Serious consideration of a divorce generally signals the end of the desire to salvage a marriage. Conflicts, possible new relationships, or personal growth opportunities may outweigh the perceived advantages of remaining in the current marriage for one or both partners. The decision to divorce inevitably brings pain. It introduces the spouses to a new vocabulary and a new circle of people from lawyers and financial advisors to counselors and support groups who may be with the family for months or even years as the separation process unfolds.
Nevertheless, it is possible to have a successful divorce, one that allows the spouses to:
Complete the emotional, practical, financial, and legal process of separation;
Establish a balanced view of each other and the marriage;
Achieve a comfortable relationship with the children of the union and the extended family;
Find an appropriate new direction for their lives.
Reaching these goals requires understanding and effort. This book will provide the knowledge and identify the resources to help you direct your energies to your best advantage as you move through the process.
Within the framework of the law, the court gives you and your spouse the opportunity to structure a divorce agreement to meet your family's unique circumstances.
Start by Gaining Control of Changing Emotions
Experts have described the emotional impact of divorce as being greater than that of a spouse's death. The feelings of separation and loss may seem overwhelming, and the process of change is traumatic even for those who initiate the divorce process. Although the idea of beginning a new life may seem a disheartening prospect, it is comforting to know that many people have experienced divorce and have thrived in spite of it.
Each divorce case brings with it special problems or considerations. For parents, negotiating the best custody arrangements and helping children adjust may be foremost on their minds. In other cases, allegations of domestic abuse or an extra-marital affair may cause elements of fear and mistrust to pervade the already emotional separation proceedings.
At a time when so much demands your attention at once, it is hard to focus on precisely where to begin. But before jumping ahead, you must decide if you and your children are safe. If domestic violence is an issue, contact the police and legal authorities immediately. Your divorce will include the regular business procedures, but the sequence may differ and, of course, safety will be of paramount concern. If you are safe, slow down and get your wits about you. A divorce cannot be completed overnight. You do not have time to waste, but you do have time to think and prepare.
Whatever the situation, it is not uncommon for individuals to adopt several coping mechanisms simultaneously or in various combinations. Some common reactions to divorce are:
Denial. "I'm fine. It's okay." But your behavior belies what you say out loud. You find it hard to fulfill responsibilities at home and at work. All aspects of your life suffer as you think to yourself, "Life's gone to hell anyway, so nothing makes any difference." Remember that it's all right (and healthier) to express a whole range of emotions with everything from tears to black humor.
Workaholism. It may be an office job with detailed paperwork, constant reading or research for some scholarly effort, devotion to baking from scratch, or top-to-bottom cleaning on the household front that commands your attention. An over-involvement in social or community activities may also fall into this category. You avoid facing the feelings of divorce by immersing yourself in a socially acceptable behavior to an extreme degree.
Acting Out. Some people are not able to hold themselves within normal social bounds. They vent their overwhelming feelings through behavior that harms themselves or others, such as substance abuse, sexual promiscuity, eating disorders, or withholding funds.
Although coping methods such as these may relieve tension for a short period of time, unhealthy behavior patterns often fail to reduce stress in the long run. And just as divorce wreaks havoc with your mind, stress can affect your physical health. It may seem that physical symptoms such as headaches, allergies or insomnia, are especially troubling during the divorce process. This may be your body's way of telling you that you need more rest, a better diet, some exercise, and perhaps some professional help.
Help Is Available
Asking for help when you need it is an important first step in the divorce recovery process. Help is available through crisis intervention centers, social service agencies, most religious institutions, and counselors and therapists. If the only advice you receive is to "go back and make your marriage work," then you need to find another source of help that will provide concrete information.
There are many strategies that can help you maintain control of your emotional state during the divorce process. For example, the importance of friends preferably those who can provide good-natured companionship and humor cannot be understated. Many people also find it helpful to volunteer their time at a local charity or shelter to help keep their own problems in perspective. Talking to people in your community, such as clergy, doctors, and lawyers, can also be a good source of advice or referrals to local support groups or therapists. There are also numerous professional organizations and publications listed in the Health and Well-Being chapter that can provide the information and guidance you need to help you adjust to your changing circumstances.
Finding a positive way to channel the strong emotions divorce inspires is one of the most beneficial actions you can take for yourself during this traumatic period. The ability to think clearly, behave rationally, and plan realistically will help you make wise divorce decisions. Though not without effort, healthy survivors of divorce accept the loss of "what might have been" and sadder but wiser go on to rebuild their lives with a resurgence of energy, hope, and self-esteem.
Help the Professionals Help You
Recognizing your emotional state and managing your feelings effectively will make you better able to carry out your role in the divorce process, for the information you provide will be critical to the success of the professionals you involve in your case. You must function as a full partner in the divorce proceedings. No one knows your situation and needs better than you do and no one will care more if you don't meet those needs. You have to keep learning and organizing in order to survive the experience emotionally and financially.
