If you're like most people, you want an amicable divorce. But a lot of things can happen during the divorce process, and it's hard to trust that your spouse is being totally transparent and cooperative. Taking reasonable steps to safeguard your interests is key.
Don't go doing anything drastic without consulting a mediator or lawyer first! Clients regularly ask me for tips for how to protect themselves in divorce without causing an all-out war. Truth is, achieving this is a delicate matter. On one hand, you want to make smart decisions for yourself and your kids, but you also want to avoid triggering your spouse to lawyer up or push back on your requests.
If you think your spouse will ultimately work cooperatively (or they'll at least be able to come to an agreement) but you want to be prepared in case the divorce does get messy, here are some tips.
Collect documents and information
Get copies of everything that you can. The more information you have the better decisions you'll ultimately be able to make. You will also be able to pull together a detailed picture of your situation so you can help analyze best and worst-case scenarios. You can't figure out what you want, what you don't want or what you need unless you have all of the financial information.
In most states, you and your spouse will have to disclose financial information and paperwork anyhow. So, you can wait for your spouse to complete our questionnaire or get started on this ahead of time. Don't be afraid to ask questions but try to do it in a way that is not triggering or upsetting.
Try: "Can you help me understand whether or not you have a 401k (or other retirement accounts) through your current or previous employer? I'm certain all this is very clear to you but I'm still trying to understand what we have (and what we don't have). That way we won't have to come back later (after our divorce is finished) to deal with stuff we may have forgotten about."
Determine where you might need some help
Is there something particularly complicated about your situation? For example, bankruptcy might be imminent. Or perhaps your business is struggling? Are you considering a nesting arrangement for your co-parenting plan? Unless there's an emergency, you usually don't need to speak with someone right away, but you'll want to be aware of where you might need extra support. That will also inform which divorce package you choose (and if you might need to upgrade, too or purchase an hour or two with a mediator or lawyer).
Check credit card and line of credit limits
Can you make it so both of you need to sign off before taking more money out of HELOC or investments? Can you limit credit cards so that you both have access to shared cards for necessities but neither can make huge a purchase? Knowing (and setting) limits up front can help keep things amicable with little effort. This is also a good time to pull your credit report to see if there are any surprises and/or confirm accounts that one or both of you may have forgotten about.
Understand the importance of full disclosure
You will have to provide a complete financial picture to avoid any penalties down the road, but that doesn't mean your spouse has to have unfettered access to it. Be upfront about all your earnings and cash now.
Set some ground rules
If you've read some of our other resources or received our Tuesday Tips emails, you know how important we think about ground rules. There's a lot of uncertainty between the time you or your spouse decides to divorce and the actual final divorce judgment or decree. If you can, see if you and your spouse can get on the same page – or at least agree to make every effort to keep your divorce out of court.
If you decided to divorce, your ex may not have caught up to you yet (in terms of being ready to start the process) but they will likely be relieved when you tell them you do not intend to "lawyer up" with the most aggressive attorney in town. Work together to answer questions like, when, how, and where will you discuss divorce-related topics? Will the end game be an agreement that you both can live with? Who will be the Petitioner (the first party to file docs)? How and when will you tell the kids? Separating couples who start with these basics before moving on to the more complicated stuff often fare much better.
Choose your battles
It's highly unlikely that you will get every single thing you want or exactly the terms you ask for, so rank your demands from most to least important. Be prepared to give in here and there. Sometimes, it's not worth the fight. Decide what you can and can't accept defeat on.
Don't be afraid if your spouse consults with a lawyer
It's shocking to learn that your ex has met with a lawyer. Your mind naturally goes to the worst-case scenario – they're going to try and take everything. But if your spouse is seeking legal help with a lawyer who is friendly to the cooperative divorce process, seeking help is not a reason to panic. If your ex has legal questions, they should seek legal counsel.
So should you, even if you just want a 30-minute gut check with a lawyer. Divorce is the separation of the most complicated financial contract either of you has likely ever entered into. Having (correct) information and feeling informed and empowered is not just smart, but also a helpful way to de-escalate conflict and focus on what actually matters instead of getting caught up in the small stuff.
That being said, if you or your spouse have confusion or concerns about your finances (and you are hoping for an amicable divorce), it might be even more helpful and trust-building for the two of you to work together — directly with a mediator or neutral certified divorce financial analyst.
Enlist the help of a mediator or therapist
See if you can connect with a mediator, certified divorce financial analyst or therapist to come up with ground rules for how you will divorce. In many cases, a mediator or therapist can replace a much-more-costly lawyer in a cooperative divorce.
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