Wednesday, December 27, 2017
USING COMMON SENSE, OR NOT THROWING CAUTION TO THE WINDS IN PLANNING YOUR DIVORCE.
© Jonathan D. Gordon, Esq. 2017
So, you may be certain that you are going to initiate a divorce after the holidays are over. In fact, you may have already secretly consulted with an attorney or did some preliminary research about the process. Assuming you are not in an emergency situation, there are some common-sense guidelines that you should become aware of if you are not already thinking about them.
It is hard to imagine that someone with whom you have shared a bed, perhaps had children with, and spent years with, could become your enemy overnight. Despite the fact that you may have grown apart over time, engaged in mutual avoidance or bickering, or worse, your identity is still wrapped up in living with this other person (i.e. “The Devil you know”). You may have assumptions about how you both should comport yourselves with each other. Perhaps you assume certain ironclad, inviolable tenets of privacy, decency and rules of fair play with your partner. If you assume, however, that any of this will necessarily apply once you announce your plan to divorce or leave, etc., then you are being naïve and setting yourself up for harm.
Actually, in many cases, the other party may react badly, emotionally or even violently. That violence may be physical against you, or against property—your property. If there is violence or threat of violence, or harassment against you, then you have a cause of action for domestic violence and may obtain a restraining order. A call to the police if needed, will immediately stop the threat (at least for the time being with a temporary restraining order (TRO), until things can be sorted out in court). Otherwise, you can file a complaint for domestic violence in the Superior Court of New Jersey. In other cases, however, there may be a more passive-aggressive response by the “jilted” party. This is where your pre-planning comes in. Things you can reasonably do:
▪ Get a post office box, open up your own checking account;
▪ Make a list of your personal belongings, property, bank accounts, etc.
▪ Find a safe place out of the house in which to keep your:
Diplomas, certificates, passport, engagement ring or other personal jewelry, watches, expensive shoes, birth certificate, naturalization or citizenship papers, transcripts, your personal bank statements, will, attorney’s business card, photos, laptop, etc. You may want to park that precious antique motorcycle or your stamp collection elsewhere.
If you get a new personal safe deposit box at a bank, you will have to divulge to the Court the location and contents of this box. You should not put marital funds or your spouse’s property in such a box. You may want to photograph what you are placing in the safe and bring a reliable, credible witness with you. At some point, this box may become frozen by the Court (upon your spouse’s motion) and you may then gain access only under supervision (e.g. your attorney and spouse’s attorney at the bank). Just keep that in mind. Also, some examples of the things you may not do to plan your divorce:
▪ Cancel or change any insurance (health, life, auto, homeowners,
etc.). You will have to certify to the Court that you did not do
this for a 90-day period prior to the filing of the divorce
complaint. But if you maliciously wait 95 days, the Judge can
still do what he/she believes is equitable and fair for the other
party or your children who may have been severely
compromised by your actions.
▪ Cancel or change phone service (e.g. your spouse’s cell phone, or
Internet, cable, etc.; stop paying utilities, landscaping, etc.
▪ Move marital money around, empty bank accounts, hide funds,
transfer property or money from your name to that of others;
▪ Change the marital status quo or do anything shady, sketchy,
underhanded, clandestine or harmful to the other party. The
Court will find out about it and make you restore the status
quo and it makes you look bad to the Judge. You don’t need
that. Good faith and acting fairly to the other party is important.
Anything, however, can be agreed-upon between you and your spouse, provided you fully disclose to each other in good faith and draft some sort of written agreement that may be needed in Court later. For example, you and your spouse may agree to change the auto insurance, or change the cell phone account (to become two separate ones). You may agree to evenly divide all of your cash (checking and savings accounts). As long as you fully divulge to each other and memorialize your agreement in a written document (notarized is best), then later you will not be criticized for wrongfully taking money from a joint account. I would suggest, however, that before you make any agreements between yourselves, that you consult with a family law attorney. You may end up waiving something to which you would have been entitled, if you are not properly advised or cautious. Don’t be so quick to waive alimony (if you might be qualified to receive it) or child support (which legally you cannot waive anyway). Saying “I just want this over with” and acting impulsively can cause you more grief and regret later.
Being open with nothing to hide is the best way to go. For example, if you had a joint checking account that had $40,000 in it, and you took $30,000 out, you will need to disclose this and pay back your spouse’s portion (the other $10,000 if ultimately it would have been an equal split). Your spouse’s car, even if titled in your name, remains your spouse’s car until the Court (or your spouse) says otherwise. Status quo must be maintained to the extent possible. You may be angry and full of hate for your spouse, but malicious behavior is not tolerated by the Court. You could end up paying your spouse’s legal fees if so.
Having said all of this, with good faith and fairness notwithstanding, you may incur the wrath of hell from your spouse when it is clear that you are seeking a divorce or separating. Keep in mind that all of your phone calls with your spouse may be recorded, your in-person conversations with your spouse may also be (audio or video) recorded, all of your texts and emails will be printed out and archived to use against you later, your Facebook and other social media posts will be studied and printed out to use against you later, your desktop computer or laptop that you leave around the house, will be perused, and so on. It is not unheard of for a spouse to hire a computer technician to make a copy of your hard drive when you are at work. Whatever you already posted on social media cannot be legally removed (destroying potential evidence), but you can exercise good judgment going forward by not posting anything incriminating (any more). You can change all of your personal passwords for your cell phone, your desktop (if not jointly marital) and laptop. You cannot block your spouse from accessing a joint account. But you can ask the court to freeze your account to prevent it from being dissipated, pending final resolution of the financial issues in your divorce.
Please do not talk about your divorce/separation with your children; don’t involve them; try to protect them as best you can, depending on their age and awareness. Do not fight with your spouse in front of the children, or say derogatory things about your spouse within ear-shot of a child. Don’t confide in your child as if your child is your confidante or worse: your therapist. Children are harmed by this reversal of roles. It is not their job to console a parent. It is hard enough for a child to get through this and to manage their own feelings. Managing a parent’s feelings as well, is too much to expect from a child.
In short, it is best to use common sense to proceed with a divorce. Since this may be unfamiliar territory for you, and it is confusing, it would be best to consult an attorney who practices Family Law in your state. Not only can you obtain legal advice, but you can get common sense and realistic feedback from your attorney as to the best strategies and ethical methods under which you may safely proceed.
Good luck, and please post a comment about your experiences.
This blog and its contents is the intellectual property of-and are Copyrighted © by:
Jonathan D. Gordon, Ph.D., Esq., 2017-2018. All rights reserved.
Please note: Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ. He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has, in addition to providing general psychological services, performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division. No special skills or, expertise in either profession is implied by any reference to my being licensed as a Psychologist as well as being a licensed attorney. The two professions are distinct and separate, with differing training and education, and they each have their respective licensing, rules of ethics and codes of professional responsibility. Contracting with Jonathan Gordon in one profession precludes ever engaging his services in the other profession due to conflict of interest. This web site and blog are solely for general informational purposes and should not be construed otherwise and should also not be taken as tax advice (for which you must consult a C.P.A.). A professional relationship is not established until a retainer agreement is signed or if a consent for treatment agreement is signed for psychological services.
Please note, since this blog is for informational purposes only. It is neither legal, tax nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you.
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