a judge. You can do it independently, especially if your divorce is uncontested. (Read “What’s the Difference Between an Uncontested and Contested Divorce?”)

Those people who proceed without an attorney are called pro se litigants. Most of them are couples filing for a no-fault divorce since it’s less complicated than a fault divorce. Plus, conflictual cases are usually highly intricate and require at least legal advice, not to mention full-scope lawyer involvement.

Essentially, if a couple believes they can avoid conflict in court and trust each other (e.g., no one is hiding any assets), they can go pro se.

If there’s the slightest doubt about the other person’s sincerity, the spouses should seek legal counseling.

Here’s a checklist to understand whether you should hire a lawyer or not. You can do without one if at least half of the following is true:

  • neither of you blames each other for the marriage breakdown
  • you agree with your spouse about divorce terms
  • you don’t have substantial property or debt
  • your marriage was short
  • you want to end your marriage peacefully
  • you trust your spouse.

Divorce Papers for Couples with Irreconcilable Differences

As a rule, documentation for couples with irreconcilable differences is less complicated than in fault-based cases. The forms include a petition (complaint) for divorce, a settlement agreement, a parenting plan, and other papers. Couples with children usually have slightly more paperwork than couples without kids.

A settlement agreement is probably the most influential document to reconcile differences in divorce. But it also requires a great deal of consideration since the terms will be hard to change once the divorce is granted. For example, a person who wants to modify child custody or support will have to file a motion with the court and attend additional hearings.

The Benefits of Choosing Irreconcilable Differences

Why is filing for a no-fault divorce using irreconcilable differences so popular? For some spouses, it is the best choice because of the following:

  • lower legal expenses
  • you can file without a lawyer
  • no need to prove the other person’s misconduct
  • more privacy since the law doesn’t require explaining what exactly caused the breakup
  • less complicated divorce documentation
  • more control over the outcome
  • faster divorce process
  • more chances to maintain civilized relationships after divorce

Should You Go with Irreconcilable Differences in Your Divorce?

Taking all the benefits into account, you can consider a no-fault option if:

  • you had a relatively peaceful marriage and now want to part ways because you can’t find a reason to stay or feel stuck
  • neither you nor the other party did anything wrong that caused the marriage breakdown
  • you’re sure that all the divorce terms you and your spouse agreed to are in your best interests.

How do you know if the divorce terms you and your spouse are thinking about are in your best interest? It’s always wise to have a private, educational consultation with a divorce attorney to hear what your rights are and what you are entitled to BEFORE you start splitting things up. Read “Questions to Ask a Divorce Attorney at a Consultation.”


Conclusion

Choosing irreconcilable differences as the reason for divorce is wise for many couples. It saves nerves, time, money, and energy. But make sure you’re not missing any essential aspects, which can lead to unexpected circumstances. You’ll want to make sure your divorce is genuinely no-fault.

Notes

Jamie Kurtz is a divorce lawyer and a member of the LA County Bar Association and the State Bar of California. She’s a co-founder of a law firm dealing with uncontested divorces and a contributing writer for OnlineDivorce.com, an online divorce papers preparation service.

Since 2012, SAS for Women has been entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusion afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

Public Divorce Records

Public Divorce Records: How to Protect Your Privacy

Privacy is a topic of concern for many, especially as the world moves further into the digital era. Many aspects of our lives are searchable, sometimes even without our knowledge, as certain information is considered public domain. Knowing this, the concern for privacy can make going through a divorce that much more difficult to endure. A public divorce can hinder our ability to feel in control of sensitive information, as anyone can legally find the details of legal court proceedings.

Unfortunately, this means that divorce filings are considered public record, and divorce hearings are open to the public.

This also means that aside from personal identifiers, such as Social Security numbers which must be redacted, any information contained in divorce filings can be found in these documents.

This can become a major point of concern if a spouse reveals private information about their partner or if children are involved in the divorce.

Fortunately, it is still possible to maintain a level of privacy during such a difficult time. Below are some strategies that can help protect your and your family’s privacy during a divorce.

The Decision to File Divorce Records Under Seal

To protect divorce documents from becoming public records, both spouses must ask the court to file the records in the case under seal. When this happens, confidential or sensitive information will be kept private and will not become accessible to the public. Courts have the ability to order entire records or portions of documents to be filed under seal.

It is important to note that courts will not file records under seal automatically. Either or both parties to the divorce must request that the court seal them. The judge has the discretion to decide whether this request will be granted, with special attention given to cases that involve children, abuse, substance issues, or potential libel. The judge will consider whether the potential damage to the party or parties making the request outweighs the public policy to keep court records accessible to the public.


Confused and overwhelmed? Check out “Getting Through Divorce: How to Keep Your Head Straight.”


Reasons for Sealing Divorce Records

There are many reasons why you may want to keep your divorce filings private. Some of the most common reasons include:

  • The need to protect a child’s identity in the divorce records
  • The need to protect victims of domestic or sexual violence
  • The need to protect proprietary business information

If you are a public figure, you may also want to seal divorce records to protect your reputation and prevent any damage to your public image through the exposure of false allegations. However, embarrassing information on its own may not be enough to convince a court to seal divorce records from the public.

Why Divorces are Generally Public

The primary reason that divorces are public is to maintain a level of transparency in court proceedings. The public is able to see what occurs in the courts through access to these court records. They can also see what information may drive a certain court’s decision. In an effort to maintain a positive and transparent relationship with the public, court filings must remain accessible.

If you are requesting that the court seal your divorce records, you must be able to demonstrate the damage you would suffer if the records were to be made public. You must then demonstrate that this damage outweighs the public’s right to open court records.

The court must agree that these two elements have been met to exercise its discretion to seal the records. A knowledgeable divorce attorney can work with you to prepare a request to seal your divorce records and help you demonstrate the losses you would face if the records were made public.


For more things to know and take care of (lest you be caught by surprise), read “55 Must-Do’s on Your Modern Divorce Checklist.”


Tailoring Requests for Sealed Divorce Records

When requesting to seal divorce records, it is important to make sure that the request is narrowly tailored, which means only asking to seal the potentially damaging information. Generally, courts will only seal as much information as is required to protect the privacy interests in question. This may result in redacting portions of a divorce filing rather than sealing entire documents.

