How To Divorce

Part 7 of The High Net Worth Guide To Divorce

This is the final section of the 7-part guide for affluent and high net worth individuals considering divorce.  In this section, we cover how to divorce

Many unhappy couples stay married for YEARS.  Why?  It often just feels easier. 

Divorce intimidates people.  Think about it.  Spouses often feel a mixture of fear and guilt about leaving.  But if you have completed the first five parts of our divorce guide, you will realize how much support you actually have.  Divorce doesn’t have to feel scary.  With the right friends and advisors, you can emerge from your separation as an even stronger individual.

Divorce is never an easy choice.  We empathize and understand completely.  But once you have decided that divorce is the right option for you, you need to understand how to divorce.  Affluent and high-net-worth families should also exercise extra caution.  With so much more at stake, even a small mistake can make an enormous difference.  In this article, we help cover the two key steps of how to divorce.

1. Filing for divorce
2. Coping with the separation

How To Divorce

Now that you have decided which method to use, it’s time to understand how to divorce.  Filing for divorce might seem like a complex process.  But there’s no need to feel overwhelmed.  Every state follows the same general process.  Check with your state’s website for details or contact us for more information.

1. Find your state of residency

Before you file for divorce, you need to know which state to file in.  Sounds simple?  For affluent and high net worth families with multiple residencies, this can actually turn into a complicated affair.  To determine where you reside, courts will generally take into account your home address, where you vote, your auto registration, drivers’ license, place of employment and tax locale.  In certain cases, you might even have a choice of where to file (i.e. if you live in one state but spend more time in another).

Residency requirements

Almost every state has residency requirements. These laws exist to prevent the divorcing partner from choosing a jurisdiction with the laws he or she likes best.  For instance, this prevents your spouse from moving to California and immediately filing for divorce to take advantage of their community property laws.

You generally have to live in a state between 60 days to a year to establish residency.  Pensylvania, Delaware, Virginia, and DC require 6 months of residency, for example.  New York, New Jersey, Connecticut, Massachusetts, and Maryland require one full year.  Only 3 states (Alaska, South Dakota and Washington) don’t have any residency requirements.

Choosing the right jurisdiction is important.  The courts can dismiss or reject divorce requests from a lack of jurisdiction.  Picking the wrong state can also become grounds for contesting divorce later on.

2. Complete and submit your state’s Case Information Report

Once you understand which state to file in, you should download or obtain the correct forms from the State’s Civil Clerk.

Most states require a “Case Information Report”, a simple form that gathers information about you and your spouse.  The state then files this information with the courts so you can begin the divorce process.

In this form, you will be asked which divorce method you will use. As noted in part 6 of this guide, you have four main types of divorce

Types of divorce

1. 1. Arbitration (Neutral Evaluation)
   2. Mediation
   3. Collaborative Law (Settlement Conference)
   4. Pro Se (no lawyer)

Each state’s forms will look slightly different.  Maryland, for instance, refers to Collaborative Divorce as a “Settlement Conference”.  But generally, the process is the same.  The state is simply looking for basic information about your divorce.

An example from the state of Maryland

Pending Issues

Many states will also ask you about any pending issues.

• Alimony or spousal support
• Child support payments
• Child custody, guardianship, or visitation rights
• Property distribution issues

For now, you only have to report the existence of potential issues.  So if your state asks whether the divorce will involve alimony, but you’re not yet sure, you can indicate “yes/maybe” and proceed.  You can always decline alimony later on.  But if you want to add alimony later, some states will require you to submit a new Case Information Report and restart the divorce process.

What if my spouse and I have no outstanding issues?

If you and your spouse have agreed to mediation or collaborative divorce, you don’t need a finalized separation agreement yet at this stage.  Many couples will start filing with the State before the mediation begins simply because the courts often take a long time to process documents.  So if you and your spouse have agreed to mediation, you simply need to indicate that in the initial filing.

3. Retrieve a Writ of Summons from the court

Once your case has been docketed, the clerk’s office will issue a writ of summons. Generally, the state will take a few days to two weeks to issue of the summons. Busier court systems will generally take a longer time.

