While there may not be a magic plan to ensure you'll get the divorce settlement you want, DMK put together an amazing recipe that should improve your chances for the sweetest settlement possible and with less stress achieving it!
Ingredients:
The key ingredients for the most advantageous settlement include:
- 1 cup Prudence
- 1 cup Cooperation
- 1 cup Comprehension
- 1 cup Planning
- 1 cup Preparedness
- 2 cups Professional guidance
- 3 cups Dispassion (or as much as one can bear given the current shortage during the divorce crisis)
Simple. Right? Let's get started.
Prudence
Before you and your spouse decide to divorce
Even when only considering a divorce it's important to use your head more than your heart. In some cases, the love you have for one another is strong enough to overcome the common obstacles that lead to a breakup.
But, if not, you need to make a series of smart moves that secure your current interests and chance for a better future. The best settlement begins before a divorce even starts. So make good decisions, avoid costly mistakes and you'll have less regrets when your divorce is complete.
The only wrong thing to do is nothing
It's time to get serious about your next step and understand all that should be done to make the decision to either improve your marriage or end it.
Check out the DMK Hubby and Wifey University sidebar article Considering Divorce to help you decide if divorce is right for you.
Cooperation
How a divorce starts can affect the entire process and settlement. Mutual cooperation and desire for expeditious resolve will improve the outcome for both spouses.
If you want a divorce
After you are certain you want a divorce and have a preliminary understanding of the legal and financial challenges ahead, you'll want to decide how to tell your spouse.
You know your spouse better than most, if divorce is what you want, be clear and have a plan for his/her reaction. Consider how and where you would want to be told if you were the one being given the unexpected news. This will provide the much-needed empathy and patience that may make the situation less volatile.
It won't be easy but stay calm and stick to what you want. If you're sure you have tried everything you are willing to try to save your marriage, then don't let your spouse talk you into staying together or guilt you into making immediate agreements.
Break the news in a public place
While a public place may reduce the possibility of an outburst, it may be the birth of a memory that continues to decrease your spouse's willingness to cooperate during negotiations.
Tell them while in a mutual counseling session
If you fear your safety or feel it would provide a better setting for both of you, a counselor's office would be a good alternative. It should be a mutual counselor and someone both spouses have seen in previous sessions.
Don't tell him/her at all
Some spouses choose not to personally tell their spouse and instead rely on the process server as the only notification. In some cases, this is best for both parties, but it may make things hostile when negotiating.
If your spouse wants a divorce
If you suspect a divorce is possible, get to know your options before making ANY decisions. Get all your financial documents together and have some legal foreknowledge before speaking with legal advisors or agreeing to anything with your spouse.
Protect yourself. If you are taken off guard, give yourself some time to get "lawyered up" before allowing your spouse to talk you into a quick settlement. You may eventually share an attorney or hire a mediation service later but consulting with and/or hiring your own attorney initially for general guidance could be beneficial.
If your spouse makes suggestions, take the time to see any benefit or detriment of his/her suggestion (e.g., shared attorney, arbitration, no attorney). Don't be afraid to demand a reasonable period of time before making decisions. That time should be used to consult with professionals and gather all necessary documents so that you can proceed with your best interests at the forefront of your decision making.
If you have been served with the paperwork you have a specified period of time to answer. So, do not delay. Get right to work planning, hiring and answering the complaint.
Comprehension
What is a Settlement Agreement?
A Divorce Settlement Agreement is the document that includes the terms of your divorce that you and your spouse negotiate with or without the help of legal experts and/or mediators. It can be referred to, among other things, as a Marital Settlement Agreement (MSA), Property Settlement Agreement (PSA) and/or Divorce Settlement Agreement and is commonly based on the Separation Agreement many couples establish at the beginning of their separation.
It usually includes (but not limited to): custody with parenting agreement/schedule, support/maintenance, division of property and debts, etc. It must be approved by the courts to become a part of the Divorce Decree. Once it is, it becomes part of the court order. This means either spouse could be found in contempt if it or any part of the Divorce Decree is violated.
What is Separation Agreement?
Negotiating a Marital Separation Agreement
Many couples establish a Separation Agreement that include the same issues that will be included in your final divorce settlement.
States vary as to what is required to establish a legal separation or separation in response to the requirement (if applicable) for a divorce. Consult your attorney or family court clerk for information about the guidelines.
