While I tell my clients that every case is unique (and they are) there are always common themes and issues. With this in mind, there are certain things that you, the client should know before filing for divorce. These facts may help you understand the process and the strategy that will occur in your particular case.
1. Over 95% of all divorce cases settle before they go to trial. (NCHS Data Brief Number 19, June 2009).
Why is this important to know that 95% of all divorce cases settle before trial? First, it lets you know that statistically, you do not have to worry about trial. Public speaking is the number one fear, and going to trial has the effect of forcing you to speak about very personal things in a public forum. Yes, I know that “public speaking” generally refers to giving a speech to a group of people but the courtroom is a public forum and giving testimony on a stand makes many clients nervous. You should know, the other side has the same fear. More importantly, this statistic lets you know that you should plan for mediation. Mediation is a process where a third party acts as a referee to help you and your spouse resolve the issues between you. This referee is usually a skilled lawyer or retired Judge who provides a perspective and assist each side in recognizing the other spouse’s strengths while helping that spouse acknowledge his/her own weak points so that you each have incentive to negotiate something you can live with before a Judge tells you what you will live with.
2. Decide what is important before you file for divorce. What are your goals and ask yourself if they are really reasonable, or just your desire to get even. Then put them in order of importance.
The reason you want to carefully consider what you want is simple. When you’re going through divorce, you have to make an overwhelming number of financial decisions and making these decisions can sometimes be life-altering. Such as: whether to keep or sell the house; when and how to protect yourself against misuse of joint accounts and credit cards; avoiding tax problems; dividing property and debts fairly; reducing risks to your financial future; and gaining financial stability as a single person. Yes, Child Support and Child Custody are also important, and most certainly top priority, but the foregoing list is more a list of things that will affect you for the rest of your life, long after the children are grown and starting families of their own.
Before you file for divorce, think about your goals and what you want when the divorce is over. You can only make good decisions in choosing how and when to file, whether or not to try mediation or collaborative law, and hiring a lawyer if you know where you want to end up when it’s all over.
Finally, if your goal is “justice” or to “tell the judge my story”, keep in mind that no-fault laws, court over-crowding and pressure on judges to move cases through the system quickly means you’ll get very little time or opportunity to testify and you will not get the satisfaction you desire.
3. Know who you want to be when your divorce is over.
It cannot be emphasized enough that in Texas, the golden rule of custody is “Do what is in the best interest of the children.” I haver written extensively on this subject in this blog and on my website www.planoattorney.net. If your top priority is your children, make sure that your decisions and actions are really in their best interests, not just yours. This is the first part of deciding who you will be when the divorce is over. Are you going to be a bitter Ex-Wife/Husband or will you be the best parent who just happens to be divorced. Will your children be your priority or will your career? Knowing who you will be when you are divorced can help bring into focus what is important in the divorce process.
4. Do not represent yourself.
There is never a case so simple that you should consider representing yourself or attempting a do-it-yourself divorce. Would you ever expect to walk onto a basketball court and win a game of one-on-one against a professional NBA player? Sure, you may score a few points, but unless you are a professional basketball player yourself, you are supposed to loose. The one caveat to this is if your spouse also plans to represent him/herself. But, if that is the case, consider hiring one lawyer to mediate and prepare the papers for both of you in an uncontested format.
5. Do your homework.
This is your case and only you can decide what is best for your future. Accordingly, get information, speak to level-headed friends and qualified professionals (accountants and financial planners, or even therapists) before you hire a lawyer. These , are often as much or more helpful than a lawyer), and use self-reflection to decide what’s best for you. Don’t jump to conclusions or rush to a decision. You took years getting to this place, so don’t expect to solve everything in 2 minutes. A reasonable, solid, working divorce settlement takes time to negotiate and gel. You’re living with the decisions you make, but your lawyer, your accountant, the judge, and your best friend are not.
6. Fighting in court cost money, so decide if what you are asking for is worth the cost.
So many times spouses fight over something for spite or for the shear sake of fighting. In truth, if the item you’re fighting about won’t matter in 5 years, it probably doesn’t matter now. It does not have to be money, it can be a baseball card collection that the wife has no interest in other than keeping it from the husband, or a boat, or a car . . . you get the idea. Ask yourself and answer honestly, why do you want it and even if you get it, does it matter enough to fight for it? If the answer is “no” let go of it. Sure, it’s more money than you’d leave for a tip, but will it really change your life? And even then, more than one case has proceeded to trial over a few thousand dollars, only to end up in the hands of the attorneys. It cost to fight, your lawyers are not free, so decide up front what is worth fighting over and what is not.
7. Remember your lawyer is working for you, that means you are paying for his/her time, use it wisely.
Lawyers charge by the minute so if you want to get the most out of your lawyer for the least cost, be organized. Write your questions down so you can ask several at one time and only call the lawyer once with a meaningful conversation instead of 6 times for only a couple minutes each (most lawyers bill in 6-minute increments or 1/10th hour). Also, don’t be afraid to ask your lawyer’s paralegal or assistant for status updates, and answers to questions like “what happens next?” Finally, keep a notebook so your papers stay organized and in one place, and when you are asked to produce some documents, give them to your lawyer quickly so he or she can delve into the documents and have time to make sure he/she knows what is in them before producing them via discovery to the other side. If you’re too overwhelmed to get organized on your own, ask for help from a trusted friend, relative, or even a college student from Craigslist.
8. Be prepared.
This is similar to #7 above in that it saves you money, but more importantly, it helps your lawyer to prepare better and do so in less time. When you show up for any meeting or court hearing, bring everything that is relevant. At your first meeting, have an idea of your finances – the income and monthly bills, copies of mortgage statements, recent bank records, and recent credit card statements are invaluable and bringing them to the first meeting lets your lawyer know you are prepared.
9. There is an end to the madness.
Your divorce will not go on forever even though there are times you may begin to think it will. Court schedules, witness issues, parties and their attorneys can and do get sick, etc. Your first court date may not be “your day in court” that is just how our legal system works. But do not loose hope: there is an end; and things will get better.
10. You are in control.
Every divorce is as unique as the spouses divorcing. Your spouse may tell you he/she is going to do things, get stuff, or have the judge tell you something. The only thing your spouse knows for certain is that they are just as lost in the system as you are and just like you, he/she does not know what is going to happen next. Do not let your spouse control you through intimidation or capitalizing on your fears. You are in control of your future, your lawyer is your employee – your champion – and as such, has your best interest at heart. Trust your lawyer and if you can’t do that . . . get another lawyer.