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Sometimes you can see a divorce coming, sometimes you cannot. But if you see that a divorce is imminent, there are some important things that you can do to improve your situation when things get difficult. I found a good article by Debra J. Braselton, Esq. at Divorce HQ that lists ten things to do if a divorce is imminent, and these are especially true in West Virginia divorce cases.
1. Consult an Attorney
Becoming informed about your legal rights and responsibilities is the most crucial step in the divorce process. An experienced divorce attorney will be able to counsel you on the law as it applies to the facts of your situation and advise you on the best way to proceed (or not proceed!). One example is illustrative. You and your spouse are constantly fighting and the arguments are causing great distress to your children. Your spouse refuses to move out. You decide to take the children and live at your parents’ house until the divorce is final, at which time you will move back to the marital home. From a legal point of view, moving to your parents’ home, even temporarily, could be a huge mistake. This is just one of the many things a divorce attorney will discuss with you during a consultation.
2. Copy Documents
A little planning goes a long way in this area because it is much more difficult to obtain these documents through discovery procedures at a later date. Go through the household files and make copies of everything you can find: tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, mortgage documents, financial statements, credit card statements, wills, social security statements, automobile titles, Etc. If your spouse is self-employed, it is important to get as much information about the finances of the business as possible. If you are unaware of the family finances and haven’t yet discussed your plans for divorce, the best source of information may be your spouse. Suggest that you and your spouse do a financial statement so that you are both aware of the family finances. Don’t forget to check the home computer as a source of financial information. Many people keep track of their finances using spreadsheets or budgeting software. Make copies of any financial data stored on your home computer.
3. Inventory Household and Family Possessions
You need not make an exhaustive list including every single kitchen utensil, but do list the major items: furniture, artwork, jewelry, appliances, automobiles, etc. Don’t forget to check the storage areas of your home and your safe deposit box for valuables.
4. Know the Household Budget and Expenses
If possible, go through your check register for the past year and write down the cost of each utility, mortgage and other household expense for each month. Keep track of the cash you spend on a daily basis so that you’ll be able to ascertain your monthly cash expenditures also. Knowledge of your household expenses is important at the beginning of the case, when temporary support is often an issue. It is also important during settlement of the case, when you will make a realistic appraisal of your ability to afford the home after divorce.
5. Determine How to Manage the Family Debt
If possible, sit down and determine the amount of family debt and consider paying it down before divorce. Allocation of marital debt among divorcing spouses is one of the most difficult items to negotiate. The funds that were formerly available to support one household must now support two households and there is less money available to pay off debt. If you have the leisure of planning when you will initiate divorce proceedings, pay down marital debt before filing for divorce. Consider canceling credit cards if your spouse has a bad spending habit. This will, hopefully, minimize the financial damage that your spouse can do during the divorce. While taking stock of debt, determine whether any of the debt was incurred by one spouse or another prior to the date of marriage. This would be considered “non-marital debt” and it belongs to the spouse who incurred it.
6. Find Out Exactly What Your Spouse Earns
If your spouse earns a regular salary, it is easy to look at a pay stub to determine his/her income. However, if your spouse is self-employed, owns a business or gets paid any portion of his/her income in cash, it is much more difficult to determine his/her income. If your spouse has a business partner, you may be able to learn how the partners are paid during a casual conversation with the partner. If your spouse is self-employed or gets paid in cash, keep track of the money flowing in for several months.
7. Make a Realistic Appraisal of Your Earning Potential
Perhaps you have been out of the workforce for a while and have been devoting yourself to childrearing. Assess what your current employability is and whether furthering your education prior to divorce would benefit you in the long run. Perhaps your current job requires extensive travel and your spouse is the one who looks after the children while you are traveling. Is it realistic for you to continue to travel after divorce when you won’t have a spouse to provide childcare? If additional childcare will be necessary after divorce, explore what types of childcare are available in your area and what the costs are.
8. Examine Your Own Credit History
If you do not have credit cards in your own name, apply for them now, use them and establish your own credit history. If you have a poor credit history, try to pay creditors now and improve your own credit rating prior to divorce.
9. Build a “Nest Egg” of Your Own
Even if divorce is a remote possibility, you should always have access to money of your own. If your spouse moves out and stops paying bills, you will need to pay them until temporary support orders can be entered. If you are the one who is going to file for divorce, you’ll need money for a retainer. If you envision moving out of the marital home, you may need money for a security deposit and for household items. Start saving now and plan to initiate divorce proceedings when you have built up a nest egg of
your own.
