Getting Divorced? Protect Yourself . . . and Your Money
"This book combines basic tax law with the practicalities of protective analysis and negotiation technique. It provides an extremely valuable 'thinking man's' checklist. Women should also find the book interesting reading." -DAVID CLURMAN, PHILLIPS NIZER BENJAMIN KRIM & BALLON LLP
"This is an invaluable treatise that guides men through every 'nook and cranny' of the divorce process, from the decision to split to its lifelong aftermath. I wish this book had been available twenty-five years ago when I went through my own divorce." -DAVID W. SMITH, PRESIDENT, AMERICAN SOCIETY OF CORPORATE SECRETARIES
You are not alone. The statistics are startling. Close to 50% of marriages end in divorce, and everyone-from your children to your spouse-will benefit from your preparation for the rough road ahead.
Divorce Rules for Men gives you hard-hitting practical advice, with numerous real-life examples, on how to save thousands of dollars on your divorce. It will give you information on finding the right attorney, filing procedures, negotiating an equitable property settlement as well as alimony or maintenance and child support, communicating with your children, and preparing for divorce court.
Authors Martin Shenkman and Michael Hamilton cover every aspect of the divorce process, including:
• What you need to know before filing for divorce
• Getting back on your feet afterward
• How to do your own divorce
• How to protect your assets
Don't go into a divorce proceeding unprepared. Divorce Rules for Men gives you all the information you need to get through the rough spots and come out ready to start a new life.
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About the Author
MARTIN M. SHENKMAN, CPA, MBA, JD, is an attorney in private practice in Teaneck, NJ, and New York City. His practice concentrates on divorce valuation matters, divorce tax planning, estate planning, asset protection, and tax planning. He is a regular source for numerous financial and business publications, including the Wall Street Journal, Fortune, Money, the New York Times, and others. Shenkman has written twenty-five books and more than 600 articles.
MICHAEL J. HAMILTON is a senior editor at a major trade publishing house.
Read an Excerpt
Before You File for Divorce:
What You Need to Know
Rule #1. Be Decisive about the State of Your Marriage
If you're not happy with your marriage, then do something about your situation. But don't cheat. Either work on your marriage or get out. Don't tell the women at the bar you're unhappy, tell your wife. Be honest with yourself and with her. Whatever the problem is-- whether you're not proud of her, or you don't like your sex life, tell her and give her a chance to change. Remember, it's cheaper to keep her! If you can fall in love and out of love, you can fall back in love again.
If you leave her for someone else, you're more likely to have an angry divorce. Men rarely leave a marriage unless another woman is waiting. Men just don't take this important advice, notes Lynne Gold-Bikin of Wolf, Block, Schorr & Solis-Cohen, in Norristown, Pennsylvania. This is why, she notes, the divorce process becomes so angry and costly. The ex-wife who has been betrayed will be bitter.
Rule #2. Don't Be Confrontational
"Compromise is better than confrontation," says Barry Croland, Esq., Shapiro & Croland, Hackensack, New Jersey. You're better off trying to build bridges, not battles. Whereas marriage may be about trust, divorce is not. Don't exacerbate the problems with vengeful or half-true statements, or baseless claims. "Take the high road, let your lawyers fight your battles," suggests Amy J. Amundsen. The acrimonious nature of divorce is a societal phenomenon that focuses on the negative and on the need to " win." This attitude doesn't help anyone. Instead, try to be honest about your own imperfections and take responsibility for the failure of your marriage. Consider reading a book about how to communicate and negotiate affirmatively and fairly. In most divorces, compromise is not what occurs; instead, a great amount of anger has to be diffused.
Rule #3. Don't Let the Divorce Process Become a War Zone
Recognize that in this process the deeper you get, the more you both lose. It's tempting, especially with a hard-nosed lawyer, to hold your ground, but you have to find a line that allows damage control. Try not to escalate your losses in an avoidable acrimonious situation, especially when it comes to your children. If things get hot, focus on what is in the best interests of the kids, not on the animosity. Ask yourself what's best for you in the long run, in particular for your relationship with your kids.
There's really not much you can do when your wife's lawyer is stoking the emotional fires. Lawyers will often feed into a wife who says "up the ante," "pursue him." You may not be able to do much to affect your wife or her lawyer, but you can still control your response, advises Stanley Teitelbaum, a psychotherapist in Teaneck, New Jersey. If your ex makes blatantly untrue accusations, don't take the bait. Don't play the game. Consider mediation, which can be less adversarial.
