Information About Divorce and Family Law

Can I get a “good” Divorce?

With almost one out of every two marriages ending in divorce, and with the horror stories we hear about how terrible divorce can be, the question for the day becomes, “Is there a good way to get through a divorce and make it easier and less expensive?”

The answer is Yes! There is no magic wand, but the right information can give the control back to you, where it belongs, and make your divorce smoother, less expensive, and less stressful than it otherwise would be.

Start with the best information. Since people are emotionally upset and scared, they usually start their divorces without knowing what the rules are, where they are going, or how they will get there. Don’t do that. Take time to educate yourself on your options and the processes. It will pay off for you.

The worst thing you can do is go to a lawyer without any information or understanding and just ask for a divorce. How do you know what to ask? How do you know if you’re going to a good lawyer, or the right kind of lawyer? When you go to a lawyer without being informed or prepared, how can you evaluate the information you are given?

Think what would happen if you go see your lawyer with good information and feeling well-prepared. First, you would know how to choose the right lawyer for you. You would not have to ask so many questions and would be able to tell the lawyer how you would like to proceed with your divorce.

The only way to protect yourself and get the kind of results you want is to be fully informed and prepared before you begin. You must be in charge of your own case as much as possible. You know what is best for you and your family. Taking control doesn’t mean you can’t get good advice, but it does mean that you take responsibility for knowing what is going on with your case and making your own decisions. You are an active participant in your divorce, not a passive observer. The lawyer is not a “hired gun” or your “mouthpiece.” You are in control of your case. That’s healthy and that’s what will work best for you.

What are the causes of divorce?

Research on the causes of divorce reveals the following:

• One of the leading causes of divorce is lack of communication. You can’t have a good relationship if either one of you can’t or won’t discuss your feelings, can’t talk about your issues, holds resentment against the other, and expects the other to know what the problem is all about. Unfortunately, we cannot read each other’s minds. We must learn to be effective communicators or our relationships will fail.
• Divorces happen because people fail to discuss their expectations in detail prior to their marriage, and then aren’t willing to work on their issues afterwards. They want quick solutions rather than having to work to resolve the issues. People have gotten divorced for reasons as trivial as snoring.
• People who come from divorced homes are more likely to get divorced than those from intact homes. If you’ve seen your parents go through divorce, it seems like less of a big deal.
• People who get married when they are 23 – 27 years old are more likely to stay married than people who are in their teens when they marry.
• People who lived together before marriage have a higher rate of divorce than those who didn’t live together.
• Quite often, the problems that cause the divorce existed in the relationship long before the couple got married. The problems were either ignored or not acknowledged with the hope that getting married would fix everything. It doesn’t work this way. Be forewarned. If there were problems before the marriage, they do not miraculously disappear with a wedding. As someone wise once said, it takes two wholes to make a marriage work, not two halves.

Basis for custody and visitation

In deciding custody and visitation, courts look at a number of factors. Ultimately, the decision is based on what a judge determines to be “in the best interests of the child.” The factors considered by the court usually include the following (depending on your state):

• The age and physical and mental condition of the child, as well as the child’s changing developmental needs;
• The age and physical and mental condition of each parent;
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, and the parent’s ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
• The needs of the child, including important relationships of the child, such as those with siblings, peers and extended family members;
• The role that each parent has played, and will play in the future, in the upbringing and care of the child;
• The tendency of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
• Any history of family abuse. If the court finds such a history, the court may disregard the tendency of the parents to actively support the child’s contact and relationship with the other; and
• Other factors the court determines are important.

 

Joint or Sole Custody?

Joint custody means that both parents have responsibility for the care and control and both participate in making important decisions concerning the children. This has nothing to do with where the children live.

Sole custody means that one person has responsibility for the care and control of the children and has the authority to make the primary decisions.

Most parents have joint legal custody of their children. Obviously it is best for the children if their parents are able to communicate about them and make important decisions on their behalf together.

 

Thinking about a custody battle?

