Avoid these common mistakes if you’re filing for divorce in January

Angelina Jolie in happier times in her 2015 film, “By the Sea.”

Think before you jump or, in this case, file.

Divorce filings surge in January as people decide to start their New Year with a clean slate, helped by a stressful holiday period and, perhaps, even more stressful in-laws, experts say, with family lawyers reporting a rise of nearly one-third in business in the New Year. John Slowiaczek, president of the American Academy of Matrimonial Lawyers, says he typically sees a spike of 25% to 30% every year in January. Similar trends are seen in the U.K.: one in five couples plan to divorce after the holidays, according to one survey of 2,000 spouses by legal firm Irwin Mitchell.

‘We don’t encourage someone to open their spouse’s mail. You can, however, look at the financial institution that sent the statement through the mail. If you give us those names, we can subpoena that information.’

—John Slowiaczek, president of the American Academy of Matrimonial Lawyers

Being cooped up in a house for several days when a marriage is experiencing serious problems — while dealing with the pressure to put on a happy face for the kids and visiting relatives — takes its toll on the most stoic of couples. “Holiday time is usually a time when we get a spike in consultations and retentions,” says Lois Liberman, a partner at the law firm Blank Rome in New York and chair of the company’s matrimonial group. “Holiday time is usually fraught with a lot of tension, emotion and financial issues, which is usually the trigger.”

“Never file out of anger,” Slowiaczek says. “Most of the decisions you or I make are intellectual and emotional decisions. The former are usually correct and boring, and the latter are usually dangerous.” Lawyers and counselors, he says, give very different advice and it’s important to balance both sides. Other mistakes to avoid: Don’t involve your children before, during or after the divorce, Slowiaczek adds. And don’t bad-mouth your spouse (or ex-spouse to your kids). And, if there’s a third party involved, don’t call that person, his/her spouse or children.

There is good reason for treating this like a calm business deal, Slowiaczek says, because that’s exactly what it is. He is cautious about taking on clients who refer to him as a pit bull or a shark. “Sometimes, people might say that because we’re tough,” he says, “but if you go in with all guns blazing and start in a mean, aggressive manner, you automatically create a very adversarial situation. That could increase the cost of the divorce — which could vary between $25,000 to $100,000, depending on the assets involved, the lawyer’s fees and where you live — by double or even triple, he says. “Be courteous and respectful. The key is to avoid escalation.”

‘Don’t rush to file. Think about your end game. Many people file quickly out of anger perhaps after learning of a spouse’s misconduct. But it’s better to be strategic.’

— Randy Kessler, author of ‘Divorce: Protect Yourself, Your Kids, and Your Future’

And, even if it’s tempting, “We don’t encourage someone to open their spouse’s mail.” It’s illegal, even though Slowiaczek says he’s never seen anyone be prosecuted for it in divorce court. “You can, however, look at the financial institution that sent the statement through the mail. If you give us those names, we can subpoena that information.” (Most financial statements arrive between the 3rd and 8th of the month, he says, as they’re usually mailed at the end of every month.) Accountant records are also a fertile ground for information on a spouse’s financial affairs, he adds, and can also be subpoenaed.

But no-one should make such a big financial decision when they are feeling tired and emotional, says Randy Kessler, an Atlanta-based lawyer who wrote the book, “Divorce: Protect Yourself, Your Kids, and Your Future.” And divorces, he adds, are one of the biggest financial decisions of your life. They’re up there with getting married and buying a home. There’s one big difference: They can be devastating for your finances, especially if your partner earned more money and the couple are forced to sell their home.

“Don’t rush to file,” Kessler says. “Think about your end game. Many people file quickly out of anger perhaps after learning of a spouse’s misconduct. But it’s better to be strategic. Maybe wait until after your spouse gets his or her year-end bonus or pays for a nice Christmas present?” Or, as the title character in the Netflix NFLX, -1.22%  television drama “Doctor Foster” did, bide your time and locate all the financial records first, he adds, “so your lawyer won’t charge you thousands to subpoena them from your spouse’s employer or banks.” And, of course, so no-one can hide funds.

Don’t miss: Why some American couples stay married

And don’t serve your partner with divorce papers during the holidays, especially if you have children. “As they grow older they’ll hate that holiday forever,” Liberman says. That doesn’t mean you shouldn’t do some preparation in the meantime. “In New York, you can file for divorce and you have 120 days before you serve them.” Most unhappy spouses wait until after the turkey has been carved and gifts have been unwrapped, she adds, regardless of how challenging the holidays have been. Nor is it a good time to get divorced just before your daughter’s wedding or son’s graduation.

This may also give the partner filing for divorce time to seek out a good lawyer, but perhaps not one already associated with the family. “There’s need to hire the first lawyer you hear about,” Kessler says. “Lawyers have different styles. Just because a lawyer says he or she is a divorce lawyer doesn’t make them the divorce lawyer that’s best for you. Think about interviewing a few and see which one you feel the most comfortable with. Which one listens to you the best? Which one is more likely to help do what you want, not what they presume you want?”

Also see: 5 apps for spying on your spouse

It may be that divorce is not the best option, particularly if one partner doesn’t have company health insurance. Annual premiums for employer-sponsored family health coverage reached $18,142 this year, up 3% on last year, with workers on average paying $5,277 towards their coverage, according to the Kaiser Family Foundation, a nonprofit group based in Menlo, Calif. Premiums for Obamacare, which president-elect Donald Trump has vowed to repeal, are expected to rise 22% next year for the benchmark silver plan. (Some health insurers won’t insure both parties on the same policy if the couple has legally separated, Slowiaczek says.)

And, finally, find out whether or not you live in a community (or marital) property state. Arizona, California, Idaho, Louisiana, Texas, Nevada, New Mexico and Washington treat all marital assets as community or marital property, meaning assets acquired during the marriage are divided equally when a couple divorces. In other “equitable distribution” states, assets are divided based on a variety of factors, including the income of each party at the time of marriage, duration of the marriage, loss of benefits, needs of the custodial parent and probable future financial circumstances.

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