The Writ of Summons is a document that lets your spouse know you have officially started the divorce process. It also lets the State know that your spouse has been made aware of the divorce proceedings.

4. Serve the Summons to your spouse

Each state has different requirements for serving the writ of summons to your spouse. In general, you may NOT personally serve the summons yourself.  Instead, the summons must be served in a way that is traceable and verifiable by the courts.  Each state has different processes, but they tend to fall into three categories.

1. Sheriff’s Office: The county clerk can forward the Writ of Summons to your Sheriff’s Office.  The sheriff will then attempt to service and file the returns with the court.  Many states charge a fee for this service but will waive it for cases where domestic violence exists.
2. Private Process. Some courts will allow the use of private third-party services to serve the Summons to your spouse.  Private process companies charge a fee and have their own Affidavit of Service form to file.
3. Certified Mail. Most courts will also give you an option to send summons by certified mail with restricted delivery.

If you do not know your spouse’s whereabouts, you may file a Motion For Alternate Service. Attach proof of your efforts to locate your spouse and file the documentation with the state. Once filed, a judge may allow you to skip serving the summons if you cannot locate your spouse.

5. Your spouse respond to the Summons

Once the Summons has been served AND proof of service is filed with the court, your spouse needs to file an answer.  Depending on the state, your spouse generally has between 30 and 90 days to respond.

At this stage, your spouse can file a motion challenging the service, jurisdiction, or other aspects of the complaint. He or she may also file a counter complaint.  This process prevents the plaintiff spouse from making false claims (i.e. if the initial filing claimed mediation when arbitration was actually agreed upon).

What if your spouse is non-cooperative?

The US legal system protects you from a non-cooperative spouse.  If your spouse fails to respond to the Summons with the 30-90 day window, you can request a Notice of Default from the courts.  (You can request the form from your County Clerk’s office).

With the Notice of Default, a judge will review your case and grant the notice if he or she is satisfied that your spouse is not currently in the military and proof of service has been filed.  The other side typically has another 30 days to respond to the Notice of Default.  If your spouse still fails to respond, the case may move forward without his or her participation.

6. The court schedules your case

Once your spouse responds to the Summons (or the Notice of Default passes), the court will schedule your case.

Uncontested cases

If you and your spouse have no disagreements, the courts will view your separation as an uncontested case.  In these cases, the courts may simply schedule a brief hearing to review the separation agreement before final approval of the divorce.  Virtually every state will require a judge read through the separation agreement first before allowing a divorce.  This prevents one spouse from taking advantage of a less knowledgable spouse.

If you and your spouse have gone through mediation or collaborative divorce, you should have a signed separation agreement by this point.

Contested cases

If you and your spouse have irreconcilable disagreements, the courts will view your separation as a contested case.  Most courts will then schedule a pre-trial settlement conference.  In these conferences, a judge meets with both sides to make sure the case is ready for trial.  Most judges will also use the pre-trial conference to determine if any settlement is possible.

If you and your spouse still fail to come to an agreement, your case moves to trial.  The courts will schedule a trial date for you and your spouse to attend.

Suggestions for going to court

• Make sure you arrive before your scheduled trial time.  Most courts have a security screening process.  You will want to arrive for the trial well-rested and prepared.
• Prepare all documents and evidence you want the courts to consider.  Have at least three copies of each document: one copy for the court, one for your spouse’s team and one for yourself.
• During the trial, you will be asked to present evidence to the judge.  Evidence can include copies of your financial statement, information about your marriage, documentation on dependents (children, etc.), information about your career and any other relevant factors.  The judge is looking for provable, concrete evidence.
• Seriously consider hiring a lawyer to represent you.  Lawyers are professionally trained to convey evidence to judges.  And the better you and your spouse can convey your case to the judge, the better the outcome will be.

Remember that the judge isn’t looking to take sides in a divorce.  There’s no “winning team” or “losing team” in a separation.  Instead, the judge’s role is to come up with an equitable solution that is fair to both spouses.  So in cases where spouses earn significantly different income levels, for instance, courts will almost always award spousal support to the lower-earning spouse.

