If you are considering divorce or have been served with divorce papers recently, you need to know which steps to take in order to protect your rights. After all, when confronted with a divorce, people are often at the most vulnerable point in their life both emotionally and financially. The purpose of this article is to provide you with some guidelines and information that might be useful to begin protecting your interests. This checklist discusses measures you can take during the initial phases of a divorce and in preparation for a divorce. For detailed information regarding the divorce process in the State of California and local rules within the San Francisco Family Law Courts. However, before we get into specifics, it is important to understand that each and every divorce is unique and involves a number of different complexities. This Blog is no substitute for legal and professional advice. You should not rely on the content of this article without consulting a qualified divorce attorney of The Ruben Law Firm.The steps which follow are not necessarily in order of importance and are not all of equal weight. Again, it is important to consult a qualified divorce attorney prior to taking any action on the Divorce Preparation Checklist below:
11 STEPS TO PROTECT YOURSELF PRIOR TO FILING FOR DIVORCE
- HIRE AN ATTORNEY IMMEDIATELY! Whether you are the person filing for a divorce, called the Petitioner, or have been recently served with divorce papers, called the Respondent, you should immediately hire an attorney. The divorce process, while seemingly straightforward, can involve a number of different complexities which, if not adequately protected against, can be extremely detrimental. It is important to understand that once a person files for divorce, regardless of which party files first, they are in a mode designed to protect their own interests and no longer has your best interests at heart.
- MONITOR YOUR CREDIT REPORT! There are numerous companies which offer services to monitor your credit report. It is advisable for you to sign up with one of these companies and have a monitoring agency send an e-mail alert to you if there is any activity. Additionally, you might want to call all three of the credit reporting agencies and put a fraud alert on your credit report. Both of these steps will help guard against a potentially vindictive spouse. If, however, you already have negative entries on your credit report, you might need a competent credit repair attorney such as the credit repair attorneys at Garg & Associates to intervene on your behalf.
- START GATHERING RECORDS AND COPIES OF CRUCIAL DOCUMENTS! As soon as you know that you are going to be pursuing a divorce or have been served with divorce papers, it is crucial that you prepare a detailed list of all accounts you have individually and collectively with your spouse; this should include both debt and equity accounts. The list should include the name of the account, the account number, who is listed on the account as being financially responsible, the balances, and the addresses and contact information for the creditors or financial institutions. In addition to compiling a list of these accounts, it is crucial for you to obtain a detailed accounting of recent activity on the accounts. If you suspect that your spouse has been spending money in a questionable manner, you should obtain a copy of as many statements as possible before they disappear.
- GATHER COPIES OF OTHER CRUCIAL DOCUMENTS! In addition of copies of account statements and bills, you need to make copies of other crucial documents such as tax returns (last several years), Wills, trusts, marriage certificates, birth certificates, etc. You should also write down all applicable social security numbers and drivers license numbers. You will eventually need this information.
- OPEN A SEPARATE BANK ACCOUNT! It is important, prior to the divorce process being initiated, that you are able to remain financially viable and that you have access to money in order to live and care of your children. Therefore, you should open a checking account solely in your name without your spouse having access to the account. This will ensure that you are able to pay your bills and your attorney’s fees without substantial interference. It is important to note that timing is really important. Often, once the divorce process is initiated, Temporary Orders can prevent a party from performing actions such as opening additional accounts or withdrawing lump sums of money. Temporary Orders are orders from the Court used to control the parties prior to entry of the final decree. Your new account should be in place before any Temporary Orders are entered.
- STORE YOUR VALUABLES IN A SAFE LOCATION! If you have valuables that you want to keep and are concerned about their safety, it is recommended that you get a safety deposit box and store them. After you store the items, you should inform your spouse in writing that you have obtained a safety deposit box and stored the itemized merchandise.