Narrowly tailored requests to seal divorce records have a better chance of approval than requests to seal all documents filed in a case.

It is important to clearly state your privacy concern and ask the court to redact or seal the specific information related to it rather than make a blanket request to seal the entire record based on vague privacy concerns.

Using Mediation or Arbitration for Privacy

In many cases, the best way to protect your privacy is to come to an agreement with your spouse before filing in court to request a divorce. Mediation to settle a divorce can keep sensitive information out of the public eye and safe from scrutiny. A mediator can help divorcing spouses to negotiate a settlement, resolve any disputes, and guide discussions during the divorce. If an agreement is reached at mediation that leads to a written settlement agreement, the only documents that will be filed in court are papers to request a divorce and the written agreement. The agreement can be drafted to exclude sensitive information.

Mediation is a great solution to settle a divorce while minimizing your time spent in court. Using this method, you can keep information regarding assets and finances as well as sensitive information regarding children out of official court records.


Considering reading “6 Essentials for Preparing for Mediation.”


Private divorce arbitration is another way to resolve a divorce out of court. Private arbitration is almost identical to a regular trial in court. The difference is that a private arbitrator—who are often retired judges—will adjudicate the parties’ divorce in private. The arbitrator will then issue a decision, which can be tailored to exclude sensitive information. That decision will then be incorporated into the court’s judgment of divorce.

Privacy from Your Spouse

Some people may be less concerned with their divorce being public information and more worried about their spouse accessing their private information. To prevent any of your private information from getting into the wrong hands, it is a good idea to change your passwords for personal accounts. This will prevent others from accessing sensitive data.

Keeping private documents from your spouse during a divorce may also be something to consider. If you still live with your spouse during the divorce, consider storing documents in a lockbox or safe or in a location outside the home.

Another important aspect to consider during a divorce is social media. Attorneys will frequently use social media posts in divorce proceedings. Images and posts may become part of the public record which can be a point of concern to those who want to maintain their privacy as much as possible. Revealing too much on social media can cause issues in the divorce process, whether it be settling or litigating the divorce. This is why it is important to be very careful with what you post to maintain as much privacy as possible.


Settling or litigating? Understand “What’s the Difference Between an Uncontested and Contested Divorce?


Final Thoughts

If you’re worried about the private contents of your divorce proceedings becoming public record, there are some options available to you. Requests to seal parts of your divorce records will be more likely to be accepted by the judge if they are narrow in scope and can demonstrate that harm would be done if made public. If those harms outweigh the public right to information, the judge will likely grant your request. Typically, this is when proceedings include minors (children), infidelity, or other personal information that could tarnish one’s reputation if made public.

Notes

Work with an Attorney You Trust: Going through a divorce can be incredibly stressful. It is important to find an attorney you trust to handle your case and help you get the privacy you want. At Moskowitz Law Group LLC, we are committed to ensuring that you are taken care of during your divorce. Our dedicated team can guide you through the divorce process and take some of the stress off of you during this difficult time. Take action to protect your privacy by contacting an experienced legal professional today.

 

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you—and your precious future. Join our tribe and stay connected.

 

What is a Contested Divorce?

What is a Contested Divorce?

When making the decision to divorce, it can be uncomfortable, overwhelming, and downright scary. During a period of time in which you need wise counsel and support from loved ones, it is commonplace to be bombarded with the divorce horror stories of others, which then restrict your ability to make a truly informed decision that serves your best interests. For example, perhaps an aggressive and litigious lawyer represented the husband of your best friend? That lawyer caused things to get nasty. Or maybe the judge assigned to your neighbor’s case was biased, disgruntled, and disinterested, and the divorce outcome was unfair as a result? Of course, one of the most common complaints is that the contested divorce costs tens of thousands of dollars and that the only individuals who benefitted, in the end, were the attorneys. 

If you find yourself in this place of fear, which is quite natural, by the way, please take a very deep breath and perhaps a sip of your coffee or tea and allow me to clear up some divorce misinformation. 

I am here to tell you that although divorce is a significant and complicated life transition, many cases can be (and are each day) resolved in a manner that does not resemble those professed horror stories. In fact, believe it or not, the vast majority of divorce cases do not go to court. They are ultimately “uncontested”, even the “crazy” ones, in my experience.

Defining the “Contested Divorce”

What is the difference between a “contested” and “uncontested” divorce, you ask? 

A contested divorce is one whereby the divorcing parties are unable to resolve their divorce issues, such as the division of assets and debts, alimony, child support, and custody of the minor children, and must look to a Judge to make the determination. 

Put more succinctly, a contested case means litigation–preparing for and going to Court for a final trial. 

The preparation part can include countless different and costly legal measures, such as sending out subpoenas for the production of documents; taking depositions of not only the parties, but multiple witnesses; hiring experts to perform investigations and weigh in on various financial and/or child custody matters; and, participating in countless meetings with the attorneys to ensure the case is fully prepped for trial. It is an arduous, emotional, and expensive process, which could span the length of years (especially during this period of the pandemic when Court resources are limited but remain in high demand).

Defining “Uncontested Divorce”

On the other hand, an uncontested divorce is resolved by the parties themselves, with the help and guidance of their attorneys, and in many cases, through the use of other resources, such as mediators, parent coordinators, co-parenting counselors, and financial professionals. 

The court is not off-limits in an uncontested divorce case. Judges can be relied upon to resolve temporary issues (such as, who is going to live in the marital residence during the legal proceedings?). 

Nevertheless, in an uncontested divorce, it is the divorcing couple who is ultimately responsible for settling the case.

An uncontested divorce does not necessarily mean that everything is going to be a bed of roses throughout the divorce process and negotiation. After all, you are divorcing your spouse for a reason. Also, it’s worthy to note that every legal case begins as one that is technically “contested”, and it’s not until the parties sign on the dotted line of a settlement agreement that the matter can then be labeled as “uncontested”. The point is, there is still serious work involved in achieving an uncontested divorce, as well as a big dose of perspective and compromise. 


If divorce is likely in your future, you’ll want to consult our ultimate list for a woman, “The 55 Must Do’s on Your Modern Divorce Checklist.”


