Planning for Your Divorce: Pre-filing Do’s and Don’ts
If you intend to file for divorce or you suspect your spouse will file for divorce, you should take steps now to protect your relationship with your kids, protect your financial security, prevent your spouse from engaging in improper conduct, and position yourself favorably for the divorce. You must be proactive. Failing to prepare for your divorce could result in disastrous consequences for you and your kids because it could jeopardize your best parenting and financial outcome. It may also result in higher legal fees because your attorney may have to fix problems that could have, and should have, been avoided with proper planning.
Gather financial information and understand your family’s financial situation
Before you file for divorce, you should identify and quantify your family’s income, expenses, assets, and debts. Gather financial information and documents such as paystubs, personal and business bank account statements, brokerage account statements, stock certificates, retirement account statements, personal and business tax returns, credit card statements, promissory notes, mortgage statements, deeds, certificates of title, life insurance policies, wills, and all other relevant financial documents.
Obtain a copy of your credit report. You should be able to obtain a free online credit report at www.annualcreditreport.com. This will help identify accounts in your name and determine whether your spouse opened any accounts in your name.
If you or your spouse use Quickbooks or similar bookkeeping software, copy the data onto a CD or DVD.
For high asset marital estates, hire a forensic computer expert to copy the contents of the hard drive from family desktops, laptops, external hard drives, USB drives, and other storage devices. These devices often contain important financial and accounting information. Ensure your computer expert is familiar with how to legally access this information and how to preserve the “chain of custody” of the information gathered from these devices. Also gather and copy all financial information saved to the cloud via Dropbox, Google Drive, iCloud, etc.
Once you have gathered all this information, study it so you fully understand your family’s financial picture. Make a list of all financial accounts, including account numbers and current balances. If your family’s finances are complicated or if your spouse’s financial or business interests are complex, consider hiring a forensic accountant to analyze the data for you.
By understanding your and your spouse’s financial situation now, you will greatly improve your position in the divorce and reduce your legal fees by:
- Making it easy to spot your spouse’s concealment of assets;
- Making it easy to spot your spouse’s dissipation or waste of the family’s money or assets;
- Making it easy to track sudden changes in your family’s finances such as a large purchase or unusually large debt payment made by your spouse with marital funds;
- Making it easy to spot inaccuracies in your spouse’s financial disclosures;
- Assisting your attorney in completing your mandatory financial disclosures.
Start saving money
Open an individual checking and savings account in your name only. Save as much money as you can in your separate savings account each week. You need to accumulate liquid funds to pay for the necessities of life, legal fees, financial experts, and mental health professionals for you and your kids. It is possible that the court will force your spouse to pay these things for you, but you need to be prepared if the court does not do so.
If you are a stay-at-home spouse or have a lower paying job, consider applying for a credit card in your name only. The credit card issuer will likely consider both your and your spouse’s income in determining your eligibility for the card, and you may find that you need a credit card to pay for necessities during the divorce process.
Change your passwords
To protect your electronic devices and online information from improper access by your spouse, change your passwords to:
- online bank accounts (including PayPal);
- online credit card accounts;
- online accounts with merchants (Amazon, eBay, online retailers, etc.);
- social media;
- all email accounts (work and personal);
- this is important because if your spouse has your iTunes password, he or she may be able to track your movements using Find My iPhone;
- voice mail (also disable any automatic access functionality);
- all other electronic devices and online accounts.
Your password needs to be strong and one that your spouse can’t guess. It should include alpha (upper and lower case) characters, numeric characters, and symbols (@, !, #, etc.). LastPass (https://lastpass.com/) is an excellent service that creates and remembers encrypted passwords for all your online accounts. Don’t use easy to answer password reminders that your spouse can guess (mother’s maiden name, name of your high school, etc.).
Create a new email account
Create a new secure email account to communicate with your attorney, friends and potential witnesses. Change the password frequently or use LastPass.
Caution your email recipients not to forward your emails or share your new email address.
Open a post office box
Open a new P.O. box in your name only. Have all your account statements and other important documents sent to the P.O. box rather than your home to ensure your financial and sensitive information is secure. If your lawyer must send you correspondence or documents through the mail, it should be sent to the P.O. box, not your home.
Be Smart with Social Media
Until your divorce is final, stop using social media. Your posts can be used against you in the divorce. Deactivate, but do not delete, your social media accounts. (Deleting your social media accounts will expose you a charge of spoliation. See below.).
Monitor your spouse’s social media for evidence of inappropriate behavior and overspending. Your spouse’s social media postings can be relevant to your the divorce – they tell us what he/she thinks, what he/she did, what he/she spent, what he/she ate, drank or ingested, how he/she behaves, where he/she has been and is going, with whom, etc.
Save Your Spouse’s Text Messages, Email and Voice Mails
Save your spouse’s text messages, emails and voice mails, even if they seem innocuous. They reflect his or her state of mind and are very useful in constructing timelines.
