To Delay, Or Not to Delay, that is The Question

The decision to file for divorce is not just a legal action—a lawsuit—but also a deeply personal and important decision. In fact, it may arguably be one of the most monumental decisions a person may make in their entire life. Thus, it is not surprising that many people delay the act of filing for divorce. Some people may be in denial by the emotional weight of the act, or they fear the possible ramifications the divorce may have for their children. For others, it may be a religious or perhaps a financial reason to delay the divorce. Or, perhaps some people may simply find comfort in a new normal of living separate and apart from their spouse without the formality of a divorce.

Regardless of the reason to delay the filing of the divorce, the same reasons may exist for not seeking legal advice. Here are three things to be aware of if you are already delaying the so-called dreaded divorce filing:

It might get confusing: If you and your spouse separate, i.e., agree that the marriage is irretrievably broken, but decide to postpone filing for divorce, your decision could cause confusion with regards to the characterization and valuation of marital assets and debts. To illustrate, if Howard and Wanda separate, but continue to file joint tax returns, pool their earnings and acquire a new home, start a business together, or purchase an investment property, they may subsequently find themselves in a predicament with regards to determining what constitutes the assets and debts of the community. For example, are the marital assets and debts those which existed before Howard moved out? Or, are the marital assets and debts those which currently exists? Hence the confusion.

It could get expensive: Delaying filing for divorce may cause a dispute as to the date of separation between the parties. For example, if Howard and Wanda separated in 2001, but only filed for divorce in 2008, Howard may want to claim a date of separation in 2001, and Wanda may claim a date of separation of 2008. This means that unless Howard and Wanda arrive at an agreement regarding their date of separation, they may have to value, for example, the business, the bank accounts, and the retirement accounts on two separate dates—in 2001 and 2008, which instantly increases the legal and accounting fees. Further, if Wanda and Howard are unable to agree on their date of separation, the court may bifurcate (split) the divorce case and have a separate trial first on the parties’ date of separation before even turning its attention to the division of assets and debts. Two trials, two dates of valuation, and lots of conflict equals one very expensive divorce.

Longer marriage, longer potential support order. In California, a long-term marriage is defined as a marriage lasting 10 or more years. Lengthy, long-term marriages may justify an unlimited duration for the payment of spousal support, i.e. a spousal support award that can continue until the recipient’s remarriage, the death of either party or a further court order. While a variety of factors are weighed in the determination of both the amount and duration of spousal support, the length of the marriage is a factor, and a marriage that is long-term could indefinitely extend the duration of spousal support. 

Conclusion: While maintaining the status quo may be a source of comfort and stability, it is indeed temporary if the ultimate goal is to be divorced. If you are delaying your divorce and have concerns about the ramifications of the delay—including the risks and perhaps even the benefits—do not delay in seeking legal advice to assist you in determining the answer to the big question: To delay or not to delay?