Action Precedes Motivation
If you are in a state of lethargy, you must prod yourself to act. A careless or disorganized person is easy prey. Don't agonize. Organize! Tension (not hard work) and worry (inactivity) are what will drain you. The more you become involved in the divorce process, the more decisions you will have to make. Organizing gives you the tools for managing multiple priorities.
Most people already have some of the information necessary in divorce cases; they must find out how to locate the rest. You may want to rush through the tedious business as soon as possible or you may be so devastated by the idea that it's hard to do anything, but you must force yourself to do a thorough job of preparation. By assembling the necessary family and financial information, you make it easy for lawyers and other divorce professionals to understand your needs and objectives. You will need to:
Outline the history of your marriage, citing any extenuating circumstances, such as desertion, addiction, or abuse, or behavior changes.
Complete profiles of your family members (your spouse, children, and yourself) that cover education, employment history, health concerns, activities, work or school schedules, and community obligations.
Develop a proposed parenting plan for your minor children, determining legal and physical custody. Remember to evaluate your current child care arrangements and how they may change. Read and talk with professionals and other divorced families about parents' communication between themselves, with the community, and with the children after divorce, as well as about visitation schedules and resolving differences.
Collect financial information, including income from work and investments, assets (your house, car, retirement benefits, etc.), and liabilities (money owed for a mortgage, credit cards, loans, or taxes). Note any changes.
Compile your documents, such as policies for life, health, property, or automobile insurance or titles and deeds to your assets. Prepare an inventory of your household, with appraisals of valuables.
A separation agreement is bound to be less than satisfactory if decisions are made on sketchy information. The effort that you invest in organizing these details will help you think logically and answer effectively throughout the divorce process. Information presented in the Practical Matters chapter will help you develop a logical filing system to retrieve documents quickly. If your records are orderly, your stated needs seem logical, and you have identified the major pieces of your personal plan for the future, you retain greater control over the proceedings, even when your emotions are peaking. Another advantage is the likely lower bill for professional services since you will not need to pay someone else to pull together the data.
The Price of Divorce
Divorce is typically expensive. While the divorce is in process, your first financial responsibility is to arrange for the necessary money so that you are able to cover both the basic shelter, food, clothing, medical care, and transportation and the professional services needed to make good divorce decisions. It is impossible to create a satisfactory separation agreement without understanding your current finances and without making plans for your financial future. Divorce means you will have to talk intelligently about money.
When you are exploring unfamiliar territory, you must ask questions. If you are unaccustomed to handling the household finances, this may mean getting the advice of an accountant, stockbroker, or knowledgeable friend.
You can expect more than one painful discovery. First, you are both responsible for family debt. One spouse may have been planning this divorce for some time, so that family asset and liability records are dramatically different from those anticipated. Second, divorce may cause medical coverage to end at a time when pre-existing conditions make the costs of obtaining medical insurance astronomical. Third, capital gains tax rules can make an adversarial situation out of an otherwise acceptable solution regarding the family home. And finally, opportunities for spousal social security benefits require a marriage of 10 years perhaps an important consideration if the divorce would otherwise be finalized for a marriage of barely under 10 years. All of these issues are part of the money gap.
Your best defense is to be prepared. From the documents you compile, you should have specific files for financial papers:
Banking and Investments: Personal banking, applications and financial statements (prior to separation), retirement plans, money loaned to others, and brokerage accounts.
Debts: Money borrowed from others (including mortgage) and credit card list.
Business: Income records, employer policies and benefits, financial statements for proprietorship, partnership, professional corporation, and family-owned business.
Tax Returns
Future Opportunities: Anticipated inheritances, financial value of surname, contribution to one spouse's education credentials, and benefits given up in order to marry.
You might also develop spreadsheets with monthly categories to identify past (two-three years), current, and future expenditures. Keep back-up documentation of your current expenses by using checks whenever possible and a notebook for recording cash outlays. The court often requires that your expenses be broken down into weekly figures. Annual figures, divided by 52 (weeks), will give you a more accurate weekly average from which to fairly project future expenses. For example, heat and electricity costs vary by season and could be skewed by using only low or high months. You'll also be less likely to miss non-weekly expenses such as dental bills and property taxes.
Remember to also take into consideration the cost of parenting. Both parents have a responsibility for child support, an amount determined by state guidelines, that needs to factor in the costs of non-custodial as well as custodial parenting. To determine whether or not the available money will allow your children to maintain their pre-divorce lifestyles, create an independent list of expenses for the children such as clothing, education, music lessons, orthodontia, activities (uniforms, class trips etc.), and automobile. Be sure to document circumstances and needs related to things such as physical disabilities or special talents. Resources in the Parenting chapter will help you get a better grasp of what's involved in handling these issues as a single parent.
