(For April Fools' Day, we remind you:) A fool and his money are soon parted
Don't be a dummy through a divorce
Divorce isn’t what anyone expects when they walk down the aisle and say, “I do.”
Thought it may make for impolite dinner conversation, for a good number of people – at least 50 percent of us, according to some statistics – divorce comes knocking on your white-picket fenced-in doors sooner or later.
Spring puts many people in the mindset of new beginnings and happy times and for some of us, it’s when we find out – or decide – that the divorce is really happening.
Many people have no experience at all with the legal system until they are forced to get intimate with it through divorce proceedings.
So, while the former twosome is trying to figure out the best parenting plan for their children, or how to afford a solo cost-of-living post-marital bliss, they are also discovering what a petition is, and being hit with questions like: Whether they need to ask the court to appoint a child and family investigator or a parental responsibilities evaluator.
It’s a steep learning curve during an emotional period, when it’s easy to make poor choices. So, in honor of April Fool’s Day, here are some pointers to help you avoid some of the common pitfalls we see through a divorce:
There is no such thing as taking him (or her) to the cleaners.
When someone comes into my office and says, “I want to leave my spouse destitute,” I am immediately concerned the person doesn’t understand how Colorado law works. The state of Colorado requires that marital property and debt be divided equitably. The term equitable means fair. There are very few circumstances where equitable distribution of the marital estate leaves one party with nothing. If an attorney tells you they can help you “take your spouse to the cleaners,” be afraid; be very afraid.
- Equitable division can result in something other than a 50/50 division of the marital estate
Though Colorado is a “no-fault” state when it comes to divorce, and misconduct isn’t admissible to determine how property and debt are divided, the court may adjust amounts awarded to each party if it finds that one spouse has misused marital assets for non-marital purposes. For example, if one party were to take his or her new honey on a trip to Mexico and charge the flight and hotel room on a credit card, that can be the basis for a claim that marital assets had been misused. A judge may take that into account when dividing the marital estate.
Take away: Don’t spend marital property on your new partner and save your indiscriminate spending (gambling, drinking, transfers to third parties) for after the divorce is final.
- Be wary of coming to agreements without full financial disclosures
Misstating or failing to disclose a material asset or liability can result in the division of marital property being reopened for up to five years following the entry of the Decree of Dissolution. In Colorado, the Rules of Civil Procedure require mandatory disclosure of certain financial information as part of the process. This includes:
- Exchanging three years of personal and business tax returns
- Personal and business financial statements for three years
- Real estate documents showing title and value
- Income information
- Most recent statements for all bank/credit card/investment accounts/retirement accounts/mortgages/car loan statements
- Insurance documentation
- Employee benefits documentation including Summary Plan Descriptions for all retirement plans and all documents stating value
- Documentation regarding employment and education-related child care
- Documentation for all extraordinary children’s expenses
In addition, both parties must fill out a Sworn Financial Affidavit listing summarizing income, expenses, assets and liabilities.
Nobody wants to go through the same divorce twice, so make sure that you are disclosing everything and that you are receiving full disclosures from the other side.
- For that matter, be wary if your spouse wants you to settle without mediation or without legal representation
Even if you can’t afford to engage an attorney for full representation, there are many attorneys who can look over the financial disclosures and give you advice about a proposed settlement on an “unbundled” or “discrete task” basis. As the scope of this representation is limited, it can be less expensive than full representation, but worth every penny in avoiding the types of mistakes that lead to future litigation.
- Don’t think that no one except your ex will see your angry emails, text messages and Facebook postings
Completely aside from the friends and family who have the opportunity to review any written diatribe you publicize, you can rest assured that opposing counsel will see such posts and so will the judge. Don’t make the other side’s case easy for them by creating exhibits they can use against you. Keep your communications and postings short and sweet.
- Be careful of any lawyer who “guarantees” you an outcome
The only guaranty that a reputable divorce attorney can give you is that if you file for divorce, you don’t end up reconciling, and if neither of you dies during the divorce, it’s likely that you will get divorced. Anything more than that should give you pause.
- Don’t try to punish your ex by withholding the children
The standard the court uses in allocating parenting time and decision-making for the children is the “best interests” standard. In determining what’s in the children’s best interests, the court will look at many factors and one of them is each parent’s ability to support the other parent’s relationship with the children. Unless the children are in danger when they are with the other parent, withholding the children or speaking ill of the other parent to the children is likely to work against you in a custody battle. It’s also really hard on your children when they become the focus of the fight.