Have you reached the point in your marriage where you've determined it can't be saved? While marital difficulties can drain both spouses of energy, time and emotional well-being, the challenges associated with divorce will be equally challenging.
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Some couples may end their marriages with ease. But most of us endure numerous issues that make divorce one of the most difficult times in our lives. It helps to have friends and resources, like DMK to help you plan for your upcoming journey. This article covers everything from how to break the news to your spouse (or deal with the news from him/her), what paperwork and details you'll need to put together and consulting a legal advisor.
We'll start from the marriage's real ending and proceed until the legal dissolution is established. While things are about to get really difficult in your life, know that it's not forever and life after divorce does exist! But first you'll need to get through the tough stuff.
Phase 1 - Ending your Marriage
There are actually two parts of the end of a marital relationship. The most significant to your love, dedication and commitment happens first, sometimes referred to as an emotional divorce. It usually happens immediately following an event that causes one of you to emotionally detach from the marriage or it can occur gradually over time until one or both recognize it's over. Often, it's a combination of both.
Some stay together, never taking the next step to legally end their marriage, despite this emotional detachment from each other. Their decision may be based on religion, social and/or financial reasons.
Unfortunately, if you choose this path without therapy and/or dedication to improve your marriage, you'll likely endure a loveless, dishonest and unhappy relationship. The marriage can deteriorate into an unrecognizable, tumorlike entity that feeds on and drains the happiness of each spouse.
It's never easy to admit your marriage is over. And while many marriages have opportunities to improve when issues arise (and they always arise), at some point nearly half of all marriages legally end. This is the second part of ending your relationship with your spouse and the "official" acceptance referred to as a dissolution of marriage.
Phase 2a - Breaking it to your spouse
Many reasons abound why a spouse may fail to recognize or accept there's an irremediable problem in his/her marriage. It may be based on personality, religious beliefs or ignorance.
Sometimes it may seem that to ignore and deny there's a problem will make it go away. But it won't. It only takes one spouse to be emotionally detached from the marriage to destroy it.
Before you discuss anything with your spouse, be 100% sure a divorce is what you want. Make sure you're not attempting to shock your spouse to illicit his/her request to save the marriage. This can have a terrible outcome and only serve to make things more complicated. Instead, you could tell your spouse an action plan you would like to take in order to avoid a divorce. Take a look at our DMK Marriage Workshop for help. One of the essential components to a happy marriage is honesty. Be honest with yourself and your spouse about your concerns and expectations.
If you're sure you want a divorce and are ready to break the news, you need to consider the best way to do so that would lead to the best outcome for you and your spouse.
In cases where abuse or some significant situation makes contact with your spouse dangerous or problematic, then it's better to work through an attorney, law enforcement or mediation service instead of having direct contact with your spouse.
In all other situations, it still may be best to consider a public setting to keep it amicable if you think your spouse will have a bad reaction.
Being on the receiving end of such news can be shocking and painful. It can bring on an overwhelming reaction that may not necessarily represent your spouse's character or true feelings. It's possible you may be in for a big surprise. Be warned, but don't be insensitive.
Some spouses choose to tell their spouse in a counseling session, allowing the counselor to emotionally mediate the discussion. This may prevent either spouse reacting in such a way that may be regretful on both sides.
Remember, regardless of where you break the news, your reaction will be "planned" and you'll likely have better control of your emotions. You have had time to think it over in your head, probably numerous times. You know what you're about to do and say. Unless you want your divorce to start off with significant contention, which usually costs more money, time and frustration, don't intentionally illicit your spouse's regrettable reaction.
Be realistic as to how, where and when you would want to be told. If your spouse reacts poorly, it may be the natural reaction you both need to solidify the end of the marriage, birth of your divorce. It won't be easy, and it shouldn't be-
It's not a good idea to serve him/her the divorce petition (also referred to as a summons) at this first notice their marriage is over, even if the summons is ready. Likely your attorney will arrange for your spouse to be served the summons by acceptance of service, process server, mail or publication. Your spouse will have a specified time to answer the summons.
If you are committed to legalizing an already failed marriage, then do not let your spouse talk you back into it.
Phase 2b - Your spouse breaks the news
Spouse tells you something that could lead to divorce
Your spouse has presented you with an unforgiveable indiscretion that could warrant a divorce.
Take some time before making the decision to ask for a divorce. In fact, don't make any life changing decisions while tensions are high. And tensions may be high for days, weeks or even months. Give it some time to think through your options. Don't assume divorce is the easy way out of your pain. Initiating divorce will make it much harder before it gets better.
