These simple steps will ensure you keep the pain to a minimum when a breakup has become inevitable.
1. Have a kinder, gentler split-up
Judges, lawyers, therapists, and just about everybody else involved in marital issues tend to see divorce as a knockdown, drag-out battle. They’re all wrong.
“Despite the common cultural assumption that people going through a divorce have to fight about it, most people end their marriages with dignity and quietly move on with their lives,” says attorney Lee Borden. “A cooperative, uncontested divorce is not only a good idea, but it’s also the way most people do it.”
So once you decide to split up, the first person you should talk to is not your lawyer but your soon-to-be ex-spouse.
The conference agenda: Can we do this together? Can we agree now on the big issues and work out the details as we go along? Can we talk about who needs to end up with what, about where the children are going to live, about who’s going to pay how much for their support? If so, what might have been World War III turns into a simple signing ceremony.
Warning: Divorce professionals may try to steer you and your spouse away from the peaceful path. “It’s not that they’re trying to stir up trouble,” Borden says. “They spend most of their time with the nastiest adversarial cases, so that’s the way they think divorce has to be.”
If your spouse is reluctant to try the cooperative approach, trot out the following facts about contested divorces: They take much longer, they are infinitely more expensive, they create more problems than they solve, and they leave the two of you permanent adversaries. That can make for a lifetime of tension-packed encounters at your children’s school performances, graduations, weddings, and grandchildren’s birthdays.
“You don’t have to like each other a whole lot,” Borden says. “Just be smart enough not to get caught up in all that adversarial stuff if you don’t have to.”
2. Keep relatives on the sidelines
Why do relatives who never gave a moment’s thought to your marriage suddenly present themselves as indispensable guides as soon as you start down the road to divorce? Because, they tell you, they “have your best interests at heart.” Because they “know how you feel.” Because they “know a good lawyer/counsellor/detective/psychic” you simply must see. Because, some will say, they’ve “been there.” And because all will say, they knew all along what a rat that no-good spouse of yours is.
The only thing they don’t seem to know is that this is your divorce and yours alone. You and only you must control it. No matter how well intentioned or well informed your family members are, it is almost always best to accept their emotional support but keep them away from the action.`
Sure, go ahead and listen—to your wise uncle, to your parents, to your sisters, and cousins and aunts. Listen to your stylist, to your mail carrier, to your child’s soccer coach, to the kid who prepares your morning latte. Then make your own decisions. Your family and your friends can be cheerleaders, but they can’t play on your divorce team.
3. Look beyond a 50-50 split
The idea that splitting everything down the middle is the only fair way to divide marital assets is so entrenched that few people question it. After all, isn’t marriage a 50/50 proposition? If you’re getting divorced, avoid getting hung up on some perfect 50/50 solution.
Look at the big picture: Are you getting what you want and need, in an overall package that strikes you as fair? That’s your goal. That’s especially true when it comes to individual assets. A judge, for example, may have a reason for awarding the house to your spouse. Perhaps it was your spouse’s father who gave it to the two of you in the first place. Unfair? Not if you weren’t planning on living in the house anyway, and you get something else you wanted more. Focus on what you want, not what the calculator says you should have.
4. Don’t let lawyers run wild with the case
Divorce lawyers tend to be set in their ways, going about things as they’ve been trained to do, which is not necessarily the best way for your particular case. As a result, costs skyrocket, squabbles proliferate, and the case drags on. That’s why neutral divorce law experts advise you to keep control of the proceedings and not let the lawyers turn it into a bigger case than it already is.
How? Mostly by doing on your own those things you can do more quickly, more efficiently, and light-years more economically than your lawyer.
For example, both sides in a contested divorce need to know who owns what so that the assets can be divided fairly.
Your lawyer is well trained to use the legally intricate “discovery” process to extract this information from your spouse’s lawyer, who is just as well trained in finding ways not to provide it.
The two of them can go round and round for months, racking up billable hours without much information changing hands. Better for you and your spouse to sit down together like adults and get it done in a day or two. All it takes is a realisation that both of you gain—financially and emotionally— from sharing this information, which eventually is going to come out anyway.
Of course, if the two of you hate each other so much by now that you’re incapable of communicating like adults, this won’t work. It also won’t work if one spouse—typically the man, even in this day and age—holds the lion’s share of the information about family finances. He may just sit there with folded arms, offering you nothing. And finally, your lawyer may warn you against talking to your spouse under any circumstances until the case is concluded.
We would never advise disobeying your legal counsel, but we will tell you what experts say off the record: Most divorce attorneys are secretly grateful when their clients work anything out on their own.
5. Be wary of potential financial traps
No matter how friendly your divorce is, when it comes to financial matters and divvying up property, it pays to question not only the motives of the other party but also your own.
Here are three traps you should avoid falling into:
• Your spouse has no intention of paying that debt. No wonder your spouse generously offered to assume the $35,000 joint loan debt in exchange for your letting him have the paid-for Range Rover. He already knew he was going to file for bankruptcy or simply default on the debt. And what can you do about it? File an enforcement petition, perhaps, but that’s not going to get you the vehicle back, or pay the debt. Lesson: Never exchange a solid asset for a debt payment unless you’re sure that the debt is going to get paid. You’re better off taking on your share of the debt while claiming your share of the assets.
• There’s a looming tax burden. Future taxes are a big-money item that even divorce judges and lawyers often overlook and your spouse might “forget” to mention. So one spouse who thinks he or she did pretty well ends up getting a nasty surprise months or years after the divorce when a humongous tax bill falls right on his or her lap. Make sure you or your lawyer or your accountant considers the tax implications of any asset you’re claiming or conceding. You don’t want to get hit down the road with something like a capital-gains tax on the sale of property that you didn’t even get to keep.
• Your spouse is not moved by your generosity. But she or he is more than happy to take advantage of it. This is one of the more heartbreaking mistakes divorced people make. One spouse, still carrying a torch, believes that by being nice and giving up more than necessary, the other spouse will be wooed back to give the marriage another go. It almost never works. You end up just as divorced, but worse off financially than you should be, and more bitter than you would have been. Being civil and cooperative is laudable. Letting yourself get taken advantage of isn’t.