Family Law

Information to Gather When Considering Divorce

By Joseph Pandolfi, Retired Judge
Find out what type of information you’ll need before you start the divorce process.

Why It’s Important to Gather Your Information in Advance

Unfortunately, divorce makes some people do unsavory things. Sometimes it’s just an annoyance. But if your lawyer asks you to produce certain documents, and you suddenly can’t find them, that’s a different story.

It’s not uncommon for spouses to take paperwork without your knowledge—possibly even destroying it—and then claim they have no idea where it is. In fact, they might even allege that you have it and are refusing to release it, or that you discarded it.

You may believe your spouse would never do that, but if things get ugly, you can’t afford to take that chance. You need to obtain this documentation while it's still available to you.

The Four Major Aspects of Divorce

In a typical divorce, two common issues a court will address are spousal support (alimony) and how to divide property between the spouses. In a divorce with children, child support and custody/visitation issues may come into play. In each of these areas, there is information you will need as the divorce progresses.

Spousal Support (Alimony)

Income tax returns are some of the most important documents in a divorce because they can provide evidence related to many issues. For example, spousal earnings are a major factor in a court’s decision about whether to award alimony. Make copies of your tax returns and any documents that evidence the sources of income stated on the returns, including W-2’s and work-related 1099s. But don’t forget statements referencing other types of less common income like dividend payments and rental property income.

Because alimony is more subjective than child support, be sure to gather any documentation that may reflect on your ability to work, such as proof of a disability. Paperwork showing extraordinary medical expenses are also relevant.

Child Support

Both parents have an obligation to support their children. Each state establishes child support guidelines to determine support amounts. Although there are some variables, primarily the courts take the total income of both parents and then divide it on a pro rata basis between them to determine each parent’s child support obligation.

The financial data needed for a spousal support decision will also be used by the court in deciding a child support figure.

Division of Property

With the exception of gifts and inheritances that remain in your name, virtually all property you’ve accumulated during your marriage should be divided between you and your spouse in a divorce. Some of the items you should collect are:

  • real estate deeds
  • mortgages
  • bank account statements
  • retirement account documents, like pensions and 401(k)’s, and
  • proof of ownership of any valuable personal property.

It’s also wise to make a detailed list of your personal property, such as furnishings, electronics, and jewelry.

If your spouse owns a business, it’s imperative that you obtain as much information as possible about the company. This may be an area where you have the least access to information, but it’s also where documentation is most likely to disappear or be altered. Be on the lookout for items such as:

  • business tax returns and financial statements
  • documents evidencing business assets and liabilities (such as real estate and personal property, including bank accounts, as well as records of outstanding loans and other business debt), and
  • organizational paperwork, like certificates of incorporation, by-laws, LLC operating agreements, business appraisals or valuations, and shareholder or partnership agreements

Custody and Visitation (Parenting Time)

Barring either spouse posing a danger to a child, odds are a judge is going to award joint legal custody. This allows both of you to participate in making the major decisions regarding the child’s upbringing (education, religious training, and so on). Physical custody—where the child physically resides—is an open question. The parent who doesn’t have residential custody will be afforded parenting time with the child, which should be spelled out in a visitation schedule. As with all matters involving children, the court will do whatever it deems to be in the child’s best interest.

However, if one parent truly believes the other parent is not fit to make major child-rearing decisions, to have residential custody, or to have visitation time alone with the children, that has to be backed up with proof.

For example, if you’re alleging that your child's other parent is unfit due to untreated alcohol or drug abuse, you should try to obtain records of incidents relating to that abuse, such as police reports, arrest or conviction records for driving infractions, or records of past treatment attempts. Keep a diary of any unseemly behavior and make a note of any witnesses to that behavior.

Conversely, you may find yourself in a position where you have to demonstrate a healthy relationship with your children. In that scenario, gather things such as photos, home videos, and any other media (including correspondence) that shows the positive and nurturing nature of your relationship.

Other Pertinent Information

The following should also be on your list of information to gather:

  • birth certificates for you and your children, as well as social security documentation
  • prenuptial, postnuptial, and separation agreements you may have entered into with your spouse
  • copies of any prior divorce judgments
  • life and health insurance policies
  • credit card statements, and
  • any applicable immigration or naturalization documentation.

You should also make a complete list of all your monthly expenses.

Some Final Thoughts

Keep in mind that for all financial data you’re gathering, you should be prepared to go back at least three to five years, and much longer if you were in a long-term marriage. Gathering this information can be a daunting task, but you’ll probably need it at some point during your divorce, so it's best to obtain it while you’re sure it’s still around.

For additional insight into what you’ll need during your divorce, take a look at this matrimonial case information statement from New Jersey. These types of forms may differ from state to state, but it’s likely that the basic information will be similar.

If you’re thinking about divorce, you should contact an experienced family law attorney in your area.

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