Divorce: A Survival Guide by Dianne R. Ophelia
V. What To Do Before Court
- How Do We Handle Finances Before We Get To Court?
- Who Should Move Out Of The House?
- When Should We Divide Our Furniture?
- How Do We Divide Our Furniture And Personal Property?
1. How Do We Handle Finances Before We Get To Court?
The best way to deal with money is to sit down with your spouse and work out a budget including
expenses for both households once you separate. Both of you must accept the fact that there is
less money to go around than when you were together, so certain expenses will have to be cut
down or cut out completely. If both sides are fair, this can work. Another alternative is to
consult with a lawyer to find out what you should be paying or receiving as support according
to the court guidelines and agree upon that amount.
Once a spouse files papers with the court, even if a court date is several months away, the orders
for support go back to the date the papers were filed. It is a good idea, therefore, to have some
type of agreement regarding payment of support before you get to court. Otherwise, if you are the
payor spouse, you may find that you owe thousands of dollars in back support by the time you get
to court. Catching up is very difficult when you also have an ongoing support order. If you are
the recipient spouse, money may be very tight for several months until the support orders are
entered if your spouse will not voluntarily assist you, so you should try to plan accordingly.
Any agreements should be in writing, preferably prepared by a lawyer to protect you.
A note of caution: Sometimes a spouse feels guilty about leaving a marriage, so to relieve that
guilt or for other reasons, he/she turns over most of his/her paycheck to the other spouse and
lives on virtually nothing. It is much harder to convince the “receiving” spouse to accept a
realistic support order after he/she has become accustomed to having much more than the payor
spouse can really afford or that the court would order. Also, the court will sometimes look at
what the status quo has been when setting support so you may end up paying more than you should
after you get to court. A much better approach is to set realistic financial plans for both parties
from the outset.
2. Who Should Move Out Of The House?
Several factors should be considered when making this decision. Some of the major issues to consider are:
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Can You Continue To Live In The Same House Peacefully Before Court? If neither
of you want to move out, one solution is to both remain in the house until you can get to court
and let the court decide who should stay and who should go. The court can also set guidelines
at the same time such as when the move will take place, what furniture and personal property
the moving spouse will take, who is responsible for mortgage payments, taxes, insurance, upkeep,
etc.
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Has There Been Physical Abuse? If you suffer physical abuse at the hands of
your spouse, you have a right to have your spouse removed from the house. If your spouse is
physically abusive and you are forced to call the police, you should ask them for an emergency
protective order (EPO). This order provides that your spouse must stay away from the house for
a few days until you can retain an attorney and have them prepare the necessary paperwork to
make the restraining order more permanent. Once you have received an EPO, you should immediately
contact an attorney because the temporary orders will expire within a few days.
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Will Custody Be An Issue In Your Case? If you vacate the family residence
and your spouse remains in the residence with the children, this may impact the ultimate
decision regarding custody. Courts often favor leaving the children in the residence,
although many factors come into play regarding the custodial arrangement. If your spouse
remains in the residence and you have moved out (particularly if you have moved into an
apartment which may not be as accommodating to the children), this could adversely impact
the court decision regarding the amount of time the children spend with you.
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Do You Wish To Sell Or Retain The Residence? If you vacate the home, the
court generally will not force a sale of the house or change the occupancy of the house
until the ultimate division of the assets at the time of settlement or trial at the end
of your case. You may have to wait months or even years to have the house listed for sale
or to regain possession.
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Who Will Maintain The Residence In Better Condition? The value of the residence
is determined at the end of your case by appraisal or sale, so maintaining it in good condition
during the divorce is important. Although you may apply for relief from the court to charge
your spouse with any loss of value, this is often difficult to prove. If the house is to be
sold, who is better equipped to keep it in a “showable” condition?
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Who Can Afford The Payments? If you decide to move out, and your spouse cannot
afford to pay the mortgage, taxes and insurance as well as regular maintenance and repair, you
may have no choice but to advance these payments in addition to paying for your own new living
quarters until the house is sold or the case resolved. Otherwise, your credit rating may suffer,
or worse, you will have to sell the house as a “fire sale” to avoid foreclosure.
