I’m Heading for Divorce. How do I Start?

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First, you need to see a lawyer.  Your friend or sibling who went through a divorce, your uncle who is a non-family law attorney in another state, your friend or family member who worked or works in a law office, your hairdresser, your mechanic, and your colleague, are not the best sources for information.

The settlement you will sign off on, or the Court Order you will obtain through litigation, will probably be the most important legal document to affect your life. You will be making on your own, or receiving from a judge, decisions as to your children, your retirement, your house, child support, alimony, and debt.  Make sure you do it right, whether through litigation or settlement with attorneys, or through alternative dispute resolution such as mediation or collaboration.

Once you are informed as to your options, and as to whether or not your goals are realistic, it is time to Make a Plan.  Your own plan.  Do not just react to how your spouse treats you on a day-to-day basis, or let him or her dictate the shape of your new life.  Emotional roller coasters are no fun to ride.    

If you want to give a huge amount of your hard-earned money to lawyers, and if you want to create possible difficulties for yourself in court, you may want to or you may need to implement a nuclear, high conflict plan. 

But if you and your spouse can work together, another option would be to discuss the possibility of mediation, or collaborative divorce, where each of you, with your own attorneys, can protect your individual interests, and resolve all of the issues regarding the dissolution of your marriage without either one of you making threats, or trying to grab more of the marbles. 

No matter which plan you think may be best, be sure to get input from at least one attorney, before you start skipping down a road which may lead you right off of a cliff.  The direction in which you initially head will play a huge part in where you will eventually wind up.

1. LITIGATION

Two rational, intelligent, emotionally healthy people getting a divorce, wouldn’t want to let the Court make all of the important decisions about their new, separated lives.  Litigation is expensive.  Attorney’s fees can be around $400.00 per hour, and billable in 15 minute increments.  That means that for your attorney to read a one page correspondence from the other attorney, and to mail a copy to you, you are paying that attorney $100.00, plus postage and copy paper.  That is actual money no longer in your pocket.  A contested fully litigated divorce case can cost you near $50,000.00.  Or double that.  Each.  Why would you spend your children’s college money, your retirement, or your home equity, to fight with your spouse in court?  Wouldn’t you rather take a cruise first class?

Here are some truths about litigation:

Lawyers can argue both sides of anything. 

You may have a “strong” case.  That means your lawyer has some good arguments as to why the Judge should “rule your way” based on the existing statutory and case law.  Meanwhile, your spouse’s lawyer is saying the very same thing to your spouse, because that lawyer can also think up some really good arguments, and can also find some statutory or case law somewhere to support those arguments. 

Throwing gas on the fire may only scorch your earth.

Sometimes you need to stop being so nice.  If your generosity is not appreciated or reciprocated, you may simply be letting yourself be taken advantage of if you’re the only one giving in.  Mediation, collaboration, and negotiation are not options if your spouse’s participation would only be in bad faith. If your case just won’t settle despite all your best efforts, and if there are reasons to go forward with litigation, off you will go.  Or your spouse will sue you.

You may come home one day to see that the Sheriff has taped a bright yellow plastic bag containing papers to your front door, serving you by posting.  Or you may be personally served by private process server at work, at a party, or at some other embarrassing locale.  Perhaps service of a one-half inch thick lawsuit will be made upon you at the office Christmas party, or at your home on your birthday.   You never imagined your spouse could be so thoughtful!

You may be served with only the initial document, or with lots of additional documents.  The papers may include a Notice for you to appear in your spouse’s attorney’s office to be deposed under oath before a certified court reporter, along with your paramour.  The more stuff you’re served with, the more money you will be charged when you go to hire an attorney. 

Then, after having gone through your expensive private battle, if you and your now ex-spouse have children together, you will both have to sit at their graduations, and at their weddings, and you will have to smile happily for the cameras.  Your family may not have any money left to throw any parties for them though.

And THE FINAL BILL must be paid to each attorney for all of the fine hard work done on your behalf, regardless of whether you “won” or “lost.”  If you don’t pay, you may find yourself after the word “versus” before the word “Defendant” in a suit to recover attorney’s fees.  Your attorney’s name will be on the other side of the “v.”

Lawyers are friends, or at least have professional collegial relations. 

The “my lawyer can beat up your lawyer” mentality caters to a mistaken belief that your lawyer is somehow a weapon you can unleash for your personal use.  The reality is that most family law attorneys go to the same bar association functions, go to the same continuing legal education classes, have many cases with each other over the years, and may even be friends.  However, we will still fight the fight and try to win.  We may even get ugly with each other and file cross motions for sanctions, but it’s not our battle – it’s yours.  It’s competition to us to see who prevails, but it’s your life.  When it’s all over, we lawyers will go get a cup of coffee together, congratulate the good work the other did, and refer future cases to each other.  We do care about you, your life, and your children, and truly do want to help you, but when your case is over, we lawyers go back to our offices and begin to prepare the next case.  And your Invoice for Professional Services Rendered.