• A custody battle is rarely, if ever, in the children’s best interest.
• Judges are just people, and while they generally do their best, they do not know or love your children and never will.
• The Judge will be making decisions about your children and your life, based on less information than your favorite aunt ever would.
• Although the Judge will make decisions about your children, she or he prefers not to have to make decisions about what is best for your children. Judges don’t like custody cases. How could they?
• The Judge might not decide conclusively. Instead, the Judge might ask you and your spouse to come back to court later to review how things are going for your children since you were last in court.
• The Judge might make a decision totally at odds with your goals.
• You and your lawyer can’t pick the Judge.
• Not every Judge will deal with your parenting issues the same way.
• Although the legislation is gender neutral, the application of it is not necessarily gender neutral.
• The Judge has a limited time period in which to make decisions about children.
• Because of the way the court system operates, even the best Judge can get it “wrong.”
• The judge could get it “wrong” in a way that is not open to appeal. An appeal is not a retrial.

Basis for Division of Property

If you and your spouse cannot mutually agree on how to divide your property, a court will do it for you. If a court does this for you, the Judge will take into consideration a number of factors, including the following (depending on your state):

• The contributions, monetary and nonmonetary, of each spouse to the well-being of the family and acquisition of marital assets;
• The duration of the marriage;
• The ages and physical and mental condition of each spouse;
• The reasons for the breakdown of the marriage, including any grounds for divorce;
• How and when specific items of marital property were acquired;
• The debts and liabilities of each spouse, the basis for such debts and liabilities and the property which may serve as security for such debts and liabilities;
• Whether the property is readily convertible into cash;
• The tax consequences to each spouse;
• The use or expenditure of marital property in anticipation of divorce or after the last separation; and
• Other facts the court determines are important to consider.

Is it Marital or Separate Property?

Examples of separate property include:

• Any property acquired before the marriage;
• Any property acquired during the marriage by inheritance or from a source other than your spouse that has been kept separate; and
• Property acquired after the date of separation.

Examples of marital property include:

• Any property titled in the name of both parties (except possibly re-titled property); and
• Any Property acquired during the marriage which is not separate property

Hybrid property (meaning part-marital and part-separate) include:

• Any property owned before the marriage that has increased significantly in value during the marriage due to the efforts of either party or the addition of marital property; and
  
• Any property acquired by one spouse during the marriage by gift or inheritance which has been combined with marital property (like using an inheritance to pay off the mortgage on the marital home).

The Truth About the Litigated Divorce

1. Neither spouse ever “wins” and almost all hoped for victories in litigated cases are empty, expensive, and destructive.
   
2. It’s important not to fantasize that a legal battle will get you personal satisfaction or vindication. That seldom happens. Neither does the legal battle put an end to the parents squabbling or help them to make better decisions than the parents could have done themselves. It seldom solves those problems.
3. What does come out of the legal battle is a great deal of harm for the family – it wrecks the opportunity for parents to learn how to be cooperative, it causes serious damage to the children, and adversely impacts the family’s finances.

Top 12 Things Never Said By a Good Divorce Attorney

1. “You’re lucky I’m here to take care of you.”
2. “What I got, you need.”
3. “The more I do, the better off you’ll be.”
4. “We’re going to win this case.”
5. “Under no circumstances leave the home. I don’t care about the turmoil, you can’t jeopardize your claim to the house.”
6. “Don’t worry about the cost; I’ll get it from your ex.”
7. “We’ll ask for the moon in negotiations and then come down a little at a time.”
8. “Make a list of the worse things your spouse ever did. Memorize it.”
   
9. “Listen, those kids belong to you when the order says so; screw your ex’s special plans.”
   
10. “You can’t go to counseling or mediation with your spouse; it could hurt your case.”
11. “We’ll have the kids tell the judge where they want to live.”
12. “You poor thing. I will take care of all of this for you.”

How do I choose the right lawyer for me?

One of the most important decisions you will make when going through your divorce and resolving your important issues is who you will hire as your lawyer. The lawyer you choose will make a big difference in how your case goes. Some lawyers are very collaborative and good at settlement, some are good at litigating.

Choosing your lawyer is like choosing a doctor or therapist. There has to be good fit. You should feel like there is a connection and a mutual understanding between you. If you aren’t feeling a connection, don’t ever hesitate to go for a second or even third consultation.

Consider these questions when choosing your lawyer:

• How comfortable are you with your lawyer?
• Does your lawyer listen to you and actually hear what you are saying?
• Has your lawyer explained the different process choices to you?
• Has your lawyer explained that you have the options of:
  Working it out yourselves
  Mediation
  Collaboration
  Litigation
• Has your lawyer explained the basics of family law and how it relates to your situation?
• Does your lawyer understand what is most important to you in your divorce process?
• Will your lawyer help to keep you focused on what is best for your children and help you manage your emotions?