Assessing Marital Estate and Assets

Divorces cannot reasonably be resolved until there is a clear picture by both parties and the attorneys of the value of the marital estate, and sometimes, the circumstances may be such that one or both parties may be mentally unready to discuss the resolution of a child custody matter until a third (3rd) party neutral, such as a Guardian Ad Litem or child therapist, makes a recommendation. In other words, there are certain legal measures that are taken by the parties and their attorneys, irrespective of a matter being contested or uncontested. But that is par for the course in divorce, and your attorney should be very well equipped to manage this and to significantly lighten the burden that you would otherwise feel if you were unrepresented. 

The Benefits of Uncontested Divorce

The genuine appeal of uncontested divorces is that they are significantly less expensive than contested divorces, as the attorney’s fees associated with trial preparation are largely avoided; the life of the uncontested case tends to be shorter because of the need for depositions, Motions hearings, and other pre-trial measures are lessened. And, in the context of uncontested divorce cases, the degree of stress, acrimony, and emotional output is typically reduced (#understatement), and it will be much less awkward to see your Ex in years to come at graduations, weddings, and the hospital when grandchildren are born. In short, the benefits of an uncontested divorce versus a contested divorce are considerable.

Should you attempt to avoid litigation and pursue an uncontested divorce? Absolutely. 

For the benefits described above, that should be the goal of any party or attorney in entering the case. Of course, it takes two to tango, and there are occasions where an exceptionally unreasonable and litigious spouse will require a trial. 

However, what can be done to strengthen the likelihood that your divorce case will reach the uncontested finish line? 

The most significant piece of advice I can give to someone who is hopeful for an uncontested divorce is to not sweat the small stuff. Rather, focus on the bigger picture, which is working towards a divorce that maximizes your financial security, yet balances that against your happiness and mental stability and the happiness and mental stability of your children. 

That means, when your husband brings the children back to you fifteen (15) minutes later than he was supposed to, not treating the situation as though he did not return the children to you at all. Or, if your husband’s appraisal for the marital residence comes back at $500,000, but you are convinced the house is worth $550,000, choosing to be reasonably flexible as to the value rather than to dig your heels in. When you demonstrate some grace and flexibility, you, in turn, find that your spouse is more inclined to meet you in the middle. This can be easier said than done, given what your husband may have put you through. Keep in mind, however, the bigger picture benefits of settling your case versus going to trial.

Self Care During Your Divorce

Moreover, if at all possible, invest in a regimen of self-care during and after divorce, such as participating in therapy, working with a divorce coach, joining divorce support groups, going to church, exercising, getting a massage, writing in a journal, etc. Find what it is that provides you with a healthy sense of peace and rely on that when the going gets tough. And, an added bonus of self-care–your perspective will be sharper, and you will have a better mindset come negotiation/settlement time.

My final piece of advice, particularly in the context of settlement negotiations, is to analyze the costs and the benefits of pursuing a particular position. For example, is it worthwhile to spend thousands of dollars in attorney’s fees to litigate the issue of child support when you and your spouse are only $100 apart? 


Appreciate how critical the financial part of the divorce truly is to you as a woman. Read: What Divorce Does to a Woman: You and Your Money.


Does it make sense to spend time in mediation, time arguing over $1,000 that is missing from the joint checking account, when the collective hourly rate of the attorneys and the mediator is $1,200? Although you might be justified in taking certain positions in your case, you may find that pursuing justice is outweighed by the costs. In other words, pick and choose your battles, particularly those that are going to produce the biggest benefit to you. 

Final Thoughts

In closing, divorce is a process, or sometimes more aptly put, a rollercoaster. While reaching a divorce settlement might seem like an impossible feat at the moment, there is actually something that you and your husband likely agree upon. That is, an uncontested divorce case is mutually beneficial to you both, and for that reason, you will most likely reach the uncontested finish line eventually.

 

Notes:

In addition to being a single mother to a sweet and sassy four-year-old, Stephanie Wilson is a passionate attorney with fifteen years of experience in the family law arena. Over the course of her career, Stephanie has garnered a reputation for her skilled representation, strong work ethic, solid value system, and focus on the family. She is driven to help her clients achieve the freedom, peace, and happiness that they may have otherwise been missing in their unhealthy or unworkable marriage. Stephanie Wilson Family Law can be found at www.swfamilylawga.com. Stephanie invites those in need of a Georgia divorce attorney to contact her directly at stephanie@swfamilylawga.com to schedule a consultation.

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

Divorce Checklist for the Modern Woman

The 55 Must Do’s on Your Modern Divorce Checklist

Once you’ve reached an internal decision to divorce, you probably wonder what the external steps to the process will entail. The truth is that your journey is just beginning, and in order to determine the best possible outcomes, you’ll want to be educated and prepared. You may find yourself exhausted searching the internet for answers, only to feel more confused than when you began. We understand this, which is why, drawing from our decade-long, divorce coaching practice, we’ve compiled our most thorough divorce checklist to help you stay focused on what’s important.

A few critical reminders before we get started: Never threaten divorce unless you are ready and organized to file. While you may be anxious to get started with your new life, it’s important that you hold off on filing until after you’ve worked through some of the important frameworks we outline below.

Also, if you have had a divorce thrown at you, do not agree to anything until you are legally informed of your rights and entitlements. Chances are your spouse has been planning this for a long time and you deserve time too to catch up with how things will be split and what is fair for you.  Do not be pressured into agreeing to anything. This is most often a tactic on your spouse’s part to ensure the process takes place fast and before you can advocate for your rights.

Most importantly, do not begin with the list below if you are dealing with abuse. Instead, read our safety guidelines for leaving an abusive marriage. There are other, critical steps to take first.

For those ready to begin the work of getting educated and putting their plan into action, here is a holistic approach to supporting you — and the smart steps to take. Here are your 52 Must-Do’s on Your Modern Divorce Checklist.

Your first black and white steps…

1. Begin by getting a free credit report.

You’ll want to check it for any errors or open accounts that you may not know about. This will also prompt you to start paying attention to your credit score. You’ll want a good credit score, or work on nurturing one, so you can rent an apartment, qualify for a mortgage, or begin the process of establishing your personal financial identity. You can get a copy of your free, current credit report from Equifax, Experian, or TransUnion.

