People often think that once the decision to end the marriage has been made, the next step is to file for divorce and most of the time, it’s not. Deciding when is the best time to file for divorce is about being intentional, deliberate, strategic and considerate.
File too soon and you could find yourself faced with a bunch of deadlines to produce documents and agreements that you simply are not ready or prepared to do. You could also create more hostility with your STBX. It can be extremely overwhelming.
File too late and you could be faced with trying to trace missing assets, losing your health insurance and discovering transactions that are difficult to unwind. You might even find yourself without access to money. You’ll be feeling powerless and out of control.
So the key is, like Goldilocks, you have to find the time that is JUST right.
And this is the topic for this episode of Conversations About Divorce. My guest for this show is attorney and author Larry Sarezky from Fairfield, Connecticut. Listen in to discover all the factors you should be considering or keep reading …
Understand What Filing For Divorce Means
Filing for divorce means starting the legal process to end your marriage and how you do that will vary depending on where you live. However, throughout the U.S. once the legal divorce process has started there are temporary restraining orders that come into effect that bar either party from making changes such as removing their spouse from the ownership of marital assets, attempting to conceal assets, removing their spouse as a beneficiary or taking their spouse off their health insurance plan.
These restraining orders can help protect you so it’s helpful to know what orders apply in your jurisdiction because if you discover that your spouse is trying to conceal assets, for example, this is a red flag that you need to file sooner rather than later.
There’s a psychological component to filing also. “Filing for divorce starts the clock ticking on the rest of your life and that is the goal here,” says Sarezky. The longer you delay, the longer you delay the closure.
Decide How You Will File
There are many points in the divorce process when you will be faced with fork in the road: choose one way and you are taking a step towards a hostile divorce; choose another way, and you are choosing a path of civility and respect. Deciding how to file is one of these moments.
It hasn’t always been the case, but Sarezky says it matters very little these days who files and in some states, such as Colorado, it is possible to file jointly which means you both sign the paperwork and you avoid the need to have the other party “served” with the papers. Even if you can’t file jointly, if your spouse is represented by an attorney, then the attorney may be able to accept the divorce papers on behalf of your spouse.
If you can’t file jointly, then having your spouse served can be done in a way that is thoughtful and compassionate. You can, communicate with them via email or face-to-face if that is possible, that you are moving ahead with filing and that it is necessary for the papers to be served. You can suggest that you’ll give your spouse’s contact information to the process server who will contact them to arrange a mutually convenient time for the service.
What you want to avoid is having your spouse served in a situation that is going to cause embarrassment, such as in their workplace or unnecessary upset, such as in front of the children or on a holiday or special occasion.
Be Emotionally Prepared
Getting divorced is a big decision and it is often made when people are least able to make it. Not being emotionally prepared for the legal process means that you will be least capable of making the decisions that are going to have a fundamental impact on the rest of your life. How do you know if you’re not ready emotionally?
- was the divorce a surprise for you?
- are you having trouble making other decisions?
- are you snapping at your kids?
- have people commented that you look unwell?
- do you find yourself crying at slightest upset, especially those that are unrelated to your divorce?
Sarezky recommends that you seek professional help. “There isn’t any money you will spend better than having an hour and a half consultation with a divorce professional.”
Don’t Wait Too Long
Sarezky says that children can be harmed when their parents wait too long to file. This might happen when they are trying to resolve all the issues themselves, thinking that involving professionals might make it less amicable. The consequences often include endless arguments, open hostility or at the other end of the spectrum, a complete breakdown in communications.
“What children in a divorce situation most want is for the fighting to be over, they want for life to get back to normal and they want that feeling of safety and security that their parents used to give them,” says Sarezky. Even if you think your kids don’t know what’s going on, they know something is going on and not filing can often mean prolonging the agony for your children.
If your spouse owns their own business, then waiting to file gives them time to rearrange their business affairs to their advantage. There may also be a danger that they will remove your access to money. This is a greater risk for a non-working spouse or one whose income is significantly lower than their spouse.
Consider Your Tax Situation
Your tax filing status is determined by your marital status on the last day of the year. That means that if your divorce is final on December 31, then you will be filing singly for the tax year. That means forgoing the benefit of the marital tax deduction. If this is a concern for you, then you will want to be aware of how long your divorce could take to process and then to decide if you should delay filing so as not to jeopardize that tax benefit. You can also find out if your local court supports requests to delay making a divorce final until after a specified date.
There are however other tax considerations that may outweigh this. Spousal support for example, is tax deductible to the payor and treated as taxable income to the recipient. However, you can’t get the tax deduction if you’re still married. This would indicate filing sooner to increase the likelihood of being divorced before the year end.
UPDATE: For agreements entered into after December 31, 2018, spousal support will become “tax neutral.” That means that payments will no longer be tax deductible for the payor or reportable for the recipient. This might point to working hard to get your divorce finalized prior to December 31, 2018.
This points to the value in consulting with your CPA once you know your marriage is ending so you can identify the tax concerns early in the process. You’re then a great position to make an informed decision about when to file.
Do You Need Court-Ordered Support?
If you are trying to qualify for financing either to refinance your current home or buy a new home and you need your spousal support and/or child support to be included in your income, then the lender is going to want to see that you have been receiving these payments for at least six months and that they are court-ordered.
Voluntary payments from your spouse, no matter how reliable, are not going to count. This means that once you have filed, you can ask the court to issue temporary orders and this will get you started on the track to refinancing sooner.
If your spouse is making payments reliably, they may be offended by you wanting to move ahead with filing and even more offended by the idea of being ordered to make payments. Don’t be surprised by a “Don’t you trust me?” response. This is when it’s important to look at the situation from your spouse’s viewpoint and look for what they will gain from filing. In this example, you’d explain that it means being able to refinance sooner and it may also mean a tax deduction for the spousal support.
Check Your Retirement Benefits
The duration of your marriage is important for some key benefits. For example, under current social security rules, if you were married for at least 10 years you may qualify for a divorced spouse social security benefit. There are other qualification criteria but this is the first hurdle you have to cross and it means that if you’re at nine years now, you may want to hold on for another year. From your spouse’s perspective, this has no impact on their benefit so it may be something to which they are they are able to agree.
Similarly, ten years is a milestone for military spouses being eligible for retirement benefits.
Check Spousal Support Calculations
How spousal support is determined varies from state to state but the most important factor is the length of the marriage and so it is worth understanding how your support would be calculated and taking this into consideration. Of course, spouses typically have opposing interests in this regard and you’ll be motivated differently. While you maybe wanting to take your time and get thoroughly prepared for the negotiations, your spouse maybe rushing ahead. Understanding where the urgency is coming from will put you in a better negotiating position.
Divorce would be so much easier if when one spouse said, “Our marriage is in really bad shape. I think it’s over,” the other spouse said, “Yes, you’re right. Let’s get divorced.” But it rarely happens this way. Even when one spouse has made it very clear that they want the marriage to be over, the other spouse may cling to hope of reconciliation and be stuck in denial. In situations like this, having discussions about how to file and when to file can help bring the reluctant spouse into the new reality.
Larry Sarezky is a family law attorney from Fairfield, Connecticut. His book, “Divorce Simply Stated: How To Achieve More, Worry Less and Save Money In Your Divorce is available on Amazon.