Divorce Articles Section
Divorce Basics:
Empower Yourself With Information to Survive Your Divorces
There are only two ways to get divorced – you either settle,
or you go to court.
We all would like divorces to settle. It’s less costly, takes
less time, and hopefully, retains some dignity for the family.
There are many ways to settle and we will talk about them, but
let’s start at the beginning.
Grounds
In almost all states in this country, divorce is “no fault.”
That means that either spouse can get a divorce even if the other
spouse doesn’t want the divorce. It does not need to be proven
that the other spouse was a bad person in order to get a divorce.
The language is typically that the marriage is “irretrievably
broken” with no chance for reconciliation.
“Pro Se” Divorces
Most people who go through divorce have lawyers. But there is a
trend in this country that people not retain lawyers. People who
go through divorce without a lawyer are called “pro se.”
The statistics are that at least 50% of the people who go through
divorce or sue each other after the divorce have no lawyer.
Problems With “Pro Se” Divorces
- Income taxes. Many people do not understand the tax consequences
of transferring certain property, such as the house, or stock
with a low basis. One of them may be stuck with a huge tax bill.
- Missed assets. If the parties don’t completely understand
the difference between marital and separate property, some property
may be transferred without fully understanding the legal options.
- Pensions. Sometimes, retirement accounts are the most valuable
marital asset. If the parties do not fully understand the retirement
plans, they could grossly undervalue what is to be divided. Some
also fail to understand the consequences of the death of the employee
or the nonemployee. In these cases, benefits could revert to the
company rather than the beneficiaries the parties intended.
Waiting Periods
- Residency
In all states, one spouse needs to have been a resident for a
certain period of time for the court to have jurisdiction to divorce
the couple. The typical length of time is 90 days.
- “Cooling off” period
The other time period that states have is the “cooling off”
period” intended to prevent people rushing through the divorce.
In many states the period of time from when you start the case
to when you end the case is typically 90 days. Even though that
period is relatively short, the average divorce case takes about
a year. About 95% of divorce cases reach a settlement. If no settlement
is reached, the parties go to trial and the judge makes the final
decision.
Temporary Orders
The period of time between the beginning and the end of the case,
is a time when the financial and emotional life of the family goes
on. There are children to feed, there are mortgages to pay, there
are insurances to deal with. This is the temporary period. It’s
during this temporary period that people usually reach settlement
about how to manage their lives while they are waiting for the case
to be over. If they can’t settle, they go to a judge to have
a Temporary Orders trial.
A common temporary order is one that orders one spouse to pay support
to the other until the divorce trial takes place. Before the judge
can grant the motion, it must be shown that support is needed and
that the spouse is capable of paying the amount requested.
Permanent Orders
Permanent Orders are the final divorce orders which dissolve the
marriage and enters permanent financial and child based.
Discovery
Discovery is the process of gathering information about the nature,
scope, and credibility of the opposing party’s claim. Discovery
procedures include depositions, written interrogatories, and notices
to produce various documentation relating to issues which are decided
in the case. Many cases are won or lost at the discovery stage.
The theory is that justice is best served if both sides have access
to the same facts and evidence. But with a spouse who is knowledgeable
about financial affairs and willing and able to manipulate records,
discovery can turn into a struggle.
Types of Discovery
There are two types of discovery: informal and formal.
- Formal Discovery
Formal discovery includes legal procedures such as depositions,
interrogatories, and requests for production of documents.
A deposition is the sworn testimony of a witness taken outside
the court in the presence of lawyers for each side. There is also
a court reporter present to record the proceedings and testimony
has to be given under oath. Because it is a sworn statement, it
becomes part of the record of the case. If you say one thing in
the discovery deposition, and another thing at the trial, you
will have to explain why your answer changed. The parts of the
discovery deposition that are in conflict can be read to the witness
at trial, and if the change is substantial and unexplained, the
overall testimony of the witness is less believable.
Interrogatories are a series of written questions submitted
to the other party. Because interrogatories are in writing and
do not require the “live” presence of the attorneys
and the court reporter, they are used more frequently than depositions.
The answers to interrogatories must be under oath and filed within
a prescribed period of time.
Requests for Production of Documents require the spouses
and third parties to produce documents necessary to understand
the issues in the case.
- Informal Discovery
Informal discovery can be as simple as one lawyer calling the
other lawyer and saying, “Send over to me everything you’ve
got about the Smith case including financial affidavits, tax returns,
check stubs, investment statements, list of assets, and anything
else we might need to see.” And the other lawyer responds,
“Okay, you’ll have it by Friday.”
Well, it might not be quite that simple but if the spouse’s
lawyer is cooperating, he/she adds to the informal discovery by
voluntarily providing requested information and documentation.
The best lawyers do this without hesitation and give complete
relevant financial facts. The lawyer knows he will be required
to provide this information anyhow, and he can save time for the
client and himself, as well as the expense of formal discovery.
Trials
If the parties don’t settle, then they go to trial and have
a judge decide their future. Only about 5% of divorce cases actually
go to trial. Whether they settle “on the courthouse steps”
or earlier is impossible to ascertain. That fact that about 95%
of them settle is good because if they have come to an agreement
on their own, they are more likely to honor that agreement than
one handed down to them by “the person in the black robe.”