2. Open a checking and savings account in your name at a new bank. 

Go to a bank that you and your spouse don’t currently use (—think fresh starts, so there’s no risk of any confusion between names and accounts). We also recommend you use a large institutional bank so you take advantage of the bank’s various complimentary services and professionals who can help you establish your independence, like mortgage specialists or certified divorce financial analysts and planners.

3. Open a credit card in your name alone.

This is another step toward building your personal credit. Research the best credit card for your lifestyle. Consider one that pays you back with cash toward your statement or cash to your savings.

4. Make a list of all your assets: everything you OWN individually and as a couple.

Don’t forget less obvious things like airline miles, perks, or reward points, and make sure you include any inheritances from before and during the marriage.

  • You will want to collect the latest statement for each asset and record account numbers.
  • Photocopy or use your phone’s camera to record documents that are not in your possession.

5. Make a list of your debt: everything you OWE individually and as a couple.

Don’t forget school loans and personal loans, and a list of anyone who owes you money, how much they owe you, and when they’re supposed to pay you back.

  • Gather a current statement on the debt and a statement from the time of the separation (if it’s already happened.)
  • Photocopy or use your phone’s camera to record documents that are not in your possession.

6. Track what is happening to marital debt.

According to divorce law in most states, you and your spouse are responsible for one another’s debt. You’ll want to lessen this potential burden.

  • Be on the alert if your spouse is spending recklessly. (You can put notifications on your accounts for any high spends or withdrawals.)
  • If this happens, talk to a lawyer right away about legal steps you can take to limit your responsibility. (See step #19.)

7. Gather the past three years’ tax returns.

If you can’t get your hands on yours, contact the IRS for your transcripts or report (the latter costs but it’s what a lawyer would rather evaluate). And be careful with the IRS mailing the reports to your legal home address. Will your spouse get the mail first?

If you cannot access the financial documents, it’s not unusual. When you meet with the lawyer to discuss your circumstances (see below), you will share what you do know and ask the lawyer what happens when one spouse does not know anything about the finances in a divorce. (It’s more common than you think!)

8. Collect passwords to all financial accounts if you can access them.

You may need to access information in your financial accounts, so you’ll want to be sure you have passwords on hand.

9. Create or contribute more to your Emergency Fund. 

An emergency fund is something you need throughout your life, but as you stand at this crossroads now, save cash by putting it to the side. You never know if you may have to reach for it in a hurry.

10. If You are a Stay-at-Home Mom (SAHM) Make Sure Your Emergency Fund Has 3 Months of Financial Reserves.

If you are the spouse with limited access to resources, make sure you have sufficient money saved to pay for three months of expenses. It’s not uncommon that the monied spouse will cut off the non-monied spouse financially during a divorce. (When you talk to a lawyer one of the questions you will ask about is temporary spousal support. (See #19.)

11. Write down your financial and non-financial contributions to the marriage.

Some contributions may be legally relevant and especially helpful to you.

Are there more documents you could organize as you head into divorce? Probably yes, but there’s no need to get ahead of yourself and do potentially needless work. So, wait. Unless a lawyer tells you otherwise, there are other things to tend to.

Practical To-Do’s on Your Divorce Checklist

12. Create a new dedicated email address for the divorce subject. 

Make sure all your communications on the subject go to this email address alone. This makes things easier to keep organized and lessens your chance of being compromised by your spouse.

13. Consider the technology set up in your home and exercise caution.

While using a secret email address is recommended, it is not a full-proof method of keeping your communications safe. If, for example, your cell phone and computer system are backed up to a “family cloud” account, whoever controls the account may be able to read phone numbers you call or any text you send.

We suggest that you contact your computer company (like Apple, Dell, etc.) and mobile carrier service (Verizon, T-Mobile, Sprint, etc.) and talk to a representative to learn if your computer or cell phone could be compromised. We also recommend you ask the representative if there are other measures you could take to digitally protect yourself.

Secure any passwords to shared accounts (especially financial if possible) and your private ones (such as social media accounts). Change all passwords to your private accounts.

14. Maintain privacy on social media.

Do not post anything about your divorce on social media. It could be used against you. Plus, it’s no one’s business but your own.

15. Get a Post Office Box so you can receive important mail to a private safe address.

Give the address to your lawyer. If you can’t afford a PO Box ask a friend or family member if you can have your lawyer send information to their home.


If you’re not ready to act but really, only in the “contemplating” divorce stage, you’ll want to understand what you could be doing instead of just pondering and pondering. For healthy and smart steps to take,  read our “36 Things to Do If You Are Thinking About Divorce.”


Clarify Who You Want to Be Through this Crisis

16. Early on, choose who you want to be as you go through the divorce. 

This will help you remain civil and treat your spouse with respect. If your spouse is the father of your children, remember you still have many important moments and milestones in your future together—birthdays, graduations, weddings, reunions, and funerals. Trying to do the right thing now and throughout the process may not change your spouse’s behavior, but it will set a powerful example to your children who are watching and wondering how it will shake out.

17. If you have kids, keep them in your focus

The best person you can be will also be in alignment with keeping your kids (if you have them) front and center. If you are committed to going through the divorce in the healthiest way for them, it will mean doing what is also healthiest for youbecause they need a mama who is healthy and strong and thriving. (Are you now? No, we know.)

For you to discover what the healthiest way is, it will require your getting educated and putting your ducks in a row (and not just cracking and announcing you want a divorce!). This is why you are here reading this list, and are ready for more. You’ve organized documents and started taking black and white steps, and now, you’ve checked in with who you want to be. 

Remind yourself, that person may be scared, but that person is strong.

Now you’ll learn about the law, your financial choices, how to talk to your spouse, and how to decide on parenting issues. You want to do all this if possible before you talk with your children. (Do not involve the children in your decisions making or encourage them to take sides. That is not fair. Your kids are not adults (even if they act it) and should not be burdened with your adult decisions.) 

What’s most important to know about your kids today, and moving forward, is that the way you and your spouse break up (the degree of or lack of acrimony), and the long-term relationship you and your coparent have is what will determine the long term effect of the divorce on your kids. You’ll want to do your best to negotiate everything fairly with him* so you lessen the risk of emotional problems for them down the road. To know what’s fair it’s going to require your doing the work on this page. 

