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Divorce and the Holidays: Tips If You Are Waiting to Divorce Until After the New Year

Mom and dad with a baby.

The holidays are a hectic time! In the past, the holidays were your favorite time of the year, and you cherished all the comradery, food, family time, and overall cheer. However, this holiday season is different because, in the months leading up to these celebrations, you had a revelation: you are unhappy in your marriage and want a divorce. You may have been unhappy for a few months, or even several years, but cannot stand the thought of souring the holiday season with a divorce. Therefore, you decide to wait and file first thing in the new year. Fortunately, there are still a few things you can do while you are waiting to file that will help you through your future divorce.

Gather End of Year Financial Statements

The end of the year is the perfect time to gather all your financial statements. There will likely be more discussions centered around finances between you and your spouse due to increased holiday spending. These conversations are the perfect time to ask questions to better understand your family’s financial status without raising any suspicion. These candid conversations about income, investments, end-of-year retirement contributions, and overall family budgeting are a perfect first step in preparation for your divorce.

Make sure that you are keeping copies of all credit card statements, checking account balances, savings account balances, and any other financial document you come across. When you get a divorce in California, all the community property is divided equally between the parties. Community property is any property acquired during the marriage that was not a gift, inheritance, or bequest. Therefore, having an accurate record of your account balances at the end of your marriage will be of great importance when it comes to the division of assets and debts between you and your spouse.

The end of the year is also often accompanied by a bonus payment to employees. If you or your spouse receive an end-of-year bonus, be sure and keep any documentation that reflects this bonus payment and the reason it was given.

It is important to gather all financial information pertaining to any real or personal property. Important documentation regarding real property may include paperwork regarding the down payment on your home, mortgage statements, property tax bills, evidence of home improvements, and other information related to investment properties you own. Personal property includes art, furniture, cars, jewelry, antiques, etc. Your personal assets can also include things you might not immediately realize fit within this category like memberships, reward points, or airline miles. The more information that you can amass about your property, the easier it will make the divorce process.


Make a Record of Custodial Time

In California, “child custody” can be broken down into physical custody of the child(ren) and legal custody of the child(ren). Legal custody is the right to make important decisions regarding your children, often this includes decisions about education (including school choice), medical procedures, religion, etc. Physical custody of a child refers more specifically to the schedule of when and where a child will spend their time. Physical custody orders, made either by agreement or court order, can be incredibly detailed and dictate the location and hour of all exchanges or be more broadly defined if there is a healthy co-parenting relationship amongst the parents.

During the holidays you should ensure that you are keeping track of when the children are with each parent. If you and your spouse decide to spend the holidays separately and the children stay with you, make a record. If your children go with your spouse, also note that. The record does not need to be anything more than a simple document that lists the date and the time spent with each parent. Keeping track of this information will provide evidence of the family routines, which will likely be considered by the court when making custody orders.

Furthermore, if you believe that your spouse is an unfit parent, the holidays allow you to gather evidence to support that allegation. Take note of how the other parent disciplines your children, if there are any substance abuse issues, or how they act when spending time with your children. Courts make custody decisions pursuant to the best interests of the child standard. When determining what exactly is in the best interests of your child the court considers various factors, which include the relationship with both parents, the child’s schedule, and the child’s ties with the local community. Thus, any evidence you can obtain over the holidays is important to your future case.

Consider the Tax Implications of Divorce

Divorcing in the new year does not completely sever you from your ex-spouse, at least in terms of tax filing. Your marital status for tax filing is determined on December 31 of the year. Therefore, waiting to file for divorce until after the holidays could have tax consequences, which may include another year of joint tax returns with your spouse. If you have children, it is likely that you and your spouse might have to alternate years of claiming them as dependents on your taxes to ensure equity amongst the parties. Taxes can be complicated, which is why it is a great idea to consult a San Diego divorce attorney to help you understand all aspects of your divorce.


Change Your Passwords

Even before you file for divorce you can take steps to ensure that your personal accounts are protected. The first step is to simply change the password to all your individual accounts. Think about your email accounts, social media accounts, and online accounts for stores you frequent.

However, be careful you are not changing the password to any joint accounts! During divorce both parties are entitled to access their joint accounts; thus, both parties must remain aware of all passwords to access these accounts.

Most people have about seven or eight passwords they use consistently, and during the marriage, your spouse probably learned your favorites. Furthermore, a secure email that only you can access becomes even more important once you file for divorce. This way, you can communicate with your attorney both confidentially and discreetly. Consequently, changing your passwords can be one of the best things you can do to safeguard confidential information leading up to your divorce filing.

Open a Credit Card

You should also consider opening a credit card in your name alone. The holidays are a great time to open a credit card as it allows you to immediately make purchases you need throughout the season. A credit card solely in your name will allow you to have a mechanism to pay any retainer that is required when you hire a family law attorney. It also allows you to safeguard your credit to a certain extent in case your spouse does something drastic after filing for divorce.

Having your own credit card is important because it allows you access to funds immediately after you file for divorce. Once you file for divorce, mutual restraining orders automatically take place. These restraining orders are referred to as ATROS and prohibit extraordinary expenditures from being taken or withdrawn from your joint accounts. An individual credit card simply ensures you have adequate access to funds to pay anything that may arise during your divorce proceeding.

