Before you file for divorce, you have time, privacy, and no deadlines. Most people spend it deciding whether to go forward with the divorce and wondering what the world will look like for them when it is over. It is also the point when preparation is worth more than it will ever be worth again. Why? Because after a petition is filed the rules change, the pace changes, and information that was sitting in a drawer becomes something that has to be requested formally or produced formally. This article is about what to understand and what to gather while you still have that time.
Know what you actually want
Before any of the practical questions, there is a harder one. What do you want your life to look like when this is over?
If there is a house, does one of you want to keep it, and can that person afford it alone? If there is a business, who is going to run it, and where does the money come from to pay the other spouse for their share? If one of you has been out of the workforce, what does that person need in order to be able to live comfortably? Is someone entitled to spousal maintenance? If there are children, do you know each other’s income to determine child support? These are the questions that determine how the whole matter is handled and the answers differ enormously from one family to the next.
There is no cookie-cutter version of this. Two couples with nearly identical balance sheets can desire different outcomes. We believe this is why the first conversation matters more than any form or checklist. It is the conversation in which someone listens to what you are actually trying to accomplish. What is your end game and what is the big picture? Sometimes the details get everyone lost looking for the finish line.
It is also worth knowing that the answer to “what do I want” could affect what the process costs. A matter where both people know what they want and largely agree can be resolved without extensive discovery or litigation. A matter where the goals genuinely conflict, or where one person will not deal straightforwardly, requires more. Neither is a failure. They are different situations, and they should not be handled the same way. You will know very early on if your spouse wants to cooperate or wants to obfuscate. That is where the money difference comes, and that decision tells you whether this is going to be an amicable process or an adversarial one. You can have differences of opinion and still be amicable. But adversarial spouses hide assets, refuse to disclose the required assets, and just make everything difficult.
Know your family finances
In most marriages one person handles the money. That arrangement works right up until it does not. We tell clients that they often know more about their finances during the divorce than they did in twenty years of marriage. We do not say that as a criticism. It is simply the common situation, and the person who was not handling the money has some catching up to do.
The remedy is straightforward, and none of it requires anyone’s permission.
- Know the family passwords, and know your own bank passwords.
- Know what your investments are, who manages them, and how to reach that person.
- Know who your accountant is, and know what is going on with your returns.
- Read your taxes before signing. Do not sign if you do not understand.
- Meet with the CPA and ask questions.
- Collect the mail, and pay attention to what arrives. Account statements, tax notices, and correspondence from institutions you did not know existed all tell you something.
- Know what insurance the family carries. Health, dental, automobile, disability, life, umbrella. Know the carrier for each, who the policy is through, and which account the premiums come out of. This matters more than people expect, for reasons the next section explains.
- Know who the named beneficiaries are on the life insurance and on the retirement accounts.
- Know what the employed spouse has beyond salary. Retirement accounts, stock, restricted stock, options, deferred compensation, bonus plans. In a high net worth marriage this is frequently the largest category and the one nobody looked at.
- Do you have a prenuptial agreement? Where is it?
- Do you have a postnuptial agreement or a separation agreement?
- Where is the house deed?
- Who holds the mortgage?
- Titles to vehicles? Are they financed?
- Do you have a family trust?
- Is there a safe deposit box, and who has access to it?
Consider learning about your finances before you file for divorce. Every item on that list is information about your own household, and gathering it now is ordinary prudence rather than anything adversarial.
If a company is part of the marital estate, review how a business is valued in an Arizona divorce before deciding whether an expert report is necessary.
What changes after I file for divorce?
Filing is not only a legal step. It starts a court order that binds the filer immediately and the other spouse upon service or actual notice, and that order changes what each of you may do with your money and with your insurance.
The preliminary injunction
When a dissolution is filed in Arizona, the clerk of the court issues a preliminary injunction directed at both spouses. It is not something either of you has to request and it is not discretionary. It has the same force and effect as any other order signed by a judge.
It takes effect against the person who files at the moment of filing. It takes effect against the other spouse when they are served or when they have actual notice of it, whichever comes first. It remains in effect until the decree is entered or the case is dismissed.
It contains four restrictions, and both spouses are bound by all four.
Neither spouse may transfer, encumber, conceal, sell or otherwise dispose of joint, common or community property. There are three exceptions written into the order: transactions related to the usual course of business, the necessities of life, and court fees and reasonable attorney fees associated with the case. Anything outside those exceptions requires the written consent of the other spouse or permission of the court.
Neither spouse may remove the other spouse or the minor children from any existing insurance coverage. The order names the categories: medical, hospital, dental, automobile and disability insurance. It also states affirmatively that both parties shall maintain all insurance coverage in full force and effect.
Neither spouse may molest, harass, disturb the peace of, or commit an assault or battery on the other spouse or any natural or adopted child of the parties.
Neither spouse may remove a natural or adopted minor child of the parties who is then living in Arizona from the state without the written consent of the other spouse or permission of the court.
That second sentence is the one people trip over, because it is not only a prohibition on canceling something. It is an obligation to keep it in place. If your spouse is on your employer health plan, they stay on it. If the car insurance has always been paid out of the account you control, it still has to be paid. A policy that lapses because nobody attended to the premium is a problem in the same way a policy that was deliberately canceled is a problem.
This is also why the insurance items on the list above are worth knowing before you file rather than after. You cannot maintain coverage you did not know existed, and you cannot pay a premium out of an account you have never seen.
Because it is a court order, it can be enforced like one. A violation can be treated as contempt of court. The order itself warns that a person who disobeys it may also be arrested and prosecuted for interfering with judicial proceedings. Either spouse may file a certified copy of the order with local law enforcement.
Understanding this before you file matters for a practical reason. People often assume there is a window between deciding to divorce and being subject to any restrictions, and that they should use that window to move money. For the person who files, that window does not exist. The order lands on the person who files first, at the moment of filing, before the other spouse knows anything about it.
The date of service
Something else changes at filing as well. Under Arizona law, property acquired by either spouse after a petition is served is that spouse’s separate property, provided the petition results in a decree. But service does not change the character of property that was already community, and it does not change the status of new property acquired with community funds. The date of service is a meaningful line, and we often call it the Kodak moment for those who know what that means. It is a photograph of your finances, frozen in time, and many decisions, discussions, and orders are made from whatever that photograph looks like on that given day.
What you do not need to have figured out
Everything above describes preparation. None of it is a prerequisite to picking up the phone. People sometimes delay talking to an attorney because they feel they should arrive organized, with the documents assembled and the questions formed. That is backwards. The conversation is how you find out which documents matter and which questions are the real ones, and a client who has not yet read the tax returns is in the ordinary position, not a disadvantaged one.
Tali Best Collins handles every new client consultation personally. Clients do not need to have it all figured out before they call. We just need their story. That is where we start.
Before filing questions
What should I do before filing for divorce?
Clarify the outcome you want, learn the family finances, gather key records, and understand the court order that begins when a petition is filed.
What financial information should I gather before filing?
Identify bank and investment accounts, tax returns, insurance, compensation, property documents, trusts, agreements, debts, and business records that describe the household finances.
What is Arizona's preliminary injunction in a divorce?
It is a court order issued when the case is filed that restricts property transfers, requires insurance to remain in place, regulates conduct, and limits taking children out of Arizona.
When does the preliminary injunction take effect?
It binds the filing spouse immediately and the other spouse upon service or actual notice, whichever occurs first.