7. Final order sent by courts to annul the marriage

Once both sides have stated their cases in front of a judge, the judge will issue a final ruling.  In uncontested cases, the judge may simply approve the signed separation agreement.  In contested cases, the judge will a decision on what he or she believes is fair in the eyes of the law.

Depending on the court, you will either receive the Final Order at the end of the hearing or by mail.

Final Orders

Final rulings are legally binding.  In other words, you MUST fulfill your obligations, whether sending spousal support or transferring property.  At this point, if you or your spouse fail to fulfill obligations, the other side can file a complaint to the court to compel action.  Try not to have this happen – emotions are generally running high and the penalties for failing to comply with court orders can be severe.  And at this point, if you realize your spouse has hidden assets from you, you should immediately notify your lawyer to send the case back to the courts for a re-trial.

Appeals

If either side believes the judge made an error in applying the law in your case, your or your spouse may file an appeal.  This can bring the case back to courts for a re-trial.  However, appealing a judge’s decision is a complex process with specific requirements and strict deadlines.  You should speak to a lawyer before filing an appeal.

Coping with the Separation

“But what about my mental state?” you might ask.  What many lawyers (and even individuals) forget is how difficult divorce can be.  It’s easy to get lost in the “busy-ness” of the legal process.  But you have to make sure you take enough time to cope with the separation.  No “how-to” guide for divorce would be complete without it.

1. Find personal support

Divorce is one of the most stressful and traumatic events anyone can go through.  We completely empathize.

Because we have been there too.  But guess what?  You don’t have to do this alone.

No one would ever tell a cancer patient to “walk it off”.

Why tell someone going through divorce to “tough it out?”

If you need personal support to help you through your divorce, make sure you find it.  There’s no shame in seeking help to cope.  Turn the tables for a moment.  Imagine your best friend just had a divorce and calls you up asking for advice.  Wouldn’t you take the call?  Of course, you would!  And I’m sure they would do the same for you.

Friends and family

Connecting with the right friends and family can help you immensely in your divorce.  But make sure you know what kind of advice you’re looking for.

Empathy: Some people may look for friends and family who can empathize.  Sometimes you aren’t looking for advice or a solution.  Just a kind word will do. In situations like these, there’s nothing more powerful than an “I understand” from the right person at the right time.

Tough love: Others will look for friends and family who can give tough feedback. Someone who can observe what you’re going through and ask “why are you feeling down?  Now that John is out of your life, what are you afraid about?” And by pinpointing the logical reasons why you’re feeling down, these friends can help you overcome your inner fears.

Professional support

People often equate using mental health counselors as a sign of weakness.  This cannot be farther from the truth.  Instead, mental health counselors are professionals whose entire job revolves around helping people like you.

Finding the right therapist is much like dating.  There’s no one-size-fits-all.  You need to find a therapist that “gets” you and has a style you’re comfortable with.  That’s because any therapist-patient relationship requires deep two-way communication and a strong level of trust.

There’s simply no such thing as a “super-therapist” who can work with anyone and everyone.  There are simply too many styles of therapy.  So you should interview at least three therapists before settling on one.

Support groups

Who else can relate to your situation?  Other people going through divorces!

For years now, academic studies have shown clear benefits of people with the right support groups.  Cancer patients have shown better outcomes.  People even live longer when they have a small tight-knit community to rely on.

Every year, more than 800,000 people file for divorce in the US alone.  And many of these people are just like you.  So it’s often worthwhile to check your local groups and communities for divorce support groups.  See whether your local community groups, workplace, or religious groups host meetings for people going through a divorce.  These are invaluable places for finding the right support group to help you move forward.

2. Take time for yourself

It’s easy to become so busy during the divorce process.  Most people have to balance careers and childcare WHILE dealing with divorce.  Some even go back to school to earn a degree.  So once the divorce process is complete, make sure you take the time to rest and rejuvenate.