And if you are divorcing a narcissist, this blog post in particular may help you stand straight as you face oncoming days: 41 Things to Remember If You are Coparenting with a Narcissist.

18. Identify who is going to help you through your divorce. Whom can you trust?

Certainly, you’ll consult with a divorce lawyer to learn your rights (see #19), but beyond the legal or financial decisions, you’ll want someone who can give you perspective, help you problem-solve, hold space for you to be emotional or however you need to be – in confidentiality. Do you have a good friend who has both survived and healed from their divorce? Be careful of friends and family who mean well, but who can’t help sometimes leading with judgment.

Many find the objective and professional support of a therapist or coach to be the best, and in particular, a professional who is experienced with supporting people going through and recovering from divorce. If you are looking for a community with holistic support (that is guidance with the practical, legal, financial and emotional things you must navigate), consider an all-female educational and coaching program like Annie’s Group.

Legal Steps

19. Understand the value of a divorce lawyer.

No state requires you to use a lawyer for your divorce but it makes sense to protect your rights and interests. Chances are that neither you nor your spouse is a divorce attorney and when it comes to the many things that must be legally handled in a divorce, you don’t know what you don’t know.

For instance, you probably don’t realize that many divorce laws are designed to protect women and children. Which is why, this is not a time to be cheap with your life, nor trust what your spouse is telling you. While hiring an attorney will cost money, it may very well save you money and stress down the road. According to the research, recovering economically from divorce is usually harder for women than it is for men. This further reinforces what we know in our divorce coaching practice: if you are a woman, and especially a mother, you cannot afford to make mistakes with this financial negotiation.

20. Identify a local divorce attorney in your state (because divorce law varies from state to state), and schedule a consultation to hear what your rights are.

In this meeting you’ll learn what you are entitled to, and what the law would say about your specific circumstances and questions. Do not rely on what your spouse says. Do not rely on what your neighbor says. Do not rely on what the gang says in your Facebook Group. And be especially careful if your spouse tells you not to contact a lawyer or that you and he can “do this on your own.”

No. Talk to a divorce lawyer, also called a family law or matrimonial attorney. And many of them give free consultations todayso do some research to save yourself. You are worth it.

You can find a lawyer by consulting legal directories such as Avvo.com or Martindale-Hubbel.

21. Before the meeting, organize and prioritize your legal questions about the divorce, and gather 3 years of tax returns.

Your primary agenda for this first meeting with a lawyer is to get answers to your questions and to understand what type of divorce you might be facing. You will want to know what the divorce laws in your state say about how you and your spouse will split assets and debt (which depends on whether you are in a community property state or equitable distribution state); and how the custody of your children will be determined (if you have them). You will also ask specific questions that are weighing on you.

22. We recommend you ask a lawyer about these issues as well

  • Ask the lawyer to explain alimony or spousal support to you, and then if it’s appropriate for your story, your best and worst-case scenarios for this support (especially if you’ve been out of the workforce).

Consider reading:

  • Discuss “temporary spousal support” and how it works, if you have special circumstances that prevent you from working, like your health or caring for a young or special needs child. You may need access to money while the divorce is pending and if your spouse is not willing, the court may have to order your spouse to provide it.
  • Leaving the house: can you leave the marital home with the children or ask him to leave once you announce the divorce? What are important things to know so your actions are not used against you in the divorce?
  • If you are the one who is initiating the divorce, talk to a lawyer about finding a place to live BEFORE you file. How can you afford a place? Or, what are the steps you must put in place to minimize the time you must continue to live together as a couple?

For other questions to ask a lawyer, visit our “Questions to Ask a Divorce Attorney“.


23. When you meet with the attorney, bring these things, so you get specific answers to your questions and fears:

1) Your legal questions, 2) three years of tax returns and 3) the list of your assets and debt. 4) You can also bring a friend or family member for support, but let the lawyer know beforehand so they can discuss confidentiality with you.

In the meeting with the lawyer, try to get your most important questions answered (that’s why you’ve prioritized them). But don’t despair if you don’t get ALL your questions answers. And do expect to walk out with new questions.

24. After meeting with a lawyer, evaluate the lawyer.

Was it someone who made you feel heard and protected? Could you work with them? Record your impressions and what you learned.

Try to meet with a total of three lawyers, if within your budget. Each lawyer will have different perspectives to your situation and the more you talk, the more you’ll learn about your options and how’ll you want to do this.

25. Then understand the different types of divorce.

Among them are DIY, traditional litigation, mediation, or collaborative approach, and think about which method is best for your story. Is it likely you can resolve matters without court? (You’ll want to understand the difference between an uncontested and contested divorce.) Will your spouse ultimately comply? Decide on which method you’d like to use to divorce and if any lawyer you met with, can help you.

26. If you use a lawyer, know that the lawyer works for younot your spouse.

If you do decide to hire a lawyer, to help you with your Statement of Net Worth or to review your Marital Separation Agreement (MSA) or to represent you in the divorce, you will have to use your own attorney. You and your spouse cannot share one, no matter what your spouse says. Divorce attorneys cannot represent both spouses. That would be a conflict of interest.

27. Let your lawyer know if you will want to change your name (back to your maiden name or something else?) after the divorce.

This will not be done officially until after the divorce is completed (see #51), but it’s good if the lawyer knows this is what you will want.

28. If you need perspective on how to find a lawyer or the right legal process for you, what to ask, what to do next, connect with a divorce coach who does this kind of work routinely.

An extra boon is that most divorce coaches give free consultations because they need to demonstrate what they do and how they can help.  Find one.

Before you move forward with speaking with your spouse about the divorce, we urge you to complete the important, additional steps below.

Financial Feedback Divorce Checklist

29. Determine who your Go-To Financial Person is for the Divorce.

We recommend you not rely simply on a lawyer to determine how things will be split, but to also learn what would be in your best financial interest long term. This requires a financial person skilled with understanding how divorce works.

Ideally, you’ll want to get this financial feedback AFTER you’ve heard the big legal issues in your divorce and BEFORE you announce a divorce or before you respond to your spouse’s request that you get divorced.

