This is a question that does not come up in conversation but should early on.
When your advisor has to ask your spouse for money, the first question you should be asking yourself is whether your advisor has your best interests at heart. If you are not clear about the advisor’s intent you could go through a divorce process without being ‘the client’. If you are not the client then who is? Whoever pays the bills may be ‘the client’. You may ask yourself how could this happen when you have engaged the advisor? Your advisor’s ethics will determine whether your advisor maintains the right focus for the long term.
Advisors need to maintain integrity regardless of who is paying their bills
You may trust your advisor implicitly. Yet, if your advisor does not maintain bright lines as to who the client is then the advisor may silently shift the trusted advisor-client relationship toward your spouse while theoretically representing you. Could you imagine this happening? Aren’t advisors supposed to be your fiduciary through thick and thin? Unfortunately, in the world of divorces, this can and does happen. We’ve seen other advisors do this with their clients. You can tell based on how they communicate, the decisions they make, among other verbal and non-verbal cues. In our minds this is completely unacceptable behavior. Once an advisor makes a fiduciary commitment to represent a divorcing party, the advisor should follow through on the commitment regardless of which side is paying their invoices. We’ve maintained this mode of operation since day 1.
If your advisor has any integrity, then it should not matter who is paying the bills. After all, representing someone in a divorce process involves trust and integrity. You can’t see what is behind someone’s thinking. As a result, you have to be very careful. This is your life. Even if the advisor has high integrity and these questions enter your mind, then you have just inadvertently shifted your relationship with your advisor.
Share with your advisor from the outset whether you have control over the funds
From the outset you should share with your advisor how their bills will be paid. Will you pay them directly or do you need your spouse to pay them? Find out if this is going to be a problem for your advisor. Determine if the advisor has some creative ways to solve the problem. If this appears to be a problem for your advisor or your advisor doesn’t have any good ideas to resolve the issue then find someone else to represent you.
We recommend you gain control over who pays the bills early in the relationship. If you didn’t do this during your marriage it is critical you establish these boundaries for your divorce process. If your spouse has control over the treasure chest find a way to get 50% of the income and cash reserves allocated to you. You can use your settlement structure to reconcile any differences later on. There is no reason why you should be struggling monetarily during your divorce process to pay the bills. Your spouse should not have 100% control over the money. So, I accent, get control over at least some funds early on. When I say some funds I mean enough to not have to go back to ‘the well’ over and over again. Ask once and get enough the first time. Otherwise, you will feel like you are not in control over your own divorce process. If you struggle to gain control then you have just entered your first negotiation in your divorce and you will need help to manage the risks. You have just received a glimpse as to how the process will unfold with your spouse throughout your divorce.
Consider establishing an escrow account to allocate discretionary monies in the short term
To gain control over a portion of the monies, we recommend our clients to have any discretionary monies placed into an escrow fund. Once in the fund you can allocate the money evenly between both parties, at least temporarily. This does not mean to sell off any real estate or other illiquid assets. You also need to be careful of incurring a tax event by putting monies in the escrow account. It depends on the attributes of your existing investments. Any monies that were improperly allocated can be reconciled later on as part of your settlement structure.
Commonly, the breadwinner of the family directs monies to be deposited in a specific account. A problem is created when you do not have access to the account or control over how much is spent. Yet, if the monies were directed toward a common fund then you would each have access to and control over the monies. I would not suggest writing checks out of this common fund. Rather you want to transfer the monies from this fund into your own personal account. Your spouse should do the same.
You need to establish an agreement up front that each of you will take equal amounts from the common fund. If you are the breadwinner you should establish this for your spouse too. The transfers create a monetary trail of evidence too. How you spend the money that ends up in your personal account is up to you. I would err on the side of conservatism. In the short term while you are working through your divorce you can at least pay your own bills and ensure your advisor looks out for your own best interests.
This single decision will set your divorce up for a much greater level of success than not.
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.