Things to Think About Before You Leave

Divorce and separation are incredibly difficult experiences for any spouse. This is true regardless of whether or not you wish to divorce or separate due to adultery, cruelty, or one year separation.

When two individuals decide to marry one another it is comparable to entering into a partnership, the result of which may be a complete merger of every aspect of their lives: social, financial, personal, etc. Therefore, before you decide to divorce or separate from your spouse and terminate the relationship you should consider the following:

  • Talking to a marriage counselor or professional therapist who may be able to help you resolve your marital problems or help you cope with the divorce.
  • Your ability to financially retain legal counsel.
  • Obtaining copies of all relevant financial information or statements of property
  • Staying in the matrimonial home so to increase your eligibility for exclusive possession (i.e. do not leave or move out unless it is absolutely unbearable or your safety is at risk).
  • The possibility that you may need to draft a new will.
    • Marriage usually and definitely revokes any prior-existing wills and divorce or separation will not revive them.
    • Generally, spouses will create mirror wills designating each other as beneficiaries of the estate should death occur. Therefore, it may be in your best interests to draft a new will taking into account the eventual change in your circumstances and altering your beneficiary designations.
  • The possibility that you may need to change the beneficiary designations of any life insurance policies, investments or pensions you may have. Divorce will not automatically revoke the designation rather you must expressly change it.
  • severing any joint tenancies you may have with your spouse and transforming them into tenancies in common. With joint tenancies the right of survivorship applies. What this means is that all interests in the assets are held jointly and when one interest holder dies the other inherits his or her share through survivorship, it does not pass on to the heirs of the deceased. The effect of severing and transforming it into a tenancy in common will allow you to deal with your interest as you wish and you may designate it to whomever you like because the right of survivorship will no longer apply.
  • Giving notice to the issuers of joint credit cards or banks who have extended joint credit that you will no longer be accountable for debts incurred by your spouse. However, it would probably be in your best interests, while you are waiting for your divorce to be approved and for an order to be obtained, to try and maintain the status quo. Therefore, if you and your spouse do possess joint credit cards or lines of credit you should not act drastically and begin overspending or attempt to cancel all credit cards or withdraw all funds from the line of credit. This could lead to the freezing of your accounts or the courts being less sympathetic with regards to you and your case. It is important that during this interim stage you continue to execute daily tasks and organize your affairs as you had done previously. An option could be to reduce the limit on your line of credit or credit card if you are worried about overspending or excessive withdrawals.

** Please note that the aforementioned considerations are not exhaustive.

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