Thinking
Divorce Solves Problems
The biggest, and most common mistake in divorce is thinking it will
solve the problems in your life. The odds are it will not.
Sometimes it actually does... but not often. Generally the problems
in a person's life are internal. If you are unhappy it is because
of something in you, not because of the person you are sleeping
with at night. Get divorced and get remarried and you are just as
likely to quickly again be miserable unless you change.
Divorce may mean you are
miserable in a different house and with a different person in your bed...
but it will seldom make you less miserable and will often make you, and
others (particularly any children), more so. Yes, there are exceptions,
and yes some marriages are so unhealthy that divorce is the only answer.
But if the reason you are thinking about divorce is simply because "something"
is missing in your life, or because you "aren't in love anymore", or because
you have "grown apart", or any of the other typical lame excuses for divorce...
you are kidding yourself and need to grow up, not get a divorce.
Counting
on Future Agreement to Address Child Visitation/Custody Issues
Parents will often get so tired of fighting with each other by the
time they are divorcing that neither one wants about- usually to their
lawyer. Your lawyer is a professional. He or she is trained in how to represent
your interests in court, and you need to listen carefully to the advice
your lawyer gives you. But this is not your lawyer's divorce. It's yours,
and you're the one who's going to have to live with the results.
Fighting
Every Issue in the Divorce Simply for the Sake of Fighting
At the other end of the spectrum are couples who can not, or will
not, agree with each other no matter what. They will disagree
with each other for the sole purpose of disagreement. Divorce is
a vehicle that allows you to do this at every turn... but the legal system
is a very expensive forum for argument.
Failing
to Carefully Pick the Matters to Dispute
Even if your spouse lies whenever opening his or her mouth, and will
not even begin to address matters fairly, you need to determine whether
the odds of winning on a particular point and the benefit to be gained
if you win make it worth the effort. If you spend $5,000 in legal
fees arguing over personal property worth only $1,000... you're not thinking
very well. For more on how to look at this, click
here. For more on how to hold down your legal bill in general,
click here. Parties in
divorce often fail to have any idea what the additional legal fees will
be to fight over a particular issue and then have their attorney run up
thousands of dollars in fees in the case, arguing over something only worth
a tenth of the cost of arguing about it. Attorneys often do a poor
job of estimating the overall cost of a divorce (because they don't know
how much you and the other side will require them to do), but they can
generally give a fairly accurate estimate of the cost of another deposition
or of an expert witness or drafting interrogatories or dealing with a particular
issue. These costs should be considered before the attorney is told
to run up the bill that much more.
Using
the Divorce to Vent their Anger
A divorce is a wonderful vehicle to say terrible things about your
spouse. You can do it in court documents that are public records
for the entire world to see, and you can say anything you want in a court
pleading without worrying about libel (though there are ways the court
handling the case can punish you for deliberate lies in the court pleadings,
and there is also technically the possibility of perjury, though I have
never even heard of a prosecuting attorney anywhere having the courage
to prosecute someone for perjury for lying in divorce pleadings), and you
can say it all in front of an audience at trial and have your attorney
call your spouse a liar and force him or her to squirm in explaining their
bad behavior... but it seldom gets you anywhere in the outcome of the divorce...
and it is going to cost you far more, both financially and emotionally
that trying to resolve things through mediation. If you simply want
out of the marriage and away from your spouse, focusing all of your energy
and attention on your spouse seems a perverse way to do it.
Failing
to Build In a Process to Resolve Any Future Disputes Involving Children
Even couples who address every imaginable issue regarding the children
in the final decree or the Marital Dissolution Agreement, will often fail
to mention how they will resolve any future disputes involving the children.
But if those children have some time before the youngest will turn 18,
it is extremely likely that there will be disputes somewhere down the line.
You can build in procedures to resolve the disputes when they rise, even
using informal mediation by a friend or relative or church minister you
both trust, or you can avoid building in any procedure and simply hire
an attorney and run to the courthouse to fight it out in front of a judge
when you have the inevitable disagreements. The
pilot program now underway in Tennessee's largest counties attempts
to force parents to address this at the time of divorce and to require
them to build in language to avoid return trips to court.
Going
to Trial Instead of Negotiating an Agreement
Generally you can get a better result, for far less in legal fees,
with far less stress, and only a fraction of the bitterness if the two
of you simply both sit down and honestly and fairly deal with each other
to try to work out the terms of a Marital Dissolution Agreement to settle
all of the terms of your divorce, or sit down with a mediator to help you
come to agreement. (If you have minor children involved and are in
the states larger counties you may be required to mediate
your disagreements, and even if you are in one of the rural counties
you should look at the forms for Temporary Parenting
Planning and for a Permanent Parenting Plan.
