Divorce and Child Custody: What you need to know

June 1, 2016

If you are separated, divorced, considering divorce or currently in the process of divorce, you know that the divorce process can be extremely confusing and, at times, complicated.  If you and your spouse have children, you may have even more issues to sort through. There are many legal and financial issues to navigate, but the most important thing to know is that you are not alone.

Fortunately, there are professionals who can help guide you through the process. My goal today is to help you understand the important legal and financial issues surrounding divorce and custody. To help with this process, I sat down with attorney Jasmine Elatab, Co-Founder of Advocates for Transformative Justice (ACT Just). ACT Just is a non-profit law firm specializing in family law serving clients based on their ability to pay. Together we discussed the many layers of divorce proceedings, including finding a lawyer who is right for you, the time and cost involved for each step, and the associated financial implications for you and your children.

Kelly: Let’s start with the basics. Walk us through the basic steps of the divorce process. What should one expect?

Jasmine: First let me explain that there are two types of divorces in Massachusetts:  A joint petition for divorce and a contested divorce.  Depending on which avenue you pursue, the length and litigation can differ greatly. If you and your current spouse agree about how everything can be resolved relating to your marital assets, debt, the parenting time with children, support, and other relevant issues, then a joint petition can be filed with your separation agreement. If there is a disagreement about any of the issues, a contested divorce will be filed, and the Court will make a determination based on the disputed issues.  A contested divorce can take much longer – the length of time will depend on how much the parties disagree, but usually at least a year. Regardless of which option you choose, both parties will have to disclose all of their finances to the court in a detailed financial statement. These forms can be complicated, so it is a good idea to consult with an attorney at the beginning of the divorce process to make sure you make the appropriate disclosures. If there are children of the marriage, the court will make all decisions based on the best interest of the child. This means everything is considered –from basic parenting decisions, to where the child lives, and how much support is to be paid for the child, etc. That’s the very short of it.  Anyone with children knows that there is a laundry list of things to consider: school district, extra-curricular activities, holidays, college savings, parental life insurance, and even who pays for haircuts.

Kelly: Given the emotional toll of the divorce process, what would you say is the most important thing to consider when looking for an attorney? And how does one begin the search if they haven’t previously used an attorney?

JE:  Easy answer – finding someone you trust and with whom you can communicate openly. This is ALMOST as important is finding someone who will advocate for your interests.  It is an attorney’s job to explain all of your options, but you should feel comfortable enough to voice your goal and ask your attorney to help you reach that goal. A good place to start is by asking friends. Usually if someone can recommend an attorney, that means they’ve done a good job for that person. If none of your friends have gone through a divorce, asking any lawyer, regardless of their practice area, is another starting place.  I usually find that the same lawyers are recommended over and over because they have a good reputation in their field.

Kelly: I have seen people move out the house and separate bank accounts before seeking representation. Should one look for an attorney before then? At what point should one seek advice? Will it have an impact on the length of the divorce or custody process? What determines how long the whole process will take?

Jasmine: It comes down to personal choice. There are many factors that go into deciding the appropriate time to file for a divorce. Everyone has their own personal set of circumstances. I would suggest seeking the advice of an attorney once you are committed to filing for divorce. The attorney will be able to tell you the appropriate next steps and how, if possible, you can achieve your goals through the divorce.  I think, as a public audience, we tend to see and hear about the messiest divorces. In reality, the length of the litigation comes down to the number of issues to be disputed between you and your spouse.  If every single issue is disputed, it can be drawn out for years because the court will have to step in and make a decision about each issue.  Judges love to see parties act reasonably and come to a fair agreement beforehand.  Especially at the most emotional times, having another person to ground you – a role your attorney can play – can really go a long way in reaching your goals.

Kelly: The process of divorce can have a huge financial impact on accumulated wealth, from dividing assets to determining who will be responsible for debts, which can be a far more difficult topic. I advise clients to review and evaluate all debts, including lines of credit, and to narrow the use of credit cards. Tell me what each person is legally responsible for and what steps should be considered.

Jasmine:  Any assets or debt that was acquired through the marriage becomes part of one “pool” so-to-speak.  This can include any real estate, investments, 401(k)s and pensions, and will also include any debt accumulated throughout the marriage, from credit card debts to loans on property. Keep in mind that once a Complaint for Divorce is served, there is an automatic freeze on all finances, which means assets cannot be touched or moved.

Kelly: Because people often get caught up in the issue of division of assets, many don’t think about the tax impact of the divorce. From a planning perspective, we would review the tax exemption if dependents are involved and who will be able to claim the Head of Household status. Do you have any advice for newly divorced parents and how to determine their tax situation?

Jasmine: There are number of different options that your attorney can educate you about when deciding which parent will claim a child as a dependent when filing taxes. Significant considerations include how much you and your spouse earn, and where the child is primarily residing. Another important thing to keep in mind is that if alimony is involved, the recipient has to claim the payments as income, but for the payer it is tax deductible. On the other hand child support is treated very differently.  Child support is never classified as income nor is it deductible.

These difficult life transitions can be emotionally draining, and we will do our best to help you understand the legal process and resources available. If you are a parent in the early stages of a divorce and/or are experiencing child custody issues and have specific questions, please contact Willow Planning Group for a complimentary consultation.