Take Financial Control of Your Life During and After a Divorce

Even when the proceedings are amicable, divorce often comes with emotional, logistical, and financial challenges. Whether you’re just starting the process of separation or you’re already in the throes, it’s important to consider your personal and financial needs, and how your priorities may need to adapt. Though the uncertainty and distress often associated with such a major life event can make it difficult to see beyond the present, it may prove productive during this time to contemplate and outline a plan for the life you envision long‑term—once the dust from the divorce has settled.

Remember that negotiations are crucial to achieving the best possible outcome, and avoiding unnecessary litigation could save time, money, and stress. Focusing on your goals, advocating for yourself (while being realistic about potential compromises), and remaining active and engaged in the process can prove vital for achieving an optimal result.

Some couples who manage to reach a compromise on their own can simply hire an attorney (or go online) to compose a legal divorce settlement agreement and file it with the court.

Other couples, who are unable to find common ground or simply have more complex issues, must explore other avenues. Since pursuing divorce through litigation in the court system tends to be an expensive, public, and lengthy process, many consider alternative strategies such as mediation or collaborative divorce.  These alternatives may prove attractive for couples who are unable to navigate an agreement independently but are willing to compromise and would prefer to minimize direct one-on-one confrontation with their soon-to-be-ex—while avoiding the time and expense of going to trial.

Mediation typically involves bringing in a neutral third party, usually a consulting attorney, to provide guidance and help both parties work through the issues in a calm, communicative manner. Collaborative divorce requires the willingness and financial capacity for each spouse to hire their own attorney to represent them and serve as their sole negotiator (with their clients present) until issues are resolved and a settlement is reached.

One unique aspect of the latter approach is that if either spouse threatens to take the other to court at any time, proceedings are immediately concluded and neither lawyer is ethically permitted to represent the parties further.¹ This caveat may provide additional incentive to compromise for couples whose issues are more complex and/or whose personal relationship is particularly strained. Of course, if mediation or collaboration is unsuccessful, the divorce may eventually proceed in court.

Whether you and your soon-to-be‑former spouse pursue litigation, collaborative divorce, or mediation, in addition to obtaining sound legal advice, it’s important that you engage a financial professional who can educate you on the implications any proposed settlement terms may have on your financial wellness. To properly assess your situation, it’s crucial to fully understand your family’s finances, including your assets, debt, income, and expenses. Obtaining 12 months of up-to‑date information (examples below) can arm you with the knowledge needed to pursue substantive negotiations.

If you’re unable to obtain this information, it will eventually become discoverable in court, but discovery can be expensive, intrusive, and time-consuming. So the more information you can gather ahead of time, the smoother the negotiation process may be.

Divorce settlements can impact every aspect of your financial life. This is especially true if you have minor children. From child support and alimony to real estate and retirement accounts—consider your whole financial picture while negotiating your settlement. Divorce settlements generally include many (or all) of the following elements:

If you’re the lower-earning spouse, regardless of your gender, alimony can help you maintain your standard of living and access the education and training necessary to build your earning power and become self-supporting. Alimony payments are not guaranteed to be awarded, but when they are, factors such as the length of the marriage, the earning potential of both parties, the ability for the higher earner to pay, non‑monetary contributions to the household by the dependent spouse, and the standard of living established during the marriage will impact how much and how long alimony is ultimately awarded. Payments resulting from divorce settlements signed on 1/1/2019 or after are neither taxable for the recipient nor tax-deductible for the payor.²

States typically dictate a formula for child support payments, which are designed to ensure that minors are provided for by both parents until they reach age 18. Child support payments are neither taxable for the recipient nor tax‑deductible for the payor.

If applicable, it’s prudent to plan now for college expenses by including details in the divorce settlement about how much each parent will contribute toward their kids’ educational expenses now and in the future. Accounts such as 529 plans can assist parents in accumulating funds ear-marked for education on a tax-advantaged basis. Since 529 plans cannot have more than one custodial owner, divorcing parents often opt to each establish a separate 529 account per child, both to benefit from any applicable state tax deductions for future contributions to their respective plans and to simplify the tracking of each spouse’s agreed-upon share of future education costs.

Ownership of a 529 plan may affect financial aid. Generally, financial aid eligibility is determined by the household finances for the custodial parent (parent with whom the child primarily resides). While a 529 plan owned by the custodial parent is considered a parental asset on the Free Application for Federal Student Aid (FAFSA), distributions from that plan have no impact on eligibility. Distributions from a 529 plan owned by the non-custodial parent, however, will count as untaxed income for the student and potentially affect eligibility.³ As you negotiate the division of education-related expenses and accounts, you may want to strategically plan around your respective income and asset levels as well as expected parental custodianship and college costs. Then, be sure to spell out the details as clearly as possible in your settlement agreement.

