Divorce Starter Kit
Jan L. Warner
Separation and Divorce Advice
What You Absolutely Need To Know If You Have A Marriage Problem
By Jan L. Warner
Each year, as many people divorce (2.3 million) as there are marriages. More than 5 million men, women, and children are affected by divorce and separation each year.
So if you're thinking about divorce and separation or if you have a marriage problem, you must prepare yourself. In order to keep control of your life, you must learn to deal with the process in an informed way and to ask the right questions and get appropriate divorce advice. Although the legal aspects of custody, visitation, fault, division of property, alimony, and child support may vary from state to state, the following roadmap will apply no matter where you live.
1. Panic and emotions have no place in the decision making process. Understand your options, channel your energies, and then make informed decisions.
2. The advice of friends and family will confuse you. If those who have "been through it" want to help you, ask them only one question: "If you had it to do over again, what would you do differently?"
3. Decide on your goals and then keep them in perspective. Your lawyer can't do it all for you. And if you lose control of your case, you lose control of your life and place yourself at the mercy of the judicial system.
4. The cost of divorce can be staggering. Litigated divorces may take years and cost thousands of dollars. The more your have, the more you can lose. Sometimes you get so upset that you don't care what it costs ...until it's all over.
5. Try to keep the channels of communication open with the other side. Try not to escalate an already excitable situation. Try to negotiate as many of the issues as you can after your are informed.
6. A negotiated settlement lasts as long as those who make it want it to last. Many divorces result in last minute settlements that are to no one's satisfaction. And that means the final decree is never final.
7. If the court decides your case, you lose control of your options. And if you don't like the result, your only remedy may be a costly appeal that keeps your life in limbo.
8. Fighting for principle -- or just to fight -- is a bad decision. It tends to begin a long term war with adverse economic and emotional consequences. But that does not mean that you should give up important rights just to try to get the case over.
9. Never sign an agreement without the advice of a lawyer. And never allow one lawyer to prepare an agreement for you and your spouse. You always need your own lawyer to give you divorce advice.
10. Even the best economic result does not guarantee you security. What if a former spouse dies owing you alimony or support. And today, bankruptcy is being used more and more both during and after divorce to try to avoid obligations required by divorce courts. Bankruptcy during a divorce can mean that the divorce proceedings are put on hold until the bankruptcy is completed. Bankruptcy after divorce can destroy your settlement. Be sure to ask you lawyer.
How To Begin Getting Prepared For Separation and Divorce
The first step toward getting answers about your separation and divorce is finding out the right questions to ask -- before you go to a lawyer for divorce advice, if at all possible. The earlier you begin your planning after you know you have a marriage problem, the better. No matter where you are in the process -- divorced, separated, in litigation, just thinking about your options, or planning to get married the best time to begin to plan the rest of your life is NOW.
You can't afford to leave anything to chance because nothing is more difficult than trying to change the economic details of a divorce -- after it is over. If you don't organize and plan now, important details will slip through the cracks.
First, separate your emotions from the practical issues you must face. Get a clear picture of your future needs. Get organized and focus on the important issues, not just your marriage problem.
Then buy a notebook. Write down all of your questions and concerns about your marriage problem before you meet with your lawyer. Then give your lawyer a clear understanding of your needs and goals so that an effective strategy can be planned and your lawyer can concentrate on what's important to you.
In descending order of importance, list the goals you would like to achieve. And those you think your spouse would like to achieve.
Write a brief, frank history of your marriage with dates, employment histories, illnesses and disabilities, and other relevant information. You should also document the contributions and sacrifices both you and your spouse have made during the marriage. Try to be fair in your appraisals, not one sided, although you may feel that way. Your lawyer needs a balanced approach in order to arrive at an objective appraisal of your case so you can be advised properly.
Begin preparing your budget. Review your checking records for the past two years. Then categorize and list the deposits and monthly expenses. Note expenses which may be paid semi annually or annually...like property taxes and insurance.
List all benefits provided as a result of employment yours and your spouse's such as pensions, automobiles, health and life insurance plans, etc.
List all assets you know of. Note when each asset was acquired, its approximate cost, and its estimated current value. Use insurance policies covering your home and cars, newspaper ads, stock prices, etc. to get some ideas about values. Then itemize your debts.
Just as you should inventory your home and videotape your belongings for insurance purposes, photocopy every financial record and photograph every piece of property. Then keep the photocopies and photographs in a safe place like a bank safety deposit box -- until you can get them to your lawyer.
Now it's time to find a lawyer to help you sort through what you have gathered.
What To Look For In A Divorce Lawyer
Have no misunderstanding about the services that your lawyer is to perform when you seek divorce advice. Your lawyer is not a marriage counselor and should not be expected to make your personal decisions for you. When you hire a lawyer, remember that lawyer is working for you to...
Evaluate the facts of your case and the legal issues involved and then advise you about your rights and obligations.
Advocate your side in all aspects of the process.
Negotiate a fair settlement under the circumstances of your case, if possible.
Provide you with competent referrals to experts who will help you concerning taxes, appraisals, and business valuations.
Your job is to prepare yourself, to be totally honest with your lawyer, and to provide complete information. Incomplete or bad information often means bad results.
You must find a lawyer competent in this field to deal with your marriage problem. You may want to interview more than one lawyer before you make a decision. Make sure you are comfortable with your lawyer and the staff members who will be involved in your case because hiring a lawyer is much like getting married -- you need to try to do it for the long-haul, if possible.
