Prepping for amicable split... Cliff Notes me

March 1, 2013 7:20 AM

Spouse and I calmly decided it's over. Help me prepare.

We have no kids together and there will not be any support or alimony involved. We are actually pretty happy about it and relieved that we can now move on.

I am NOT looking for advice or thoughts on staying together. This is definitely what we both want and it 100% in both our best interests.

Essentially now it become just separating out who gets what debt and figuring how to address breakdown of the various shared services (insurance, etc.). There are no co-titled cars or property; some joint credit accounts. There is no animosity and no desire to stick it to the other party.

I have read this thread but it's not really what I am asking. I need to know what should I be doing now to protect my interests, anything I need to be aware of? Should I stop adding to my savings account, etc.?

posted by anonymous to human relations (15 answers total)

I believe this really depends on what state you are in, assuming that you are American. Perhaps you can ask a moderator to add that information.
posted by amro at 7:31 AM on March 1 [1 favorite]

To reiterate a comment in that thread: divorce laws vary by state, so one of the big questions that will govern how you do this is whether the state you live in is a "community property" state.

The other thing is that just keep in mind that you will probably not always feel amicable. Divorce sometimes feels shitty, even if it's momentarily. Prepare in advance to limit your ability to lash out or act like an asshole in those moments.
posted by liketitanic at 7:32 AM on March 1 [3 favorites]

First off, congratulations. I know that sounds weird, but you know that you're not doing this because you're happy, and it's very hard to take this step before you poison yourself, the relationship or both.

Should I stop adding to my savings account, etc.?

Any mutual bank or investment account to which both of you have access should be frozen immediately. Not like, call the bank and have them do it, but like, "Okay, I'll change my direct deposits and you change yours, and we'll use our individual credit cards from now on, and we'll discuss each bill before either of us pays it."

For divvying up, do everything at once. This will be an exhausting process, so set aside a weekend. Try to get out of the house to a neutral location (there have been stories about divorce weekend packages at hotels that may or may not be useful for you). Before that weekend, each of you makes a list independently all of the property you feel is "mutual" and all of the property and accounts and debts and bills that you feel are "yours" and "theirs" (this keeps you from standing in the house on the very last day saying, "No, this chair is yours." "Well, I assumed it was yours."). Exchange these lists beforehand so you won't be surprised, but discuss any differences at your official divvying-up weekend, not before.

Be incredibly specific about who pays what and when and how and what happens if that person doesn't do it. That last part will suck, because it feels like you're assuming that the other person will fail. It is much, much, fantastically easier to be too hard and too precise and too picky before things start happening than after -- you can always be more forgiving than the plan says you have to be, but you can't always be less forgiving than the plan says you have to be.

Finally, this will hurt. As liketitanic says, be ready to yell and be yelled at, and don't make decisions based on whether you or your spouse are mad in the moment.
posted by Etrigan at 7:48 AM on March 1 [6 favorites]

Not clear if you are just do a separation first and not a divorce. If a separation, look into the possibility of what's called a legal separation.
posted by Dansaman at 7:58 AM on March 1

You both need lawyers. This isn't at all a bad thing; it's just easiest to hammer everything out when you both have people who understand the law working with you.

One mistake my ex and I made was that we went to mediation first, not understanding that the mediator's advice was all well and good (along the lines of separating accounts, etc.), but it had no legal standing, so we still ended up having to hire lawyers anyway.
posted by kinetic at 8:12 AM on March 1

I think even the most amicable of divorces should involve early consultation with a lawyer and/or mediator.
posted by xyzzy at 8:13 AM on March 1 [1 favorite]

It all boils down to the laws (and in some cases the judges) of the state or country you are in, which is why you each need your own lawyer. If you make it clear from the beginning that you want this to be amicable the lawyers should work to keep it that way. Depending on your jurisdiction there are a few alternatives you may want to explore for resolving any differences that come up. Mediation and arbitration have been mentioned, and in some places collaborative divorce is an option. The only person who knows what will be best for both of you given the laws of your jurisdiction is a lawyer practicing family law in that jurisdiction.
posted by TedW at 8:21 AM on March 1