• Vacation.  Learn there’s nothing wrong with treating yourself a little.  For those who can’t travel, a staycation can also be a good option to rest.
• Learn to say “no”.  Many friends may want to reach out and make sure you’re doing well.  If you need time alone, make sure you acknowledge it and let your friends know.
• Exercise. Divorce provides a good “reset” starting point.  If you’ve always wanted to get fitter, this could be the time to start!  Exercising can also be a great chance to meet people at the gym or spend some good alone-time.
• Hobbies.  Try cooking a healthy meal for yourself or read a book.  Expand your horizons with a new hobby.

Spend your time well

One thing that surprises newly divorced individuals is how much time they now have to spend.  Whereas before they might spend time with their spouse (or just waiting on them), they now are free to do what they want.  Some individuals might find the opposite (perhaps child-care now takes up more time since there’s no one to help).  But this tends to be a minority of people.  Regardless, once you have the freedom to make your own decisions, make sure you fill your time with meaningful activities.

3. Plan for the future

For most people, divorce opens a new chapter in their lives.  Whether we realize it or not, our spouses have an enormous impact on our lives.  What work we do, where we live, how we dress… the influence is often unintentional, but it’s powerful nonetheless.

Thus, the final leg of coping with separation involves planning for the future.  Reliving the past is fine for closure, but at a certain point, it’s healthy to move on with your life.

1. Occupational

How will you spend your time?  For many, divorce means re-entering the workforce or obtaining higher education.  Even with sufficient alimony, many people still want to re-enter the workforce.

• Personal fulfillment. Many people find meaning and fulfillment in using their innate talents towards the service of others.
• Social connections.  Work can be an important social outlet for individuals.  The best work environments gather similar people and direct them towards the same shared goal.
• Limited alimony.  Spousal support often lasts for 5-10 years, but then tapers off.  Having a career built up can help cushion against any drop in alimony payments.  It also provides a form of insurance in case your spouse becomes unable to pay alimony.

2. Social

Newly divorced people often say “I have so much time now!”  Even with childcare, a divorced individual has one fewer person to take care of in their lives.  Time otherwise spent in front of the TV with your ex-spouse is now your personal time.  This can feel incredibly liberating.  But it can also feel lonely.  So it’s important for you to have a plan for your future to help cope with your divorce.

How will you replace the social connections in your life?

• Close friends.  Do you have an existing friend group or one you want to reconnect to?  Science has proven that close relationships make people happy.
• Community groups. For the religious: churches and other religious organizations can be a great source for social connections.  For the musically inclined?  Local bands and musical groups.  Cards and games?  Check.  Ballroom dancing?  That exists too.  The list is endless if you know what you’re looking for.
• Family.  Divorce often provides a chance for family members to reconnect.  Given that half of all marriages end in divorce, there’s a good chance that a close family member has also gone through a divorce before!

3. Financial

According to studies, financial disagreements between spouses are the single best predictor for divorce. So for many, divorce means financial freedom.  Finally, an end to financial disagreements!  But now that you are in charge of your own finances, do you have a good plan in place?

Spending habits often need major changes after divorce.  All of a sudden, the disappearance of an income means you have to rely on yourself (plus any spousal and child support payments).  People are often surprised to find that expenses don’t turn out as expected either.  Many shared expenses get cut in half, but some (such as insurance and housing) might not decline as much as expected.

Coping with divorce means making a solid financial plan for your future.  A solid financial plan can help give you the confidence you need to move forward.

What to plan for

• Income. How will your income change over time?  Will you go back to school? Find a hobby that pays?  Or will you invest in some income-producing property?
• Expenses. Do you have a long-term plan for expenses?  Keep in mind the 80/20 rule.  The largest expenses (housing, transportation, insurance, healthcare, and food) make up 80% of people’s spending.
• Savings. Now that you are the sole beneficiary of your savings, will your savings change?
• Financial Goals. What do you want to accomplish financially?  After funding retirement and medical care, what next?  Charitable giving?  Estate planning?

How can a financial advisor help?

If you’re looking for advice about your own separation, a divorce financial advisor can help. At Jurnex, we are financial advisors who specialize in helping individuals and families considering divorce. We operate under a Certified Divorce Financial Advisor (CDFA) designation, which is a gold standard for financial advisors acting neutral third-party mediator in divorce cases.

Continue to Part 7: How To Divorce