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What If Neither Of You Can Afford The House By Yourself? If neither you nor your
spouse can afford to pay the house payments by yourself and the sale of the house is imminent,
the two of you may decide to both stay in the home until it is sold. You would each then have
money from the sale as a down payment for another, more affordable house. Also, you can each
take some of the furniture and household goods to start your new home. Another advantage is
that if you have children, they have both of you and their familiar surroundings for a while
until they get accustomed to the idea of the separation. This will work, however, only if the
two of you can peacefully co-exist.
3. When Should We Divide Our Furniture?
If you plan to move out of the house, remember that it can be very difficult and expensive to
get back into the house to retrieve your belongings. Once you move out of the house, many times
the court will not allow you to re-enter, even to take an inventory. Relying on your memory can
be very difficult when trying to reconstruct a list of your personal property for your lawyer.
The best way to handle the furniture is to agree upon a division with your spouse before one
of you moves out of the house. If this is impossible, at least make a list of everything, and
take pictures or a video to help you remember what was there so it can be evaluated and divided
later.
Always take your most important and sentimental items with you if you move out. Courts are
reluctant to deal with furniture and personal property until the final division of assets,
which may be months, if not a year away. Many items can be lost or destroyed in the meantime.
Remember those important photos, Christmas ornaments, high school memorabilia, sports items,
etc. You can spend a lot of money in attorney fees attempting to retrieve these items later.
If you move out and don’t have a place for your portion of the furniture and furnishings, I
recommend that you obtain a storage unit. Remember, many things can happen to those items,
particularly the sentimental ones, if they are not in your possession for 6 months to a year.
The storage cost for this short period of time is still less than replacing the items or paying
your attorney to retrieve them.
Finally, items of furniture and personal property are valued at yard sale values in your divorce
action, not at replacement cost. This is why it is fair to divide these items equally. Replacing
an entire household can become very expensive.
4. How Do We Divide Our Furniture And Personal Property?
People have invented many creative ways to divide furniture and personal property, which I will
discuss below. It is always better to divide these items yourself, if possible, rather than have
the lawyers handle it. By the time you pay the attorney fees to argue over the furniture, you both
could have most likely purchased a new household of items.
The best way to handle this emotional issue is to use your common sense. Generally, there are
certain items which are more important to one or the other spouse. You should divide those items
first, giving each of you the items you really care about. Then consider their monetary value by
assigning yard sale values to the items. If one received more in value than the other, the re¬maining
items of furniture should be used to make the two sides fairly equal. Remember diat you don’t have
to be exact on this one, just fair enough to make you both feel okay about the division.
If this doesn’t work, here are some creative solutions:
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The Bids Process: Make a list of all the belong¬ings to be divided.
Each of you can “bid” on each item. Whoever bids the highest keeps the item. Then total
up the amounts bid by each of you. Whoever re¬ceived the higher total value will owe one
half of the difference to the other spouse, either by paying them cash or taking less in
other assets in the final division.
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Take Turns: One spouse chooses the first item, then the other chooses the
second item, etc., until you go through the entire house. The values should be fairly equal
since the “high ticker” items will most likely be chosen first.
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Make Lists: Have one spouse make up two lists. The total value of the
furniture and personal prop¬erty on each list should be fairly equal. Then the other spouse
chooses which of the two lists he/she wishes to keep.
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Pick Out Of A Hat List all of the items on pieces of paper and put them in a
hat, bowl or what¬ever container you wish. Each of you takes turns picking items out of the hat.
This doesn’t always make for an equal division; however, it can be interesting.
An important consideration is family photos and videos. The best way to handle these is to first
go through them and divide any duplicates and/or photos that one of you wants and the other does
not. Then put all of the photos that both of you want in a separate pile and have them duplicated.
Share the cost of du¬plication and everyone feels okay with the process.