Check out a "collaborative divorce" lawyer for legal help without the adversarial element. I know one in the San Francisco Bay Area, if that's where you are.
posted by small_ruminant at 8:23 AM on March 1

You might want to consider working with professionals who are trained in collaborative practice.
You each get separate legal advice but the process is set up to encourage you to resolve any disagreements out of court. If you can't reach an agreement you have to find new lawyers, so there is no incentive for the lawyers to act like pit bulls. It works.
posted by steinwald at 8:25 AM on March 1 [1 favorite]

My ex and I divorced amicably without kids, property or a lawyer involved. We were both grad students renting and apartment in Boston. What we did have is some debt, credit card and my husband's student loans, some of which went toward our shared living expenses, but I had worked and contributed more to our expenses than he did, which was fine with me. He agreed that I didn't share the responsibility of the loans. I had co-signed these student loans. Although we had it written in our separation agreement that he would be responsible for the loan repayment, I was still on the loan as a co-signer, so years later if he lapsed in a payment, I would be notified (he ended up making a large salary and could pay the loans but sometimes he forgot because he's a ditz). Also, my debt ratio was artificially higher due to the $50K on there, which makes financing a house a bit more difficult. So, I would highly suggest that any loans be refinanced so that only the responsible party is on there. When I asked my ex to do this for me after the fact, he just couldn't be bothered, so that leaves me stuck. I guess the good thing is that he is paying them off, almost flawlessly, so at some point that should help my credit, but it's not worth it given he could have defaulted at any time under the wrong financial circumstances.
posted by waving at 8:27 AM on March 1 [2 favorites]

Think long and hard about whether an "amicable" division of marital assets and liabilities means more or less splitting 50/50, or whether each party gets (or gets stuck with) their own contributions to the marriage.

In many jurisdictions, there is a strong presumption that spouses share the marital estate 50/50, and, in some jurisdictions, there's even sharing of assets that a spouse owned before the marriage. What do you think is yours vs spouse's? Should you get $12,000 of the joint account because your salary contributed 60% to the savings? Or should you each get $10,000? Does the answer change if you only got $10,000, but would be entitled to half of the country house spouse inherited from grandma?

The fact that your question ends with the question whether you should stop contributing to your savings account (you don't say "our joint savings account," which makes me wonder whether you're squirreling money away off the books) makes me think you've got your eye on an endgame that may not be so amicable. (Which is not to say you're bad, but that you're thinking ahead.)

Just get lawyers and tell them you and spouse don't hate each other's guts, but you want a workable settlement that you both can agree to.

Good luck. This is not legal advice, of course, and I am not your lawyer. As suggested above, you and spouse need separate competent counsel in your jurisdiction.
posted by Admiral Haddock at 8:51 AM on March 1

It's not necessarily true that you both need lawyers. I say that as an attorney myself, and one who often tells people on AskMe, "You should speak with an attorney." Many people navigate family court successfully without representation. In other cases, people waste money on two lawyers when one will do.

I am not advising you that you shouldn't seek legal representation, nor that you and your spouse shouldn't have separate attorneys. Maybe you should! I don't know nearly enough about you, your jurisdiction, the background of your marriage, your finances, etc. Those details make all the difference in any case, and it's entirely possible that your details raise some complication making it unwise to proceed without representation.

What I can tell you is that in one of the states where I am licensed, we have a relatively simple statute that permits spouses to ask jointly for the court to divorce them. In other words, the divorce is not captioned "Jones v. Jones"—nobody is "versus" anybody else. This statute is designed to make things simple and fast for couples in amicable-split situations, and it works pretty well. And in some cases (maybe not yours?), people can ably navigate this process without spending money on two separate attorneys.

There are legal formalities that need to be followed; so depending on your type/level of education you may need an attorney's assistance, and depending on how you value your time-vs.-money it might simply be worth the expense. And again, there may be reason to hire two. But not necessarily.

