One day you are going about your normal business and a process server approaches and hands you a stack of papers. You have been served with a divorce complaint and your nightmare begins. After you start to calm down you ask “how can I protect myself in this divorce?” How can you keep a relationship with your children? How can you escape financial ruin? How can you prevent being divorce raped?
These are legitimate questions and you have a right to be terrified. The good news is that there are ways to protect yourself in a divorce. There are two time frames in protecting yourself in a divorce. The first is before there is trouble in your marriage. The second is when trouble begins or after a lawsuit has been filed.
Protecting Yourself Before the Divorce
The absolute best way to protect yourself in a divorce is to get a prenup before you are even married. A prenuptial agreement (or prenup) is a document that you and your future spouse sign before you are married that details how assets will be divided if a divorce later occurs. It can also dictate what spousal support or alimony will be paid.
Prenuptial agreements are extremely powerful documents that are very difficult for your spouse to overcome and take everything from you in a divorce. Unfortunately, very few people even consider a prenup before they are married.
Another good tool that can be used before marriage to protect your assets or a small business is to set up a Trust that owns the assets. With this asset protection strategy you do not own the assets, but are only a beneficiary of the Trust. In the event of a divorce your spouse cannot be awarded an interest in the Trust assets. They can only be awarded what you receive out of the Trust. This gives you a powerful position in negotiating a settlement with your soon to be ex-wife.
These tools are not just for the super wealthy. They are affordable and available to any middle class earner. Before you get married you should consider these vehicles to protect yourself in the future. Even if you are a college couple with no assets, you one day will have assets that need to be protected. The odds are not in your favor of staying married forever based on current divorce rates.
Protecting Yourself After a Divorce has been Filed.
Once you have been served with a divorce lawsuit it is too late to do any preventative protection. However, there are still things that you can do to protect yourself during the divorce.
Watch Yourself and Protect Your back with your soon to be Ex
Whether you have been married for 5, 10, or 20 years, your Wife is NOT YOUR FRIEND anymore. She is now your ENEMY. You must realize this concept immediately! She will likely do everything that she can to either destroy you or at a minimum she will work to make sure that she receives the best possible outcome in the divorce at YOUR EXPENSE. You must not trust anything that she says for any reason. I guarantee that she does not trust you!
This does not mean that you need to be openly hostile to your Wife. In fact you should not be hostile towards her at all. Any hostility should come from your attorney and not you. You must outwardly be the “good guy” to the rest of the world. If you are in an open war with her outside the courtroom it is only going to hurt your case and you will have failed to protect yourself in the divorce.
You should assume that every conversation with your spouse is being recorded for later use. You should assume that every contact with your Wife is now being videotaped and photographed. You should assume that you are being followed and your activities monitored. You should assume that all of your financial dealings will be uncovered and revealed. You should assume that your children are being interrogated about the time they spend with at your home after every visit. You are not being paranoid for thinking this way. If your spouse or her family has the resources and you are in a contested divorce, these things are happening.
The best way to protect yourself in a divorce from these tactics is to only behave in a way or say things that you are comfortable being told to the Judge in your divorce case. Whatever bad habits you have had in the past need to stop right now. The good news is that very few women document or gather evidence before they leave a marriage. The vast majority try to reconstruct things after they have left and attempt to gather evidence once the separation has started.
Don’t make negative comments to her or call her names.
Don’t make negative comments about your Wife or her family to the children
Don’t admit any wrong doing to her even if you are trying to reconcile
Don’t agree to anything if you have a lawyer until you have spoken with them
Don’t do anything that you do not want a Judge to later hear about
Don’t be alone with your spouse
Protect Yourself in the Custody Battle
If you want to get primary custody of your children or at least get a 50/50 parenting plan, you need to take certain steps to protect yourself during your divorce. If you don’t take steps to protect yourself in the divorce you risk being an every other weekend dad or completely losing your relationship with your children.