Marital Separation Agreement used as a "test run" to solidify the best Divorce Settlement Agreement
Some details to establish in the Marital Separation Agreement will be temporary alimony, maintenance, child support, custody schedule, housing, etc. While this separation agreement may be used in developing the permanent divorce agreement, changes can be made.
It is very helpful in giving you and your spouse the opportunity to determine how well the agreement works and to then modify it to accommodate long-term needs, detailed in the divorce settlement. An attorney can advise you, but you can work out most of the details directly with your spouse unless you are advised otherwise.
Get familiar with the legal process of divorce
Research
Research laws in your state, the types of divorce available and grounds for divorce as they may apply to your individual circumstances. All states offer some type of no-fault divorce which is likely to be a less expensive option for most couples.
Determine if your state is an equitable distribution state or community property state and learn how it will affect your case.
Consider options based on your situation, ideal timeframe and funds available for legal processing and household transition.
Know if there is a separation waiting period and what the specifics of that requirement are regarding residency and physical relationship restrictions of both spouses. Review our His and Hers Divorce Planners in our Divorce Workshop.
Planning and Dispassion
Emotional Management
Develop an emotional management plan to aid in your ability to negotiate your settlement objectively. It should include ways to combat stress, activities to get your mind off your problems and a support system of close friends, family, counselors, support groups and/or physicians, as needed.
It's important to mention, you should only consider sharing with those who will keep your confidences regarding your current circumstances or divorce. Then, from that group, select only one or two individuals of which to actually have such discussions. It's a small world and all too easy for drama to circulate from circle to circle.
You should be able to vent freely with your confidant without fear that what you say may get back to the wrong person and/or misconstrued by your spouse's legal team or the courts. Furthermore, know that voicing your opinions of your spouse, circumstances or divorce through social media is unhelpful and has been known to affect the outcome of some divorces. See our article, Social Media Accounts and Texts as Evidence for more information.
The plan should be in place before going to the negotiating table. In no way will it negate those annoying, snide comments from your soon-to-be-ex-spouse, but it will give you positive outlets to expel the negative energy in order to have a clearer head throughout the divorce process.
Don't neglect this very important ingredient. Emotional negotiating may be the number one thing that costs spouses the settlement they really deserve. The more you remain in control of your emotions, the more you will be able to negotiate strategically and to your benefit. Use your heart at the table and you'll lose your a$$ in the divorce!
Preparedness
Now determine if you're ready
Tests
Once a divorce is eminent review the DMK Divorce Essentials. Then take the tests to determine your readiness and/or areas that need attention to ensure your overall success in finalizing your separation and divorce.
Just like anything unfamiliar, the path to a good settlement may be challenging. But, with proper planning, professional guidance and helpful resources like DMK, you'll have fewer setbacks and be on your way to one sweet settlement!
Get it together
Documents
Assemble all financial documents and get an idea of your overall objective (e.g., legal separation, divorce) before you hire an attorney.
Review our His and Hers Divorce Planners in our Divorce Workshop for more information about what to assemble.
Professional Guidance
Legal Help
Each state's laws are different, so don't rely on the internet for legal advice. Instead, use sites like ours to find the professionals you seek, as well as to become a more knowledgeable legal consumer. Knowing the facts about divorce in your state will help you discuss your options more fluently with attorneys as well as save money and time.
According to Thomson Reuters siting a survey by FindLaw.com, legal consumers use the internet as their primary means to locate lawyers prior to hiring. Search the DMK Directory to locate local attorneys and help with your divorce.
Below are some questions you might ask in your first consultation:
- Do you know my spouse? (if you are not both using the same attorney)
- What types of divorce are available in our state that apply to my circumstances?
- What are your fees?
- How will our state laws affect my case?
- Is there a worksheet that would help me detail financial specifics to determine child support? (if applicable)
- What are the state guidelines and minimums for child support? (if applicable)
- Is there a required separation period?
- What should I prepare for my next appointment (if hired)?
Be clear and upfront about your situation to make sure your attorney has all of the facts in order to help you establish the best settlement. These facts may include reasons for the divorce, who is the primary caregiver of the children (if applicable), marital debts and assets, trusts, earnings, lifestyle, etc.
For more information about researching, meeting and hiring an attorney on the DMK Legal Guide.
Work together to save time and money
Following the advice of an attorney and if you and your spouse still have a relationship where you can negotiate most of the settlement without independent representatives or mediation, then do so. It's another way to save time and money on legal fees.
If the relationship problems prove too challenging to get anything done without help, consider mediation rather than negotiating through your attorney(s). The cost is often significantly less. Your attorney can often refer you and your spouse to a local mediation firm.