There is one thing I tell anybody considering a divorce, whether amicable or not. You and your spouse are both adults. Sit down and work out as many of the issues as you can—asset division, debt assignment, ongoing obligations, etc. You might need to change details later, but at least agree on a plan between yourselves. If you wait for an attorney to help sort them out, it will cost more. If you make the court do it for you, you will both be less happy with the result. In ideal circumstances, an amicably parting couple should be able to walk into either an attorney's office or a courtroom and say, "We want a divorce, and we have worked everything out. Here's our plan."

Finally, a "hack": When you appear in court, look amicable. Sit together. Smile, and laugh together if appropriate. Family-court judges see a lot of unhappy people and generally speaking, they are loathe to rock the boat if a family appears to be getting along well, even in divorce. If there are any unusual details about your agreement (eg, non-50/50 split) then you're less likely to get a hard time about it if the judge sees that you're getting along as friends. You will get in and out faster.

Obviously, all of this can vary wildly from judge to judge, from jurisdiction to jurisdiction, from couple to couple; and besides, you haven't really said anything specific about your circumstance. So none of this is remotely legal advice, and I'm not your nor your spouse's attorney. If you do need legal representation, seek licensed counsel in your jurisdiction. I'm sorry for your split, and good luck.
posted by cribcage at 9:53 AM on March 1 [6 favorites]

I had a very amicable divorce, but of course it still sucked. We did nearly everything ourselves, but I had a couple sessions with a lawyer on my own. She gave me some great advice that I could bring back to my soon-to-be ex, but she was very clear that she was working for ME. Not us: me. No matter how amicable it seems, there will be times where you wonder if "just trying to be nice" will get you in trouble.

Which is what happened to my current husband and HIS ex.
posted by Madamina at 10:30 AM on March 1

Today, get bank account balances, current pay stubs, all current bills, and everything that is a measurement of liquid asset, income, and expenses. You want to make sure that you both know exactly how much is coming in (and from whom), where the bank accounts (and debts) are positioned, and where bills are paid.

If you have a joint account, hold it open, but you both want to stop complete direct deposits into the account. Instead, you want to each open up an individual account (my bank doesn't care how many accounts we have). Effectively, you want to be paying continued joint expenses from the shared account, and filling it at an appropriate equity (meaning, if your arrangement is 50/50 great... if its 60/40 then you want to make sure that you both know ahead of time who is paying what). If you can, you want to pay into things more along the lines of an escrow, where you cede anyone's ability to withdraw money from the joint account unless paying an agreed upon bill, and/or both parties agree to remove the money ahead of time.

Similarly, assets that existed ahead of time you probably want to lock down so neither of you is tempted to cut into it until you amicably decide who gets what portion.

Basically, the thing you don't want to do is to have your money co-mingle except for shared expenses going forward, that way you each know what's what. You want to make sure the bills are paid, and that no one thinks the other is dipping into the till. Failing to pay bills will mess up both your credit scores on top of the divorce (which will likely do a little number on it as well).

Does this make it suck for the first few months while you rebuild some level of savings for yourself? Yes. But, in the long wrong really locking down accounts and providing transparency as to where prior money goes will help maintain this as an amicable divorce.

I also recommend if you decide to share a lawyer to handle a the divorce, that you also have one just to talk to to get things straight before you sign away your best interests. I recommend you recommend the same with your soon to be ex. I didn't. I can safely say that it was my biggest regret of the whole process.

All in, my amicable divorce cost me about $6K.
posted by Nanukthedog at 11:23 AM on March 1

I had a long, slow amicable divorce. I bought a cheap sleeper sofa and began turning the dining room of our small apartment into my office and I slept there. I gradually moved my possessions out of the bedroom and began moving more and more of his stuff into the bedroom. We kind of turned the bedroom into a studio apartment for him. Dividing up our belongings this way was enormously helpful.

We were in California, where it is okay to cohabit while divorcing, and I was quite ill, with two special needs kids. So all of this took forever. But I highly recommend that you start dividing up possessions before moving out. There were very few items we argued about. We were clear we both had enough stuff to furnish a home acceptably well. There were no big showdowns, like I have heard about, over the physical possessions.

You also might pick up a copy of "Getting to Yes." It is a research based book on negotiating and a quick read.
posted by Michele in California at 1:09 PM on March 1