POST DIVORCE CHECKLIST
Too often when a divorce is completed the parties are handed a Final Judgment of Dissolution and a copy of their Marital Settlement Agreement and nothing more. After many months of being under the care of professional counsel, financial advisers, mediators and mental health experts, the parties suddenly are left on their own to move on with their lives. In order to help with the transition, here is a list of items that should be considered after the divorce is final. For my professional colleagues, please print out the list from the link above and hand out to your clients. If you have other items that should be included on the list, please let me know and I will update on this site.
The first thing you should do at the conclusion of your divorce process is to obtain several Certified Copies of the Final Judgment. Review all of the paperwork carefully with your counsel to ensure you understand what you must complete under the Settlement Agreement and / or Final Judgment. While the list below is comprehensive, there may be additional items required in your decree that are not listed below.
- If you are feeling a sense of loss, grief or depression seek professional assistance or a support group to take care of yourself
- Take some time for a little personal self-care. Have a massage, visit a spa (yes even the guys enjoy this), take a short vacation or weekend break.
- Close all joint checking & savings accounts as soon as all outstanding checks and automatic payments have cleared the bank
- Open new checking & savings accounts
- Update automatic payments taken from your accounts with new account information
- Change named beneficiaries of retirement accounts & life insurance policies
- Create new Estate Plan (Will, Trust, Health Care Surrogate, Living Will & Power of Attorney)
- Ensure all prior Powers’ of Attorney are revoked in writing
- If Qualified Domestic Relations Order (QDRO) is required by Final Judgment, follow-up with Plan Administrator to ensure they are notified of the divorce and the QDRO is completed
- If there is to be a transfer of IRA funds the receiving spouse must open a qualified IRA to receive the funds and the distributing spouse must notify the financial institution to initiate the transfer
- Close all joint credit card accounts
- Change all passwords for online account access
- Request a final bill from your legal counsel and ensure it is paid
- Obtain a copy of your credit report 30 days after the final judgment to ensure that all joint accounts have been closed
- Close joint safe-deposit boxes & open new one in individual name
- Secure COBRA or other health insurance / notify employer of divorce if health insurance provided through employer
- Update auto, home owner & flood insurance records / secure new insurance
- Change beneficiaries on all life insurance, disability or other insurance policies
PROPERTY & ASSET RECORDS
- Sign documents to retitle cars, campers, boats, planes and other vehicles into individual names and file new title with DMV or other agency
- Record deeds transferring title to real property
- Notify utility companies if new name on account
- Ensure any funds held in escrow are transferred or returned (security deposits on rental property, utility deposits)
- Notify the Post Office of change of address and mail forwarding
- Arrange for the transfer of any personal property that must be distributed as soon as possible
- Update school records with name and address of both parents
- Update medical records with name and address of both parents
- Sign up for Our Family Wizard (http://www.ourfamilywizard.com/ofw/) or other program to manage parenting contact, children’s schedules, medical re-imbursement payments, etc.
- Set up direct deposit or Income Withholding Order for child support
- Update Social Security Administration
- Update driver’s license & auto registration with DMV
- Update bank and credit card records
- Update employment records
- Update insurance records (health, life, disability, auto, homeowners)
- Update IRS records
- Professional licenses
- Update Passport
- Obtain IRS Publication 504, “Divorced or Separated Individuals” for information about filing status, exemptions, alimony, QDROs, etc.
- Change your tax withholding allowances with your employer
- Use the IRS withholding calculator to determine your new withholdings (http://www.irs.gov/Individuals/IRS-Withholding-Calculator)
- If you are receiving alimony or self-employed determine if estimated quarterly payments will be necessary.
- Execute IRS form 8332, Transfer of Dependency Exemption, if required under terms of the Settlement Agreement / Final Judgment
Sharon O’Day, Esq., O’Day Resolutions, 2014
Florida Board Certified in Marital & Family Law, Supreme Court Certified Family & Civil Mediator
I often explain to potential clients that the divorce process is somewhat like a ladder. The rungs on this ladder relate to the formality involved in the process.
