Many of my blogs and other writings on the subject of divorce recommend refraining from filing the divorce in Court and, instead, utilizing divorce mediation or the collaborative divorce process to negotiate an out of court divorce settlement. This is because absent extraordinary circumstances necessitating early Court intervention, negotiating a settlement without going to Court can save the couple tons of money and minimize conflict and stress.
The following case study provides a good example of when it is advisable to file the divorce in Court right away.
One spouse is making substantial withdrawals from bank/investment accounts, borrowing substantial sums of money and/or spending money excessively for non-marital purposes. Such a non-marital purpose could be spending money on a paramour.
If you happen to be married to such a spouse, you can protect yourself financially and prevent marital assets from being depleted by having your divorce attorney file a Summons with Notice and a Notice of Automatic Statutory Restraining Orders, hereafter “Notice of Automatic Orders.”
The Notice of Automatic Orders includes the following language:
“ORDERED: Neither party shall sell, transfer, encumber, conceal,… remove, or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property…except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.”
“ORDERED: Neither party shall sell, encumber,…remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans…or any other pension or retirement account…without the consent of the other party in writing, or upon further order of the court; except that any party who is already in paying status may continue to receive such payments thereunder.”
“ORDERED: Neither party shall incur unreasonable debts hereafter… except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.
“ ORDERED: Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
These automatic Court Orders can be put into effect very quickly. All you need to do is retain a divorce lawyer to bring a divorce action on your behalf, and the attorney can e-file a Summons with Notice and Notice of Automatic Orders with the Count Clerk’s Office, and have a copy of said Summons and Notice of Automatic Orders served on your spouse, all in the same day!
Moreover, the legal protection you would get if your divorce lawyer did this for you is very powerful. If your spouse violates any of these automatic orders, he/she could be held in contempt of Court and incarcerated.
In my experience, the divorce lawyer representing your spouse will do everything in his/her power to stop your spouse from doing anything that could be construed as a violation of any of these automatic orders.
If, however, such an immediate filing of the divorce papers is not necessary because your spouse is not doing something financially or physically harmful to you, it is usually best to stay away from Court and do divorce mediation or collaborative law in order to obtain a divorce settlement. Such a settlement can save you a lot of money and grief.