Rule #4. Keep Your Cool
"It's only a game, it's only a game, it's only a game." Okay, divorce is not really a game, but you need to keep some perspective if the divorce gets ugly. Your wife's attorney may coach her in ways to bait you by seeking out and focusing on your hot buttons. Their goal is to make you explode and engage in conduct that can be used against you in court. So close your eyes, calm down, recite your mantra, grit your teeth, and go on. Don't fall prey to intentional antagonism or baiting.
Take up Ti Chi, meditation, or whatever works for you, but ice down those hot buttons.
Control your temper; violence will only hurt you. Any violent act you commit against your ex-wife, no matter the circumstances, will work particularly against sharing time with your children and will dramatically harm you in any negotiations or court trial. No matter what the temptation or motives, control yourself. Never threaten your wife in any manner. A comment like, "If you leave you'll be a pauper," is inappropriate.
Write down a list of goals and read it each morning (more often if necessary). Committing goals to writing always makes them more attainable. Review the list frequently to embed it in your mind. Your list can include:
- I won't lose my temper no matter what my ex does.
- I will keep my eye on the long term: my new life and my children.
- I can't control the process, but I can control my reactions to it.
Rule #5. Don't Do Anything Illegal
"Your ex may have a voice-activated tape recorder she will use to get information on tape to use in custody or other situations," warns Barry Croland, Esq., a matrimonial attorney in Hackensack, New Jersey. And you might think it would help to have a tape recording of your wife saying: "You'll never see the kids unless you give me the money I want!" or "You can bet I'll tell the kids about you and your mistress." Although you might think that this would help convey a truer picture of her to a court, your tapes may differ greatly from what she says at a deposition or in court under oath. "There are big risks with this game because the judge may be turned off and it will be counterproductive," cautions Croland.
Before you even think about taping, consult your lawyer about the legalities and risks. Even if your lawyer says it's okay legally (which it may not be), consider what this will do to the divorce process. You're seriously upping the ante. If you're caught, your wife will know you're the sneaky, conniving, slime she thought you were. And she's probably right. Secretively taping someone is not the best way to build bridges toward a settlement.
Rule #6. Get the Skeletons out of Your Closet
If you have skeletons in your closet--whether financial or with blonde hair and blue eyes--discuss these up front with your attorney. Bombs exploding late in the game will be harder to contain. You are always better off planning up front with your lawyer how to deal with these issues. You may be able to avoid an ugly situation or at least control the damage. You don't want your indiscretion coming out for the first time on a nasty cross-exam by your wife's attorney after you've been on the witness stand for a long day. If you have children, spare them the additional anguish of having skeletons come out without warning.
Rule #7. Don't Push Your Wife's Hot Buttons
It's tempting. If you can make your ex-wife flip out, you'll get momentary pleasure, but in the end you'll get misery back. " Think in full circles," advises Michele Weiner-Davis. Don't be short-sighted for immediate gratification. "What goes around comes around." Your attorney's advice to take an action that you know will hurt, insult, or egg on your ex may be right from a strategic legal perspective, but for your mental health, you may have to stop fighting. You can win the battle by pushing a hot button (or lots of them), but you'll lose the war.
Rule #8. Clean Up Your Life
This means more than taking a regular shower. If you have an alcohol problem, prescription drug habit, or any substance abuse problem, clean up your act as quickly as possible. These matters will seriously jeopardize any custody negotiations or other aspects of the divorce. If you need professional help, get it. For example, if you undertake counseling and your wife doesn't, this fact could weigh positively in your favor at trial. If you need to take any steps to show your life in a more positive light, your lawyer may be able to guide you in doing so.
Assume that your wife is recording in great detail (she probably is!) every stupid and inappropriate act that you commit. So clean up your behavior. "Act as if a private investigator is following you," cautions Amy J. Amundsen.
Rule #9. Become a Model Citizen If You Aren't Already
Join a church, synagogue, mosque, or other religious organization, whatever is appropriate. Become active in your community and in worthwhile charity organizations; volunteer some time. Make a donation to several charities (even if they are modest in amount) to show your commitment to a good cause.
Carve out some time to spend with your children and document it. You can save stubs from basketball games, movie theaters, and other items in your photo album.
Be a good Joe and find objective ways to demonstrate it. The real benefit of all of these steps is that you really should be a good Joe anyhow. Giving to the community, becoming active or involved in spiritual matters, and spending quality time with your kids are really what life is all about.
