Going Through a Divorce? Get it Right the First Time

Divorce can be an exhausting and traumatic experience, often made worse by your spouse, and sometimes made worse by your divorce lawyer or perhaps your spouse’s lawyer.  At some point, or maybe at several points in the process, you may be tempted to just sign the papers and end the misery.  Never give in to that temptation.  If it’s your spouse making it unnecessarily difficult, there’s not much you can do about it.  If it’s your spouse’s lawyer, you could try telling your spouse to have his/her lawyer stop it.  Sometimes when people realize how much money is being spent to little or no purpose, the light bulb flickers on.  If it’s your lawyer, tell your lawyer to stop it.  If it’s you, then you know what to do. There is a certain amount of difficulty in every divorce case; it’s inherent, when two people each want to have possession of their kids every day, but not live together.  Or when two people both want all the money in the retirement plan.  That square peg has to be modified to fit into the round hole.  You just have to put up with it until a workable solution can be fashioned. At divorce is the only time when neither you nor your spouse has a legal presumptive head start on the other with respect to being named the primary custodian of the children.  Even if you have 50-50 possession of the children, one of you will usually be given the right to establish their primary residence, at least for purposes of fixing the school district they will attend.  Just that little edge will give one of you a leg up if the terms of possession and residence need to be modified later on.  Court orders concerning children are never final; they are kept fluid so the orders can be changed as circumstances change, both as to custody and support.  Even so, there are limits on how often a parent can request a change, and a burden of proof to be met by one or the other.  It’s important to get things as right as possible for yourself and your children when you get divorced, for the present and for the future. Note that one aspect which can never be changed is the allocation of the right to claim tax exemptions for the children.  That can only be done by agreement between you and your ex, which presumably would not the forthcoming; the judge has no power to make orders about tax exemptions.  Unless you are the person getting the right to claim the exemptions, you are better off not agreeing to any provisions about it in your divorce decree.  You and your ex can always make agreements on it year-to-year.  It’s not wise to agree to divide up the exemptions, either, as you may end up with full custody of all the children and should be able to claim them all at some future date. On the property side, barring very rare exceptions, all provisions for dividing your property, both assets and liabilities, become final thirty days after the judge has signed your divorce decree.  If there is later-discovered property which was not addressed in the decree, that is subject to future division by the court.  But let’s say your divorce decree awards your spouse all employee benefit plan interests arising from his/her past and future employment.  Although you may think that would only apply to the 401k account you know about, it would pick up (“grandfather”) all other plan interests as well.  That similarly applies to the award of bank accounts, household goods in possession, and so on.  It is critical that you patiently make sure your divorce decree is correct in all respects.  Take the time to get it right.