When Should I Consult a Lawyer if Considering Divorce?

Navigating the complexities of a failing marriage can be overwhelming and emotionally taxing. It is during these challenging times that seeking legal counsel becomes not just an option, but often a necessary step towards clarity and understanding of your rights and options. Being armed with information is key when deciding whether or not it is time to take the next step.

Here is a guide to help you determine the best time to seek legal advice when you are unhappy in your marriage.

Early signs and consideration

1. Communication Breakdown: If you find that communication with your spouse has deteriorated significantly and efforts to reconcile or improve the relationship have been unsuccessful, it may be time to consider legal counsel. Early intervention can help you understand your legal rights and obligations and prepare you for what lies ahead.

2. Financial Changes: If you notice your spouse has suddenly changed his or her financial habits, it could be a sign to seek legal counsel. This could include increasing spending, transferring large sums of money, or opening new accounts. Understanding your financial rights and ensuring transparency in financial matters is crucial in preparing for potential divorce proceedings. Consulting with a lawyer can provide insight into how your assets and debts may be divided in the event of a divorce, which can be crucial for financial planning.

3. Children and Custody Issues: If you find yourself contemplating divorce and have children, it’s important to consider seeking legal counsel early if there are signs of potential custody disputes or disagreements over parenting decisions. Issues such as differing views on education, healthcare, or religious upbringing can escalate during divorce proceedings. Consulting with an attorney can help you understand your legal rights regarding parenting schedules and decision making, ensuring that you are prepared to advocate for your children’s best interests from the outset of the divorce process. Early intervention can also facilitate smoother negotiations and reduce the emotional impact on your children by fostering a structured and supportive co-parenting plan.

Key indicators

1. Emotional Toll: When the emotional toll of staying in the marriage outweighs the benefits, it is a significant indicator that legal advice may be needed. If the signs are clear that the end is near, it is important to obtain as much information as possible. Speaking with a lawyer early on in the process, who can help you understand the legal process of divorce and provide guidance on how to protect yourself emotionally and legally, will give you a leg up if your suspicions come to fruition.

2. Safety Concerns: If your marriage has become abusive or if you fear for your safety or the safety of your children, seeking legal help immediately is crucial. Legal counsel can assist in obtaining protective orders and creating a safe exit plan for you and your children.

3. Legal Knowledge Gap: Many individuals are unfamiliar with divorce laws and procedures. Consulting with a lawyer can fill this knowledge gap and empower you with information necessary to make informed decisions about your future.

4.  Lack of Financial Awareness: If you are considering divorce but have little to no knowledge of your family’s financial situation, including income, savings, investments, and debts, it is advisable to consult with a lawyer. Being informed about your financial standing can empower you to protect your interests and navigate the divorce process more effectively. This will also help you make informed decisions about your future and ensuring a fair division of assets during divorce proceedings.

Timing considerations

1. Before Making Decisions: It is wise to seek legal counsel before making any major decisions, such as moving out of the marital home or confronting your spouse about divorce. Early legal advice can help you avoid missteps that could complicate the divorce process.
   
2. When Considering Separation: If you are contemplating separation or if your spouse has already moved out, consulting with a lawyer can help you understand your rights during this transitional period and establish a clear path forward.
   
3. In Complex Situations: If your divorce involves complex issues such as significant assets, businesses, or international considerations, legal advice becomes even more crucial. Lawyers specializing in divorce can provide expertise tailored to your unique circumstances.

Knowing when to seek legal counsel when you are unhappy in your marriage is a personal decision, but it is often important to avoid delay. The guidance of a skilled attorney can provide clarity, protect your interests, and help you navigate the emotional and legal complexities of divorce with greater confidence. Information is the greatest weapon, and it can help you successfully transition into your new life.

If I move out, will I lose custody of the kids?

Living together with your spouse during the divorce process is incredibly challenging. If you are financially able to move out of the marital residence, this can be very appealing, as it can serve to lower the temperature between you and your soon-to-be-ex. While moving out of the home will not lead to you losing custody of your children, it likely will give your spouse a leg up. For that reason, my advice to clients is typically to remain in the marital residence (if it is safe to do so) until you have come to at least an agreement regarding parenting time with your children.

Are the accounts my spouse’s because they are in her name?

While this is a state specific question, I can say that in New York (where I practice) that assets are considered “marital” if they were earned from the time between the marriage until the filing of a divorce action (assuming there is no prenuptial agreement stating otherwise). By way of example, if your spouse earns money from her employment while you are married and deposits the money in a bank account in her own name, upon a divorce you would still be entitled to the marital portion of the account (which in New York is typically half). There are a fair amount of nuances, so this is an area in which it is very important to rely on your divorce attorney for advice.

Are you confident I can win?

This is one of the most challenging questions to answer, simply because “winning” is a subjective term. To some people, “winning” is moving their way through the process as quickly as possible. This could mean providing your spouse with more money, or more parenting time, than she may otherwise be entitled to, simply because you want to get divorced quickly. To others, winning can mean remaining in the marital residence or receiving a higher amount of child support or spousal support. I can confidently say that in instances in which the divorcing couple spend years litigating, especially when there are children, neither spouse wins.