Rule #10. Limit Future Involvement with Your Wife
To the extent feasible, try to negotiate as many arrangements as possible that give you a clean break with your wife. Opt for property settlements versus alimony to the extent you can. Negotiate detailed visitation and other specific rights and obligations to avoid future negotiations. Whatever you can do to minimize future involvements, especially financial, the better for you and your ex-wife.
Rule #11. Don't Assume Your Prenuptial Agreement Is Carved in Stone
If you have a prenuptial agreement, be certain that all the appropriate exhibits and financial disclosures are attached. If you didn't make adequate financial disclosures, or if your wife wasn't represented by her own lawyer, she will have a good chance of overturning it. If there are any questions about validity, changed circumstances, or other issues, address them up front as quickly as possible with your attorney. Get your records together to show that you made full disclosure when you signed the agreement and that your wife was represented by counsel, and collect any other items that will help uphold a prenuptial agreement.
Prenuptial agreements require care, especially in a community property state like California, observes Ginita Wall, an accountant in San Diego. "I had a client who kept his separate property in a trust in his name alone. He never deposited any community monies to the account, or so he thought. As it turns out, he had periodically loaned money from his trust account to the family to buy a house, take trips, and so on. When the community property had surplus cash, he repaid the money to the separate property trust. Even though he thought these transfers were simply loan repayments, the court characterized them as community property. He had to analyze years of statements and treat each repayment, and the earnings attributable to it, as community property."
Rule #12. Keep a Low Profile
If you are doing something stupid and inappropriate, at least have enough sense not to advertise. In too many cases, soon-to-be-ex- husbands have left a brazen trail of American Express receipts that have enabled investigators to construct a detailed schedule of their infidelity--from the restaurants, plays, and hotel rooms, to the purchases of negligees and perfume. If you are doing something that you shouldn't be doing, at least pay cash. If you want to advertise it, there are newspapers that will make it more obvious than the American Express receipts will at your trial.
Sound obvious and silly? You would be amazed at the stupid things people do. One husband moved to Arizona and argued that his business obligations prevented him from flying to New York for a deposition. When his business was appraised, the appraiser copied American Express receipts that his wife's lawyer used to reconstruct an itinerary listing hotels he stayed at, restaurants he ate at, and plays he attended while on little jaunts to New York City. The only thing the receipts didn't disclose was the name of his mistress. Don't be careless with the little things, they can be really telling.
"One husband had been having an affair for eight years before his ex found out about it," notes Ginita Wall, a San Diego forensic accountant. "The husband lavished his paramour with gifts and presents, jewelry, flowers, and other not-so-inexpensive trinkets. The wife tried to argue that the jewelry was marital property on which she should have a claim. To identify the information to proceed I contacted the various jewelers in the area. We eventually uncovered twice as many jewelry purchases as the wife had guessed!" The husband might have thought he was being careful, but the trail of credit card receipts, store records, and personal checks exposed him and his infidelity.
One of the most ridiculous situations involved a husband who kept photographs of him and his girlfriend in indiscreet poses in his night-table drawer. His wife innocently stumbled on them one afternoon while searching for their passports. Don't let your arrogance cause you to think you're not accountable, because you are.
Rule #13. Negotiate from the Positive: Concentrate on What You Agree on First
Begin with points you both agree on, even if they seem small. As you work out an arrangement, commit it to writing. It's a lot easier to sign off on one or two matters at a time than an entire divorce settlement because it allows you to build on agreements instead of focusing on disagreements.
Rule #14. Don't Threaten Your Ex-Wife
Violence or even threats of violence will cost you. All you have to do is make a "terroristic threat," and in some states, this alone is enough to get you thrown out of the house. This could be something as hyperbolic as "When you're sleeping tonight honey, I'm going to carve out your heart." But if your wife believes she is in jeopardy or if she is put into a state of alarm, or if she can convince a judge of either, you could be sleeping on the street. So zip your lip.
If you harass your wife, follow or stalk her, or make her feel she is in danger, that may also be enough, even without words, to get you thrown out of your house. You can be removed permanently! If you then violate the restraining order the court placed on you, you can be incarcerated. This is serious stuff. Some wives will try to bait their ex. False allegations have been made many times. Consider having a witness move into the house with you. It may help to divide the house up, as in the movie War of the Roses, to give each of you your own space. In some instances, if you are able, it may be best just to move out, suggests Lynne Strober, Esq., of Mandelbaum, Salsburg, Gold, Lazris, Discenza & Steinberg, in West Orange, New Jersey. However, such an approach creates two households which have to be supported. Photograph or videotape everything before moving.