You can find this financial advisor at your bank or consult a CDFA. If you cannot afford to consult with one privately you might connect with SAVVY Ladies, a financial nonprofit dedicated to assisting women.

30. Ask a Financial Person these 7 Important Questions

  • What are the best things to optimize in the divorce given your age, skillset, and career options?
  • What is the best financial move for you regarding the marital home? (Should you try to keep it, give it to your spouse, sell it, hold onto it for a certain time, etc.)
  • What do you do with living together while divorcing? What can you afford? Many divorcing couples can’t afford to pay two mortgages or double rent and instead decide to stay in the same home throughout the divorce. For tips on surviving this particular purgatory, read “Women Share How to Survive Living Together During Divorce.
  • If you are leaving the family home, what is your expected budget for renting, or home-owning in the future? Consider your current living expenses and ask for help budgeting what you will need in the future.
  • What are specific financial needs regarding your children and how do you best ensure they be met? You may want to make sure 529 College Savings Plans are created or continue to be contributed to by both spouses? Or do you have a child with special needs who will need long-term financial attention?
  • What do you need to make as income in your future chapter? Consider reading “What Divorce Does to a Woman: You and Your Money.”
  • What is the financial advisor’s perspective on your securing health insurance?

31. Consult with a Real Estate Professional:

Learn the value of your house, what it would sell for in this market, what your options are for housing if you need to move. You can begin by consulting Zillow. But it’s usually in your interest to move beyond the internet with all things divorce and hear specific feedback about your story, your house, its issues, and its pluses.

32. Resolve your health insurance issue.

You’ve talked to the financial person about health insurance. Continue to explore what you will do, if you depend on your spouse’s insurance or he relies on you. There is COBRA to investigate, which is a federal law about health insurance. There is also the Affordable Healthcare Act, sometimes known as ACA, PPACA, or “Obamacare”.

By using its exchange, no matter what state you live in, you can enroll in affordable, quality health coverage. Visit Healthcare.gov to find the link to your state and to evaluate your options. You can also speak to a representative who can advise you. And know, that though the platform or the “Exchange” as it’s called, has a specific enrollment period, you qualify to join at any time of the year if you suddenly divorce or lose your job.

More Smart Moves on Your Divorce Checklist

33. Get a medical exam.

Be sure to take care of any medical issues before you divorce. If there are any hiccups in transferring medical insurance, you’ll want to be sure you’ve already taken care of any regular visits or concerns.

34. Identify and itemize your special possessions: these could be gifts or family heirlooms.

If you need to protect them, hide them, store them, or ask a friend or family member to hold them but make sure you disclose them in any legal documents so your actions cannot be used against you in the divorce.

35. Evaluate what you will need to do with The Move.

Will you be moving or your spouse? Will both of you? You may not want to, or be able to afford to stay in the family home. So this might mean starting to look for apartments ( — consult rentals nearby or AirBnB if you see the solution as temporary), or family and friends you might stay with for a while. This will depend on your financial situation.

If possible, talk to a lawyer about finding a place to live BEFORE you file. It will lessen the pain and stress of living together while getting divorced.

To learn more about moving out and how to go about it, read:

36. Keep a running list of all the documents you need to update once you complete the divorce.

Most legal documents cannot be updated until you have a divorce decree proving a change to your status. These things may include: filing a change of name, changing your will or creating one, or changing beneficiaries on insurance policies.

You can check with your attorney on when you can file changes to these documents.

Talking to Your Spouse and Telling Others

37. Identify your “D Day” and talk to your spouse before telling your kids.

There is never a good time to divorce, but there are better times than others. Look at your family calendar. Consider what’s happening in your children’s lives (are they applying to college? Maybe wait a little bit.) Or perhaps your spouse is up for a promotion, or you are? Evaluate your options and talk to a lawyer (see next step) and financial person about strategy, but after becoming informed and prepared, target a day to speak to your spouse. It could be a soft date, but it’s important to have an end date for ending the pain.

38. Check in with the lawyer you are going to use for the divorce (if you will use one) and discuss when you will file for divorce. 

Consider having “The Talk” with your husband before you tell the lawyer to go ahead “and file” and before your husband is served papers.

39. Plan the Day and “The Talk”

Consider where you will be (we recommend outside, away from home triggers), who will be around (can you arrange for the children to be elsewhere? ), what you will say (keep it simple), how you will do it (state it as simply as possible, be firm and clear but kind. “John, I just can’t keep living like this anymore. I want a divorce.”) Think about how he will respond and all the things he will say, but it doesn’t matter, your truth is your truth. Repeat your line: “John, I just can’t keep living like this anymore. I want a divorce.”

Give your spouse time to process what you’ve said, then discuss with him when and how you will tell the children. Make sure to share with him how it would be good if you both had a plan of how things will go before the children are told. Agree on a date for that and what you will say. This may take some time to allow for your spouse to catch up.

Drill down more by reading …

Parenting Considerations

40. Evaluate the best custody schedules for your family if you have children.

Many people don’t realize they can choose or create the schedules that they think would work best for their familythey don’t have to automatically do what the lawyers suggest.

Research your options and consider your and your spouse’s work routines and your kids’ needs. (Ideally, you are doing this with your spouse.) In general, the family court system will want your children to spend equal time with each parent, which means 50 percent of the time with you and 50 percent of the time with their dad. So, be honest with yourself and know it’s likely your kids will be away from you half the time. Do your best to make it easy on them.

If you don’t think your children should live with their father, make sure you talk to a lawyer about this. Be sure to also ask: “How much will it cost for me to try to get sole physical custody?”

Read this piece for important information: Best Advice on Custody for Divorcing Moms.

41. Make a parenting plan for the interim period until you divorce and for afterward.

This should include not only the parenting schedule but also involve details regarding holidays, important religious celebrations, medical, and educational needs.

42. Use a parenting app and create a detailed list of your children’s needs related to activities, health, schooling, and well-being.

To lessen confusion, stress, and direct contact, consider using a parenting app to keep everything organized and easily shared. A neutral tool will streamline your communication and information sharing. We suggest Family Wizard because it’s most often recommended by family courts. It is also the most well-known parenting app.

