It seemed like it was going to be just another day. Get the kids off to school, do household chores, go to work. But then your spouse let you know it was over between you, that they want a divorce. Now. Or, you found out it was over between you but your spouse “forgot” to let you know.
However it all went awry, you are now at a crossroads. How you handle the next few weeks to months preparing for your divorce could affect how smoothly it runs and how successful you are at reaching an agreement with your soon-to-be-ex that you will be happy with.
But first things first. If you have been blindsided by your spouse and divorce appears imminent, do not panic. There are specific steps you can take today to begin preparing for the divorce process. As always, how well organized you are is key. Here are a few ideas about how to get started.
As soon as possible, start compiling a list of your assets and those of your partner if you have knowledge of them. Typical assets include cash, savings and checking accounts, market investments, retirement accounts, real estate, vehicles, employee benefits, collectibles, and personal property.
If you are not usually the one who handles your household finances, start by looking at your tax returns from the prior three years. These returns can often provide valuable information about assets. However, some items may not show up on a tax return. To get a complete picture of your finances, take an inventory of any recent statements you may have.
Washington state is a community property state. What this means is that in Washington state, assets (and liabilities/debt, discussed further below) deemed community property are distributed equitably. However, equitable may not mean equal. Every marriage is different, and no two divorces are ever the same. Therefore, dividing assets and debts 50/50 will not necessarily create a just division in every case.
What “equitable” means is that assets and debts will be distributed fairly according to your unique situation. In dividing assets and debts, the court also considers the projected situations of the parties going forward, not simply their current circumstances, as well as other relevant factors.
To that end, a court will, for example, consider the nature and extent of community property (typically property acquired during the marriage), the nature and extent of separate property (typically property acquired before marriage, after separation, by gift, or inheritance), the length of the marriage, and each spouse’s financial position not simply at the time of distribution but also going forward.
The goal is to divide property and debts between the parties in a manner that is “just and equitable,” and the court has a great deal of discretion as to what such a division will look like. The court’s property and debt division are never described as “injury” to either party. Instead, it is an “award” of property and “distribution” of debt. The goal is simply just and equitable, and sometimes just and equitable leaves no option to one of the spouses other than to file for bankruptcy following the divorce.
Classifying the asset (or debt) according to whether it is separate or community property. Separate property is distributed during the divorce because all property, separate and community, is before the court for division and must be disclosed and distributed.
However, it is not uncommon for separate property to be awarded to its original owner. This can include gifts, assets acquired before marriage or with separate funds, an asset (or debt) named in a prenuptial or postnuptial agreement, or inheritance not commingled with marital funds.
If property, even if separate in nature, is not distributed in the divorce decree, it becomes jointly owned by the parties as tenants-in-common by operation of law. All property, separate and community, must be distributed, and the mandatory forms provide sections for the two types.
An appraisal may need to be performed for those assets designated as community property. For example, if you purchased a boat or car during the marriage, a value will need to be assigned to it so that if it is awarded to one spouse, the court can factor the asset’s value into the overall division of assets and debts.
Other ways of setting a value can include determining its current fair market value, its replacement value, or even an agreed-upon amount. At times, the solution may be for the parties to agree or the court to require a particular asset to be sold. In that circumstance, the value is typically the net proceeds.
The court is required to consider “all relevant factors” before it can divide property. The court also considers numerous other relevant factors such as spousal maintenance, the “desirability of awarding the family home” to the spouse with whom the children will reside at the time, and much more.
As opposed to assets, liabilities typically include such encumbrances as mortgages on real estate, auto loans, student loans, business loans, loans from friends or family, and credit card debt. To determine the amount owed, you will need to access your current and past statements.
As best you can, gather documentation evidencing when the debt was incurred, evidence of any payments made during the marriage, and whether the debt was referenced in a prenuptial or postnuptial agreement. This will assist your attorney and the court in determining to whom and in what amounts any debts should be distributed.
Income is not limited to the paychecks you collect. Income includes all earnings from a job (bonuses, fringe benefits, stock awards, etc.), revenue from investments, dividends from stock, interest from banks or loans owed to you, distributions from partnerships or other business ventures, rental income, royalties, second jobs, and “side businesses.”
Income streams are particularly important when calculating spousal support and child support payments, if applicable. So gather your tax returns and all financial records you have that document your various sources of income. Tax returns are not always enough to estimate income.
It is important to determine your expenses at current levels and then predict future expenses. This will allow you to plan your post-divorce life with a better idea of what you can and cannot afford.
You can do this by reviewing bank statements, ATM withdrawals, and credit card statements and noting items you pay for annually. Keep track of any cash expenditures you make as well as small purchases, including those that you may have billed to you automatically such as subscription services. You may be surprised at how quickly small purchases add up.
It is important to note the use of jointly-owned funds from both you and your spouse. Even if your divorce is amicable, should your spouse begin spending money that belongs to both of you in an unusual, irresponsible, or reckless fashion or for their sole benefit, you can address it in court.
Such expenditures could be classified as marital waste. Therefore, to avoid the appearance of improper spending, do not make large, out-of-the-ordinary purchases of any kind during the divorce process unless agreed to in writing or authorized by the court.
Your lifestyle and budget may change once you are divorced. Therefore, you should consider what your new single life may look like, including where you are thinking about living and how your expenses may change post-divorce. To that end, prepare a list of budget items that you “need” as opposed to items that you “want.”
By preparing a detailed list of your expenses, you can be ready if and when you need to address situations and know where you can compromise. Make sure your post-divorce spending plan is realistic, and recognize that you may have a lower standard of living in the future.
After you have gathered as much information as you can, you should begin to assemble a team of divorce professionals. By hiring experienced legal counsel to represent you during your divorce proceeding, you can improve your likelihood of reaching an agreement with your soon-to-be-ex-spouse that you will be satisfied with and meet your needs.
Enlisting the services of an experienced divorce lawyer skilled in alternative dispute resolution may allow you to resolve your case outside the courtroom. Mediation, arbitration, and collaborative divorce utilize neutral third parties to oversee divorce settlements and avoid the time, money, and frustration that can come from courtroom litigation.
At Elise Buie Family Law Group, our Seattle team of family law attorneys have decades of cumulative experience negotiating divorce settlements. Our goal is to resolve your issues as expediently as possible while keeping your needs and your family’s front and center. We are here to listen and help. Call us today.