Rule #15. Keep in Mind That Men and Women Approach Divorce Differently
Understanding these differences can help you get a better result, avoid setting your wife off, and limit the antagonism, notes Stanley Teitelbaum, a family counselor in Teaneck, New Jersey. Disentangle the financial side from the emotional side, he suggests. "Money is power and many men start to use money as their wedge to make their statement and they get lost in this. It becomes a whole power play." You must focus on what needs to be done to disentangle you and your ex so you can go forward. If you controlled your family checkbook and finances, you must turn over control of her financial life to your ex-wife. You can't continue to use money to control her. Divorce is often a charged negotiation process, and it's helpful for you to realize that you may be prone to operate in an emotional way; instead, operating from a perspective of somewhat detached rationality will help you get through this.
Rule #16. Know Your Stuff: What Does Your Wife Really Want?
The key to everything in your divorce is knowledge of the facts: finance, assets, liabilities, needs of your wife, concerns of the children, what the legal process entails. The importance to your wife of each element is essential if you want to minimize the trauma of the divorce process. Being a good listener is a vital quality to obtain the knowledge you need. You must also make a concerted effort to get informed. Organize your legal (wills, deed, etc.), tax (old returns, audit notes, etc.), and financial ( brokerage statements, investment materials, etc.) data. Understand what you have. Read, listen, ask, collect information. Divorce books, seminars, and help from your advisors can educate you.
Rule #17. Know What Your Household Expenses Really Add Up To
You may have tended to business and career matters and have no familiarity with household expenditures. Nevertheless, you must now acquaint yourself with the cost of running your home to participate intelligently in the child support and alimony determinations. If you don't and there is a disagreement over the stipulated amount, your wife may say: "I take care of the books and financial records and my husband doesn't know anything about it . . ." And your ignorance will make your position tenuous.
To be fair, you must understand what the family is spending for maintenance of the house, automobile expenses, clothing, and so on. The resolution should be predicated on facts, not supposition.
Rule #18. Be Familiar with Your Children's Lives
You should know your children's teachers, doctors, friends, school schedules, and after-school activities. It's never too late to involve yourself in quality time with your children. You can spend time with your child going to a sporting event after school or watch your child participate in some event. It's easy for a parent who works to consult a school schedule to find out what is going on.
If you are seeking custody, you need to be an active parent. Do you know who are your child's best friends? When does your child go to the dentist? How much time do you spend with the child? What position does the child play in Little League? You don't have to be involved in every aspect of your child's life, but being a substantial part of your child's life is what being a dad is about. Getting a lawyer who acts like a hired gun to pursue custody may work, but does it? What you should really want is a quality relationship with your children. To do this, you need to understand them and their lives. Know what is important to them. Earn custody, if you can, with caring and interest in your children, not through a legal battle.
When you get divorced, there is a redefinition of the previous relationships with your now ex-wife and your children. If you love the children and understand that there will be a redefinition, you have to involve yourself more in their lives and reassure them that they have no responsibility for what occurred and that both parents will be there for them.
Rule #19. Know Your Wife's Spending Habits and Budgets for Childcare Expenses
Men are often so busy working they leave all the paperwork to their wives. These men have no idea what assets there are, no clue as to expenses; some don't even know their own bank account numbers! You must be cognizant of these matters. During your divorce, you have to detail the expenses of the marriage. If you don't know what is being spent on groceries, clothing for the kids, and so on, find out. Many men cannot even guess what it costs to clothe a child because the mother has bought the kids' wardrobe. If you make a claim for expansive visitation, say 50-50, or even full custody, you have to be knowledgeable about the children's expenses. "You can't simply say that whatever the mother puts down on an expense statement is 'too much, ' that doesn't show any knowledge," notes Jonathan Pollack, a New York matrimonial attorney with Beldock, Levine & Hoffman, in New York City.
If you want to control child support payments and alimony payments and make the best case for child visitation or custody, get details on the direct expenses of the marriage, especially those of the child. If you've been making regular payments for specific direct expenses of your child, it is more likely that a court will permit this type of continued payment, rather than require you to make periodic lump sum payments that your ex, and not you, will control. "Alternatively, a father can't knowingly dispute what the mother claims the needs of the child are, if he can't present a legitimate argument of something different," says Pollack. The moral is if you don't have the details, your ex will have more control and money. Before you move out of the home, start going shopping with the kids on your own and involve yourself on an equal basis. Be aware of what the mother spends on the children. Did your wife spend within a budget when the family was intact? If she did, and you can prove it, you'll have a much better shot at controlling what she can spend after.