Protect Yourself from Cyber-Spying
Wipe your laptop or computing device of any spyware and malicious software. At a minimum, use commercial anti-virus software such as Norton or McAfee to perform a full system scan and repair of your computers and laptops. For larger marital estates, hire a forensic computer expert to inspect your computer and laptops, make an image of the hard drive, and clean the device of all spyware and malicious software.
Once your computing devices are clean of spyware and malicious software, encrypt the devices and all information transmitted from the devices. This will protect against future attacks from malicious software or apps.
Routinely confirm that no foreign device is installed in any USB port on any of your devices. If you find one, remove it and have a forensic computer expert analyze it.
If you and your spouse are on the same cellular plan, ask your cellular provider whether your spouse made any changes to your account settings such as adding a new location service that could be used to track your movements. If so, tell them to remove it. Then get your own cellular plan and remove all your devices from the old plan.
For larger marital estates, hire a GPS expert to inspect your automobile for improper and unauthorized GPS tracking devices.
Change your Beneficiaries and Powers of Attorney
Prior to filing for divorce, consider changing your beneficiaries on your insurance policies, retirement accounts, pay-on-death accounts, wills, trusts, etc. to ensure your spouse will not inherit these assets from you. Contact your carriers and plan administrators and request that they do not send change-of-beneficiary notifications to your spouse until you authorize them to do so.
Change your health care and financial powers of attorney to ensure your spouse is not authorized to act on your behalf in an emergency.
Importantly, after the divorce is filed and the Respondent spouse has been served with the divorce documents, both parties are restrained from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party, or an Order of the Court, any marital property, except in the usual course of business or for the necessities of life. Each party is required to notify the other party of any proposed extraordinary expenditures and to account for all extraordinary expenditures made after the injunction is in effect. Both parties are also restrained, without at least fourteen days advance notification and the written consent of the other party or an Order of the Court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.
Treat your spouse with civility
Treat your spouse in a civilized and courteous manner, even if he or she treats you disrespectfully. Set a good example for your kids. Walk away from arguments.
Engage in counseling with a mental health professional, counselor, or relationship coach who is experienced in divorce issues. He or she will help you manage your emotions, keep a positive attitude, and best prepare you for life after divorce.
Don’t speak negatively about your spouse in front of your kids
Don’t speak negatively about your spouse to your kids or in their presence. In determining custody issues, the court will look at your ability to encourage love and affection between your kids and their other parent. Don’t give your spouse ammunition to use against you.
Don’t use employer-provided email for personal emails
Generally, an employer has access to employee emails. Don’t use employer-provided email to send or receive personal emails because the emails might be discoverable in the divorce proceedings.
Don’t EVER use employer-provided email to communicate with your lawyer. This may destroy the attorney-client privilege and subject the emails to disclosure to your spouse and your spouse’s lawyer.
Don’t argue with your spouse via text, email or voice mail
Don’t text, email, or leave voice mails for your spouse except for mundane and harmless matters (what’s for dinner, who’s picking up Johnny from soccer, etc.). Don’t argue with your spouse using text, email or voice mail. You may say something out of anger or frustration in the heat of the moment that will jeopardize your divorce case later.
Don’t abuse alcohol or drugs
Don’t overindulge in alcohol or legal drugs, and don’t use illegal drugs. If you do, your spouse can use it against you in determining parenting time and decision-making for your kids.
Don’t squander marital assets
Don’t overspend marital funds, make unusually large purchases, or engage in waste or dissipation of marital assets. You will ruin your credibility with the court. You will likely be stuck paying for the purchase yourself and reimbursing your spouse for your improper use of marital funds or assets.
Don’t run up credit card debt except to pay for life necessities. Don’t pay off credit card debt unless your lawyer advises you to.
Don’t install spyware or keystroke trackers on spouse’s computer
Don’t install spyware or keystroke trackers on your spouse’s computer. This may subject you to criminal and civil sanctions. Any evidence gathered will likely be inadmissible in court and it will ruin your credibility with the judge.
Don’t use spoofing technology to improperly access your spouse’s voice mails or send false texts or calls. This may expose you to criminal and civil sanctions and it will ruin your credibility with the judge.
Don’t destroy evidence
Don’t destroy (spoliate) evidence. Don’t destroy any electronic device. Don’t erase or wipe data from any electronic device. Unless in the ordinary course of business, don’t delete material from emails, texts, social media, smartphones, or any other device or program. This will destroy your credibility with the judge and subject you to spoliation sanctions.
Don’t fake evidence
Don’t fake or manufacture evidence because you think it will help you in the divorce. You will likely get caught – especially if your spouse has a good lawyer – and it will ruin your credibility with the judge and greatly jeopardize your case.
Don’t transmit misleading or inaccurate caller ID information. If you do, you will be in violation of Truth in Caller ID Act of 2009 and exposed to penalties, fines, sanctions and possibly imprisonment. The penalties for violating the Act include a civil forfeiture penalty payable to the United States in an amount up to $10,000 for each violation and three times that amount for each day of a continuing violation. These penalties are enforced in addition to potential imprisonment.
By taking the above steps, you will be in the best legal and financial position when it comes time to file for divorce.