Should I Get Divorced?

03 Oct Should I Get Divorced?

Posted at 07:47h in Divorce Law by Rachel King 1 Comment

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Questions to Ask Before Divorce

I always tell clients that the hardest question to answer in the divorce process is: “Should I get divorced?” For many couples and spouses, they are unsure if divorce is the right answer. It is our job as attorneys to help clients make that decision by looking at all the issues in the divorce rationally, rather than emotionally.

To do so, we help clients evaluate those issues so they can answer the question as if they are making a business decision. Below is a list of divorce questions that every client should know the answer to before answering the question, “Should I get divorced?”

Do You Have Children?

In cases with children, custody is always the most important issue. When it comes to your children, you need to make sure you know the answers to the following questions:

Will my children live with me?
Splitting into two households sometimes means there’s one parent with primary custody. Where (and who) your children live with post-divorce are important questions and can affect whether or not some marriages break apart. If you can’t bear the thought of your children not living with you, you may not be ready to legally end your marriage.
Will I have to share custody of my children with my spouse?
If both spouses, for all intents and purposes, are “good people,” a judge may award shared physical and legal custody to both parents. In some cases, you and your ex-spouse might come to an understanding that shared physical and legal custody of your children is in their best interest prior to divorce court.
If my children do not get to live with me, how often will I get to see my children? How often will my children get to spend the night at my house?
For many parents, their children not living with them is their biggest fear when considering divorce. Custody orders determine many answers to these types of questions. If you and your ex-partner cannot come to a custody agreement outside the courtroom, there’s a possibility that a judge may not award you (or the other parent) shared physical custody. A judge’s highest priority is making the right decision for the children.
Who will get to make major decisions about our children, specifically those decisions that relate to my children’s academics, medical/dental care, religion, athletics, and cultural/civic activities?
No parent wants to feel like they don’t have a say in the major decisions of their child’s life; however, without joint custody, the final say may be up to your ex-partner.
Who pays for the children’s living expenses and how is that paid?
You want to ensure your children have everything they need and that their lives are disrupted as little as possible by the divorce process. Ensuring you and your ex-spouse are on the same page about child support is one way to do that.

Spousal support or alimony is usually the next big issue in most divorce cases. Before deciding to get divorced, every client should know the answers to the following questions:

Will I be entitled to receive alimony, or will I be obligated to pay alimony? If so, how much and for how long?
The end of a marriage doesn’t automatically mean alimony for the ex-spouse. It all depends on the circumstances. You’ll want to thoroughly consider the long-term financial challenges you might face post-divorce and whether or not you can afford all the expenses of life on your own.
Can this amount of support change in the future based on financial obligations, economic conditions, etc.?
The court determines spousal support, or alimony, based on a number of factors. However, this number can be changed or the alimony can be terminated completely under certain conditions.

Do You Own a Home?

For parties who own a home, these are the questions you need to ask before you decide to get divorced:

Will I be permitted to reside in the home during the pendency of the divorce?
Not everyone has the support system or financial ability to move out as soon as one spouse decides they want to end the marriage. Figuring out living arrangements in the meantime can get complicated.
Will I get to keep the home, or will it be sold? If it is sold, will I receive any proceeds from the home?
The answers to all of these questions depend on a variety of factors. Deciding who gets the house doesn’t have to be up to the court. If you and your ex-spouse can set your feelings and negative emotions to the side and decide how to fairly divide up the property, that can resolve a lot of financial stressors. However, oftentimes, just the opposite happens.
If I get to keep the home, will my spouse have to execute a deed to transfer the house to me?
Yes, the spouse giving up the home should sign a quitclaim deed to avoid any contest issues about ownership in the future.
If the home is sold, how are decisions made regarding the listing agent, listing price, etc.?
Most couples work together and come to an agreement on a listing agent. You should both trust their advice on the suggested listing for the home.
Will I be responsible for any repairs to the home during the pendency of the divorce?
If you own the home with your spouse, it is usually up to both people to pay for repairs to the home.
Will I be permitted to claim the mortgage interest and real estate taxes on my income tax returns?
If you own the home jointly, you are entitled to claim half of the mortgage interest and real estate taxes on your income tax returns.
If there are capital gains from the sale of the home, will I be responsible for paying those?
Likewise, if you still both own the home together and make a profit from selling it, you are obligated to pay half, or a mutually agreed upon amount, of the capital gains tax.

What About Health Insurance?

Whether you have children or not, health insurance should be a top concern for all clients. In order to make sure you are protected after a divorce is filed, make sure you know the answers to the following questions before filing for divorce:

Will I and/or my children be covered by insurance during the pendency of the case? If I’m providing coverage for my spouse, will I be required to maintain coverage during the pendency of the case? If so, for how long?
Who will have to pay for any uncovered medical expenses incurred on behalf of myself and/or the children?
What happens if my spouse drops me and/or my children from insurance during the pendency of the case?

Answers to questions about health insurance coverage during divorce proceedings are often handled on a case-by-case basis. For answers more specific to your situation, you should contact an experienced divorce lawyer in the Birmingham area.

What About Tax Returns?

Lastly, a major issue in divorce cases has to do with the filing of income tax returns. Before deciding to proceed with a divorce, make sure you can answer the following questions:

What happens if there is a refund due on a past tax return that was filed jointly by my spouse and me?
What happens if there is a deficiency owed on a past tax return that was filed jointly by my spouse and me?
Can I file a joint tax return while a divorce case is pending? If so, who receives the refund or pays the deficiency owed?

Likewise, figuring out tax returns during or post-divorce can be a complex matter and is often dependent on individual circumstances. Get more personalized insight by contacting an experienced divorce attorney in the greater Birmingham area!