Your Marriage May Be Over: How to Prepare for Meeting with a Divorce Attorney

We all know someone – a neighbor, friend, relative, or coworker - who feels like their marriage may be headed towards disaster … and undoubtedly some people reading this article are in this situation themselves. The feeling that your marriage may be heading toward divorce can be overwhelming, frightening, and downright depressing, but being prepared and taking control of the situation can help alleviate those sensations. This article is designed to help put anyone facing the scary prospect of separation and divorce (and, eventually, their attorney) in the best position to achieve a fair and equitable outcome.

DO NOT PANIC

This advice may seem “easier said than done,” but as someone who has been trying divorce and custody cases for decades, I can promise you that the system is not set up to ambush or trap unsuspecting spouses into sudden financial ruin. The process, if you manage it well and follow certain steps, is designed to allow for an exchange of information and, ultimately, a fair distribution of assets between spouses. Knowing what information to locate and access will help you prepare for meeting with an attorney and maximize the relief available to you under existing divorce laws.

FACE THE ISSUE HEAD ON

It is always surprising when I meet a potential client who has ignored the fact that he or she has been served with a divorce complaint and has missed the deadline to respond. Many times, these clients have retained another attorney who, for whatever reason, has failed to file a responsive pleading, failed to assist the client with discovery, and failed to protect the client’s interests. The most important thing you can do if you are entering the separation and divorce process is to make sure you know your deadlines and to assist your attorney in preparing your responses. If your attorney is not responsive, is not assisting you, or seems unconcerned with the deadlines, get a new attorney. While we always try to assist clients who have been delayed or have had ineffective counsel previously, it is much more difficult to catch up than it is to meet the deadlines as they approach. While we realize this process is emotionally challenging, it becomes exponentially more difficult when you miss the opportunity to present your case fully, which can happen if you ignore deadlines that require your response.  When you are served with process, read it carefully and know your deadlines. While your lawyer should also be aware of these dates, it is ultimately your responsibility to meet them since it is your life and your future.

KNOW WHERE YOUR ACCOUNTS ARE AND HOW MUCH YOU HAVE

During a marriage, many couples develop roles in which one person takes control of paying the bills and managing the finances. That division of labor is great when everyone is getting along, but as marriages begin to fail, a lack of knowledge of your finances can be a huge issue and can make you feel like you are helpless once the situation becomes dire. Even if your marriage is blissful, you should have some idea of the following, to avoid disaster in the event of a major life change:

1. How is your home titled? Is it titled jointly to you and your spouse, owned by one of you, a trust, or someone else?
2. What bank holds your mortgage? Did you put money down? Do you have a VA loan? How much do you owe, and how much of that is principal versus interest? Did one partner use a premarital or family home to contribute equity? If so, how much? Getting a copy of your mortgage statement and amortization schedule is always a good idea so that you know how much equity you have in the home.
3. Where are your bank accounts? It is important to know the financial institutions and account numbers and to have access to the balance information so that you can safeguard against any sudden transfers to accounts that may be hidden by a spouse seeking to get an unfair advantage. Getting copies of bank statements before things get adversarial is helpful.
4. Do you have a 401(k) or other retirement accounts? Does your spouse have a 401(k) or other retirement accounts? Retirement accounts are often the largest assets aside from a marital residence, and it is always surprising how many people are unaware of whether they have an interest in their own or their spouse’s accounts. It’s best to get statements showing these balances before things are irretrievably broken so that you can track any sudden changes, depletion of these assets, or balance transfers.

GET COPIES OF IMPORTANT DOCUMENTS BEFORE THEY ARE HIDDEN OR DESTROYED

All of the questions asked above can be answered easily with the right documents. Having copies of tax returns, W2s, 1099s, K1s, mortgage statements, retirement account statements, credit card statements, and bank statements for checking, savings, money market, stock accounts, etc. is an excellent way to protect yourself and to prepare your attorney to assist you. It is easier to gather these documents in real time when things are cordial between spouses than it is to re-invent the wheel after someone has decided to end the marriage. Stay informed regardless of whether you believe there are issues in your marriage. These documents would also come in handy in the event that your spouse is incapacitated or otherwise unable to assist you. Either way, it is far less frightening to navigate your financial future without your spouse if you are well informed about your assets and where they are held.

BRING DOCUMENTS TO YOUR MEETING WITH A LAWYER

It is far easier for an attorney to assist you and give you realistic advice and helpful information if you bring the documents listed above to your meeting(s).  A good attorney may be able to make an educated guess using your perceptions, but it is far easier to advise a person who brings tax returns, bank statements, and other related documents to a meeting. We cannot guarantee any specific outcome in court, but we can certainly tell you what the possible outcomes may be and what is realistic to expect going forward. This process is more difficult with an uninformed client who has no idea what assets are available within the marital estate. The more information we have, the better our “educated guess” will be about what you can expect from the process.

LISTEN TO YOUR LAWYER

Your parents, siblings, neighbors, coworkers, and friends are probably amazing people and may be an excellent support system for you if you are in marital turmoil. As well-meaning as your friends are, please don’t take legal advice from them. It is best to find the most highly qualified attorney you can, and to listen to that person.  Everyone has a story about an acquaintance who got divorced and either got a great deal or got a deal that they felt was unfair, and the reality of the situation is that that person’s perceptions about the outcome probably has far more to do with his or her general attitude and mental health than it does about the law. Your situation is unique, and you deserve a knowledgeable and well-informed opinion from a professional.

Bretta Lewis is a Pender & Coward shareholder focusing her practice on domestic litigation, including mediation and litigation of contested and uncontested divorce matters, negotiation and preparation of premarital agreements, and resolution of equitable distribution cases involving complex marital estates including corporate interests and business valuation.