10. Put Your Kids at the Top of Your Agenda
As you realize that a divorce is imminent, you will undoubtedly spend lots time researching, collecting documents, interviewing attorneys, etc. Even though these activities take up much of your time, you must still put your children first. Of all of the parties to a divorce, children are the ones who often suffer the most. During the divorce process, keep your children’s routines as normal as possible. If you and your spouse are arguing in front of the children – stop. If you and your spouse cannot be together with the children without arguing, create a schedule of separate times for each of you to be with the children. Stay involved (or become involved) in your children’s school, sports and social activities. Do not badmouth your spouse to your children. Do not use the children as your source of psychological support. Children need and deserve the love and attention of both of their parents before, during and after divorce. Put your children first in your life.
Source: Debra J. Braselton, Esq. article at Divorce HQ
On what grounds can I be granted a divorce in West Virginia?
The grounds for divorce in West Virginia are contained in W. Va. Code 48-5-201-209.
“No-Fault” Divorce Grounds:
If one party to a marriage files a petition for divorce against the other, alleging that irreconcilable differences have arisen between the parties, and if the other party files an Answer to the petition and admits that irreconcilable differences exist, then the court will grant a divorce. There is no corroboration required. However, the family court may always make orders for, approve, modify, or reject any agreement between the parties pertaining to just and equitable spousal support, custody, support or maintenance of the children, or visitation rights.
However, the family court may give consideration to fault or inequitable conduct as one of many factors to be considered in determining what is “just and equitable” with respect to spousal support (alimnony). [Haynes v. Haynes, 164 W. Va. 426 (1980)]
Usually, if the other spouse has not responded to the divorce petition, or if they refuse to admit irreconcilable differences, then it may be necessary to prove a fault-based ground for divorce.
Fault Grounds:
Adultery: Adultery usually must be proven by circumstantial evidence that shows both opportunity and inclination. Adultery is considered misconduct that may cause the forfeiture of a party’s claim for spousal support. Note that in West Virginia there is no inference raised. There must be corroboration.
Desertion: A divorce may be ordered for the party abandoned when either party willfully abandons or deserts the other for six months. Desertion for divorce purposes consists of the voluntary separation without justification of one spouse from the other with the intent to terminate the marriage relation. [Perine v. Perine, 92 W. Va. 430 (1922)]. Desertion may exist even if both parties remain in the same house so long as there has been a willfull, total, and unjustifiable suspension of all marital duty and relationship. [Perine v. Perine]. Note that if the desertion is justified, then it is not “desertion” for fault-based divorce grounds (i.e., a battered spouse).
Extreme Cruelty: A divorce may be ordered for cruel or inhuman treatment by either party against the other, which includes reasonable apprehension of bodily harm; false accusation of adultery or homosexuality, and conduct or treatment that tends to destroy the mental or physical well-being, happiness, and welfare of the other and which renders continued cohabitation unsafe or unendurable. It is not necessary to allege or prove acts of physical violence. Usually, if there is a single isolated incident, it may be enough if it was serious. Also, if there has been overt hostility, i.e., constant humiliation, ridicule in front of third persons, or coldness. Most times however, it must be continuing conduct. The test is whether the petitioner can, with safety to person and health, continue to live with the respondent. [Christopher v. Christopher, 144 W. Va. 663 (1959)]. Provocation by the complaining spouse is material and will prevent that spouse from obtaining relief. [Lieberman v. Lieberman, 142 W. VA. 716 (1957)]. Note that denial of sexual intercourse is not cruel and inhuman treatment, nor does it constitute cause for willful desertion and abandonment. [Reynolds v. Reynolds, 68 W. Va. 15 (1910)].
Insanity: A divorce may be granted for insanity only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of at least three consecutive years, and the family court has heard competent medical testimony that such insanity is permanently incurable. A court granting a divorce on this ground may in its discretion order support and maintenance for the permanently, incurably insane party by the other.
Other Grounds for Divorce:
Conviction of a Crime: A divorce may be ordered when either of the parties, subsequent to the marriage, has been convicted of a felony and the conviction is final.
Separation: A divorce may be ordered where the parties have lived separate and apart in separate places of abode without cohabitation and without interruption for one year. It is irrelevant whether the separation was the voluntary act of one of the parties or by the mutual consent of both parties. Note that when spousal support (alimony) is sought under a divorce action based on separation, the family court may consider substantial inequitable conduct on the part of the party seeking spousal support as one factor in its decision. [Whitmire v. Whitmire, 175 W. Va. 461 (1985)].
Abuse and Neglect of Child: A divorce may be ordered for abuse or neglect of a child of the parties. “Abuse” means physical or mental injury inflicted on such child including, but not limited to, sexual molestation. “Neglect” is willful failure to provide, by a party who has a legal responsibility for the child, the support, education, medical care necessary for the well-being of the child. Note that a divorce will not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of his parental rights to the custody and control of the abused or neglected child.