Spouse suggests divorce while upset
If your spouse brings up a divorce during an argument, it may be a sign your marriage is in serious trouble but may not actually be what either of you want.
Give it some time until you both have had time to cool down. Just like finding out your spouse committed an unforgivable act while married, love can sustain great stress, you may find that with counseling and time, forgiveness is possible. In either case of "shocking news" it's not uncommon for the surprised spouse to immediately ask for a divorce. Again, both spouses need to give it some time to cool down and make decisions that have been thought through.
Spouse asks for divorce
If your spouse has amicably brought up divorce or is having an affair, he/she is not willing to give-up, then you may wish to proceed with legally ending the marriage. As difficult as it is to realize someone you love does not love you, you must accept it.
You may initially think your spouse will change his/her mind. But don't wait too long. Like many cases, you'll be waiting for you to accept the divorce rather than your spouse to reconsider. You can't change him/her, you can't take responsibility for what they want or don't want. Some things are out of your control. Value yourself and your right to personal happiness enough not to wait for your spouse to value and love you. If one person in your marriage doesn't love the other, then the marriage is over, like it or not. Now get an attorney and protect yourself. Life is not over, just marriage. You will survive.
This is typically when the legal journey to divorce commences with a separation from each other. Often this is when both of you (together or separate) may want to consult a legal representative(s) to complete that journey to your marriage's end.
Phase 3 - Consulting an Attorney
Do this before Phase 2 if you initiate the divorce or after Phase 2 otherwise
It's time to consult an attorney to get a broader legal view of a pending divorce. You'll be looking for an attorney with a background with similar cases, feasible rate and good court side manner (like your attorney). Make sure he/she has the experience, staff and personality that fits with your circumstances and goals. There will be many aspects of your situation that we can't fully anticipate, specific to your state and case, but generally you'll want to include the following in your interview(s):
- Do you know my spouse, to include but not limited to, consultation regarding divorce? If the answer is "yes", you'll need to discontinue the interview immediately.
- Ask about the attorney's fee structure to include retainer necessary to initiate representation.
- Ask about the laws and divorce procedures of your state as they apply to your circumstances and case.
- Discuss factors specific to your state that affect child support, alimony, maintenance, etc.
- Legal separation. Is it a state requirement prior to divorce? If so, how long? Ask that he/she explain the differences of legal separation, separation, annulment and divorce. Are there specific guidelines for a legal separation?
- Are there any requirements (i.e. child custody classes) necessary to complete prior to the divorce?
- What are the state property laws specific to each spouse's ownership rights as they pertain to my state's process for division of marital assets?
- Who will be my primary contact on your staff when you are in court or are unavailable?
Based on your circumstances you may want to hire an attorney at this time. It will depend on issues like your financial stability, living situation and personal circumstances.
Phase 4 - Prepare for separation and divorce
Do this before Phase 2 if you initiate the divorce or after Phase 3 otherwise
Since you're beginning a legal suit against your spouse, the best time to plan and secure your assets, living situation and necessary documents is prior to any discussion regarding your interest in a divorce. As in many marriages that a divorce is imminent, the notified spouse may prevent or limit your access to necessary documents and assets in an attempt to either delay the divorce or due to retaliatory behavior. This causes undue delays, legal fees to obtain documents that are easily collected prior to filing. You will want to record, collect and plan the following:
Know where you'll live or be prepared to request your spouse to locate a new living situation (it's a good idea to present some options at the time you ask for the divorce to expediate his/her move, when applicable)
- Copy all documents pertaining to assets, taxes, bank accounts/statements, debts (specific to family debts and/or debt incurred prior to marriage), household budget, you and your spouse's income, insurance, appraisals.
- Set money aside to secure funding while separated. It's also a good idea to work overtime or a second job since most families experience a financial set back upon adding a second household while separated and eventual divorce.
- Get a copy of your current credit report and credit score to determine your own credit worthiness, assessment of debts. It is also a good idea to establish a credit history with a secured credit card or low interest credit card. You will need to demonstrate you utilize the card but pay on time and carry a low balance. This would be ideally done 6-12 months prior to utilizing your credit history for things like housing, auto or other secured loans, jobs (many employers do review credit history when they perform a background check).
- Prepare for your ideal child custody arrangement. You may not share this at the time you present your request for a divorce; but you should have it when hiring an attorney and/or when you and your spouse begin discussions regarding such matters associated with custody, support and assets.
