Whether your divorce is a surprise or a long-expected event, there are certain steps you should take at the start of a divorce to protect yourself, your children, and your finances.
This is not to say you should empty your bank account or home, but there are reasonable steps you should take to safeguard your interests.
Divorces are always easier to get through when you make a good faith effort to work together amicably. Sometimes this is not possible. Here are some things to consider if you are anticipating — or already going through — a contentious divorce.
The information in this article and all other articles on this website is general in nature, does not constitute legal advice or opinions, and should not be relied upon as such.
I. Hire an Attorney Early in the Process
No parent should enter California Divorce Court without competent counsel. Interview experienced family law attorneys by asking all the important questions about your divorce and custody.
Ways to Protect Your Custody Rights and Your Children
1: Do Not Move Out if You Have Children
If you moved out of your home, move back in as soon as possible. Once you move out, you impact your chance at custody.
Living with your spouse may be tense. To minimize friction and the chance for domestic violence, consider a “time sharing” agreement so that you and your spouse can share the home and custody of the children both now and later when the divorce is resolved.
2: Understand the Children Cannot Leave
Neither parent should take the children from their family home, nor should the children be taken across state lines. Concealing children in another state is a tactic often seen by vengeful spouses, and can make fighting for custody very difficult; you want to avoid fighting for custody across state lines if at all possible. If disputes involving the children arise, consider obtaining a Temporary Restraining Order (TRO) that legally prohibits your children from being taken out of state.
Communicate to your spouse that he or she is welcome to leave the home, but the children must stay. Again, a time sharing solution is the best compromise.
3: Demand Joint Legal Custody
When it comes to custody of your children, you need to set the right precedent at the beginning of the divorce process. If you settle for less time in the beginning, you may be expected to settle for less at a later time.
II. Ways to Protect Yourself Financially
4: Cancel Joint Credit Cards
Before you cancel jointly-held credit cards, don’t let your spouse know you intend to do so. In the five minutes it takes to cancel your cards, your spouse could charge thousands of dollars to them. Pleasantly inform them that the cards have been canceled after the fact. Jointly held cards are your responsibility too, so you may be responsible to pay some or all of the debt.
In situations where your spouse is charging excessive amounts to your credit cards, report the cards as stolen. The credit card company will cancel the account and you may only be required to pay the first $50 in charges.
5: Safeguard Joint Bank Accounts
Angry spouses commonly “clean out” joint bank accounts. Before you are left with nothing, remove half of the account balance and open a new individual account at a different bank with those funds. Notify your spouse that you’ve taken your portion of the account by sending a written letter. You should also make arrangements to pay outstanding shared bills.
Taking one-half of the money in your account should not be considered “playing dirty” as long as you can prove that half of the money is rightfully yours and that you aren’t trying get back at your spouse by ruining them financially.
6: Cut Back on Expenses & Sell Extra Property
Together with your spouse, decide which utilities to cancel. Cable TV and extra telephone lines are examples of expenses you don’t need.
Also, talk with your spouse about which personal property items to sell. If you don’t need cameras, extra vehicles, etc., now is a good time to sell the items. Once you are legally separated, the items may be deemed “Community Property” and you may not be able to sell them.
7: Don’t Contribute to Your Retirement Accounts
It’s likely that your spouse will be entitled to some or all of the money in your retirement account and pension plan, including IRAs, 401(k), and pension plans. Go to your employer and ask for the forms needed to stop your regular contributions. This will keep the portion of your savings that your spouse may be entitled to from growing (ensuring you get more money in the end, unless you spend it now). By stopping your contributions, you will also increase the amount in your paycheck, which works well since you might need this extra cash soon.
Ways to Protect Your Property
8: Move Records to a Location OUTSIDE Your Family Home
Now is the time to take your personal papers and records (birth certificates, pension papers, diplomas, and other important papers) to a storage space where your spouse does not have access such as with a trusted friend or at a co-worker’s home.
Make two copies of joint records (deeds, titles, real estate records, bank statements, tax returns, W2s, etc.) and store one copy in a safe location. The other copy should be provided to your spouse. Take the originals to your attorney so they can make copies.
9: Catalog Marital Property
If possible, catalog marital property using a video camera and do so together with your spouse. If your spouse won’t agree to a video recording, do it without him or her and then make a duplicate tape for their records. Of course, your copy should be stored away from the home so you have a safe, solid record of your items in case anything “disappears.”
There are a few things to keep in mind when you record:
1. Make sure the date is made visible when the tape is viewed; hold up a newspaper or videotape the date on the TV at the beginning of the recording.
2. Move through the entire house and take out items from drawers, shelves, etc. and hold them up so they are visible to the camera.
3. If you have a safety deposit box or storage unit, be sure to catalog the items in the same way.
10: Secure Valuable Personal Property
You’d be surprised by how often photos and other items of personal value are destroyed by vengeful spouses. Valuable items, personal mementos, and other items that can’t be replaced (coin collections, firearms, etc.) should be taken out of the home and stored in a safe place. This does not apply to common possessions or community property; it only applies to personal property.
When possible, discuss personal items with your spouse first. It is acceptable for you to take what is yours and store the items in a safe spot. This way you don’t have to worry about your spouse taking items or claiming they “disappeared.”
IV. Ways to Protect Yourself Personally
11: Keep a Journal
Every day, keep a record of events such as time spent with your children, arguments between you and your spouse, and telephone calls. Record all information relating to your divorce, no matter how big or small. The journal should be kept in a secure location, and you should be prepared to share diary entries as evidence. Do not write overly-emotional information; stick to the facts. For your personal thoughts and feelings, keep a separate journal for your own reflection.
If you want to keep your journal out of evidence, address each entry to your attorney (e.g., To My Attorney, John T. Lawyer). Because you’ve addressed your attorney, your journal becomes privileged communications and may not be open to a subpoena.
12: Do Not Sign ANY Documents without properly consulting a divorce professional
Many people make the mistake of signing papers that later cause property and custody battles to be decided against them. Some documents cannot be modified by an attorney later.
If your spouse asks for your signature, respond politely by saying your attorney has told you not to sign anything until he or she reviews the document.
13: Prepare for False Claims
In a divorce, it’s common for one spouse to make false allegations against the other in order to gain control of custody proceedings. Untrue claims of domestic violence and child molestation do occur. If it happens to you, contact your attorney right away.
14: Call the Police if Domestic Violence Takes Place
If your spouse commits any domestic violence against you or your children, call the police immediately. An officer will come to your home and file a report, which will be something your attorney should know about right away too. Following any act of domestic violence, strongly consider getting a Restraining Order against your spouse. Learn more about domestic violence and divorce.