The lowest rung would be the least formal and would correlate to the couple that is able to sit down at the kitchen table and work out the details of their divorce between themselves. In Florida they could then use the forms published by the Supreme Court (found here) and file the case with the court for final approval.
The next rung would correlate to a couple that may need more assistance, a couple that may want help in drafting the agreement or who cannot calmly work out the details without some professional assistance. In this case the couple can employ a mediator and, with the help of a skilled facilitator, work out the details of their divorce. This couple may decide to each retain legal representation to review the agreement after it is drafted or even to attend the mediation, but they determine early on that they will not litigate and do not need court intervention to reach an agreement.
The next rung would be occupied by a couple that struggles with a lot of issues such as developing a parenting plan, division of assets and ongoing support. They may need more formal structure and advice from separately retained counsel. The problem is that many couples skip an available rung and end up consulting litigation lawyers who advise them to begin the litigation process. This is a problem because the couple have now developed an adversarial posture by filing accusatory pleadings. The attorneys, because of their training and historic roles, often serve to increase the conflict through adversarial style of advocacy. Even as the attorneys work with the clients to resolve the case, they are constantly strategizing how the case will be tried in court if resolution fails. The parties have missed the “next rung” on the conflict resolution ladder — collaborative representation.
In the case of collaborative procedure, the parties would each retain legal counsel but the attorneys would be committed to working with the other professionals as a team to resolve the issues and minimize conflict. Being a trained collaborative attorney I can tell you there is a substantial difference when the parties have one financial expert whom they both trust, one mental health facilitator whom they both work with and two attorneys treating each other with respect and working towards a settlement without any motivation to prepare for possible trial. It truly is a “paradigm shift” for the attorneys. The collaborative process should be considered as the next rung on the dispute resolution ladder prior to any advice to consider litigation to resolve the case. Not every case may be appropriate for collaborative resolution, but too often this option is not even presented to the parties and they miss the opportunity to maintain control over their lives and the outcome of their divorce.
Collaborative Practice is also very different from the mediations that take place after many months of litigation and trial preparation. Often the parties in these cases have attended temporary hearings where they have become agitated and hostile. They have exchanged adversarial pleadings and answered extensive discovery requests. By the time they arrive in mediation each side has developed a hostile position for the negotiations. Often these cases start mediation with each side sitting in separate rooms with their attorneys and the mediator shuffling back and forth doing the “give and take” dance with the parties. There is a reason that many mediators often start these mediations with the advice that “if you both leave here unhappy then we have a good agreement” The parties have often invested so much in the conflict that their compromises are painful and hard fought. This too is different than the collaborative process where looking for creative solutions starts from day one.
If the collaborative process is unsuccessful, the parties can still climb the ladder to the last rung and resort to litigation. The couple will then turn their lives over the the straight-jacket structure of the laws passed in the state capitol and the formality of a court room. Evidence will be restricted by rules and the judge will make the ultimate decisions about how to resolve the conflict.
“The dog’s agenda is simple, fathomable, overt: I want. “I want to go out, come in, eat something, lie here, play with that, kiss you. There are no ulterior motives with a dog, no mind games, no second-guessing, no complicated negotiations or bargains, and no guilt trips or grudges if a request is denied.”
― Caroline Knapp
It is a tradition in my family that, when we receive a new and somewhat complicated item, we often dive right in to assembling it without ever reading the instructions. This has often been to our own peril. The instructions are there to make your life easier. The same is true for negotiations. Hopefully you have had an opportunity to read the first four steps in the process as they are there to make the day of negotiations much easier. As a review, before you ever come to the negotiations table you want to assess your interests and the interests of the other parties. You then want to brainstorm options to meet the interests of the parties. You must then research the options to determine which ones are feasible and how well they meet your interests and the interests of the other party. Finally, before you begin the actual negotiations, you want to make sure that the ground rules of the process have been agreed upon. Once all of this is completed, it is time to negotiate.
