How do I protect myself financially from a spouse? What should I ask for in a divorce?

Ask a lawyer, March 2022

Q. How do I protect myself financially from a spouse? What should I ask for in a divorce?

A. This is a great question that could take hours to discuss, depending on the facts of your situation. Circumstances vary so much, that all I can really give is some broad strokes and general guidelines.

The simplest thing to do is to is discuss concerns with a spouse
(assuming you aren’t already planning to file for divorce) and come up with a post-nuptial agreement that guides the division of your property and decisions about spousal support should you get divorced.

In any divorce case, the first thing that you need to do is go and get your hands on every single financial document that exists that you have access to. Every account, every debt, every title. This means retirement accounts, bank accounts, anything that has numbers on it and has a value. If you are not able to get the information before filing the only other way for you to get at that documentation is through the discovery process once the case is filed.

You’ll never really understand what a fair settlement is until you know what property exists.

Oregon has a requirement that there be an equitable distribution of property. Assuming we know all the property that exists, and we’ve gathered our documents we can begin going through the analysis of a fair settlement or fair resolution.

So what is fair? A fair settlement is going to roughly be an equal distribution between the assets and the liabilities of each person. What does this mean?

It is important to note that while the court has jurisdiction to distribute all property of both spouses, generally the court will equally divide “marital assets.” That is the assets or accrual on prior assets that either party acquired during the marriage. Premarital assets or assets like inheritance require a fairly complex analysis to determine whether and how they should be divided.

On one side of the ledger, we’re going to have the assets. On the other side of the ledger, we’re going to have all the liabilities.

Let’s consider a large debt as a liability. Maybe it’s a credit card debt for a hundred thousand dollars. The person taking on that debt is also going to receive an asset of equal value to zero out the balance sheet. You have to receive roughly the same amount of liabilities and assets as the other person for the settlement to be fair.

What should you ask for in a divorce? From a property perspective, this is going to depend primarily on whether or not the person is paying spousal support. Let’s take the common example where one person has been mostly a homemaker in raising the children while the other has worked during a long-term marriage. And now they’re getting a divorce. Let’s assume the homemaker spouse doesn’t have the skillset to reenter the workforce immediately and will require training or education.

Depending on things like, age, duration of the marriage, the education and work experience of the parties, the court may require the working spouse to pay spousal support to the homemaker spouse. The court will decide on the length and the amount of support necessary in each situation depending on the facts of the case. Unlike child support, there is not a set formula for calculating the amount owed to the other spouse.

Depending on income and the property, that support may need to counterbalance against what type of property division the wife is going to get. It’s a possibility in this hypothetical that the homemaker spouse might receive more property rather than spousal support, or might receive less spousal support in consideration of the extra property portion received.

So perhaps the homemaker spouse will receive the house that is free and clear, so they don’t have to make any payments on it rather than receiving spousal support payments every month.

What’s a fair divorce settlement for the working spouse in this case? What’s fair for the working spouse is going to depend primarily on what are the remainder of the assets at stake, what are the liabilities and whether or not they’re paying spousal support. And the inverse of that is also true for the homemaker spouse.

What should the homemaker spouse ask for in a divorce settlement is also then going to depend on, do they need a house for the children, are they going to be the custodial parent or have they been working?

Based on the question, I’d recommend these tips:

Divorcing a Narcissist

Pre-planning before separation guideline

Initial Steps

· Collecting documents and things (gather up all documents and make copies)
· Change your passwords (social media, financial accounts, etc.)
· Consider getting a therapist (but do discuss with an attorney the rules of discovery)
· Make sure you have a safe place to go, once you decide to leave
(especially with children)
· If there is abuse, research a restraining order (FAPA)
· Reach out to local domestic violence services
· Do some financial planning to ensure independence
· Take anything of sentimental value with you (or put them in a safe place)

Throughout divorce

· Understand the legal process takes time especially because a narcissist will not compromise
· Reflect on the bottom line for what you want from divorce regarding property and parenting time
· Consult with attorney, know your rights
· Take measures to protect your pets
· Change phone plan, and lock phone down
· Do not post on social media
· Close social media accounts but do not erase because it is “discoverable”
· Find online communities for dealing with divorce and/or other support groups