- TRANSFER SOME MONEY INTO YOUR NEW ACCOUNT! Once you have opened your new account, you need to fund it with some money so that you can afford to live and pay your attorney’s fees. The amount of money you withdraw from your community estate will largely depend on your particular circumstances. Therefore, it is hard to put an exact figure on how much money should be relocated to your new account. Regardless of how much money is moved, it is important to keep in mind that the money, absent it being separate property from an inheritance, a gift, or property owned before marriage, is community property. As community property, you have a responsibility to only pay for reasonable and necessary living expenses and attorneys’ fees during the divorce process. As a side note, it would never be advisable for either party to leave their spouse without any money or means of support. That said, as a general rule and subject to your attorney’s advice, relocating approximately 50% of the money available to the community estate into your separate account is recommended. After you have removed half of the money, it is recommended that you inform your spouse in writing of your action. Please note that if you chose to remove funds from community accounts, you must do this before any court filing. There is an Automatic Restraining order that will be issued against you once your file a Petition for Dissolution of Marriage or are you served with the divorce papers.
- BE AWARE OF OUTSTANDING BILLS AND OBLIGATIONS! Even though you are in the process of getting a divorce, regardless of Court Orders partitioning debt temporarily, the creditors to which both you and your spouse are obligated still have a right of recourse against you and your spouse. Additionally, if you and your spouse are jointly obligated on an account, slow payment or non-payment can have a devastating effect on your credit, which can cost you thousands of dollars. Not only can your credit be injured, but you also can be sued by creditors in certain circumstances. Therefore, it is important to keep careful track of your outstanding bills and obligations. In some instances, it may be necessary for you to pay certain obligations, even if you are not ordered to pay the debt to maintain your creditworthiness. If you are in this position, your attorney may be able to recover the money you have spent from your spouse out of the community estate.
- IF YOU ARE SEEKING CUSTODY, DO NOT MOVE OUT OF THE HOUSE (ABSENT SAFETY CONCERNS)! Again, every case is different. If you or your children are in physical danger, you do not need to stay in the house, or you need a Protective Order and/or an order from the court ordering your spouse to move out. However, if you are not in danger and you are seeking custody of your children, it is not advisable to move out of your house without the children as it may damage any chance you have of getting custody. By moving out of the house, you are potentially opening yourself up for an abandonment claim. That having been said, it is also not advisable for you to take the children, absent abuse, and hide them from your spouse. As parents, both spouses have equal rights to their children, assuming they are either their biological or adoptive children. If, for some reason, you have already moved out, you should move back in immediately. However, if you have been out of the house for an extended period of time, as always, it is important to consult with your attorney before moving back in the house.
- DO NOT LET YOUR SPOUSE TAKE THE CHILDREN AND MOVE-OUT! If you are seeking custody, it is not advisable for you to agree to let your spouse move out with the children. Once you do, you are allowing your spouse to begin setting a foothold on the children’s future. Courts are charged with doing what is in the best interests of the children and often it is not in the best interest of the children to keep relocating them, especially if they are in school. Therefore, you should calmly refuse to allow your spouse and your children to move out together. If your spouse wants to individually move out without the children, you should not interfere. Under California law, once the divorce case has been filed or you have been served, you are
not permitted to even travel with the children outside the State of California or the outside the United States. You may not be aware that even going to Lake Tahoe in Nevada is a violation of the Automatic Restraining order.
- CANCEL ALL JOINT CREDIT CARDS AND ACCOUNTS! One of the primary horror stories you hear behind divorce case deals specifically with money, primarily with debt. Often times, spouses complain about the other spouse charging up current joint credit cards to their credit limit. To avoid these occurrences, it is recommended that you cancel all joint credit card accounts and joint credit lines. You should, as always, consult with your attorney and the creditors before taking this action. Prior to cancelling joint accounts, it may be a good idea for you to apply for and obtain a credit card in your own name. Additionally, prior to cancelling joint accounts, you need to inform your spouse of your intention. You never want to completely and without notice cut your spouse off without any means to support them self. Your only goal with regard to this action is to protect yourself. Generally, it is best if you inform the spouse very shortly before the cancellation to avoid any potential spending sprees. Having said that, it is important to realize that an account is never really settled until it is paid off in full. Often, it is a good idea to require that all outstanding joint debt be paid out of the community estate upon entry of the final decree.
The Ruben Law Firm
625 Market Street, Penthouse
San Francisco, CA 94105