Your home may represent a substantial portion of your assets. Of course, it’s also often where you live, which can make its disposition during divorce particularly challenging from an emotional perspective. Along with considering your emotional relationship to the home(s) and whether its ownership will still fit your budget, space requirement, and lifestyle needs as a soon-to-be single person, it’s important to understand your disposition options.

Real estate is commonly handled one of four ways. The couple can:

The disposition of assets in taxable accounts such as brokerage and bank accounts and tax-deferred retirement accounts—such as individual retirement accounts (IRAs), 401(k)s, and pension plans—will also be outlined in your divorce settlement. If you pursue divorce through the court system, division of the assets will be driven by state law. Nine states apply a concept known as community property, in which all earnings, assets, and debt accrued over the course of the marriage are split evenly, sometimes regardless of formal ownership.⁵

Most states, however, employ a concept known as equitable distribution, by which all earnings, assets, and debt are divided between the parties in a way the court deems fair—but not necessarily equal. For instance, if one spouse has a high, steady income and a sizable 401(k) plan balance while the other spouse spent most of the marriage caring for the children and the household, the latter spouse may be awarded a higher percentage of assets. While not equal, a judge might consider this fair since the higher-income spouse likely had access to a savings plan that the homemaker spouse did not and has income that might allow them to reliably rebuild that balance after the divorce. Alternatively, if the lower-earning spouse is awarded alimony payments, the higher-earning spouse may be awarded a greater share of the asset balances.

To outline details on division of qualified retirement plan⁶ assets, a legal document called a qualified domestic relations order (or QDRO) is typically included in your divorce settlement. A QDRO payout can be received as taxable installment payments, as a taxable lump sum, or as a non-taxable transfer or rollover to an eligible retirement account. If assets you’ve received via QDRO are re-titled but kept in the same qualified retirement plan, any subsequent distributions will be taxed, but the 10% early withdrawal penalty will be waived.

Debt, like assets, especially if handled through the court system, is often divided between spouses based on state law and/or “fairness.” For instance, the higher-income spouse or the spouse awarded a greater share of assets, may be assigned a greater percentage of the marital debt. While not equal, this may be deemed fair because that spouse has higher income and/or assets necessary to service and pay down those obligations incurred during the marriage.

Life insurance is often a key component of financial planning and lifestyle protection for married couples, especially if young children are involved. But in the event of a divorce (and/or if your children are grown), it’s likely you’ll want to change your beneficiaries or perhaps, discontinue coverage. However, if you or any minor children might suffer financially in the event of your or your ex-spouse’s passing, you could insist upon insurance coverage as part of your settlement.

If you’re covered by your spouse’s health insurance plan, you’ll need to explore options for establishing your own coverage once the divorce is finalized. Keep in mind that while some states allow health care plans to continue covering ex-spouses, many do not. Most states and health care plans, however, do allow eligible children to remain on the policy. If you lose coverage due to your divorce or legal separation, federal law gives you the right to continue coverage for 36 months through COBRA, though you’ll be responsible for the full premium. If you lose coverage and opt out of COBRA, you’ll qualify for a special enrollment period through the federal health care marketplace.

Consider your total insurance cost and coverage options carefully and prior to the divorce being finalized. This way, in addition to ensuring continuity of protection for yourself and your children, you can see that any financial assistance required from your ex‑spouse to afford your coverage is specified in the final agreement.

Remember that you and your spouse aren’t required to heavily involve the court system or a judge in your proceedings at all. Together, you may even be able to divide assets in a mutually beneficial manner for which a judge would not be expected to consider.

For instance, perhaps you both agree for the lower-income spouse to receive a higher gross amount of total assets, but primarily tax-deferred assets (which will be taxed as ordinary income upon withdrawal), and the higher-income spouse to receive less overall, but primarily taxable assets (which will receive more favorable capital gains tax treatment upon sale). Due to your differing income situations, this division may prove mutually beneficial because you will each likely keep more of the respective assets you’ve received (after tax) than if all asset types were split proportionately.

Whether one on one, or through mediation or collaborative divorce, greater satisfaction with the fairness of the outcome might be achieved if you, not the court, ultimately decide.

You can begin reestablishing your financial life as soon as you begin your separation, including reassessing your goals and making plans to work toward them. A trusted financial advisor can help you review your finances, and address the following items:

Prior to, during, and after your divorce, working with a trusted financial advisor who is well acquainted with your goals can help you develop a realistic pathway to meet them. With reasonable expectations, preparation, proper guidance, and willingness to adapt, the post-divorce life you envisioned can, eventually, become a reality.