2 Things Every Divorcing Person Needs: An Advocate and Comprehensive Documentation

Whether your split is best handled with a mediator, a collaborative lawyer, or a legal pit bull, you absolutely need someone to watch out for your interests, and to help you get everything in writing.

Motley Fool Staff
Motley Fool Staff
Jun 18, 2019 at 9:56AM
Investment Planning

You've probably heard the quote: "The course of true love never did run smooth." William Shakespeare had it right on the money -- in any century, there are way too many things that can prevent a couple from reaching their happily ever after. As the young lover Lysander points out just a bit later in that scene, even if a pair does avoid the obstacles and comes together with the best of intentions, the affection may not last. Well, this week, Motley Fool Answers cohosts Alison Southwick and Robert Brokamp will tackle the labor of love lost in their series about major life events.

Guest expert Amanda Kish of Motley Fool Wealth Management brings her best advice on how to get through a divorce and come out the other side. First things first, as she explains in this segment, you need to decide what type of professional you'll want by your side. And to follow up, she'll discuss why verbal agreements under these circumstances are a bad idea.

To catch full episodes of all The Motley Fool's free podcasts, check out our podcast center. A full transcript follows the video.

This video was recorded on June 11, 2019.

Alison Southwick: I think when people find themselves facing a divorce, their first reaction is, "I need a lawyer." Is that the right reaction?

Amanda Kish: That is a good thing to think. You may not necessarily need a lawyer, at least to start off with. That leads into my second point. I would highly recommend exploring all the different options that you have for going through the divorce process. For example, in my personal experience when I was divorced, we used a mediator.

Basically what the mediator does is they sit down with each party in the room and they hammer out all the details of the separation. The splitting up of assets. The liabilities. Their job is to make sure that each person is heard. That they come to a fair and equitable agreement. Their role is not to be an advocate for either person or to offer any legal advice. In most cases they're not a lawyer.

And in our situation that made sense, because our divorce was fairly simple. We didn't have the complication of kids. Most of our finances were not too terribly intertwined, so it was just a question of our primary residence. Of how we were going to split that up. We had already decided I would be keeping that, so it was just a question of hammering out how much I was going to pay out.

So when you're talking about a divorce, people's standard of living is almost always going to decline, unfortunately, so if there's anything you can do on the front end to mitigate those expenses that you're going to be spending in legal fees, I would recommend doing that. So looking at mediation is one possible way to do that. If you have a more amicable relationship, things are fairly simple.


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That's not going to be possible for every person. Your situation is going to be unique if you have concerns that there's complicated custody issues, or a family business, or you're concerned your spouse is hiding assets, then that's where you really want to get a lawyer onboard. And I'll also say that even with mediation, you can still employ the services of a lawyer. You can consult with one before, during, after just to make sure that you understand the law and that you're not missing anything.

But then if you find that mediation is not right for you, there's a step above that before you go full out, shark lawyer. It's a process called collaborative divorce where each spouse would team up with a lawyer, sit down in a room with the four of you, and work out those same details similar to how you would in mediation. So that's just something that can be a little bit less aggressive and a little bit easier on everybody involved and can keep some of the costs down if you're not fighting with each other and worrying about necessarily going to court.

Southwick: We talked, before the show started, about how in Virginia you have to be separated for a year before you can even get officially divorced if you're legally separated. And where you're from -- in New York -- you just go get a divorce. I make that sound much easier than it is, but yes. Just oversimplify it. Are most of the laws around divorce set at a state level that you need someone to help you navigate it or is a mediator still going to be like, "Yeah, yeah, no, I got this," in understanding the laws.

Kish: Divorce law is state-specific, so you will need to know that. A mediator's going to know the laws in the state that they're operating in. Again, they're not a lawyer, but they'll know what needs to be done. In my case we used a mediator and then looped the lawyer in at the last minute for signing everything. You'll probably have some contact with a legal professional of some kind and, again, it's never a bad idea to make sure you know what's going on, as we said earlier. You don't get a do-over, so make sure you understand everything the first time and get it right.

Southwick: Let's move to your next point which is to get everything in writing.

Kish: Yes! Document, document, document. One of the first things that you'll do when you start the separation process is you're going to want to get documentation of all of your assets, so you'll be pulling copies of bank account statements, credit card accounts, investment accounts, 401(k)s, as well as things like recent years' tax returns, insurance policies, health insurance, deeds for any real estate that you own. It's important to have a full accounting of everything. To have all the assets, liabilities, and income to be separated out in an equitable manner.

Along with that, the aspect of having everything in writing. As you can imagine, when it comes to divorce, when there's money and hard feelings involved, there's definitely room for some shady behavior sometimes. That whole process can bring out the worst in even the best of people at times.

It really helps to not leave anything vital as just a verbal agreement so you don't run into trouble later. Whether that's discussing how much money in your checking account each of you are going to take, or where the kids are going to spend their holidays, it's important to have that documented with specifics, dates, dollar amounts, so you don't run into issues or misunderstandings. I'm using air quotes, here, for someone suddenly seeing some assets in a joint checking account disappear because you didn't get that in writing.

Southwick: And when you say in writing, that can also just be an email. I watched enough Judge Judy to know that an email can really change your circumstances.

Kish: Yes. It's important to have some kind of documentation that you can fall back on. Obviously when you're talking about the more formal things, you'll want to get that in a more formalized manner; but yes, having something [even an email] in many cases will suffice.