Before you move forward with divorce, the savviest attorneys would advise you to make some preparations. It might seem heartless, but if you plan to ask your spouse for a divorce, or if you think your spouse might want one from you, there are some matters you should take care of first. Attend to these issues before you or your partner decide to call it quits, and you'll be ahead of the game during legal negotiations.
We know that the notion of a pending divorce—even one not yet discussed with your spouse—can send you into a tailspin. The mere thought of divorce might evoke a range of emotions, including relief, fear, disappointment, excitement, and dread. After years of frustration, you're finally ready to divest yourself of some old and uncomfortable life choices for a world of new possibilities and, you hope, lower levels of conflict and pain. But no matter what you feel, you must push these emotions aside and take some practical and highly strategic steps before anyone gets the ball rolling.
1. Consider Your Legal Options
Until you have embarked upon the journey of divorce yourself, you might have some unrealistic notions about what is involved. Ideas about the painful process derive not just from family and friends but also Hollywood movies and tabloids that focus, often, on extraordinary circumstances or the extraordinarily rich and famous. When you read about divorce in the newspaper, the principals are enduring pop icons like Donald and Ivana Trump—not Mary and Tom from down the street. Movie divorce is typified by the classic drama-cum-comedy-cum-nightmare, The War of the Roses, the 1980s farce about Barbara and Oliver Rose, the perfect, wealthy couple with all the accoutrements, from the spectacular house to designer cars and clothes to the real art. Neither wants to part with all the luxuries, so when divorce becomes inevitable, they and their attorneys fight to the death—literally. The Roses end up dead on the floor of their magnificent home after a final battle royale atop the crystal chandelier. Although most protagonists like these manage to come out alive, divorce for the wealthy and well-to-do has always been a high stakes game involving costly attorneys, each negotiating (and sometimes litigating) for a client's part of the marriage “pie.” For the richest Americans, much about divorce remains the same.
For many years, middle-class divorce was a less-costly version of the battles waged by the rich, with each party hiring an attorney—albeit a less illustrious one—who negotiated for assets and other rights on the client's behalf. But in the twenty-first century, that has changed. Most middle-class divorces today are conducted through a variety of venues, often veering significantly from the lawyered-up model of the past. Indeed, over the past couple of decades, according to the American Bar Association, the process of divorce has undergone radical changes in the United States.
For one thing, large numbers of middle-income Americans hire attorneys for just part of the process and increasingly handle paperwork and logistics themselves. Many others opt for low-conflict resolutions. This includes not just mediation, in which a neutral third party—the mediator—helps the parties reach a compromise, but also the newer method of “collaborative divorce.” In collaborative divorce, each party has an attorney, but the adversarial milieu is replaced by a philosophy of harmony and the goal of getting along. In collaborative divorce, the two attorneys work together as a team, with the goal of problem-solving, not duking it out.
The well-to-do may always divorce the traditional way. They simply have too much at stake to do it any other way; given all their assets, the process must be technical and involved if everyone's interests are to be served.
But for the middle-income couple, the options have widened. From the do-it-yourself divorce (referred to as pro se or pro per) to the mediated divorce to all the variations in-between, divorce has become a consumer's marketplace. If you have limited funds, you no longer have to spend them all on your attorney just to sever your marriage. On the other hand, extra choice means extra risk and responsibility. Should you stop at a storefront and offer your credit card for a $99 divorce, leaving the details to an attorney (or more likely, a paralegal)? One thing is certain: You should educate yourself so you can make sure you are fully protected. As you begin to investigate divorce logistics, stay alert and remain skeptical. The choices you make now could impact your financial and familial situation for years or even decades, so make sure you are doing things right.