By Amanda Catto, Kirsten Smit and Leah Sefor,
Divorce is a life-changing event for any family, but it need not be a devastating one. In a recent holistic divorce workshop hosted by Citadel, a panel of experts reached the consensus that life can be good after divorce, especially if it is managed well from the legal, financial and relationship perspectives. Here are the panel’s top-five tips for bouncing back from divorce and achieving a fulfilled new life for all those who are impacted by the change in family dynamics.
Before you file for divorce, equip yourself with some basic legal knowledge
Before you get divorced, it’s essential to know which legal framework you were married under. Whether it be in community of property, or out of community of property (with or without accrual) in terms of an antenuptial contract. If you have an antenuptial contract you need to know what the agreement says. You might be married in terms of a foreign law (if you got married abroad). If you don’t have a copy of your marriage agreement, you can get it from the Deeds Office or from the notary who notarised your contract.
Legal representation is not strictly necessary, but expert assistance is helpful as divorce can be complex. You don’t have to use an attorney for a divorce. The lower (magistrates’) courts particularly are geared to assist people through the process, and there are sites in South Africa that offer “DIY” divorces.
If you choose to proceed on an unrepresented basis, there are some pitfalls, so it may be best to have at least one consultation with an attorney just to understand your rights. If your partner is not disputing the divorce, it’s good to have an attorney at least check your court documents and any settlement agreement. If the divorce is acrimonious, get help from family law specialists, as it is a very complex field. It’s the biggest red flag that someone plans to be unfair if they tell their spouse not to seek legal assistance or they’ll rescind their offer.
All divorces must be granted by a court order, via a summons, while domestic partnerships can be terminated by agreement. In a contested divorce, a summons will be followed by documents from both parties, referred to as pleadings, which could focus on financial, parental and practical arrangements.
There is no cost difference between seeking a divorce from a lower or a high court, but… you’re better off in a high court from a cost perspective if the divorce is acrimonious. If you do use the services of legal professionals, you are entitled to know their fees upfront and to receive written mandates from them. The aim should always be to reach a settlement as soon as possible. Once settled, that’s the end of it.
Get a handle on your family’s financial affairs and future
From a legal perspective, divorce is mainly a financial transaction. As a starting point, you need a solid understanding of your (combined) balance sheet – assets and liabilities, what you own, what you owe, and what you earn now and in the future. Consider what you are likely entitled to keep and what property may be subject to division. Trust assets must also be considered, especially when both partners are trustees and children are beneficiaries.
Understanding your family’s financial situation is a huge benefit when you are initiating a divorce. Many people, and especially women, tend to know very little about their spouse or family’s financial affairs because this information is never shared. It is always advisable to keep a family file that is accessible to both spouses, containing information on assets, policies, pensions, retirement and living annuities, investments, trusts and trustees, wills and testaments, and other information that will assist the surviving spouse in the event of the death of a spouse and provide for transparency during the marriage.
If either party feels that they don’t have a handle on the family finances and that unfairness may arise, or if communication has broken down, it is advisable to seek the help of mediators and therapists with experience dealing with divorces.
The more cooperative and sensible everyone is, the lower the financial and emotional cost for everyone. The most effective and efficient way of handling a divorce, from a cost and emotional perspective, is to opt for mediation – but remember, it can only ever succeed if there is cooperation, integrity and full disclosure.
Child maintenance does not end at age 18, but rather when the child reaches independence – although adult children cannot abuse this right. Maintenance will always rest on both parents and is decided in accordance with their means, and will increase annually (on an inflation basis). It’s preferable to get a clean break via capital buy-off. If one parent defaults on maintenance, you can get a court order to attach their salary, assets or pension.
Get realistic about your new reality
It is very normal to see your expenses go up during divorce. Having children to care for will dig deep into your pocket. It’s important to learn to budget properly. Knowledge is power, so track your inflows and outflows. Having to start running two households is an expensive ordeal. While it may be tempting to get a whole new wardrobe or to go on an exotic holiday with friends, it might not be the wisest decision in your new financial reality.
Do not expect to remain the same person, or expect your partner to remain the same person. People often change their appearance, how they speak and many other things about their identity after divorce. So, expect and accept it, and learn to continue communicating respectfully.
It is vital to prioritise self-care and avoid burnout by eating, sleeping and exercising enough to maintain a positive, forward-looking attitude during the divorce process.
As you start rebuilding yourself and your life, it’s good to do some introspection about why you want the divorce to happen, what is going to happen to your life, who is going to be impacted, and where you see everyone ending up through this process. I’m a big fan of taking ownership of your own emotional journey; couples become each other’s punching bags when they don’t take stock of the part they played to get to this point in the relationship.
Also, accept the fact that it is going to be a roller coaster. People want it to be easy and pain-free, but that is very much dependent on your conduct, attitude and behaviours. Get a therapist or coach as soon as you possibly can, so that someone can help you work through the upheaval. If you don’t, you won’t be able to hold space for your children.
Both parties need to be cooperative and sensible to minimise family trauma
Something that many people want to know is when and what to tell the children. I feel this can only happen if both parties are clear about the logistics of the divorce, and once you’ve met the mediator and agreed on the terms of the divorce. Remember, children will ask a lot of questions. The golden rule is that both parents need to be present for the conversation if circumstances allow. Choose a time when the children will have time to process the shock – not on the way to school or a sports game, or right before bed. There needs to be time to discuss and process it together.
Share only the basic facts of the situation with children to avoid overwhelming them, and adjust the information according to their age. When you talk to your preschooler, share less and give more specific information about how it will affect them – where they will live, who will take them to school, what will happen to the pets. Older children will have many questions but don’t over-share personal information with your children. Get a therapist for them – your children are worried about you and won’t bring their stuff to you and will need an objective counsellor to speak to about what they are going through. They might lash out and will need to be held. Keep a very close eye on changes in behaviour that may indicate that they need help, such as appetite changes, sleep disturbances and emotional outbursts. With older children, give them the number of the therapist and let them set up the appointments themselves.
All divorcing parents need to get a parenting plan that both parties can agree on, and need to stick to the plan as closely as possible unless circumstances change drastically. A parenting plan typically covers guardianship, maintenance and contact arrangements. Don’t be petty and punitive. Both parties need to be transparent and cooperative. Always strive for fair and pragmatic solutions in the long-term interests of the family.
Approach your divorce consciously, not reactively.
* Catto is a family law specialist, Smit is an advisory partner, and Sefor is a relationship and communications expert at Citadel.
PERSONAL FINANCE