6 Divorce Mistakes You Must Avoid

Even the most amicable divorces will be stressful. If you’re thinking about getting a divorce, you know that you’re going to be spending a lot of money, dividing your assets down to the last knick-knack, and worrying constantly about your children, if you have any. The worst part of it is, you’re going through it all without the one person who used to be your closest counselor and friend.

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It’s hard to “prepare” for divorce, and difficult to plot out a course of action when so much depends on how your spouse decides to act. The overwhelming stress of the situation makes it easier for emotions like anger, exhaustion, or even indifference to get the better of both parties. Many divorcing couples make the same mistakes, and some of these can carry a heavy cost, measured in time, money, distress, and regret.

An experienced attorney, though, will have watched many individuals seeking divorces make these mistakes again and again – and any attorney worth your trust will be able to give you the advice you need to avoid them.

Six things divorcing couples could regret

1. Waiting too long to file for divorce

You shouldn’t take the decision to end a marriage lightly, of course, but if you know you want to leave a failed, dangerous, or unsatisfying relationship, it’s rarely in your interest to wait.

If you’re the victim of abuse, you need to get out and get to safety now. Call the police first, and then contact your attorney to file a temporary order of protection to keep the abuser away from you, your home, and your loved ones.

Even if you’re heading toward an amicable, mutually agreed-upon divorce, it probably won’t help you to delay. When you divorce, the courts will split up all marital assets according to the principle of equitable distribution. This doesn’t mean both spouses split everything 50/50, but this is usually close to the result. The problem is, most couples contemplating divorce don’t realize what assets will be subject to distribution.

Your spouse is entitled to a share in:

• Your house
• Your car
• Your pension
• Your Social Security benefits
• Other real estate
• Your business
• Your bank accounts
• Your corporate rewards (like frequent flier miles)
• Your investments
• Your collectibles
• Items in your house

There are very few exceptions to equitable distribution – the most important are usually inheritance, which stays with the inheritor in most cases, and premarital homes.

However, courts consider marital assets to be only those acquired during the marriage. That “clock” starts at the beginning of your marriage and ends as soon as one party files for divorce. That means that if you expect any of your assets to appreciate, you should file for divorce sooner rather than later.

2. Filing for an unnecessary “fault” divorce

In most divorces, at least one spouse believes the other has done something wrong. Your spouse might have hidden assets, business dealings, or troubling habits. Your spouse might have been unfaithful or abusive.  Before 2010, a person filing for divorce in New York State had to claim one of these “fault” grounds for divorce, but new laws allow New Yorkers to file for “no-fault” divorces if,

1. Spouses lived separately for at least one year prior to filing, or
2. There had been an “irretrievable breakdown” in the relationship for at least six months prior to filing.

If you’ve been wronged, you probably feel that that wrongdoing should affect the outcome of a court’s asset distribution, child custody, and spousal maintenance decisions. In New York State, a spouse’s wrongdoing will have little to no effect on the distribution of assets. Also, because courts prefer joint custody and fair visitation rights, your spouse’s conduct will have a limited impact on child custody decisions. Only in cases of egregious child abuse will courts deny one parent’s right to be a part of a child’s life.

Filing for a “fault” divorce, then, will probably not help you. An amicable divorce will be shorter, cheaper, and more likely to result in an acceptable resolution for both parties. Remember that if you go to trial, a judge will take all decisions out of your hands.

There are exceptions, and if you feel like your case is an exception, talk to an experienced attorney. However, in most cases, alleging and offering evidence of wrongdoing against your spouse will make that party less willing to compromise, lengthening the divorce process and costing both sides more in attorney’s fees and expensive litigation. Try your best to set aside feelings of hurt and anger so that you can move on with your life more quickly, and with less stress and expense.

3. Moving out of the marital home

You don’t have to leave the marital residence, even if you spouse decides to stay, too. To be clear, there some cases when it makes sense for one party to move out. If your divorce is acrimonious and tensions are high, it may not be a good idea for both parties to stay in the house. However, if your spouse is being abusive, you shouldn’t be the one moving: call the police and get a temporary order of protection from the Family Court in your county.