- Inventory all assets to include furniture, household items, tools, electronics, jewelry, appliances and basically anything that is of value personally or financially.
See our DMK Divorce Planner for Him and Her for a more comprehensive planning list.
Phase 5 - Hiring an Attorney
By now you have spoken with one or more attorneys regarding divorce. It's time to hire the attorney that is best to handle your case. Upon hiring your attorney, you will likely:
- Secure the attorney with a retainer.
- Present your attorney with your spouse's attorney's name and contact information, if applicable.
- Be ready to discuss the reason for your divorce so that you attorney can advise you the best way to proceed. This will also include understanding the differences in types of divorce.
- Discuss if you and your spouse plan to reside in the same home while the divorce is pending. Verify the state requirements to include any required "waiting periods" and/or separation periods before or after filing and/or to proceed with divorce. Understand the living arrangements or requirements as recognized by the state as separation and/or it's constitution of "living apart" during said waiting period (specifically if you will NOT be maintaining two separate residences).
- Discuss temporary custody, living situation, and financial support while the divorce is pending.
- Verify the laws and divorce procedures of your state you discussed in your previous interview as they relate to your immediate circumstances and case including child support, alimony, maintenance.
- Present your attorney with any custody and child support arrangements agreed upon in advance by you and your spouse. Otherwise present your attorney with your ideal child custody arrangement to include schedule of visitation & custody arrangements specific to holidays - weekends -summer break - vacations, who will be the primary caregiver & household, any special circumstances such as medical or education (to include tuition if applicable), support expectations, etc.).
- Verify the state property laws specific to each spouse's ownership rights as they pertain to your state's process for division of marital assets.
- Present any agreed upon asset allocation between you and your spouse and/or discuss your options pertaining to assets, debts, alimony and support as they pertain to your circumstances and case.
- Present all documents and a detailed list pertaining to your pre-nuptial agreement (if applicable), assets (investments and respective values/balances to include but not limited to: home, property, stocks, bonds, 401K, IRA's, cash, certificates of deposit, checking and savings, life insurance, etc.), taxes, bank and/or investment account statements, debts and balances (specific to family debts and/or debt incurred prior to marriage and specified as such), household budget, both spouse's income, insurance and appraisals of real or personal property. Ask if your attorney requires any further documents prior to filing and thereafter. Verify the state property laws specific to each spouse's ownership rights as they pertain to your states process for division of marital assets.
- Provide an inventory list of personal property to include: all furniture, household items, tools, electronics, jewelry, appliances and basically anything that is of value personally or financially. Bring appraisals, values and insurance documents related to these items, if applicable.
- Get information related to requirements (i.e. child custody classes) necessary to complete prior to the divorce.
- Seek the advice of a tax attorney if it's determined there could be a tax advantage/liability associated with your divorce.
Finally, the more you and your spouse agree upon prior to each hiring an attorney, the less legal expenses you will incur. It will also expedite the divorce. So be ready to discuss your asset, support and custody arrangements that have been discussed and agreed upon with your spouse with your attorney upon hiring him/her.
Phase 5 - Do-It-Yourself-Divorce
You may be able to proceed with your divorce without the assistance of an attorney. However, this is often when a divorce is uncontested and there are limited assets. Each state has different requirements. Getting a divorce causes a lot of emotions and stress. The tedious nature of legal filings, paperwork and proceedings may be too much for the average couple. However, it is possible and there are resources available to assist you. Here are some things to consider if doing so:
- Understand your state laws and requirements.
- The divorce should be generally uncontested (specifically one where both spouses are in agreement both legally and emotionally).
- No legal representation currently retained by either spouse-
- Few to no assets-
- Predetermined child custody arrangements-
- Non-military-
- Predetermined alimony, maintenance or support or non-thereof-
- You can contact your county clerk to get information related to legal requirements and paperwork to file. But you will also find numerous opportunities to assist you in the process that may be well worth the money to invest.
- Consider legal document preparation services.
- Consider divorce mediation services.
- Research internet-based divorce service providers.
- Consider divorce attorneys who prepare documents for uncontested divorce.
Since every state and each divorce present unique circumstances, there will likely be issues that will arise during the course of your journey that cannot always be anticipated. However, hopefully you will now have an idea of what to expect when beginning the path towards divorce to ensure the smoothest transition.
Check out our 2020 DMK Divorce Workshop for more information about the journey of divorce.
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