You are well prepared for the negotiations by knowing your interests, your options and the tools that will get you where you would like to be. You must keep in mind throughout the actual negotiations that the ultimate goal is to reach an agreement or to know that you made your best effort but that an agreement was not possible. Not all negotiations will result in an agreement because one side or the other felt that they could do better without the agreement. However, if an agreement is possible you want to continually work toward the end goal.
Some feel that an agreement is only possible if everyone gives up something and no one leaves with everything they want. I find this type of “search for the lowest common denominator” type of negotiations to be defeatist. While compromise is an important part of negotiations, by working collaboratively toward meeting the interests of the participants, the parties can often find ways to expand the pie and meet the key interests of everyone. It is true that at times each side may have to compromise on some item that they wanted, these decisions can be made in the spirit of reaching a deal that will work for everyone. Some key elements to negotiations are to keep your emotions in check and keep your focus on the end results. It is often easy to become frustrated when the other side uses negotiation techniques that are counter-productive such as bullying, dishonesty, or focusing on the past as a victim. However, with some strategic planning you will hopefully be able to stay at the table and reach a satisfactory agreement even with the most difficult party.
The first step is to make sure that everyone has agreed to the issues to be decided. In mediation this is done by setting out the agenda. Even if a formal agenda is not decided upon, it is good for you to have with you a list of the items that you need addressed. The fastest way to destroy an agreement reached after long negotiations is to suddenly raise a new issue that has never been discussed until after the parties are concluding the negotiations and are ready to sign an agreement.
It is often good to start the negotiations by considering if there are items where the parties have an agreement or are close to an agreement in priciple. In a divorce if both parties agree that the children should spend equal time with each parent then this is an agreement that can be checked off the list. The parties may still need to discuss and agree upon the actual time sharing schedule, but the interest of the children spending equal time with each parent is a major decision. By reaching the easier agreements first you will develop some momentum towards addressing the harder issues.
Often inexperienced negotiators will ask “who should make the first offer?” There is some debate on this topic, with some experienced negotiators believing that the person who makes the first reasonable offer has established an “anchor” and is in a better position, while other negotiators prefer to allow the “other” party to make an offer so that they can counter close to their position and pull the first party to their ground. Entire books have been written regarding these strategies of negotiation. However, in the case of principled negotiations, the reality is that if each party is motivated to find an agreement then the order of the offers will not have as much effect as the reasonableness of each side to consider the interests and positions of the other.
As the negotiations move forward there are some strategies that help keep the process on track. The first is perhaps the most important. This is to keep your focus on interests and energy toward resolution. When you begin to feel anxious, angry or any negative emotion, step back and take a minute to process. The biggest impediment to productive negotiations is often the visceral reaction. For example, in a divorce negotiation if you ask for equal time sharing and your spouse responds by attacking you and criticizing the fact that you never took an interest in the children before and proposes that you should only have every other weekend with the children, it would be easy to respond to the attack and argue about who took care of the children more or attack back by saying that your spouse was always controlling of the children and never let you be a part of their lives. This will cause the negotiations to spiral into a battle for which there will never be a winner. The better response would be to take a minute to absorb what was said and think about your reply. Consider your interests (and your spouse and children’s interests) in the issue and develop your response. You may find that agreeing with your spouse that you did not put enough time into parenting in the past but discussing how you want to change this and feel that the children would benefit by having two actively involved parents is a better approach. Look at the full calendar and discuss how the time can be managed to allow each of you to have the most time with the children.
It is often also easier to consider each agenda item individually. Work out one item before moving on to the next. This will allow each party to focus their attention on the interests involved and avoid “cross contamination” of very sensitive or emotional items with the ones that may be easier to address. Keep in mind that not all negotiations must be resolved in one day. While simple issues may be addressed in one sitting, complicated negotiations such as divorce or other family issues often require several sessions to come to a complete resolution. If the parties try to cram all the negotiations into one day they may find that they are reaching agreement only to end the emotional roller-coaster or out of sheer exhaustion.
