Chapter 2 First Steps after You Decide to Divorce

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 2 First Steps After You Decide to Divorce

Breaking the News

Your Spouse

Your Children

Where Will Everyone Live?

Who Gets to Stay in the House?

Staying Together for a While

Gathering Financial Information

Managing Your Family's Money

Make a Budget

Start Keeping Your Income Separate

Dealing With Joint Assets

Decide How to File Your Tax Returns

Protect Your Valuable Separate Property

Close Joint Credit Accounts

Get Your Own Credit Card

Make Temporary Agreements About Support

Get Temporary Court-Ordered Support If You Need It

Getting Legal and Other Professional Help Early

Taking Care of Yourself

You've made the first hard decision—to end your marriage. Or perhaps the decision has been imposed on you, making the whole thing even more confusing and painful. Either way, you're probably trying to wrap your brain around the big changes coming your way very quickly. "Where will I live?" "Where will the kids live?" "What about our joint credit cards?" "Do I need a new job to support myself and the kids?" "How will I pay the bills that are due right now?"

The best way to cope is to take one step at a time. This chapter addresses some of the first—and critically important—steps to take.

CAUTION

Don't make important decisions hastily. Divorce is a traumatic experience, and your decision-making skills are probably not the best they've ever been. Although you can't put off all decisions—including some that you'll have to make with your spouse, like who will live where—try to minimize the number of long-term decisions you commit to in the first few months. If you really have to settle something, at least sleep on it, and try to find someone you trust to help you think through your options.

Breaking the News

Once one spouse decides on divorce, there's the delicate matter of discussing it out loud with the other. And once that's accomplished, there's the even more difficult issue of talking to the kids.

Your Spouse

If you're the one who's decided to end your marriage and your spouse is still in the dark, then the sooner you talk, the better. Most likely, your spouse already knows, at least deep down—most often, relationships come apart gradually over the course of time, and the outcome isn't a big surprise to anyone.

Taking the high road in dealing with your divorce can—and should—start right now. Make a plan for how you'll tell your spouse that you believe your marriage is over. If you're seeing a counselor or therapist on your own, get advice on the best way to talk to your spouse. If you and your spouse are in couples counseling, that may be a good environment to break the news. Either way, it won't be an easy conversation, so planning out what you want to say, and how, can really help. You might even want to write some notes about the words you want to use. If it's possible to break the news in a kind and compassionate way, do it—it will honor your relationship. It may also help your spouse to avoid feeling bitter about the way you did it, and though it may seem a small thing, every small kindness helps when you're splitting up. And it should go without saying that you shouldn't deliver the news via email, voicemail, or text messaging.

Don't expect that your spouse will immediately be able to discuss and make decisions about things like who will stay in the house and who will move out, or how you will spend time with your kids. It will take time to get used to the idea that you're divorcing. Solutions that may already seem obvious to you will still be shocking to someone who hasn't been considering these matters for as long as as you probably have.

Whatever you do, don't let your spouse be the last to know. If you have been considering divorce for a while and have talked to friends or family members about it, make sure you follow up with your spouse right away. Don't let your spouse hear from someone else that you're planning to leave.

RESOURCE

Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone, Bruce Patton, and Sheila Heen (Penguin), has practical advice about how to prepare for difficult talks and communicate successfully about hard topics.

Other books that can help with communicating during divorce are listed in Chapter 16.

If the conversation goes all right, you might consider asking your spouse whether it would be a good time to discuss telling others in your intimate circle—your parents, siblings, close friends, and even neighbors. These conversations can be really difficult, too, and if you can agree on how (who, when, and where) they will happen, it will probably be easier on everyone. But again, your spouse may not be ready to figure that out. If that's the case, you'll have to make your best guess about whether your spouse would want to tell others or would prefer that you take care of that chore.

Your Children

Telling children about a divorce can be one of the hardest parts of the entire process. The most important thing you can do is reassure your kids that it's not their fault and that they're not losing either of their parents. Chapter 6 has advice about dealing with your kids during divorce, including how to talk to them about the breakup—both at the start and as you all adjust to the changes.

Where Will Everyone Live?

One big decision that can't be put off for long is who will live where for the time being—that includes you, your spouse, and your children.

Who Gets to Stay in the House?

Most spouses figure out temporary living arrangements during a separation, putting off final decisions until the divorce process is further along. If you manage to do this, write up an agreement about what you've decided.

What if you can't agree? In most cases neither spouse is more entitled to stay in the family home than the other. If the house (or the lease on an apartment) is only in one spouse's name, then that spouse might be able to make the other one move out, though it would depend on factors like how long you've lived in the house together, who pays the expenses, and the like. If your spouse is the only one whose name is on the title to the house or a lease, you might be better off taking the path of least resistance and moving out now, and then arguing about ownership interests later.

Custody Considerations In families with children, it's common for the primary caretaker to stay in the house with the kids.
If you expect to share physical custody, then the closer the noncustodial parent can live, the better for the kids—it will cut down on the disruption to their school and social lives. Of course, that's not always possible, especially if you live in a neighborhood of high-value single-family homes. But make as much effort as you can to keep the households near each other.
If you intend to argue that you should have sole custody, don't move out and leave your kids behind. No matter how anxious you are to get out of the house, if you go without your kids, the message you send is that you think your spouse is a good parent who can take care of the kids without help. Also, judges don't like to disturb the status quo—so wherever your kids go when you separate, that's likely where they'll stay.
If you're expecting to share custody anyway, moving out is less risky. But if you are worried that moving out might lessen your chances of getting shared custody, ask your spouse to sign an agreement that says that the move won't affect later decisions about custody and visitation.
If you and your spouse are able to cooperate, you should work together to find the best housing for the one who is moving out. If you're the one staying, why should you help? Two reasons. First, it may get your spouse out of the house more quickly; second, it benefits your kids by ensuring that both homes are appropriate for them.

If you're at a stalemate about who gets to stay in the house, you might simply agree to both stay there temporarily (see "Staying Together for a While," below). You can also go to court right away and ask for a temporary order giving you the right to stay in the house for now. (Chapter 5 discusses temporary orders.) The court looks at your financial resources, the level of tension between you, your children's needs, and whatever other information might relate to your living situation. You might argue, for example, that you need to stay in the house because it's close to your workplace but a good distance from your spouse's, or because you are the primary caretaker of the children. But the judge's decision might be that neither of you has to move out, and then you'll be back to either making it work or making a decision on your own. Try to work it out without going through this exercise if you can.

In some states, living separately is a requirement to demonstrate you are truly separated. But in most instances, there is more gray area, and you can demonstrate that a separation has occurred by emails or other evidence that your marriage ended. See below for more.

If There's Violence in Your Home If you or your children are in physical danger from your spouse, you can do either or both of the following:

• Get out of the house quickly, taking the children with you. See a lawyer and file for custody right away, to make sure you're not accused of kidnapping.
• Go to court and get a restraining order, ordering your spouse to move out and stay away from the house and from you and the kids. Change the locks after you get the court order.

See Chapter 14 for more about domestic violence.

Staying Together for a While

Some divorcing couples keep living together even after they've agreed that the marriage is over. Often spouses agree to this for financial reasons. Other times, both spouses simply refuse to move because neither one wants to lose any ground in an anticipated custody war or because both feel they're entitled to the house, or because neither wants to give any ground at all.

Because the date of separation can become a contested issue in a divorce, staying together has...