Establish a Date of Separation, Maybe

Even if you do not file for divorce, you can still establish a date of separation. The date of separation is the date on which your marital community ceases to exist. During your marriage, most property acquired is community property and divided equally. However, once a date of separation has been established all earnings become separate property. Separate property will not be divided at divorce, and it remains your own, individual property. Sometimes people like to separate before they get a new higher paying job, so those earnings are not community property. The date of separation can also be critical if you are teetering between a long-term and short-term marriage. A long-term marriage is any marriage with a duration greater than ten years. The length of your marriage directly impacts the length of time that spousal support will be ordered in your divorce case. Therefore, if you anticipate that ending the marital community will be beneficial to you sooner rather than later, you can establish a date of separation without filing for divorce. Expert family law attorneys will be able to help you determine whether you should establish a date of separation leading up to the holiday season.

The date of separation does not have to be the day you tell your spouse you would like a divorce (although this helps). Instead, it is simply the date of the complete and final break in the marriage. The date of separation is typically when one spouse has the subjective belief the marriage is over, and when they objectively demonstrate that belief. This can be demonstrated by sleeping in separate bedrooms, ceasing marital duties, and no longer referring to your spouse as such.


Consult with a Family Law Attorney

Just because you are not ready to file does not mean you cannot research and prepare for your divorce. Take the time to research different attorneys in your area. Read reviews and explore their websites to get a better understanding of different family firms and their attorneys. Also, if you find a California family law attorney you are interested in working with be sure to set up a consultation with them as soon as possible. Lawyers must follow strict ethical obligations, so once they have a consultation with one party in a family law case, they may be prohibited from representing the other party. You want to ensure you have the best representation available and should try and get those consultations before your spouse.

If you liked your consultation and feel like your attorney will be a good fit, the next step will be to retain them. You can still wait to file for divorce in the new year, but retaining an attorney will ensure they are available to represent you when you are ready to proceed.

Make Holiday Memories

You might not be keen on making new memories with your spouse during the holiday season; however, it is important that you still try to maximize the joy the season can bring. Continue to embrace your holiday traditions with your family and children. Positive memories you make over this holiday season will be incredibly beneficial during the emotionally draining divorce that will soon follow, so make sure you take time to enjoy the season.

Divorce can be challenging, but if you and your spouse are amicable it helps to keep attorney’s fees and costs lower and build a healthy co-parenting relationship. So, if you plan on spending the holidays with your soon-to-be ex, then try to make it as positive as possible. A friendly and amicable holiday season may mean your spouse is willing to work with you cooperatively throughout the divorce process, rather than against you. Accordingly, you should continue with the traditions that you and your spouse have come to value over the years. Any positive holiday memories made with the spouse may help facilitate a smoother divorce and will be important to your children going forward.

Prioritize Your Wellbeing

While you may be focused on taking care of everyone else’s feelings during the holidays, don’t forget to take care of yourself. The realization that you need to file for divorce will be one of the most emotional decisions you ever have to make. Seek counseling or other similar resources to ensure that you are also having the best holiday season you can considering the circumstances.

Daddy with little girl playing with tablet

File Early, If Necessary

In most cases, waiting until after the holidays to file for divorce will have little to no impact on the outcome of your case because California is a no-fault divorce state. In a no-fault divorce state, neither party is legally responsible for the divorce. Instead, most divorces are just deemed to be the result of irreconcilable differences. So, the timing in which you file the Petition for Dissolution has little impact on who is at fault or why you are choosing to file.

While you may feel like you can wait for the new year to file for divorce, some circumstances warrant an earlier filing. If there are any acts of domestic violence it may be more important for your safety to speak with an attorney and start the proceedings sooner. An experienced family law attorney will also be able to help you with a request for a domestic violence restraining order if that is necessary. Domestic violence is very broad, and in California, it includes any emotional, physical, sexual, or financial abuse against a spouse, romantic partner, or parent of the perpetrator’s child. If you believe that you are a victim of domestic violence you should contact an experienced family law attorney immediately.

You should also consider filing for divorce sooner rather than later if you are concerned your spouse is going to take the children on a holiday vacation and not return the children when it ends. The mutual temporary restraining orders that go into place when you file for divorce also prevent both parties from taking children out of the state or applying for a new passport without the consent of the other party.

Divorce attorneys understand the emotional toll that filing can have and empathize with the fact you do not want that emotional damper on the holiday festivities, but in some cases filing for divorce sooner rather than later may be in your best interest.

New Year, New Me – Contact an Experienced Family Law Attorney

You did it, you made it through the holiday parties and family time, but you still know you want a divorce. The next step is to consult with an experienced San Diego family law attorney to discuss all the logistics of your case. Since you were proactive during the holiday season and utilized some of the tips addressed above you will already have most of the information you need to give your attorney information and insight into your case. Our experienced attorneys at Cage & Miles, LLP, are experts in all areas of family law, including divorce. Contact Cage & Miles, LLP to set up a consultation today.

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