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.
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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.
DISCLAIMER:
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.
Call to schedule a consultation or
for further information:
201-801-0455
email: jonathan@jdgordonlaw.com
Web Sites:
www.jdgordonpsych.com