If certain issues seem impossible to resolve consider bringing in additional help. A respected neutral family member or spiritual leader or a professional mediator may assist the parties to break an impasse and reach a final resolution to the issues. Be cautious that the person selected understands that their role is to be a neutral facilitator of the conversation and not a “judge” or arbiter of the conflict. The confusion of the roles of a neutral is why it is often better served by a professional.
Next Generation Divorce of Sarasota & Manatee proudly presents “Interdisciplinary Family Law Collaborative Training”
If you believe, like many of your fellow professionals, that there must be a way to help people through the divorce process without all of the anxiety, stress and emotional turmoil of litigation, then you should join the forward thinking group of professionals practicing in Collaborative Law.
We are happy to announce that we are bringing Collaborative Law Training to Sarasota and Bradenton, Florida through a training being offered by Next Generation Divorce, our local Collaborative Law Group.
This training is for Attorneys, Psychiatrists, Psychologists, Social workers and LMHC Professionals,
Financial Planners & Accountants Interested in helping clients who want to have a divorce without litigation
At this unique training you will learn:
¨ The basics of the collaborative process
¨ The Skills to begin a collaborative case
¨ The Protocols developed for Family Law Cases
¨ The ethical considerations when working in the collaborative model
¨ The skills to work as a Collaborative Team
¨ The most powerful ways to deal with challenging situations
¨ The best ways to assist clients through collaborative process
Where: Holiday Inn, Lakewood Ranch
6231 Lake Osprey Drive,
Sarasota, FL 34240
Discounted Rooms available for out of town participants ($99 / night)
When: Friday May 16 & Saturday May 17, 2014
8:30 a.m. to 5:00 p.m.
Registration begins 8:00 a.m.
Cost: $495 if registered before April 25, 2014 / $545 if registered after April 25, 2014
Includes continental breakfast, lunch and afternoon snacks each day
Trainers: Collaborative Law Training Associates, Inc. of Atlanta, GA.
Seats are limited so please respond early! We know this will be a sold out event.
Pending approval of Florida Legal, Mediation, Mental Health and Financial Professional Continuing Education units. This training meets the requirements for membership in local Collaborative Law Group.
For a registration form or further information, please contact me directly: Sharon O’Day, firstname.lastname@example.org / (941) 228-8571
Lawsuit: A machine which you go into as a pig and come out of as a sausage.
The front page of the Sunday Sarasota Herald-Tribune was filled with an extremely sad story entitled Love & Lawsuits, by Barbara Peters-Smith. (http://www.heraldtribune.com/article/20140406/ARTICLE/140409778/2416/NEWS?Title=First-came-love-Then-the-litigation-) The subtitle says it is the story of “a Longboat Key couple found true love late in life. But what might have been a happy ending has instead morphed into an epic lawsuit with millions of dollars on the line, and long, bitter legal arguments made mostly by strangers.” The story covers much of the front page and two full interior pages and I highly recommend that it be read in full to have a complete understanding of the facts and issues. For purposes of this brief post, the important facts are that after many happy years of marriage, allegations have been made that the elderly couple suffered from dementia and that relatives began to take advantage of them financially. Both the Husband and Wife had attained some level of wealth, although the Wife was substantially better off than the Husband. The allegations are that the Husband’s family members then began to take advantage of the couple and had transferred millions of dollars from the Wife, through the Husband to the Husband’s relatives.
For purposes of this post, the cautionary tail that I see is how the internal problems of this blended family have turned into a very public and very expensive legal battle, destroying any hope that the couple had to live out their final years in happiness together. The family members have now divided the couple and each lives near relatives but apart from each other.
On one side it is easy to say that this couple had done everything right as befitting their wealth. They had a prenuptial agreement and estate planning documents. They reviewed and updated these documents as needed. However, the allegations are that by 2005 the Wife and perhaps the Husband were suffering from early stages of dementia and some relatives began to take advantage of them. My first concern from this is why did it then take six years for any relative to realize what was going on and intervene. I do not mean this to be as judgmental as this may sound. I realize that every individual and every family is different in how they address financial issues, but in this case perhaps the long costly court battles could have been avoided had there been more direct involvement and conversations when concerns were first noticed of the couple’s failing health.