If you're not keeping the check register, try to. Examine canceled checks each month and keep a tally of basic expenses for the household, living costs, the children, and your wife.
If your wife has done all the shopping, begin to look at what things cost. "Wives frequently change spending patterns when they begin to suspect a divorce," says Pollack. The wives are told they are going to have to justify their expenses since this may affect their right to alimony or child support. The wives will be told that whatever they spend, they will get from the courts--so, many wives spend more!" This increased spending could obviously affect your finances adversely.
"Another problem," notes Pollack, "men feel guilty when they're the ones leaving. So what do they do? They buy more for their wives. The result is that this could support a higher alimony or child support payment later!" Meanwhile, because of anger over the deteriorating marital situation, the wife may take her frustration out on their credit cards. The situation can spiral out of control. Pollack sometimes sees this spending frenzy last as long as six months. "When you later try to reduce expenditures to something you can afford, it gets tough."
"If you think your paycheck is disappearing as fast as you deposit it, carefully evaluate expenses," cautions Pollack. " Try to get your wife, if she is dependent on your income, to budget." There is also a fine line between your being too lax, and being too miserly. "If you get too cheap, you may just push your wife to move for support even sooner," cautions Pollack. The ideal approach is to agree who will pay for what bills.
Rule #20. Know Your Wife's Financial Dealings
Be certain that you have knowledge, detail, and corroboration of your wife's independent income or separate assets, as this will be critical in the divorce process. Document your wife's expenses. (Does she rival Imelda Marcos with her shoe collection?) Any dissipation of marital assets can be vital to demonstrate. Unusual or wasteful spending, intentional damage to the marital home, or other waste may be helpful ammunition when negotiating maintenance or property settlements.
Rule #21. Know What Your Wife's Assets Are
Try to get a handle on your wife's independent assets: IRA accounts, pensions (there are often more than one account), inheritances, jewelry (especially gifts received that you may not be aware of ). The sooner you collect information, the better. The closer to the divorce you wait, the more difficult it will be to obtain facts. "Use some common sense when obtaining information," warns Pollack. "Don't get caught rifling through your wife's pocketbook. One husband was caught red-handed using a flashlight to search his wife's pocketbook late at night. The wife caught him looking through personal notes. This conduct underscored for the court the wife's claims that the home environment was so bad that the wife should be permitted to leave with the daughter."
When you're doing your homework, you're allowed to look at bank statements, canceled checks, and other marital financial documents, not your wife's private papers. For example, a canceled check to a bank you're not aware of could be a payment for a safe deposit box where jewelry or account books are stashed. Although you're entitled to get marital financial information through the discovery process, having it in advance can be helpful. If you can discreetly copy documents, these can serve as a test to see if you're getting all the information later. Also, this information can be useful to disprove later claims of the wife regarding her financial needs.
"Be alert for foreign accounts, cash in a safe deposit box, and other items which may be difficult to prove later," suggests Pollack. "Another trick is for your wife to prepay amounts to stores and services she uses regularly," notes Amy J. Amundsen.
Rule #22. Understand the Legal Process of Divorce
Understanding the judicial process will help you keep the lawyers and the process under control. Make sure to hire a lawyer who can explain both strengths and weaknesses of your case as well as your alternatives: mediation, arbitration, even therapeutic resolutions to solve issues relevant to your children. The best solution for custody cases and visitation can be a trained therapist. The court is not the best place if there is physical or sexual abuse, or a total denial of access to the children. It should be the last place someone goes as it relates to the children. The therapist will mediate and assist in establishing visitation. This practice is becoming more common because family court is often bogged down with so many custody cases.
Finding the right attorney for you is covered in Chapter 2.
Table of Contents
Before You File for Divorce: What You Need to Know.
Finding the Right Lawyer.
What You Need to Know before You Leave Home.
Communicating with Your Children.
Alimony, Maintenance, and Child Support.
Negotiating the Property Settlement and Debt Allocation.
Dealing with a Business or Professional Practice.
Tax Tips and Traps to Avoid.
Preparing for Divorce Court.
Getting Back on Your Feet after Divorce.
Handling Legal, Financial, and Other Problems That Don't End with the Divorce.
Recommended Readings and Additional Sources of Information.