File for Divorce Now—or Wait?

by Obermayer Rebmann Maxwell & Hippel LLP

Leave or StayMany people struggle emotionally with the decision to file a divorce complaint.  Divorce is not something that anyone pursues lightly. Most people want to be sure that they have exhausted every effort to work issues out with their spouses before they file for divorce. For those people who are struggling with the decision, attention should be paid to some practical considerations.

Is my spouse hiding assets from me? This is a huge concern. If a spouse is suddenly wiring funds to family living overseas or if funds are simply disappearing and are unaccounted for, a complaint for divorce should be filed as soon as possible. Divorce attorneys can assist you to hire a forensic accountant or can subpoena a spouse’s employer to try and trace missing assets or income, however, this is costly and sometimes it is not possible to discover every missing asset or hidden income.

Is my spouse running up our credit card debt or incurring judgments and liens against us? Most states define marital property and marital debt as any property or debt acquired after the parties are married and prior to the date the complaint is filed. If your spouse is running up credit card debt, failing to pay income taxes or failing to pay other debts, a complaint for divorce should be filed as soon as possible to limit what debt you must share with your spouse.

Am I or is my spouse contributing to a pension or a 401(k)? In most states, a spouse will receive 50% of a retirement asset, such as a pension or a 401(k) for the portion of that asset, which is acquired between the date of the marriage and the date of the divorce complaint. Some people have no idea that they have to share the marital portion of their retirement assets with their spouse in divorce. If you work for an employer or union, which still has a pension plan for its employees or if you are contributing to a 401 (k), a 403 (b) or some other defined contribution plan, you may want to file for divorce sooner, rather than later.

Will I owe alimony to my spouse? The length of a marriage is one of the most important factors in any alimony determination. It may not be in your best interest to wait a few more years to try and work things out, especially if you live in a state where the length of a marriage is linked by either statute or case law directly to increased alimony awards. One example of this is New Jersey, where legislation is pending to set a limit on “permanent” alimony awards by limiting the term of alimony for those marriages that are less than 20 years in length. If your marriage is in serious jeopardy and if you earn significantly more than your spouse, it is worth at least meeting with a divorce lawyer to find out how your state determines alimony, so that you can make an informed decision as to whether to attempt to reconcile or file for divorce.

"There are numerous other considerations, which go into the decision whether or not to file a complaint for divorce, such as whether domestic violence is occurring in the household and the affect that a divorce will have on your children. Even if you are not sure whether or not you are ready to file a complaint for divorce, it is always helpful to consult with a divorce attorney, so that you can figure out your legal rights and obligations and make an informed decision.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

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Obermayer Rebmann Maxwell & Hippel LLP

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