In one sense, they have taken charge of their own future and it
gives them a feeling that they are in control. Going to court takes
all control away from them.
Approaches to Settlement
There are several ways to approach settlement:
- Husband wife decide on a settlement.
Most people who are getting divorced can’t talk to each other
so this approach doesn’t always work. The “pro se”
population is generally more able to talk to each other. They
are working without lawyers and are trying to settle.
- The lawyers decide on a settlement
One lawyer represents the husband and one represents the wife.
A. Settlement letters – the lawyers send letters back and
forth
B. Four-way meetings – these are meetings with both lawyers
and both spouses to try to reach a settlement.
- Mediation
The purpose of mediation is for both husband and wife to come
to a mutually acceptable settlement. The mediator does not do
individual counseling, and is limited to gathering data, setting
the ground rules, and keeping both parties on track. Throughout
mediation, alternative solutions are offered, issues are clarified,
and a settlement is arrived at. The mediator’s job is to
be a facilitator and to help the couple work together. The mediator
has no authority to force a decision upon them. If you and your
spouse are communicating, then mediation should be explored. The
goal of mediation is to get past the positions that people come
in with and work toward what they really need in order to be satisfied
with an agreement.
Mediation doesn’t eliminate your need for a competent attorney.
It does require voluntary participation of both husband and wife.
A goal of the mediation process is to draft the outline of a settlement.
The parties will then have a lawyer take the outline and prepare
a formal separation agreement based on the terms of the mediation.
If you are using only your spouse’s lawyer in your case,
seek a second opinion from your own lawyer. Have this lawyer explain
the pros and cons and significance of each provision. Remember,
you will have to live with this the rest of your life.
- Arbitration
Arbitration is another tool for avoiding a lengthy and expensive
trial. An arbitrator acts as your own private judge who conducts
a “mini-trial” of sorts, in which the parties and their
lawyers present their cases. Arbitration is used more in some
areas than in others, and can be particularly attractive if you
live in an area with a huge backlog of cases. If you agree in
advance to what is called binding arbitration, the arbitrator’s
decisions are final and become a court order just as if you had
gone before a judge. On the other hand, you can agree that the
decision of the arbitrator is only “advisory,” in which
case you would not be required to follow his or her decision.
An arbitrator can be used for the entire process or only to resolve
certain issues. The arbitrator may even offer a combination approach,
mediating initially, but making a decision for you if you cannot
agree.
- Collaborative Divorce
Collaborative Divorce is a team approach to divorce that includes,
neutral financial specialists, Collaborative Law attorneys and
when needed, child specialists. Divorcing families obtain professional
help from specialists in the psychotherapy, financial and legal
fields to help them settle their case. Each team member assists
the family in his/her area of expertise, and then works with other
team members and with the collaborative law attorneys who help
families reach divorce settlements.
The team teaches communication skills so that parents can communicate
better with each other and in the future around their children’s
needs. Finances are addressed, budgets are created, and financial
skills taught where needed. Although more professionals are involved
in collaborative divorce cases, the cost is lower for the family
overall because the family receives specific and focused divorce
assistance which allows for more productive work when meeting
with their attorneys to reach settlement. -Collaborative Law attorneys
are the legal professionals on a Collaborative Divorce team.
Collaborative Law is a new dispute resolution model in which both
husband and wife retain separate, specially trained lawyers whose
only job is to help them settle the dispute. All participants
agree to work together respectfully, honestly, and in good faith
to try to find “win-win” solutions to the legitimate
needs of both parties. No one may go to court, or even threaten
to do so, and if that should occur, the Collaborative Law process
terminates and both lawyers are disqualified from any further
involvement in the case.
Both sides sign a binding agreement to disclose all documents
and information that relate to the issues, early and fully and
voluntarily. “Hide the ball” and stonewalling are not
permitted. All information is shared openly. Attorneys and clients
work together to create win-win solutions for all members of the
family.
The Collaborative Law attorneys have a completely different state
of mind about what their job is than traditional lawyers generally
bring to their work. We call it a “paradigm shift.”
Instead of being dedicated to getting the largest possible piece
of the pie for their own client, no matter the human or financial
cost, collaborative lawyers are dedicated to helping their clients
achieve their highest intentions for themselves in their post-divorce
restructured families.
Collaborative lawyers do not act as a hired gun. Nor do they take
advantage of mistakes inadvertently made by the other side. They
expect and encourage the highest good-faith problem-solving behavior
from their own clients and themselves.
Collaborative lawyers trust one another. They still owe a primary
allegiance and duty to their own clients but they know that the
only way they can serve the true best interests of their clients
is to behave with, and demand, the highest integrity from themselves,
their clients, and the other participants in the process.
Collaborative Law and Collaborative Divorce offer a greater potential
for creative problem-solving than does either mediation or litigation,
in that only Collaborative Law puts two lawyers in the same room
pulling in the same direction to solve the same list of problems.
No matter how good a lawyer they are for their client, they cannot
succeed as a Collaborative Lawyer unless they also can find solutions
to the other party’s problems that their client finds satisfactory.
This is the special characteristic of Collaborative Law that is
found in no other dispute resolution process.
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