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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 appointment. 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: 1. Does the client want to dissolve the marriage? 2. Can the client afford to begin the litigation? 3. Does the court have jurisdiction? 4. 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:
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: 1. 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. 2. Distribution of property. 3. Allocation of responsibility for debt repayment. 4. Child custody and visitation. 5. Child support, including medical support. 6. Alimony or spousal maintenance. 7. Tax dependency issues for children. 8. Payment of counsel fees and suit money by the adverse party. 9. Restoration of a party's maiden name. 10. 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.
DO UNTO THE OTHER PARTY
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.
----------------------- FEES
Like it or not, a law office is a business. Even if the lawyer were willing to work for free, our staff doesn't, and it's really convenient to keep the lights on. Matrimonial litigation can be expensive. Clients are expected to pay their fees promptly and in full. The level of client preparation and knowledge about the parties' finances, coupled with a willingness to share that information with the adverse party, can make for a less costly divorce. Lawyers are unable to predict the fee total because of unforeseen or changing circumstances. Unlike probate or injury litigation, in divorce, the fee is based upon an hourly charge for work performed, not a contingency percentage of amounts collected. You will pay a basic retainer, if you choose to hire our office. This charge may represent the full fee in the uncontested or agreeable case. Additional attorney time required by contested matters, mediation, redrafting (when parties decide to change their agreements) may result in additional fees. Court costs, court reporter fees, copying costs, mediator fees, and other expenses of litigation are in addition to attorney fees and are the responsibility of the client. They must be paid promptly.
----------------------- TEN COMMANDMENTS FOR CUSTODY CLIENTS
This is intended to give you basic information about what you can, and can't, do with your children....if you want to enhance your chances of success.
1. Communication with Your Spouse. Try to discuss your child's welfare with your spouse. Limit your discussion to the child's welfare. Don't discuss the new boyfriend or girlfriend or your anger with the spouse------------------- it's counterproductive. If you cannot discuss these matters with your spouse, write the spouse a letter or memo. Save a copy. 2. Dating. This is addressed from a practical, not moral, stance. You are still married, and you will be until the judge dissolves your marriage. Terminate or put on hold any extra-marital relationship. If the new boyfriend or girlfriend cares about you enough, he or she will wait for you. If not, so be it. You need to concentrate on maintaining and developing your relationship with your children. You do not have the time or money right now for affairs. That time will come later, after this case is closed. If you perceive the extramarital relationship to be a very stable one leading to marriage, and you elect to ignore my advice, remember that you have been warned. Do not involve the paramour in your child's life. Regardless of how much the new love object purportedly cares for your child, limit your contact with the boy/girlfriend to times when the child is with the other parent. Your paramour's lifestyle, behavior, marital status, and indeed relationship with his/her own children, will come under scrutiny in your custody case. 3. Medical Care. Elective, nonemergency medical care should be undertaken after consultation with the child's other parent. If the parent refuses to discuss this with you, let that parent know the name of the service provider, the procedures undertaken, and the diagnosis. Don't keep the child's medical care a secret from the other parent. 4. School. If you're the primary residential parent, let the other parent know when parent-teacher conferences are scheduled. Give the other parent a copy of the child's report card. Share the child's schoolwork with the other parent. Discuss homework and school responsibilities the child may have with the other parent. If you're the visiting parent, you have the right to contact the school and ask that you be contacted about parent-teacher conferences and the child's school records. Do so. Don't place all of the responsibility upon your spouse to let you know. Take an active part in the child's education. 5. Visitation. If you are the primary residential parent, have the children ready for the visit. Have a supply of suitable clothing ready to accompany the child. You don't want the judge to learn that you let your child go off on a weekend visit with the clothes he was wearing and another change in a plastic bag, do you? As a single parent, you need a break from the child. And the child needs a break from you. In an intact family, both parents relieve one another from the constant demands of the child. In a divorce situation, the appropriate relief is visitation with the other parent. If you are the visiting parent, pick up the child on time. Return the child on time. If you're going to be unexpectedly late, call. Don't demand that the child keep toys and clothing at your house, just because you purchased them. After all, those items are the child's, not yours. A medical condition short of hospitalization is no excuse for denying visitation. The visiting parent can, and should, assume some of the responsibility of caring for a sick child. If your child needs medication during the visit, make sure you send the dosage required and clear directions in writing for the medicine (keep a copy for us). Do not use the child as an intermediary to carry messages between you and your spouse. You're an adult. You know how to communicate. Visitation is not a time to revisit disputes with your spouse. It's your time with your child. Use it for that. This is not the time to introduce the child to your new love match. Do not pump your child for information about life in the other parent's home. If it's worth telling, the child will tell you. Did you tell your parents everything that went on when you were 8 or 12 years old? Do not ask your child to keep secrets about what takes place in your home. You do not have the right to refuse visitation because the other parent hasn't paid child support. The two issues are not related. You have a remedy in court for nonpayment of child support. You can lose physical care of your child if you deny court-ordered visitation. Don't get too upset about your child's behavior at the beginning or end of each visit. The child's cries at the end of a visit are perceived by the primary residential parent as tears of joy at being reunited with the parent, and the same outburst is viewed by the visiting parent as tears of sadness at the separation. Plan some kind of activity to allow the child to "wind down." It's not the end of the world if the child misses a Little League ball game or Sunday School because it took place during the other spouse's visit. 5. Child Support. If you are ordered to pay child support during the pendency of this action, pay it. If you simply can't make the full payment, at least make a partial payment. The judge will not look kindly upon your claim for increased visitation or physical care when you have failed to contribute to your child's support. Child support is money you have paid to the court (if an order has been entered) or money paid directly to your spouse for the child's support. Child support is not a bicycle or shoes that you bought the child during the weekend visit. It is the money that puts bread on the table and pays the rent. 7. Counseling. Divorce is tough. It's kind of like death, only no one sends you a condolence card. It hurts. However, it's not fatal. Go to a mental health professional. It's often easier to discuss your feelings with someone you'll never see again, someone who'll not say "I told you so." Therapy will not be held against you in court. In fact, in addition to helping you through the anger and sadness of divorce, the fact that you sought therapy can be looked upon as a positive factor by the court. 8. Parenting. Tennessee requires parents to attend a court approved parenting class. You can never learn enough about parenting. It's an ongoing process. You may want to enroll in an extra parenting class. Read about child care, child development, parenting techniques. Show the judge that you know something about parenting and that you have a willingness to learn. 9. Telling the Child about Divorce. Your child knows more about what's going on in his or her life than you may realize. You do not need to go into details about why the marriage ended with the child. There are a number of children's books, geared to varying age and reading levels, which discuss divorce and single parenting issues with the child. 10. Adjustments. Remember when you first became a parent? You were filled with worry and doubt about what your life was going to be like. Your friends and relatives all gave you advice about what childbirth and the new baby were going feel like, but when you actually went through these steps, your feelings were unique. Divorce is much the same. While everybody's case has common threads, the actual experience for each is unique. You are making the same adjustments in your life day by day as a divorcing parent as you did as a new parent. Be the best parent for child that you can be. As a good parent, you try to be a good example for your child in all aspects of your life. Your child will undoubtedly divorce, end a relationship or quit a job sometime in his or her life. The example you give your child as a divorcing parent is as important as the rest of the "good examples" you try to give your child. ----- ----------------------- Resource 4----------------------- Resource EXTRA
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DIVORCE A BRIEF OVERVIEW |
FEES |
TEN COMMANDMENTS FOR CUSTODY CLIENTS |
Resource 4 |
EXTRA |