Why individual, professional advice may help
While it's fantastic if you can work directly with your spouse to come up with a settlement, meeting with an attorney first and/or hiring your own attorney to represent you may still pay off. He/she can explain your state's laws and how they may be in your favor even if you settle outside of court. Knowing that you have a strong case if you go before a judge will certainly provide a stronger stance at the negotiating table with your spouse.
A good example is alimony. If you don't know some of the information below you may settle for less than you really deserve.
Find below a list of issues for discussions regarding alimony:
- An attorney can explain how a judge would consider the long-term sacrifice of one spouse's career by being the primary caregiver in the home in the potential amount awarded. Judges consider many factors including a spouse's background, experience and education as it may provide potential for higher pay.
- Obtaining a vocational expert can verify a spouse's earning's potential and possibly reduce spousal support.
- An attorney and financial advisor can offer some options regarding a tiered settlement where one spouse provides a higher alimony while the recipient rebuilds his/her career with scheduled decreases over the years following divorce.
- Tax laws have changed regarding who can claim alimony as a deduction and who must claim it as income. A tax and/or accounting professional can advise either spouse to his/her benefit.
- Grounds for divorce may affect alimony or support decisions, but most judges are more interested in the facts of income, ability to support oneself and potential for both spouses to maintain their current lifestyle following divorce.
Alimony is just one issue to negotiate. Professionals in their field of expertise should be able to provide a clearer picture of your chances, costs and potential setbacks if a judge makes the decisions regarding other terms of your divorce.
Take it before a judge
Court battles may provide a better outcome than a settlement, but are they worth it?
While the threat to take a spouse to court may be enough to force a settlement, in some cases a courtroom battle may be necessary.
Most divorce cases settle outside of court. But, if you and your spouse are unable to reach a settlement directly, with your attorney(s) or intermediary then your case will likely go before a judge. The decision is then out of your control. The terms of which you and your spouse are unable to agree are decided by the judge and become part of the Final Judgement of Divorce.
Going to court will cost more in time and money, however, like mentioned above, one spouse may have significant advantages to do so. This is especially true when one spouse has grounds or other factors that provide him/her a greater advantage in court, especially when the couple is struggling to agree on a settlement.
A few examples may include husband commits adultery, causing the end of a marriage (advantage wife), wife's premarital assets that may affect the judge's decision regarding support and/or division of marital assets (advantage husband), an unemployed wife seeking support while living with someone with whom she has a physical relationship (advantage husband), etc.
This does not mean you will have an advantage if the above scenarios are similar to yours. A local attorney will be able to explain the laws so that you can decide if you actually have any advantage based on your circumstances.
It basically comes down to deciding if the risk, time and money to take the case that far, is worth it.
Settle what you can and put the rest before a judge
Some couples have a judge decide on specific terms while the other terms are negotiated and agreed upon outside of court. Again, it's important to speak with a local attorney for advice and to determine jurisdictional law as it applies to your circumstances.
Going to court keeps the couple in a state of divorce limbo. Unless you're legally advised, based on your case, it may simply be better for your overall well-being to reach a settlement outside of court
Quick settlements
Dragging your divorce out to pick through every minor detail is often not emotionally or financially beneficial. However, be cautious of settling too quick. This is one reason the spouse who asks for the divorce has an advantage. He/she often has had more time to consider the options, consult an attorney and research the potential outcome.
Seeking professional guidance may go beyond the advice of an attorney. Depending on your assets and liabilities, in addition to a legal advisor, you may want to consult with an accountant, forensic accountant, mortgage and/or real estate broker, financial advisor, appraiser, etc.
One example where a spouse wants a quick settlement of what seems like a fair division of assets is when there are tax benefits to that spouse based on the division of specific assets (spouse takes an asset worth the same amount as the asset you take, but the tax liability, post-divorce, is higher for yours). So be cautious and always consult experts who can advise you following your spouse's suggestion.
Goals
What's sweet to you may be sour to your spouse
Both spouses should know what they both want in the transaction and work from there. Develop a "wish list" for all areas of the settlement: custody, support, assets, debts, etc.
If you don't know what you want for the future because you're so focused on the problems of yesterday, then your settlement will suffer.
It's probable you will both have a different idea of what's fair, so hold onto the most important things and be willing to give on the others. You may never love your settlement, but you should focus on what matters most and the settlement will be pretty darn sweet!
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