Tips for a smarter divorce

The best advice about divorce would be to prevent it if possible; nearly half of all marriages end that way -- sort of. In reality, from a cumulative point of view, less than 41% of all the marriages end by divorce. The 50% figure stems from the annual divorce rate and is misleading because the people divorcing each year are not, for the most part, the same ones who are marrying. But whether the US divorce rate is below 41% or closer to oft-quoted 50%, the fact is that divorce is common and, sadly, seems here to stay.

Perhaps more interesting is the fact that some researchers have found that nearly 80% of divorces are unilateral, as opposed to something both parties want. If this statistic is correct, then four out of five divorces are unwanted by one of the spouses. If you are the one who wants out, you'll have the power to decide when and how to best to approach the split.

This advantage is critical because, once a marital dissolution petition is filed, many jurisdictions impose automatic restraints against shifting assets or changing the status quo ante (the way things were, just before the filing). That can complicate things if you do not plan ahead.

On the other hand, statistics tell us that 70% of divorce filings are by women. So men, it's not likely you'll control the timing of the split, though you might control the purse strings.

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But, no matter who files, planning a divorce, or defending against one, can feel like taking on a second job, with so much to consider. For example, if you are the one who wants out, you must weigh whether you can trust your spouse not to financially annihilate you just to spite your decision to leave. Will he or she do everything possible to destroy what you worked so hard to attain while the marriage was working? Are there steps you can take to minimise the damage of divorce, while protecting your relationship with your kids, your property and your income?

Moreover, for many individuals, a divorce involves more than just dealing with finances and the kids. It affects not just the immediate family but perhaps elderly parents that need to be looked after, not to mention relationships with extended family members, friends and even beloved in-laws. Because of the emotional upheaval, many couples benefit from therapeutic counselling, as well as financial planning, in the act of dismantling a life built for two.

The bottom line is that you need to protect your own interests, while still being reasonable, if possible. And though you might think your spouse will act prudently, don't count on it. Very few people encounter divorce without responding in an emotional way.

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In the words of Ben Franklin, an ounce of prevention is worth a pound of cure.

You should be prepared for the chance that your divorce may become adversarial and that, for a while, your spouse will turn into a person you never knew existed. So try to bear in mind that while you may be taking an action that you think is merely rational, it's very possible that he or she will interpret your actions differently or, perhaps worse, offensively, creating more problems. (Recall that Jane did not like it when Jack Welch cancelled her credit cards.)

Although Jack might have been acting sensibly and may even have followed the advice of counsel, it didn't play well. This brings up another point: Attorneys don't always help the situation, yet good therapists and tax experts often do.

Naturally, with an iron-clad prenuptial or postnuptial agreement, the divorce process will proceed in a more predictable fashion. But even then, expect your spouse to fight the agreement's enforceability based on grounds that it might be unconscionable now to enforce it, although it was perfectly fair when it was executed.

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