2. NEGOTIATION OF AN AGREEMENT

Is negotiation with two lawyers the way to go?  Let’s see.  You tell your attorney what you want.   Your attorney writes something up for you to review, that confirms that it is exactly what you want.  Then your attorney sends your proposal to the other attorney.  The other attorney tells your spouse what you want.  Your spouse tells his or her attorney what he or she thinks of your proposal, and that attorney and your spouse verify that your spouse’s attorney understands your spouse’s response.  Your spouse’s attorney then tells your attorney what your spouse thinks of what you what.  Your attorney finally tells you what your spouse thinks about what you want.  You do this thumbs up/thumbs down over and over again, addressing item after item, perhaps one item at a time, moving closer to a resolution.  With legal charges for every phone call, fax and email.

So do I need a lawyer to prepare the Agreement?

Yes.

Yes.

Yes.

You need a lawyer to prepare your Agreement. 

You need a lawyer to prepare your Agreement.

You need a lawyer to prepare your Agreement.

And if your spouse’s attorney has prepared the Agreement, you need your own lawyer to review that Agreement for you, and to inform you of all the important little omissions and phrases which will certainly need to be added and corrected in order to protect you.  You are not a lawyer.  You will not even have realized or know what words should have been included to protect your interests but weren’t, no matter how smart you are.  The smart thing to do is to pay someone in the beginning to make sure you don’t pay even more in the end.

If I don’t like the Agreement my spouse has given me, what should I do?

Don’t sign it.  It’s just a proposal.  A starting point in the negotiation. 

If a letter accompanying the Agreement “only gives you” some amount of time “to respond,” you still don’t have to do anything.  You can throw the proposal right in the trash if you want to.  No one can make you settle until you are ready.  But there is such a thing as waiting too long. 

If I like the Agreement my spouse has given me, should I just sign?

Absolutely Not.  

You have to involve a lawyer to review the Agreement for you. Your spouse’s attorney does not care what you want, does not represent you, and may even mislead you.  You should not trust that attorney, no matter how nice, how sympathetic, or how agreeable he or she might seem. That attorney will have properly done his or her job to draft an Agreement that protects only his or her client, and not you.  Sure you may want to “get it all over with” real bad.  But if you don’t do it right, you may find the problems are not really over just by your signing off on your spouse’s proposal,  and will blow up in the future with a vengeance right in your face.

If   we   can  agree on  everything,  can  my  spouse and  I  just   write   up  an  Agreement  ourselves, maybe using a copy of a friend’s Agreement, or one we get off the internet, to save money?

Only if your divorce does not involve spousal support, retirement, significant assets, or a house, and even then to do so would probably still be a bad idea.  Otherwise, you may spend more money on attorneys trying to fix, trying to clarify, and unsuccessfully trying to undo what should have been done properly in the first place, and you will then pay a higher price. 

What if we jointly decide not to follow the Agreement we signed?

You can. 

The world won’t stop spinning, and you won’t be arrested.  The terms of your Agreement, in some sense, such as those provisions pertaining to a visitation schedule, can be viewed as a sort of fallback if you don’t agree otherwise.  You’re not breaking the law if you begin to follow a different visitation schedule by mutual agreement.

But be very clear.  If you decide to do other than what you agreed in writing to do, and then have a falling out with your X2B later on, you each have the right to enforce the terms of the original written Agreement.  Regardless of or for how long you have been doing otherwise, and regardless of any verbal agreement to do otherwise.  And possibly regardless of the contract you both signed modifying your Agreement without obtaining a new Court Order.  If you verbally agree to a higher or lower support amount, or home equity buyout, than what your Agreement states, rock beats scissors, and paper beats air. 

Will the Agreement be a public record?

Usually, yes.  Will anyone care to read your divorce papers over at the courthouse?  Probably not.  Maybe.  Is there anything you can do to prevent your life from being available for anyone to peruse?  Probably not.  Maybe.  Some courts will at least have a separate filing system not available to the public, and not put into the public computer records, for private matters such as social security numbers, and asset and debt account numbers.  But the details of the boozing, infidelity, cruelty, or visitation arrangements involving your family, are not considered private.  You may ask your attorney to seek a protective order sealing your case from the public eyes, but in the absence of good cause, the Court will assume that inquiring minds have a right to know. 

3. MEDIATION.

Not everyone getting a divorce feels that they have to hate each other.

If you and your spouse can communicate with each other, and would rather your money go to your own family and not to your lawyers’ families, you may want to consider mediation.  If you can work it out, it will work for both of you.     

4. THE COLLABORATIVE LAW PROCESS.

            What is a collaborative divorce?

You approach the dissolution of your marriage in a creative, problem-solving way, not in a combative way.  No one is trying to grab all of the marbles; you are simply working it all out.  If you can’t, you have to go get new lawyers to do the combative lawyer thing, but if you do work it out, your lawyers can complete the divorce in court.