Thursday, May 8, 2008

I do not want a divorce, but my spouse does. . .

Dear Famularo & Associates-

I do not want a divorce, by my wife does. We are still living in the same house, but my wife promises that she is going to file for divorce soon. I want to try to work on our marriage, and I have begged my wife to go to marriage counseling with me. My question is: how can I protect myself in case my wife files for divorce without actually having to get a lawyer?

--G.T. in Temecula

Dear G.T.-

If your wife wants to get a divorce, you cannot stop her from obtaining one. In California, anyone can obtain a divorce for any reason, even if one spouse does not want one. This is the concept of a "no fault" state. This does not mean that you should be the first to file for divorce if you do not want one. You should not help your wife dissolve your marriage being the one to pursue the divorce. However, if your wife does decide to file for divorce, you should take some simple precautions to make sure you are prepared.

Namely, you need to separate your finances from your wife's to protect your assets in a divorce. You need to make sure you obtain a separate bank account, and begin depositing all your paychecks in the new account. You should cancel all joint credit cards and open up new ones in your name only. Also, separate your cell phone plans, your car insurance policies, and any other joint accounts that you might have.

Make sure that you begin gathering financial information. Keep copies of your income tax returns, your spouse's W-2 forms, monthly statements, retirement accounts, bank accounts, loan information, insurance policies, and other important documents in a safe place. You will need this information if you do actually end up getting divorced.

Unless there is domestic violence in your relationship or you are afraid of being falsely accused of domestic violence, you should not move out of the family residence. Let your spouse be the one to move out of the house if she is the one determined to get the divorce. This is especially important if you and your spouse have minor children together.

Finally, if you do have children and your spouse is intending to move out of the house with the children, make sure that you have a satisfactory custody and visitation schedule.

The general rule is that the person who wants the divorce should be the one to file. However, there is one exception to this rule. If you and your spouse have children together and your wife is denying you visitation or intends to move away with your children, you will need to file for divorce immediately.

Many people believe that the person who files for divorce has a legal advantage over the other spouse. This is not true. If you choose to take these simple precautions, you will be in a favorable legal position if your wife does, indeed, decide to separate or file for divorce.
-- Famularo & Associates

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