Your relationship with your lawyer should be one of trust. Anything you tell your lawyer one on one is privileged...That means your lawyer is duty bound not to repeat your confidences. The same holds true for the lawyer's support staff. To maintain this privilege, DON'T bring others with you when you meet with your lawyer, DON'T discuss your case with friends, and DON'T let others read your file or letters from your lawyer.
If at any time, for any good reason, you don't feel you can trust your lawyer, don't hesitate to deal with the issue. If you want a second opinion, discuss your feelings with your lawyer and get from another lawyer another opinion about your marriage problem.
Expect that your lawyer will rely upon experts in such fields as taxation and valuation so your case can be effectively prepared. If he or she doesn't, ask why not.
Financial and insurance arrangements, in particular, require detailed and careful attention. But it is unfair and unrealistic to expect your lawyer, or any one individual, to be an expert on every subject involved in achieving a successful result. So ask about experts who can competently assist you on such matters as securing credit, controlled investment and insurance planning to meet your needs, real estate, skill evaluation and employment counseling, mortgages, and other non legal matters.
Don't expect definite, precise answers to all of your questions. Lawyer's opinions are generally based upon ranges of probability that, in turn, are based upon the information you provide.
Anything not clearly covered in your divorce papers is probably lost forever. Plan now to try to avoid later misunderstandings because of ambiguities. Ask your lawyer to mail you copies of everything done in your case on a prompt basis. Keep a checklist and always be involved in the progress of your case.
Don't be impulsive and call your lawyer for everything you think of. Unless it's an emergency, talk to the secretary first. Always put your questions in writing before you meet with your lawyer. And take a pad and pencil with you to make notes. Don't waste time with small talk and jokes...jokes aren't funny when you are paying for them.
No lawyer should guarantee you a result. If your lawyer suggests that you can do better than what is offered, find out: a) How long it will take to get a better result; b) The range of what the "better result" can be; and c) The cost of getting a better result. Then look at the situation and see if it's worth the time, money, emotional strain, and the risk to try to do better.
The court system is simply one way in which disputes are decided. It has a language all its own and may seem complex, but there are rules and time limits. You need not be afraid of it, but you must respect it. Get a basic understanding of how the system operates so you will know what to expect and when.
You may be interested in mediation and arbitration as alternatives to court. Ask your lawyer to explain these options.
Your case means the rest of your life. If you want a second opinion, get one. If, for any reason, you don't trust your lawyer or you aren't satisfied, don't hold it in. Try to talk it out. If you still aren't satisfied, find another lawyer.
Make sure to find out from your lawyer the potential results of you divorce, including
The range of possible results.
The strong and weak points of your case.
The worst result you can anticipate based upon the information you have provided.
The average length of time to complete a separation or divorce action in your locale if settled, if litigated in court, and if appealed. And always ask about the costs.
You may be told that some of your goals are unrealistic, that you want too much, or you are not asking for enough. If your lawyer agrees with everything you say or you get no feedback, be concerned. Never waive important rights just because you want to get finished with the case.
There is little economic sense in fighting for lost causes. Always compare the chances of achieving your most important goals with the cost in time and money. You should decide which ones you are willing to fight for, negotiate, or give up. If you move forward without knowing the direction in which you are heading, it's like giving someone a free hand to spend your money.
There May Be Alternatives To Court
Litigation -- going to court with lawyers -- is the method of dispute resolution most familiar to lawyers. If you've ever watched "Divorce Court" or “Perry Mason” on television, these are poor examples of litigation.
But this does not mean that everyone's needs are best served by the court system. Although courts define individual rights and obligations according to precise rules and procedures, courts can be costly, inefficient, and slow which may mean that the very question that needs to be resolved ultimately may not be.
For those who have or need to have continuing relationships despite their differences such as husbands and wives who can't live together but, at the same time, must take active roles in raising and supporting their children the court system may not be the best way to resolve a dispute. These people might want to consider alternatives to court that help keep the necessary parts of their relationship intact.
In contrast to courts that are public, expensive, and comparatively slow, alternate dispute resolution techniques are private and can be faster and less expensive in time, money, and emotional stress. Through what is known as "Trial by Contract", a husband and wife can agree upon a neutral third party to either mediate the dispute or arbitrate the issues according to relaxed rules and procedures.
Mediation is a non binding way in which an impartial facilitator who has no coercive powers can begin an exchange and suggest solutions about your marriage problem, but mediators can not give you divorce advice.
Arbitration, on the other hand, places a third party who can be an expert in the field in a decision making position. This decision can be either binding or non binding, depending on the wishes of the parties. After arguments and abbreviated evidence in a more relaxed, private proceeding, a decision is made.
Because the entire procedure can be governed by the desires of those who utilize it, the husband and wife can agree that if the decision of the arbitrator is not challenged by either party within 30 days, the decision is final. Otherwise, the parties can go to court and no one is bound by the arbitration.
If a financial question is presented say the amount of alimony to be paid the husband and wife can agree to a "high low" arbitration that works like this: Unknown to the arbitrator, the husband and wife agree that regardless of the decision, the high and low limits are set. For example, the husband will pay not less than $250 per month and not more than $500 per month. If the award is less than $250, the husband pays $250. If the award is above $500, the husband pays $500. And if the award is in between, the husband pays the amount awarded.
Methods of alternative dispute resolution are not substitutes for litigation...only a different way to resolve disputes. Mediation, arbitration, mini trials, and a combination of mediation and arbitration (called "med arb") are a few suggestions. You should always discuss options in which you can resolve these difficult disputes with your lawyer, and an efficient, private, and less expensive method certainly deserves discussion.
© 1999, 2001, 2002, 2003, Jan L. Warner
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