43. Prepare for what you will say, and tell your children together that you are divorcing or separating.

This is one of the hardest moments if not the hardest moment of the challenge, facing your kids and telling them how their reality is going to change. Discuss with their father what you will say to them in advance, and impress on him how important it is to have a plan to show your kids that there will be structure.

And know you may not be able to rely on their dad to team up with you for this talk.

For support and more steps, read:

44. Line up support for your children.

Tell your children’s schools as soon as you know there will be a divorce and ask for any resources the school may have or recommend. Evaluate therapists who may support your kids individually.  Children deserve a safe space to vent without worrying how it will affect you or your spouse.

Steps Toward Your Next Chapter

45. Take steps to separate your lives.

Begin separating how you do things and how you live.  Turn to others instead of turning to your spouse.  Are there other accounts you should be opening as you consider moving apart? And where will you live after the divorce? Did you ask the financial advisor what the best play is for you regarding your house or future living arrangements?

46. Think about your employment.

Whether this means going back to work, looking for a side hustle to increase your income, or transitioning to another kind of job, divorce can be a catalyst for our ambition. Yes, divorce can be a good thing. Ask the financial advisor what your expected reality will be for money after the divorce, what you will need to make for income going forward, and what you should be shooting for to contribute to your retirement fund.

47. If you are unemployed and have skills to find a job, your next critical step is to start your job search.

You might consider a career coach who can help you evaluate your strengths, strategize your resume, and organize your search, especially if you’ve been out of the workforce for a long time. Check out iRelaunch for helpful resources, advice and guidance.

Post-Divorce Checklist

It didn’t happen overnight but now you are on the Other Side of divorce. Having arrived here, there are still things to take care of and new things to (excitedly) consider.

48. Make sure all retirement accounts, investment accounts, and monies got transferred over as stipulated by your divorce judgment.

Make sure you’re checking that everything was completed correctly in accordance with your judgment. Prepare to make whatever calls you need to.

49. Change beneficiaries on all your accounts and policies (unless you negotiated otherwise in your divorce).

You may not even remember all of the places you listed your Ex as a beneficiary or emergency contact. Make sure to change or check on these designations.

50. Get a few copies of your divorce decree notarized so you can submit it for official things in the future.

Then file it, baby!

51. Change your name legally if you choose.

Don’t forget your driver’s license, social security card, passport, credit card, and bank account to update. For many accounts, you will need to submit a copy of your signed divorce decree.

52. Change vehicle titles (if appropriate)

Again, what matters is what’s on paper. Even if you physically have the car, you’ll want to make sure it is legally yours and registered to you.

53. Check your credit report again.

Make sure nothing new has happened and you know what your current credit score is.

54. Create a new Will, Power of Attorney, and Healthcare Directive.

So much has changed in your life, and that means your end-of-life plans may be very different as well. Make sure to update these documents with your new preferences to avoid any mistakes once you’re no longer around to advocate for yourself.

55. Make a plan for how you will care for yourself and continue to create your best independent life.

You are not fully healed or completed just because you’ve signed a legal document. But you are in a very different stage than the beginning. You are now working on your divorce recovery. Critical to this recovery plan is identifying the right people you will surround yourself with going forward.

Read 100 Must Do’s for the Newly Divorced, Independent Woman.

For many, finding other women who understand what they are going through and what they have been through as with a divorce recovery group for women, can have a huge impact on one’s individual healing. Surrounded by others who “get it” can help you feel saner, provide calm and give you a much-needed perspective on your own story. With the right people, you’ll be able to speak honestly and authentically. You’ll even be able to share some much-needed laughs that others who haven’t been down this road (—sorry, Ozzie and Harriet) simply will never understand.

Closing Thoughts

Divorce is challenging. It’s a life crisis. But by compiling this divorce checklist and putting the items in one place with suggested sequencing, our goal is to slow things down and guide you as you get informed logically and healthily. In doing this we hope to lessen the overwhelm that naturally accompanies this crisis. Even so, this checklist may require multiple read-throughs depending on where you are in your process. If it’s too much to nail down all of these moving parts in one fell swoop or two (very likely) then simply save or bookmark our checklist somewhere safe for you to return to throughout your journey.

You will get through this. Breathe, and stay committed to you.

 

Notes

Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing. 

SAS offers all women six free months of email coaching, action plans, checklists and support strategies for you—and your precious future. Join our tribe and stay connected.

 

* At SAS, we support same-sex marriages. For the sake of ease, we may refer to the Ex as “he/him” but we understand that exes come with many gender identities. 

postnuptial agreements

The Top 7 Things to Know About Postnuptial Agreements

While television, music, movies, and tabloids have brought prenuptial agreements into the spotlight, few people are familiar with postnuptial agreements. This refers to nuptial agreements made after a couple is married. The surprising fact is postnuptial agreements can offer significant benefits to the right couple. Look no further than this Forbes article discussing Jeff Bezos’ divorce from his now ex-wife, MacKenzie. Bezos’ divorce could have taken a much different turn had the parties signed a postnuptial agreement after Amazon become one of the most valuable companies in the world.

In an effort to demystify the postnuptial agreement and explain its value, the following is a discussion of the top 7 things to know about these types of agreements.

  1. What is the Difference Between a Prenuptial Agreement and Postnuptial Agreement?

The more commonly known prenuptial agreement (“prenup”) is negotiated and signed by a couple prior to walking down the aisle and getting married. A postnuptial agreement (“postnup”) is signed by the couple after they have already been married. It can be signed days, weeks, months, or even years after the couple has said their vows.

  1. What is the Purpose of a Postnuptial Agreement?

The main purpose is to let married couples set the terms for divorce or death ahead of time. A postnup can help a couple eliminate uncertainty and increase predictability in the event they divorce, or upon the death of a spouse.

This is because the parties have dictated the outcomes that will occur upon divorce or death and have put the proper mechanisms in place to ensure their plan is legally actualized.

  1. What are Common Situations in Which a Postnup is Used?

One of the common challenges to a prenup occurs when the spouse who is receiving less under the agreement claims that it was signed under duress (think: one party presenting the other with a prenup on the night before the wedding). In order to avoid this situation, some couples will wait until after they are married to sign an agreement. The agreement they sign would therefore be a postnup and not a prenup.

