DIVORCE – A BRIEF OVERVIEW
Nearly half of all marriages end in divorce. Sooner or later, half of our married clients will need our advice in a matrimonial law matter. Like death and taxes, divorce is an issue that doesn’t simply go away.
Each client thinks of himself or herself as an expert on the subject.
After all, who doesn’t have a friend or relative who’s divorced? A common mythology surrounds divorce, just as it does childbirth.
No client is immune to gratuitous advice from Aunt Sally and coworkers. When our client tells us about the guy who makes $50,000 a year and was ordered to pay no child support for nine children in the custody of his ex-wife, we suggest that client to immediately hire that guy’s lawyer instead of us.
Many cases give lawyers the luxury of time to research facts and the law before filing the initial pleading. Not so with divorce. Every state has a no-fault (or irretrievable breakdown) ground. Chances are, the client has pondered long and hard before calling for that first
Fortunately, the initial stages of divorce practice are not difficult or time-consuming. The most important factors for lawyers to detect before filing the action are:
- Does the client want to dissolve the marriage?
- Can the client afford to begin the litigation?
- Does the court have jurisdiction?
- Is the client ready to proceed immediately, or does the client want time to prepare for (or orchestrate) the case?
We begin the interview by advising the client what a divorce action can and can’t do. For instance, a divorce won’t deliver a blemish-less credit report for a couple on the edge of bankruptcy. A divorce won’t make one party wealthy beyond belief. A divorce action won’t make an errant spouse fall off the end of the earth. The client must make a thorough reality-check.
A divorce decree can create an enforceable support order, award custody and establish visitation rights, and distribute property between husband and wife.
Our staff will decide which court has jurisdiction. In Tennessee, the residency requirement is six months before filing.
There are really three “divorces” that operate in the client’s life:
- the physical (which may take place when the parties establish separate living quarters or no longer share the same bed),
- the emotional (when the parties no longer feel married to one another), and
- the legal (which is represented by the divorce decree).
While the physical and the legal divorces will take place at the same time for each party, the parties may not reach their emotional divorce simultaneously. The only divorce that the lawyer will be involved in is the legal one. We can refer the client to a therapist for emotional issues.
Rarely is the actual dissolution of the marriage an issue: even where the client is resistant to divorce, it takes two willing parties to make a marriage. Often, clients want an on-the-spot assessment of their chance of success. Lawyers are not in the position to give odds; if we were, we would be in Vegas instead. Some issues, such as child support, can be easily estimated by state child support guidelines. Initial retainer fees can often be estimated by using “rule of thumb” rules or local custom. These are just estimates, based upon the information at hand, and the final fee will depend on the difficulty of the case, the time, and work involved.
Each divorce petition, summons or complaint is similar. The unique information contained in those documents would be the parties’ names, addresses, date of marriage, and children’s names. In addition to termination of the marital relationship, the forms of relief sought may include:
- Temporary (pendente lite) measures to maintain the status quo of the parties during the pendency of the action, such as custody,visitation, support, attorney’s fees, suit money, and injunctions or restraining orders.
- Distribution of property.
- Allocation of responsibility for debt repayment.
- Child custody and visitation.
- Child support, including medical support.
- Alimony or spousal maintenance.
- Tax dependency issues for children.
- Payment of counsel fees and suit money by the adverse party.
- Restoration of a party’s maiden name.
- Mechanisms to enforce the terms of the decree.
While asset and income information about the parties is important, that information may not be available to the client at the time divorce proceedings are initiated. The lawyer need not wait for the client who does have that information to begin the divorce case. Often, that information is not obtainable until discovery takes place.
Unlike many other forms of litigation, where extensive factual preparation takes place prior to commencement of legal action, starting a divorce case can be remarkably simple. Frequently, the initial interview ends in the signing of a retainer agreement and the initial pleading.
Often the first steps are the easiest ones in the proceeding. The best is yet to come.
Property must be identified and valued. Appraisals may be needed, if the parties cannot agree upon values. The character of the parties’ assets as premarital, marital, gifted or inherited must be provable. The parties’ incomes need to be proven by pay records, tax records or other means.
Are the support needs unique? If child custody is involved, will a home study or other outside evaluation be necessary? What is the expected cooperation level of the other side? How much discovery will be needed? Will witnesses need to be located and briefed?
WHEN TO FILE, OR IT’S ALL IN THE TIMING
Often our clients do not have the luxury of time in which to make filing decisions. The decision to file may be based upon situational exigencies that neither client nor counsel can anticipate. The decision to file, and when, often has been made prior to the time the client walked in the door. Domestic violence, lack of financial support, child-snatching, and property transfer issues usually require immediate action. There may be little time in which to prepare for a hearing on temporary issues.
Lawyers can be effective in preparing the client to meet statutory and case law criteria which would aid the client in successful litigation. While “orchestration” of a divorce case is perhaps a callous and tacky characterization, if there is opportunity, planning may enhance the client’s chance of success.
Generosity toward the other parent’s involvement with the child cannot be over-stressed. We encourage the client to support the other parent’s relationship with the child. There should be an ongoing parent-child relationship and level of cooperation between the parents. The client should document efforts to encourage the child’s relationship with the other parent. The client should consider what amount of visitation the client would be willing to expect if the client were not awarded primary parenting of the child. Even where the parties are bitter, we encourage our client to demonstrate the client’s level of support for the child’s relationship with the other parent.
Even where timing cannot be controlled, many other protective measures need to be considered. A power of attorney and will may need to be redrafted. Bank and credit card accounts should be protected against a spending spree by the other spouse. Safety deposit boxes may need to be closed out. Beneficiaries of life insurance policies may need to be changed. Whether any of these steps is in the client’s best interest depends upon the circumstances of each case.
THE ADVICE LAWYERS ARE AFRAID TO GIVE CLIENTS
Reconciliation is advice lawyers often forget to give clients. Perhaps we’re afraid to do so. If the client, currently, does not really “qualify” for the relief the client is seeking (such as custody or a standard of living higher than he or she’s now enjoying), and the client knows that the other spouse isn’t enthusiastic about terminating the marriage, consider reconciliation.