My second concern is that mediation did not take place in this case until after it had been pending for over two and half years. The mediator in this case is extremely professional and one of the best around. Unfortunately the case did not settle. The timing of a mediation is a careful balancing act. Often if the mediation is set too early the parties may not understand the full ramifications of the case and be unwilling to settle. However, if it is set too late, after each side has become cemented in their positions and invested vast amounts of money in the litigation, they may be too entrenched to consider settlement. However, mediation can begin early and continue throughout litigation. Much of the issues provided to the judge can be resolved through careful mediation. There does not appear to be other forms of alternative dispute resolution services employed in this case. The end result is a legal battle played out in public and the concerns for the elderly couple seems to have been lost in the process.
The law suite was filed in May 2011 and now has 1,675 docket entries (that is documents filed, orders issues, or notices of court hearings, etc.) There are fifteen lawyers involved in representing parties to this case. The case will have taken over three years from start to finish and that does not include possible appeals from the final decision. Two of the defendants have died and one of the previous attorneys is now allegedly suffering from dementia as well. Ours is a wonderful legal system but this case shines a bright light on the deficiencies of the system. I have seen divorces take on a life of their own and spiral out of control. It appears that this very sad guardianship case has done the same.
Please watch my video for an overview of collaborative law and why it is a better way to obtain a divorce:
“Be prepared and be honest” John Wooden
One of the most common questions I am asked during an initial consultation with a new client is “how much is this divorce going to cost me?” I completely understand the concern that most clients have about the financial costs involved in a divorce including the costs of the attorney, other professionals, and the court fees. There are other costs that you should consider as well, such as the time away from work or family, as well as the emotional and psychological costs to you and your family. So, the proper question to ask is how can you minimize all of these costs associated with divorce? Here are my top five suggestions:
♦ Prepare! The number one thing that anyone can do before beginning the divorce process is research and prepare. You want to learn all that you can about the process and your options. You want to learn about options such as mediation and collaborative divorce. You also will want to also know as much as can about your family’s finances. A good list of documents that you should have available can be found here. These are the Mandatory Disclosure documents in Florida and are a comprehensive list of documents that will give you a good picture of your family’s income and expenses. In addition, preparing a family budget will give you a good idea of your family’s income and support needs after the divorce. You will also want to prepare a list of your family’s assets and their net worth as well as a list of the outstanding debts and liabilities owed by your family. A good way to consider all of these issues is to prepare a Financial Affidavit form which asks you to consider your income, expenses, assets and liabilities. (A Florida Financial Affidavit can be found here.)
♦ Fix your priorities. Everything does not have to be a battle. If you have children, your first priority should be to shield the children from the litigation and emotional strain of the divorce. Your next priority should be to move through this process with as little emotional and financial suffering as possible. It is often easy to let your emotions take control over the process and make decisions out of anger or frustration. This can often be a costly mistake. With the goals of shielding the children and obtaining a smooth divorce you can then prioritize the issues of your case easier. Remember, the less you disagree about, the less the divorce will cost you. If you find setting your emotions aside as you negotiate difficult, you may want to consider a hiring a counselor or coach to help you through the divorce process.
♦ Negotiate! The costs involved in a litigated divorce can be staggering. It is not unusual for a litigated divorce to cost tens of thousands of dollars for each side. And this does not consider the destructive emotional costs involved in litigation. The most efficient way to avoid the extreme costs of litigation is to negotiate early and often. As you negotiate keep in mind your priorities so that you don’t become embroiled in a fight over certain issues simply because your spouse “pushed your buttons”. It is also important to keep in mind that the research you conducted early will allow you to have a stronger position in the negotiations as you will be well informed about the reality of your family’s financial situation.