What are the benefits of having primary custody or a 50/50 co-parenting time? The most important benefit is that you will be able to have a better relationship with your children and protect them from the influence of your ex spouse. The added benefit is that you will be able to reduce or eliminate your child support obligation.
In a divorce war with older children, the battle for child custody is mainly fought and won outside the courtroom. This applies to both mothers and fathers, but is even more important for fathers. That is because the court system is currently rigged against fathers. But there are things that a parent can do to protect themselves and increase their chance of getting primary custody in a divorce.
Build a nest for your children! Once a separation or divorce has started the children will be under tremendous stress. Many times they will be interrogated by the parents about what is going on at the other parents home. Most of the time they will feel as though they need to pick a side during the divorce. Especially older children will feel if their entire family is coming apart and everything that they have ever been accustomed to is dissolving around them.
You must give them a safe place, which I call building them a nest. Your home must become the place that they are safe from the divorce. A place where they are not grilled about what happens at the other parents home. A place where they can forget that a divorce war is raging around them. It must be a place where they feel they have some control over their own destiny and future. This is especially true of teenage children.
You must make a HOME for the children where you are living. This means cooking dinner for them almost every night. Don’t know how to cook? Buy a cookbook or ask your mom for help! This is a powerful technique that gives your children stability and helps you bond with the children. Food equals love! The children will see the efforts that you are making during a divorce that they would not notice during the marriage. In the meantime your spouse because of the stress of the divorce will be going out to eat or getting pick up pizza every night because she is too busy with her career and the divorce to make a proper meal. Trust me this works and will get the children to want desperately to be in YOUR HOME.
Do not talk to the children about the divorce or the other parent unless THEY bring up the topic. You should never initiate communication about the divorce or the other parent unless the child brings up the topic. Children are much cleverer than we give them credit. If you bring up the other spouse, they will think that you are trying to manipulate them. The last thing that a child wants during a divorce is to be used as a pawn in a chess game between two parents. You also should not talk about the divorce proceedings unless specifically asked. Your job is to create a safe place for the children where they can live as normal a life as possible without thinking about the divorce.
If a child brings up the topic listen. But do not direct the conversation. Here what they have to say and answer age appropriate questions without smearing your spouse. The kids are human beings that are worried about their future. They have a right to know about certain information but not everything. If they ask questions and you keep them totally in the dark they will resent you for it now and in the future. It is important to always be honest with them when you do answer and to never manipulate them.
By creating a nest in a divorce and trying to go on with your lives with as little disruption as possible, the children will want to live with you. This is because your home is a safe, stress free environment. The desires of the older children will always be heavily weighted by the court. If a child testifies that they want to live with their dad because there is no stress in the home, he always cooks for us, spends good quality time with us, helps us with our problems, and does not talk about the other parent. In other words the child feels safe and secure in your home while the other parents is chaotic, then a judge will be hard pressed not to place those children in your home.
You must also remember that although you love your children and want the best for them, you cannot trust them not to give information to the other side. Children love both of their parents and feel loyalty to both of you. Do not say or do anything in front of the children that you don’t want told to the other side or brought up in court. They are not your allies in a divorce, nor should you wish them to be. You must be their protector.
DO go to the children’s activities and school events
DO create a nest for the children in your home
DO become mom/dad and keep the home clean and cook meals for the children
DO keep their lives in your home as normal as possible
DO have activities with the children when they are home like game or movie night
DO listen to what the children have to say
Don’t interrogate the children
Don’t put your needs above the children
Don’t make disparaging remarks about the other parent or their family
Don’t try to make the children your allies or therapist
In court you must show that you are the better parent. You must be actively engaged in your children’s lives and activities. You are now the ONLY PARENT. You are mom/dad and must fulfill the role of both parents in your home. If you didn’t attend parent teacher conferences during the marriage, start going now! Didn’t go to ball games? Now you do! The recent history with the children is much more important in court than what you did years ago.
Protect Your Home in a Divorce
For most people getting a divorce the marital home is the largest and most important asset. This is the largest investment that most couples make during their marriage and is generally the largest source of equity.
