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Divorce–Now or Later? Or Much Later?

September 10, 2019

Deciding to divorce is one choice; deciding when to divorce is another. Some seek divorce quickly upon encountering difficulties in their marriage; others wait.  That wait might be months, or it might be years. This post covers some timing considerations that come into play for many.  While we can outline some general considerations here, there is no substitute for a personal consultation to consider what might be best in your particular situation.  A consultation is not a commitment to proceed — it is an opportunity to education yourself.

Financial separation. When you divorce, you separate financially from your spouse. Of course, you should not do so without the protection and structure of an enforceable Agreement or court order.  Should you initiate a separation or divorce now? Considerations include whether you need an immediate  separation of your finances, the need for enforceable  support obligations, and a change in the financial structure or make-up of the marriage due to recent financial decisions made by one or the spouse, among other things.  On the other hand, there may be considerations in waiting to initiate a separation or divorce. Maybe you want to take some time to prepare. Or maybe you want your car, or Johnny’s braces, to be paid off while you’re still married. On the other hand, if you’re married to a compulsive spender or if your marital assets are being siphoned to purposes that are not agreed, you may want financial separation as soon as possible.   These are only a few of the many financial circumstances to consider in making potentially a crucial decision as to the timing of when to initiate a separation and divorce.

Health insurance.  Insurance coverage can be a major factor. Some couples actually conclude they can’t divorce – or at least can’t divorce right away — because of medical insurance coverage and costs. Some couples stay married while living separately, in order to maintain existing insurance coverage.

Responsibility for spouse’s debts.   The filing of a summons and complaint for divorce cuts off the accumulation of what can be considered marital debt in most situations.   As such, in most situations, debt incurred by either spouse after the filing of the divorce action, is the sole responsibility of the party who incurred the debt.   An examination of your debts and the spending habits of both parties may be important considerations in the timing of filing for divorce and could have a significant impact on the ultimate distribution of the debts between the parties.

Interests in spouse’s retirement and business assets. The filing of an action for Divorce is a clear demarcation of one spouse’s legal and financial interests in the other’s business and retirement accounts. Which way this cuts for particular couples depends on variables such as the type of business, the  size and growth stage of the business, the value of the retirement account(s), and the age and needs of the spouses. If you are young and the business is young, its value to you may be of less consequence than if you’ve invested decades of marriage helping to grow the business and have a lot riding on it. Whether you litigate, collaborate,  or mediate your divorce, a factor that is almost sure to be considered is the length of the marriage, with longer marriages generally leading to a larger share of marital business assets for the spouse seeking them. Maybe this is worth waiting for; maybe not. It depends on what’s important to you.

New rules for parenting, property and relationship. The matters identified above can be rationally analyzed, but family matters may be harder to work through. Divorce means you will be parenting your children in accordance with a parenting plan that is part of your divorce. It may mean division of your household furnishings or purchase of new furnishings for your children in your spouse’s new residence. It means you and your spouse will be communicating on a different basis, because you’ll be a two-house family. Are you ready for this now? Are your children?  Some people choose to time the divorce based upon the age of their children,  time of the year including until after the holidays, or some other event affecting the family.

Establishment of support obligations. Child support payments and temporary and permanent spousal support payments can not be established in an enforceable way in situations where divorce is desired but deliberately deferred. If you and your spouse live separately but remain married without a binding agreement between you, the obligations that the two of you have to each other and to your children are less defined and less enforceable than if they’re covered under an enforceable agreement.  How comfortable are you with this?    Additionally, the filing of a divorce action fixes the date from which court ordered child support and spousal support obligations begin.  A further consideration must now be weighed given the new laws that went into effect in January of 2016 regarding formulaic spousal support- the length of the marriage.   The length of the marriage for this purpose is defined as the date of the marriage to the date an action for divorce was commenced.  The statutory formula which sets forth a calculation for the determination of the amount of spousal support due one spouse from the other after the divorce, also now calculates how long that support will have to be paid, strictly based upon the length of the marriage.  The longer a person waits to initiate the divorce, the longer the length of the marriage.

Bottom line:  There is no one-size-fits-all solution for timing in initiating a  divorce.  Every consideration, big or small,  has its pros and cons.  There may be only one consideration that matters to you, or there may be many and it could be a very difficult decision for someone to make.  It is not a decision to be made lightly.

We believe that educating our clients in this regard so that they are are a position to make the most informed decision, so that they fully understand and consider the many sides of a variable(s) in making the decision, is critical towards the ultimate outcome.


This post was originally published on 8/8/16.

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