♦ Consider alternative forms of resolving the case. If you and your spouse are able to negotiate effectively alone then this can result in an extremely low cost divorce with the attorneys only involved in drafting and reviewing the agreement and filing it with the court. If you need more help with the negotiations consider hiring a qualified mediator or collaborative attorney to assist you with the negotiations. By avoiding litigation, you are eliminating the high costs of depositions, court hearings, expert witness fees, and other fees associated with litigation.
♦ Be conservative with your professional’s time. If you hire a professional mediator or attorney to assist you with your divorce, you must first ensure that you enter into contract with the professional that outlines exactly how you will be charged. In almost all cases the contract will detail hourly billing for the professional’s services. You now have control over how much the professional charges by how much you require of their office. If your attorney requests you provide documentation required to provide to the other side, then gather the information requested, organize it and provide it to the attorney in an efficient manner. The same goes for forms that your attorney requests you fill out. Also, if you have questions, it is often better to keep a list and once a week send an e-mail with the list of questions and a request that you set a time to speak to your attorney to discuss these. The attorney may be able to answer many by return e-mail or may find that setting an appointment to speak is more efficient. In either case, your attorney will have an opportunity to properly prepare for the questions and answer them in the most efficient manner. Also, be aware that many attorneys have paralegals that can assist you with basic work at a much lower hourly rate.
There is no “standard fees” for a divorce in most cases. And there may be aspects of the costs your divorce over which you do not have control. In some cases one spouse may be unwilling to negotiate in good faith and want to force the case to a trial. However, the more responsibility you can take over the aspects of your divorce, the less the overall cost will be.
Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the law. The job of a judge is to apply the law. Justice Sonia Sotomayor
Throughout the years that I have been practicing in Family Law, I have had a few clients who refused to negotiate and would instead demand to have “their day in court”. Their theory was always that, once the judge heard their story, the judge would be so moved that my client would get whatever it was they wanted. I often had to inform my clients that, no matter how moving their story was, the judge just could not give them what they wanted. In most cases this was because the law did not provide the relief they expected or thought was fair. Here are a few of the things that the law in Florida does not provide for:
Visitation or “shared parenting” of pets. Under Florida law, Fluffy is just a piece of property to be distributed to one party or the other. I love my dog and I love my cat and I have even loved my daughter’s snake, rats and other various creatures that have filled our house with love. If I found myself in a situation of a divorce, I would want to make sure that my daughter and I could continue to have regular interaction with our pets (although I admit, some more than others). However, under the equitable distribution laws, the pet is given a value and that value is placed in the column of the party receiving the beloved pet. The judge simply cannot order that the other party have visitation or any other “contact” with the pet after it is “distributed”.
College tuition or child support past high school. Except in the most extreme situations of continued dependency, Florida law provides that child support ends when the child turns 18 years of age unless then child remains enrolled in high school with an expectation of graduation prior to their 19th birthday. Even if the child remains enrolled in high school but will not graduate until after their 19th birthday, child support does not normally continue. This is different in some other states, but Florida does not provide for college support or support past 18 years of age in most cases.
Continued joint ownership of a family business. Florida law states that once you get divorced the idea is to separate such things as ownership of property and businesses. Therefore, if the parties are not in agreement, the court will not order that they remain co-owners of the family business. This means that one party is more than likely going to have to buy out the other party.
This is just a sample. There are many more examples of things a judge cannot order because the law does not provide the option. There may be exceptions to any one of these rules (after all, every good rule has an exception). However, in most cases, Judges are not going to create new law or make a special exception for your family. The one way to ensure that you achieve these and other creative solutions that meet your family’s needs is to come to an agreement through negotiations. The best way to increase the chances of a negotiated settlement is to start from a non-adversarial process such as mediation or collaborative law. With the skilled assistance of a good mediator or collaborative team, your family can come up with very creative solutions that meet all of your family’s needs and desires. This is why alternative ways to resolve these disputes is often referred to as the way to find “win-win” solutions.