Five Things to Consider If You Are Waiting Until After the Holidays to File for Divorce

December 11, 2015

shutterstock_161944220Every December, family law firms tend to see a drop in the number of new clients because people are waiting until after the holidays to file for divorce. There are a lot of reasons, but if you’re among the holiday hem and hawers, you may want to think again.

Among the most common reasons we hear for people waiting until after the holidays to file are: it’s a hectic time and people don’t want to deal with a divorce; they are afraid they’ll ruin the holidays for their kids; or they are afraid their spouse will ruin their holidays by harassing them about the divorce.

All of the above reasons are good immediate emotional justifications for waiting until after the holidays to file for divorce, but there are other things to consider that may have greater long-term consequences.

1. Bonuses & Stock Options 

Bonuses and stock options can be tricky in Nebraska divorce. There is no “hard and fast” rule for valuation dates so long as the valuation date the court chooses has a “rational relationship” to the property to be divided, and the court’s decision will be upheld on appeal unless it is shown that the judge abused his or her discretion. Additionally, employment bonuses are usually payment for a period of past service, and not earned at the moment like salary, so, under Nebraska law, they are usually considered marital property if the period of past service for which they were earned was during the marriage. The law also says that a bonus earned during the marriage is marital property even if it is not received until after the marriage is over, so long as a the spouse getting the bonus had an enforceable legal right to receive it on the date of the marital separation. As a result, filing now probably isn’t going to get you out of the court making an equitable division between you and your spouse of a bonus you are paid in January or February…. or at anytime if the bonus was earned during the marriage. Likewise, vesting of stock options accrued during the marriage are what they are, and that is, most likely, marital property if the stock was earned during the marriage. The court’s decision regarding both classification of bonuses or stock options as marital property and who gets what part of them if they are marital property is dependent on the facts of your situation. The slightest change in fact can make a big difference in the court’s decision. Your best bet is to consult with a lawyer who is experienced in this area of divorce law before making any decisions.

2. “Revenge” Gifts 

‘Tis the season for gifts – and what better way to exact revenge on a spouse who filed for divorce and ruined your holidays than gifting yourself a brand new Macbook …or television ….or full length mink coat using your spouse’s credit card or with all the funds in that joint bank account? This may be something to consider if you are filing – either to weigh in your decision whether to file during the holidays, or to guide your game plan in protecting assets before you file. A note of caution if you are considering being the purchaser of such a “revenge” gift – the judge may not take kindly to your actions, and in the final divorce decree, may reduce your property award by half the amount of joint funds you used to purchase that malicious mink coat or other item.

3 & 4. Death and Taxes 

They are the only two things in life that are for certain. One is death. If you die before your divorce is final, your spouse is your spouse and will be entitled to a portion of, if not all of your estate, unless you have a very well crafted will that excludes them from inheritance and it is upheld by the probate court after your death if your spouse challenges the will. As a result, although the filing date may not matter, the faster you file, the faster your divorce will be done, so if you are in poor health, you may want to consider this factor. Regarding the other of life’s certainties – your tax filing in April will provide you with great evidence of the most recent income of you and your spouse. However, there are other ways to get that information, so it is not essential to wait for your taxes to be prepared before you file for divorce. Also, because it’s so late in the year, filing for divorce won’t affect your tax filing status. Most couples continue to file as “married filing jointly” until after their divorce decree is finalized. It is a good idea to meet with your tax professional or an attorney knowledgeable in tax law, however, and determine if there are advantages to holding off on filing for divorce under your individual circumstances. Additionally, after the divorce, not only will your tax filing status change, if you have children, the final divorce decree will state who is to claim them as dependents each year. In most circumstances, you will alternate with your spouse if there is one child.  If there are two children, you will each claim one until one child reaches the age of majority, then you will alternate claiming the remaining minor child.

5. The Ghost of Christmas Future

Whichever of the winter holidays you celebrate, be it Christmas, Hanukkah, Kwanzaa, and/or New Year’s, if you file for divorce at this time of year you may run the risk of being re-visited by the timing of your action during every subsequent holiday until the event discussed above occurs (your death, not taxes). Timing the commencement of your divorce with a holiday that is special to your spouse may be an emotional wound to them that will affect them into the future also. Although you may not have the warmest of feelings for them, this is something to consider. When emotions cool down the road, you may regret your decision. Even worse, filing your divorce during the holidays may taint this time of year for your children from here forward. They may blame you for your decision and be angry with you now or when they are older, and it may impact your relationship. Whether this is a concern or not is something you should evaluate when you file. If you choose to file later, you may want to be aware of any other special occasions that coincide with the start of your divorce process like birthdays, Valentine’s Day, or other holidays that are meaningful for you, your children or your spouse. Make Your List and Check It Twice.  This list is meant to help you evaluate your individual circumstances. It isn’t exhaustive and you may want to consider other factors as well. Whether you file in December or wait until next year is a choice that you need to make for yourself, with the counsel of your lawyer, based on your circumstances and priorities. Perhaps finances make it advisable to wait until after the new year to file, but if there is domestic abuse involved, you need to get help leaving safely and leave now. Or, perhaps finances are irrelevant but you don’t want to risk a December filing for emotional reasons or to protect your children’s enjoyment of the holidays. You have to weigh those things yourself and make the best decision for you.  Regardless of whether you decide to file, get your leg work done as soon as you are able. You will need to figure out what your preference is for living arrangements during the divorce, open a new bank account in your name only and get current financial statements and account statements. The end of the year is a great time to collect copies of your financial and account statements as the end of year print outs arrive in the mail. Now is also a good time to do the leg work you need to get your legal team in place. Schedule a meeting for an initial consultation with attorneys you are considering so you can decide whom to hire. This will also help you to put together a game plan and arm yourself with legal advice tailored to your individual circumstance so you can get your ducks in a row before filing. The sooner you do those things, the better off you’ll be. Don’t Go It Alone If you are considering filing for divorce, Hightower Reff has a team of experienced divorce attorneys who can help you work through the things you need to consider to decide the best time to file under your unique circumstances. Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us. Don’t go it alone. This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.

For details about the author, Hightower Reff  Partner Attorney Tracy Hightower, visit her profile page. More information about Hightower Reff’s family law practice is available here. If you need help with a Nebraska family law case, contact Hightower Reff Law today and come visit with one of the attorneys at the Omaha office. 

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