The more information you and your spouse voluntarily share, the less expensive divorce is likely to be. Legal fees run proportional to the antagonism between spouses. Money spent for services solely to obtain ego satisfaction comes from money available to you, your spouse, and your children.
Watch for Hidden Assets
Hiding assets is almost an ordinary occurrence during a divorce. When one partner in the marriage decides to divorce, energy is refocused toward walking away as financially comfortable as possible. Typical hidden assets are:
Additional real estate such as a house, condo, or piece of land
Boats or other vehicles
Stocks and bonds
Savings accounts
Phony debts to friends or a closely-held business
Look before you weep. A good place to start are recent financial statements made out for loans. Sometimes hidden assets will appear just long enough to give a more impressive borrowing picture to secure a particular loan.
Your objective is to create a complete and accurate list of assets and liabilities. If you suspect your spouse is hiding assets, look before you weep.[Assets {hidden}] Most income producing assets show up on your tax return. Another place to check are loan applications where assets sometimes surface just long enough to improve a financial picture assets not on a tax return such as stock in a family-held company, annuities, and deferred compensation.
It is important to develop and keep your financial information up-to-date as a resource for meetings with your attorney and negotiations with your spouse. As you prepare information, keep in mind that it will have to be provable. People have good memories and bad memories, but most divorcing couples display "convenient" memory. That's not going to be helpful when you are challenged by your spouse, attorneys, or a judge.
If your financial information is extensive or especially complicated, seek assistance from financial professionals. There are two primary considerations in selecting an accountant. The first is suitable experience in all of the ramifications of dividing assets in a divorce and familiarity with the accounting procedures for your family's particular type of income sole proprietorship, family-owned business, trust funds, investments, and corporate paychecks. The second is to select an accountant who will work cooperatively with your attorney. Do not underestimate the importance of organizing and understanding your family's financial situation. Organizations and publications listed in the chapter on Financial Matters will provide guidance.
Facing the Legal Issues
Divorce is a lawsuit, initiated by filing a complaint and using discovery devices (including witnesses and experts), that ends in a final judgment. In many divorce cases, there are temporary orders for management of finances and behavior as well as care of children while the divorce is in process. Unlike other lawsuits, the court usually retains the option of ordering future changes in support and child care orders if there is a substantial change in family circumstances. Just like all other lawsuits, either party has the right to appeal a judgment. The legal divorce is impersonal and guided by the laws of the individual states. Virtually all states recognize no-fault divorce acknowledging that it takes two people to create a problem either stand-alone or in addition to fault grounds.
How Long Does Divorce Take?
When you file the papers to begin your legal divorce, you are making an official statement to your spouse and to the world at large. The minimum length of the legal divorce process varies between three and 18 months. The actual length of time varies according to local rules, the number of issues, and the extent of the debate.
The court may have contributing jurisdiction over the marriage (even after it has been dissolved) to rectify a fraud, amend support directives or custody and visitation rights, and to keep the peace.
Only a court may dissolve a marriage, but a divorcing couple may develop their own terms for a separation agreement usually through mediation and/or negotiation based upon what is affordable and acceptable (to the extent that each party would accept the reverse situation). Mediated agreements are becoming increasingly popular; there are mediation specialists and also many experienced divorce attorneys who now specialize in mediated agreements rather than the practice of adversarial family law. However created, the agreement must meet the basic considerations of the state regarding: keeping the peace, division of assets and liabilities, spousal support, and responsibility to children.
You may choose to represent yourself in a divorce lawsuit (pro per or pro se) or have an attorney on your side. If you have no knowledge of the law, you will probably need legal advice. The functions of a divorce attorney are to make it easy for you to understand your legal rights and to develop a plan of action for obtaining them. Legal divorce is mainly about dollars: the most your attorney can do is arrange the best possible terms.
If you've reached the point where you've decided that you should have an attorney, the objective is to find one who is right for you. As in all other professions, attorney's frequently specialize in various types of law.[Attorney {selecting}] He or she cannot "dabble" in family law because divorce law is changing quickly and becoming complicated. Even those attorneys practicing family law may have special niches. For instance, one Connecticut attorney specializes in divorces for people in a single Fortune 500 company thoroughly understands the corporate culture, benefit plans, etc. If children are your key issue, you'll want an attorney with in-depth knowledge of parenting plans for custody and support. Family-owned business couples need an attorney familiar with small business finances. Those in longer marriages need an attorney knowledgeable about retirement benefits.