Another instance in which a postnup is used is where marital issues arise that were unpredicted. If there has been infidelity, the spouse who got cheated on may want a postnup in order to stay in the marriage. This would provide that spouse with some financial protection or gain (and reassurance) in the event his or her spouse cheats again.


If you are thinking about divorce, you’ll want to be smart and healthy. Read our 36 Things to Do If You are Thinking About Divorce.


Additionally, postnups can be used when one spouse is starting a business and wants to establish how much of the business’ value (if anything) their spouse will receive upon divorce. Couples can also create postnups for estate planning purposes, or because they want to revise their prenup. If a prenup is being revised, there must be language that either states what the postnup controls or that the prenup is void altogether.

  1. Certain Topics Can be Discussed in Postnups, While Others Cannot

For Example, Spousal Support Can Be Pre-Determined.

In a postnup, the parties can discuss the spousal support obligation of the “monied spouse” upon divorce. The couple can set out a specific amount of support in the event of a divorce, remain silent on the issue, or waive support completely. Many couples decide to determine spousal support in the postnup because leaving it in the hands of the law (or court) down the road can be unsettling. Others, however, prefer to have their financial situation at the time of divorce, as opposed to earlier, during the marriage, dictate their obligations.

It is important to know that spousal support clauses in a postnup can be vulnerable to challenge. This is because the parties’ income at the time of the divorce is unknown at the time the parties sign a postnup. If a spousal support clause in a postnup is very stingy and strays far from the statutory formula set out by the law, the spousal support clause runs the risk of being struck down as unconscionable (a term that will be discussed in detail below).

For example, if the postnup entitles the non-monied spouse to only $1,000 per month for spousal support, but the monied spouse makes $5 million per year, this spousal support clause may not be upheld.

Child-Related Issues Should Not Be Included

Divorce laws vary from state to state. In New York State, the courts decide child-related issues using the “best interests of the child(ren)” standard. If a postnup includes child-related language, the court would be deprived of its supreme jurisdiction in the area. As such, any child-related clauses in a postnup open the door for the agreement to be struck down.

However, one provision that is often included in postnups states that if one spouse owns the marital residence by himself or herself, the other spouse will not be required to vacate until there is a parenting plan in place (either by agreement or court order). This serves to encourage the parties to work quickly to come up with a plan as it relates to parental access with the children.

Estate Rights Are Often Addressed

In New York, without an agreement, a party cannot fully disinherit his or her spouse. Under the law, the non-deceased spouse would still be free to take what is called his or her “elective share,” which is defined as the larger of $50,000 or one-third (1/3) of the deceased spouse’s estate. In a postnup, the parties can give up their elective share rights, or determine that the elective share applies only to marital property. In exchange, a party who waives their elective share can ask that their future spouse take out a life insurance policy in his or her name.

  1. Full Disclosure is Essential

When preparing a postnup, each spouse provides a complete list of his or her assets and liabilities.

While courts usually will not overturn a postnup because disclosure was not absolute, they can overturn an agreement if a party can prove that their spouse willfully concealed assets. It is often recommended that, if the value of an asset is uncertain, the parties overvalue that asset. Doing so would negate the argument that a party would have made a different deal if they knew the higher value of the asset in question.

In addition, financial disclosure allows each party to obtain insight into each other’s financial situation. This is especially important in a marriage in which one spouse is in charge of the finances, and the other spouse is in the dark.


Check out “How to Prepare for Divorce If You are a Stay-At-Home-Mom”


  1. Specialized Clauses

There are numerous different “specialized clauses” that can be included in postnups.

A “ladder provision” can be inserted, which says that the non-monied spouse would receive additional spousal support or a lump sum payment at different anniversary milestones. For example, if the parties are married for 5 years, the monied spouse would make a $200k payment to his or her spouse upon divorce, and after 10 years that increases to $500k.

There also are “sunset provisions”, which state that the postnup will no longer be in effect if the parties are married for a certain period of time. For example, if the parties are married for 20 years, the postnup would then be void. These sunset provisions can also be used on individual clauses, such as the estate waivers no longer being effective if the parties are married for a certain number of years.

Oftentimes, parties ask about adultery provisions in which the cheating spouse would lose out on funds or spousal support in the event of a divorce. These are difficult provisions to include and maybe kicked back by the court because of the ambiguity of what “cheating” may mean.

  1. Challenging Postnups

In general, New York courts often uphold postnups that are entered into by two consenting parties. If a party is challenging a postnup, he or she will have the burden to show why it should not be upheld. The standard of review, under the law, is whether the agreement is “fair and reasonable” at the time the parties entered into the agreement and must be “not unconscionable” at the time one party seeks to enforce them.

The arguments that a party can make as to why a postnup, or any provision of it, should not be upheld are (1) fraud, (2) duress, or (3) unconscionability. As discussed, if there is full financial disclosure, a fraud claim would most likely fail. Avoiding a duress argument is, as stated above, a reason why couples may sign a postnup instead of a prenup. The biggest threat to a postnup is unconscionability at the time of enforcement. However, unconscionability is a very high standard to attain, and so more often than not, the spouse claims it will not be successful. The circumstances would have to change so significantly over time that what was once an equitable agreement ends up becoming unconscionable by the end of the marriage.

The postnuptial agreement is a useful tool in many situations of a marriage. In order to take advantage of its benefits, it’s important to be well informed about how to structure it as they are not easy to enforce in every state. If you are thinking about divorce or wanting to change the terms of a divorce should one occur in your future, you may wish to consider a postnup. Speak to a matrimonial attorney (divorce attorney) about your story to understand your options and what would be the best move for you.

 

Notes

Ian Steinberg is a Matrimonial Attorney at Berkman Bottger Newman & Schein, LLP, where he focuses on the litigation, mediation, negotiation, and settlement of matrimonial and family law cases. In addition, he specializes in the drafting of prenuptial and postnuptial agreements. Prior to his current role, he practiced real estate law representing property owners in courts throughout New York City. This real estate background gives Ian important insights into the division of the marital home when couples are separating and divorcing. Connect with Ian to discuss your situation and needs.

 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.