Deciding to divorce can be a very emotional choice to make, for good reason. But the decision you must make after that — choosing the date you will actually file for divorce — requires more strategic thinking.
Your divorce filing date profoundly affects certain financial aspects of your overall divorce settlement. Because it signals the official beginning of the divorce legal process, your filing date can also impact you and your children psychologically.
When is the best time to file for divorce? Every divorce is different, but for people who have made the decision to divorce in the fall or during the holiday season, the answer is often January.
The holidays are over. Parents can help children cope and thrive during the transition of divorce by maintaining as much calm and stability as possible. Filing for divorce during the holidays, which is often a hectic time for families and kids, can make it more challenging to maintain the stable environment children need. If you and your spouse are not yet separated, asking your kids to suddenly accept you living in different houses during the holidays can be confusing and stressful. Tensions can also flare as the two of you try to coordinate holiday dinners or who gets the children on the first night of Hanukkah, or Christmas Day, etc.
If it’s possible for you to set aside your grievances and peacefully remain under one roof at this time, consider doing so for your children’s sake. By taking this step, you are modeling for yourselves the basics of a positive co-parenting relationship. Divorced co-parents are able to remain civil with each other as they put their children first. December may be an ideal month for you and your spouse to seek counseling to help get your divorced co-parenting off to the best start possible.
Once the holidays are over in January and your children are back to their regular schedule, you and your spouse will have more time, space and privacy to begin the divorce process.
The year-end bonus is in the bank. Does your spouse get a bonus from their employer every December? Waiting to file for divorce in January ensures that all income from the year — including work bonuses — is treated as marital property in your divorce.
In New Jersey, the date you file for divorce generally determines the date that marital property ceases to accumulate. If you expect your spouse to receive a big end-of-year bonus, waiting may be the better plan — that way the bonus has been sent, received and deposited into your bank account, and thus will be fully available to be divided in your divorce.
Are you the spouse who earns the bonus? Don’t assume that your bonus will be treated as separate property if you file your complaint before payment. Bonuses (as opposed to regular salary) typically represent efforts expended throughout an extended time period, so part or all of a bonus might still be marital property.
Do you have retirement accounts? Pensions, IRAs and other retirement accounts are subject to division in a divorce, but be aware of the calendar issues tied to these types of accounts and how they are handled. Under current New Jersey laws, a spouse is entitled to up to one-half of what was put into their spouse’s pension from the date of marriage to the date of the filing of the complaint for divorce.
This means that rushing to file for divorce could actually cause you to lose out on some of the monies in your spouse’s retirement account. Further, filing on January 2 (courts are closed on January 1!) will allow for easier accounting of the retirement assets when the time comes to figure out your exact share of the pension, 401k or IRA. It’s a clean cut off date.
Planning for the new tax year. There are many tax implications involved in a divorce, and closing out the year before rearranging finances is often a sound practical decision. You will have more time to attend to tax planning for the next year, figuring out things like who will get the mortgage interest deduction and who will take exemptions for children. While filing in January doesn’t guarantee that you will meet the end of year requirements for filing differently next year (as head of household, or single, for example), it does give you a good chance. The majority of divorces can be completed within one year — at least if both parties are motivated to resolve matters.
Get Answers to Your Filing Questions
Whatever you ultimately choose to do, consider talking with a family law attorney before you file, so you can move forward with a strategy for your divorce case that is beneficial to you financially, but also beneficial for emotionally for your entire family.
At Weinberger Divorce and Family Law Group, we are ready to provide to you with tailored advice for your divorce that safeguards your children and secures your future. To schedule your free attorney consultation, call us at 888-888-0919 or click the button below.