January 29, 2023
Whether you are thinking of litigation or mediation for your divorce, there are considerations that, in an ideal world, you would look at before deciding when and how to proceed. It’s important to review these considerations with an experienced attorney, a professional who can help you assess your situation and decide if some strategic planning may be beneficial before you take the life-altering step of commencing a divorce process.
Different people need different things, so strategic planning doesn’t look the same for everyone. The list below isn’t comprehensive but includes some of the topics that one may consider.
Job status/creation/change. Where you stand jobwise is relevant for most people. Have you been out of the workforce? Do you need some schooling or training first? If you or your spouse are a long-term employee of a mature company, that’s a different risk profile than if you’re involved with a start-up. In general, making multiple major changes at the same time is not a good idea. Divorce is definitely a major change, so if you’re also looking at changing jobs, you may want to consider the timing of those changes relative to each other.
Cash flow – establishment/changes/ increases/decreases. Another economic consideration is the impact of divorce on your cash flow. Are you or your spouse self-employed? If you get paid on commission, that’s different than working strictly on salary. If you’re a stay-at-home spouse and depend on your partner for funds, that’s different from having a regular income that you control and may require planning before proceeding.
Information gathering. You will need to gather documents and other information about assets, liabilities and income. Some spouses do not know the exact size or nature of their marital estate. Do you have access to all of that information? Your attorney will guide you. In addition to locating financial documents, you or your attorney may need to speak with other professionals about complex issues or assets – for example, where you or your spouse have trust assets, or if your divorce will involve valuation of a business, or if one or both of you is involved in bankruptcy proceedings, or where there are estate planning considerations.
Asset management – modifications/changes, etc. Your marital assets may be jointly or individually owned. However, individual ownership does not automatically protect assets from the non-owner spouse. With your attorney you will want to review the nominal ownership of each asset and discuss how it will likely be treated under New York’s law of equitable distribution, as well as examine beneficiary designations, and understand how all of these may tie in with cash flow considerations.
Preparing for discussions with a spouse. Your spouse may prove to be a willing collaborator in your divorce, but until you’ve had a conversation about it you’re only guessing. An experienced attorney should be able to contribute materially to the success of that first conversation in terms of substance, style and timing.
Residency. Where you reside, or would want to move, or the timing of spouses physically separating, all carry with them many considerations and potential implications, including where the divorce process can take place, cash flow and changes in cash flow, custody and parental access, among other things. An experienced divorce attorney will have seen other couples handle the challenges of relocation and can help you think through the details.
Estate planning/financial planning/insurance planning. An experienced attorney should be able to identify potential issues, and if necessary, refer you to specialists who can provide you with important guidance. Referral to the right professionals is a valuable service, as an experienced attorney should have hands-on experience working with people who are only names on paper to you. Examples are insurance agents, financial advisors, and estate planning experts.
Considerations about children. As mentioned above, minor children create concerns that do not exist otherwise. The last thing most parents want is for their divorce, however amicable, to negatively affect their children. There are tools for children that could help them adjust to two homes, blended families, and other changes in their lives, as well as helping them to process emotion in normative ways. An experienced attorney should be able to guide you in order to care for and support your children through this life changing process.
Social Security planning and Medicare (Health Insurance Planning). What happens legally with your own or a spouse’s Social Security in divorce is information you absolutely should know, especially in so-called “gray divorce” where one or both spouses are within ten years of full Social Security age. Your divorce attorney should be able to provide you this information.
In sum, planning with your attorney for a period of time short or long, could have a critical impact on a future divorce process. You want to position yourself for this process in the best way possible, and you want to do it before proceeding with your divorce.
By Brett Jones, Esq.