Most divorcing people find it to their advantage to hire an attorney who is flexible, sensitive to costs, and oriented toward early settlement. You will need to research thoroughly to find such an attorney. He or she will usually be known by people in divorce self-help groups, interviewed in newspaper and magazine articles dealing with reforms in divorce law, a member of the American Academy of Matrimonial Lawyers, and active in the family law section of your state or local bar associations.
Select an Appropriate Attorney
Among divorce attorneys, there are some who have created sub-specialties of personal and financial issues dealing with:
Corporations
Family-owned businesses
Child custody
Retirement benefits
Each category has distinct differences regarding salaries and benefits, prerequisites, retirement arrangements, location transfers, and negotiable options. To date, there is no legal certification in specific types of divorces. However, experience and a concentration of similar cases helps avoid unnecessary time and expense.
There will be days when you and your attorney are working in harmony. There will also be days when you seriously question the choice of attorney you have made. Keep a rational perspective by periodically asking and answering the following questions: "Is my attorney meeting my legal needs?" and "What kind of a client am I?" Before you change attorneys, discuss the difficulties you are having. Your attorney may see what needs to be done to get the business relationship back on track. After all, a change of attorneys means a loss of time and money to you both and the problems may not be insurmountable.
You have responsibilities, as a client, for seeing that your divorce case moves forward. Provide your attorney with accurate and complete information on a timely basis. Be clear on your primary divorce objectives. You can expect yourself to waffle at times in making decisions and compromises. When this happens so often that issues cannot be settled, accept knowledgeable guidance. Insist on clarification of legal issues that you do not understand. Train yourself to communicate with your attorney in the mid range between pest and unavailable. Information presented in Legal Matters will help you keep the relationship with your attorney on track.
As a client you have responsibilities for seeing that your divorce case moves forward. Provide your attorney with accurate and complete information on a timely basis.
If your primary objective is to inflict pain on your spouse, then turning over all aspects of your divorce to our adversarial court system is the route to take. It encourages manipulation and aggressive or defensive strategies. Going to trial won't be the smartest move you'll ever make, because mudslinging is guaranteed to splatter you and your children. It also tends to increase conflicts and does little to resolve important issues. If your spouse has hired a "barracuda attorney," chances are that he or she is unusually high on emotions and low on facts. Resign yourself that your case will probably go to court if they don't wear you down first. You will need well-documented information. Judges look for concrete evidence to support the difficult decisions they must make.
Remember that every trial has to have a loser. If you are the one, you have a limited time to make a decision about whether or not to file an appeal. Before making this decision, find out why you lost specific issues in the case. There may be good reasons that would not increase your chances of winning an appeal. Reconsider whether or not your wishes are in the best interests of your children. What is at stake and what will it cost you to continue pursuing your objectives?
The Final Stretch
There are three major steps you can take to ensure a successful separation agreement:
1. Don't attempt to mislead by: hiding assets (land, bonus, stocks), juggling numbers (phony debt, deferred income), or misrepresenting perks (expense account, club membership). These have all been used by divorcing spouses, but the risk is high. The harmed spouse can go back to court on these issues, and support payments can be adjusted. In addition, the court may see the situation as perjury with intent to defraud. Misrepresentation may lead to failure of the separation agreement. [Legal process {facilitating}]
2. Make an effort to do things to include what your spouse cares about: Put yourself in his or her shoes. Some things have a financially low cost to one spouse and a very high cost to the other for instance, corporate health care plans are much less expensive than individual policies. Don't give tax money to Uncle Sam just to withhold needed funds from your spouse. Consider emotional needs if you each have a different favorite holiday, don't insist upon alternating these events with the children just because "that's the way others do it."
3. Do things that will "pay off:" Be honest. Respect differences of opinion. Keep your word, what you say you will do. Agree up front on a method of resolving future conflicts to avoid races to the courtroom. Create a workable parenting plan as a gift of love to your children.
A Deal Is a Deal
Property settlements are not generally modifiable once a divorce becomes final. While it is always possible to reopen the property settlement section of a separation agreement if a mistake was made or if fraud is discovered, you will generally find that, once made, a deal is a deal. That's why it is to your advantage to be prepared with information and documentation.
By following these suggestions, you will be adding to the possibilities of a satisfactory relationship after the divorce.
Making the Transition
After your divorce, you will remember the many ways you have been tested. You will be impressed with the array of problems you have survived and decisions you have made. In some cases, you'll wish you had made a different choice given the available resources and options. Whether or not the final separation agreement is "wonderful," you'll have the personal comfort and integrity of knowing that you did what you could to make a difficult situation better. However your life looks after divorce, take comfort in the fact that you made it through the process. Ernest Hemingway said it best: "The world breaks everyone and afterward many are strong at the broken place."
From Margorie Engel’s "Divorce Help Sourcebook"