Before you move out of your marital home, try to do a cost/benefit analysis. If you leave, you’re going to take on the additional stress of trying to find a suitable place to stay during an already stressful divorce process. Then you’re going to need to move your things from one residence to another – and many of the possessions you’ll want to take will be subject to equitable distribution, a serious complication. Keeping up two households will be more expensive – another expense piled on top of your attorney’s fees, and the uncertainty of your finances as you divide assets and prepare to support yourself alone. If you leave children with your spouse, that could affect a court’s custody decision.

If there isn’t a grave and compelling reason for you to leave, stay put. You’ll save money, and it may even make the divorce process more amicable – and thus faster and cheaper.

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4. Thinking certain assets are “safe”

You might think a business, a bank account, or property in your name only is “safe” from equitable distribution in the event of a divorce, but you shouldn’t be so certain. Simply put: nothing is safe.

New York law states that both spouses are entitled to some share of anything acquired during a marriage. If one spouse collects antique cars, for example, the other spouse will be entitled to a share of their equity – even if that spouse never took an interest in the cars (or other collectibles) before.

Inheritance and premarital properties are both exceptions, but their exclusion isn’t absolute. If you inherited a house, say, and used marital assets to make improvements to that house, the court will consider the assets to be “comingled,” and this may entitle your spouse to a share. The same applies to premarital property.

Assets held in one party’s name in another state or even another country are subject to distribution. There are also laws that prevent both parties in a divorce from transferring or even giving away assets once one has filed a summons.

If you’re concerned about what assets will be subject to equitable distribution, and how to protect assets that be excluded, contact an experienced divorce attorney.

5. “Litigating” the divorce on social media

Very often we take to social media sites to vent. We post on Twitter and Facebook to complain about politicians and pot holes, rude waitresses and nasty illnesses. It might feel natural to post on social media about your divorce.

Don’t do it.

Posting about your divorce on social media is always a mistake, and often one that’s irreversible. While you might get some “likes” and comments offering sympathy, anyone can see your posts, even the ones you think are “private.” You’ll be sowing seeds of disagreement and disapproval among your friends; you’ll offer up your most personal affairs to the internet’s echo-chambers of gossip, slander, and misinformation; and anything negative you post about your spouse could make that person less likely to compromise – again, that means a longer process, more money spent on attorneys and witnesses, and a lesser chance of getting a satisfying result.

There’s no scenario in which posting about your divorce on social media is a good idea. But if you have children, you absolutely must not litigate your divorce on the Web. You might feel alone right now – maybe that’s even the impulse driving you to the Internet – but if you have children, the divorce isn’t only your concern. Your children the victims in this situation, and if you post about the divorce on Facebook, it will get back to your children, who’ll be upset to find their home life is something to be gossiped about among their friends and friends’ parents.

6. Forgetting to update a last will and testament

After all the stress and expense of a divorce, it’s easy to let necessities of legal “housekeeping” slip by. If you’ve written a will, you probably named your previous spouse as a beneficiary. If anything should happen to you now, your former spouse will be entitled to that share of your estate, and it’s unlikely that anyone else you would have named would be able to contest this successfully during probate.

If you’ve been divorced, talk to an estate planning attorney to draft a new version of your will as soon as possible. If you don’t have one already, you might ask your family law attorney for a recommendation.

Experience, Integrity, and Personal Attention

If you’re thinking about a divorce, you’ll want an experienced trial attorney, a formidable courtroom opponent, a lawyer with a reputation for excellence and big results. More important than anything else, though, you want attentive, sensitive legal counsel you can trust.

It’s great if your attorney has a record of winning child custody battles, and securing assets and spousal maintenance payments for clients. However, while it’s sometimes necessary to carry a divorce all the way through a tiring trial, expenses will mount and the assets you wrangled over might not weigh very much against the fees for attorneys, paralegals, expert witnesses, accountants, and mental health professionals that could be drawn in to your trial.

The most important thing is to have an attorney on your side who can help you keep expenses down, avoid all the costly pitfalls of divorce, and minimize your stress. At Cole, Sorrentino, Hurley, Hewner, & Gambino, P.C., we’ve built a reputation on experience, integrity, and personal attention. If you’re considering divorce, contact us today to set up a legal consultation.

This educational blog was brought to you by Donna Haslinger, an experienced Divorce Attorney in Buffalo NY.

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