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Planning for Divorce? How to Get Your Fair Share

Nobody gets married thinking they will end up divorced, but if you feel things are heading in that direction there are steps you can take now to protect yourself.

1. You may need to start building credit in your own name. After the divorce, you may find yourself needing to borrow money to buy a home or a car. You will need good credit to obtain the financing. Apply for and regularly use a credit card in your own name. This will build your own credit history separate from your spouse. Keep in mind that you will probably be responsible for any debt incurred after a separation, so be smart.

2. Retirement assets obtained during your marriage are normally divided between spouses by the judge in a divorce. Regardless, some spouses take early distributions or borrow from a 401(k) without your permission. This can reduce your half of the assets. Build your own IRA, 401(k), or Roth accounts so that you will have some security in knowing those assets cannot be squandered by your spouse.

3. Spouses who are married for at least ten years qualify for a Social Security spousal benefit, even if they later divorce.

4. Take care to have property titled how you want it to be titled. If you buy a house, have it deeded in both of your names. If you buy a vehicle for your use, make sure your name is on the title.

5. Build some savings in a separate account. Once a divorce is filed, a judge will sometimes enter an order prohibiting the parties from spending jointly held funds. Until the final hearing, you will need money for an attorney, living expenses, rent or mortgage, utilities, etc. Having a separate fund under your sole control will guaranty you have some money to live with while you are waiting on a final hearing. It may be difficult, but try to save enough to live off of for six months.

6. Don’t mix your marital property with things you owned before the marriage. The Court will normally divide marital property equally between spouses, but non-marital assets stay with their rightful owner. If you owned property before the marriage, do not add your spouse to the title. If you receive a gift or inheritance, don’t deposit it in a joint account.

7. Keep track of gifts or presents received during the marriage, including the date, who gave you the gift, and a description of the occasion. Marital assets do not include gifts received during the marriage or any inheritance. For example, your engagement ring or birthday gifts will normally still belong to you if you can prove it was a gift!

8. Keep records of all tax returns, W-2s, Social Security Earnings Statements, and retirement account reports for you and your spouse. They will help prove to the Court what the marital assets really are and can be evidence of your spouse’s attempts to hide or waste marital resources.

9. Never sign any legal documents without talking to your attorney about them.

10. Keep copies of any contract or other document you are asked to sign. Loans, mortgages, financial statements, leases, deeds, applications, and other similar documents should be kept in a safe place.

11. Never file joint tax returns with a spouse who is cheating on taxes. The IRS can hold you co-liable for failures to report income or failures to pay taxes. The IRS will not only claim the amount originally owed, but will also add interest and penalties. In these situations, you could be liable for the entire amount unless you qualify for an innocent spouse exception.

12. Pay attention to your spouse’s sources of income, assets, and debts. In some situations, divorces are the first moment a spouse becomes aware of how much or how little their spouse has been earning or that the spouse has been borrowing money in secret.

13. Keep a journal. You may have a pretty good memory, but a journal allows you to record the details that may fade with time. If you have to fight your spouse for custody of your children, you need to have a record of significant events such as fights, infidelity, forgetfulness, recklessness, and anger issues. Take pictures and save emails or text messages. Keep your journal and any records you are keeping safe. It may be a good idea to keep a copy outside of the home, like a lock box or a friend’s house.

14. If you and your spouse separate, take no more than one-half of the money in joint accounts. Give your spouse written notice that you’ve taken half so that he or she does not incur insufficient fund charges or fees from your bank.

15. Do not move out of the marital home without first consulting an attorney unless you or your children are experiencing abuse or false allegations of abuse.

If you are contemplating a divorce, you should immediately contact an attorney so that you are informed of your rights and obligations before you make important decisions. Your actions can adversely affect your rights and can harm your chances of obtaining custody of your children. If you think you need help with divorce related issues, please give us a call at Owens, Mixon & Gramling at 870-336-6505, toll-free at 855-814-4018, or email Clarke Mixon at cmixon@omglawfirm.com

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