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Divorce Basics – Empower Yourself With Information to Survive Your Divorce
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.
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
1. 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.
2. 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.
3. 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.
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.
2. “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.
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 are the final divorce orders which dissolve the marriage and enters permanent financial and child based.
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.
1. 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.
2. 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.
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:
1. 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.
2. 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.
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 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
5. 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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