Nolo's Essential Guide to Divorce - Emily Doskow [20]
Don't overuse your credit cards. While it's always important to keep an eye on how you use credit, it's especially so now. Circumstances can conspire to make credit card spending seem attractive or even necessary: You probably have less money than usual, you may be setting up a new household, and you're emotionally stressed. Even so, don't fall into the "I give up, let's just pull out the plastic" trap. If you don't control your credit card balances, you may emerge from the chaos of your divorce only to find yourself in the quicksand of uncontrolled debt.
Start Keeping Your Income Separate
If you don't have a separate bank account already, run right out and open one, and start depositing your paycheck into it. Even if you are the sole support of your family and you and your spouse have agreed to keep a joint account for paying family expenses, make sure the money you earn goes first into your own account before being transferred to the joint account. As soon as you have permanently separated, your income becomes your own, separate property.
This doesn't mean you won't pay over some of it, possibly even most of it, to your spouse as support, but that's a different issue. Having your own account makes clear that you and your spouse have separated and that your income is your own. (The importance of this varies depending on whether you live in one of the nine "community property" states, listed in Chapter 9, where everything you earn during the marriage is considered to be jointly owned, or another state, where your earnings have been your own all along.)
If you pay for family necessities like food, clothing, housing, or health care out of money that is only yours, your spouse might be required to reimburse you later-generally when your final settlement agreement is being completed. Except for that, for the most part, debts that either of you agrees to after the date of separation are considered your personal responsibility. (See "Close Joint Credit Accounts," below.)
Dealing With Joint Assets
How you deal with your jointly owned property depends on whether the divorce papers have been filed yet and also on how much you trust your spouse.
Before Papers Are Filed
Before either you or your spouse files divorce papers, you may use jointly owned assets as you see fit. You and your spouse do, however, share a legal responsibility not to do anything that would harm your jointly owned interests. (And, of course, you can't do anything that would harm your spouse's separate property.) You must manage jointly owned property for the benefit of both of you.
You have this responsibility (called a fiduciary duty, in legal terms) even if your spouse isn't living up to it. But what if you're afraid that your spouse will clean out the joint accounts? Theoretically, before divorce papers are filed there's nothing keeping you from taking half of the money out of your joint bank accounts-as long as you do it in a way that doesn't cause harm. But as a practical matter, it's not the greatest idea. First, if your divorce is acrimonious, your spouse's lawyer will have a field day questioning you about taking the property in anticipation of the divorce. Second, if your divorce isn't acrimonious yet, it probably will be after you clean out half of all the accounts. Better to talk to your spouse and make some agreements about dispersing cash for necessary expenses during your separation.
If you do take money out of joint accounts before you file and without your spouse's knowledge, keep extremely careful records of how much you withdrew (and how you use it), and put the money in a separate account in your name. Don't take more than half, and make sure that you don't touch any assets that might possibly be considered your spouse's separate property.
You also have the right to withdraw money from or borrow against your own retirement accounts, as long as you don't take more than 50% of the total value of the asset. (But there are reasons not to make such a withdrawal, discussed in Chapter 10.)
After Papers Are Filed