You must not leave the marital home during a separation or divorce unless your safety is at risk. By safety I mean either your physical safety or your safety against false allegations against domestic violence. By staying in the marital residence you accomplish several things.
First you create a presumption that the home should be awarded to you if the other spouse leaves the residence. Courts are much more likely to award the residence to the partner that stays in the residence and pays to keep the residence up during the separation. By staying in the residence you are staking your claim to the home. The spouse that leaves is essentially abandoning the home. Judges like the path of least resistance at trial and will more often than not award the home to the person that stays in the home during the separation.
The main factors that a court will look at in awarding the marital residence (absent an outright sale of the property) are generally who is occupying the home, where will the children live, and can the person afford the mortgage payments on the home.
If you must leave the home (which should be a last resort) you should immediately stop paying any bills on the home absent a court order unless you have significant equity in the home. If you have significant equity you should speak with your lawyer about your options. But what about my credit? Well your credit is going to get screwed regardless during a divorce. Your excuse in court will be that you had to provide a residence for yourself and your children and you could not afford to pay for your spouse’s home as well as yours.
Whoever lives in the marital home during the divorce has all of the advantages. By staying in the home when your spouse leaves the court will almost always award a larger portion of the personal property to the remaining spouse. It is much easier for the court to award personal property from a requested list than to simply divide the property. The leaving spouse does not have access to the personal property to even formulate a list.
Protect Your Personal Property in a Divorce
If you are in a separate property state you need to conduct an inventory of all personal property that you have and categorize the property. Personal property includes: vehicles, cloths, collectibles, money, investments, businesses, and basically that is anything that is not land. You need an inventory of these assets. Once you have an inventory of the assets you must classify the assets as separate or marital property.
Separate property is anything that you owned prior to the marriage. It also includes any gifts or inheritance that you received during the marriage. All other property is presumed to be marital property unless you can prove an exception. Separate property is not subject to distribution during the divorce and is thus safe property. In other words, your spouse cannot touch the seprerate property.
When you do this inventory and classification, you are making the list for your attorney. You should write at the top of each page of the list “attorney client privileged, prepared for my attorney in anticipation of litigation.” This should immunize the document from discovery in most states because it is a list prepared only for your attorney to defend your divorce lawsuit. It shows that when you prepared the document that you were intending to communicate with your attorney and believed that a privilege existed.
This list will provide a template for your attorney to determine what assets are off limits to your spouse during the divorce.
Whatever you do, you must not attempt to actively hide assets during the divorce. You will receive severe repercussions from the court and could be liable for sanctions. However, if the other side fails to ask the correct question during discovery, you are under no obligation to help them find the asset.
You also need to make a list of any assets that are currently in your Wife’s possession or control. Think jewelry. If you can testify to the purchase price of the jewelry then more than likely that will be the value that the Judge assigns to that item. In most cases the actual value of the jewelry is much less than the purchase price (like a third or less) yet this will increase the value of her marital estate and keep you from losing valuable assets.
Protect Yourself From Alimony During a Divorce
Alimony is support paid to the other spouse to maintain their marital standard of living both during the divorce and after the divorce. It is usually determined by the paying spouse’s ability to pay and the receiving spouses need.
If you are a business owner or an independent contractor, you are in luck. There are things that you can do to reduce your ability to pay. Have you been longing to expand your business? Great, now is the time to hire new staff or to make needed purchases. If your spouse has not been actively a part of running your business, then they are unlikely to want the business as part of the divorce settlement or trial. What they will want is their share (cash value of the business).
If you are working for an employer you really do not have as much control over your income and business expresses. You can stop taking overtime or extra work. The more income that you make the higher your alimony and child support payments will be because these are based on your current income. Sometimes it is worth it to take a hit in income for a few years in order to reduce your income. No court will require that you work overtime in a divorce. The very fact that you are now a single parent and need to spend more time on the children and household duties will justify a reduced work load.