If you review those questions and getting answers to those questions, and
do not discuss your old grievances against each other, you will be amazed
at how quickly and easily you can settle disputes involving the children.
Settling
Everything at the Last Minute Because They are Afraid of the Courtroom
If you have made a serious effort to negotiate matters and your spouse
or your spouse's attorney are being unreasonable assholes and you are confident
that your position is fair and reasonable and defensible and that
you are likely to win if you have the judge hear the facts... don't cave
in and give them whatever they want simply because you are afraid of the
courtroom... and don't wait until the 15 minutes before your case is set
to be heard to negotiate matters you could have and should have for months
beforehand. By delaying any real discussion until the last minute,
you are leaving no room for real negotiation, you are putting your attorney
in a position of both preparing for the trial that will happen if you do
not settle and considering the issues presented in your settlement proposal,
and you are denying your attorney any chance to check to see whether there
are any problems with the approach -- this does sometimes require attorneys
to do a little research, and it can't be done when you delay the process
to the last minute. Certainly there are times when settlements on
the courthouse steps make sense, and sometimes the other side will not
really talk about things until the judge is calling the case... but if
you are the one responsible for putting things off, you are leaving yourself
in a much weaker position.
Using
Children as Bargaining Chips
This happens quite often. It is morally repugnant and impossible
for anyone to defend on a moral basis. It is wrong and you know it
is wrong. Ethical attorneys will not take part in it. I have
in the past and will again in the future put matters at issue in a case,
such as child custody, when my client did not in fact want what we were
asking for in the court pleadings, but I have done so in order to allow
us to introduce evidence I wanted the court to hear and which I knew the
judge would not allow into evidence otherwise. This is a matter of
legal tactics that the courtroom rules unfortunately sometimes require,
but it is different from threatening to "go for custody" even though you
do not give a damn about the kids and in fact do not want them, but you
seek custody simply because you know custody is important to your spouse
and you think this gives you something to bargain with. You do not
bargain your children like a used pocket-knife at a flea market.
Giving
up Control of Their Divorce
Some people simply go into their lawyer, tell their lawyer what they
want and then leave, both physically leaving the lawyers office and also
emotionally leaving the entire divorce to be handled and pursued by the
lawyer. Your lawyer can do everything needed, except make
actual decisions about settling the case... but leaving it all to be done
by your lawyer has the following problems: 1) much more expensive; 2) tends
to be much more confrontational and antagonistic and deepens divisions
between you and your spouse, divisions that will cause future problems
dealing with any issues involving minor children; 3) leaves you even more
dependent on your lawyer; 4) causes delays that tend to drag the process
out several months longer than needed, often adding up to a year to the
process; 5) often results in your not fully understanding or appreciating
what is happening and agreeing to settlement terms that you later regret.
Your lawyer is a professional, trained in how to represent your interests
in court, and you need to listen carefully to the advice your lawyer gives
you, and I insist that my clients do not talk with their spouse about the
divorce unless I am first aware of it and approve it. (I often set
up settlement conferences for parties and either have them talk about things
in my office while I do other work and avoid billing them for all but a
small portion of the time, or I will take work with me and do the same
in the other lawyers office.) But this is not your lawyer's divorce.
It's yours, and you're the one who's going to have to live with the results.
You need to approach it as a partnership effort with your attorney.
Dividing
Property and Debt Without a Complete Inventory
Without an inventory you simply can't keep an accurate balance sheet
when you making the division. Take the time to carefully list all
of your belongings and all of your debts. Once you do, division is
easier. Without a good list, BOTH of you will be unhappy later.
Focusing
on Prior Complaints Instead of Resolving Present Issues
Whether you want to get the divorce over with or on some level would
like to put everything on hold and try to work things out, stop pissing
and moaning about problems or sleights or abuse or mistreatment in the
past. If you sit down and focus on what needs to be done, you may
well be able to do it without a trial or without a mediator or without
lengthy negotiations and having attorneys exchange proposals and counterproposals.
But if each time you try to talk you go back to some past grievance, then
you are never going to get anywhere toward settlement.
Refusing
to Deal with Issues on a Rational Level
Rational thought and emotional thought are often worlds apart, and
the natural inclination in dealing with divorce is to deal with it entirely
on an emotional basis. Your heart is breaking, or you are filled
with anger, or you are simply in shock, or all three and more. But
emotional decisions are not going to take account of the factors you need
to consider, and they will not serve you well in the years to come.
Emotional decisions are ones that you are likely to regret later.
You have to look at this with your head and not your heart.
Spending
too much time and money letting lawyers gather information
The legal term for this is discovery, and it includes interrogatories,
requests for the production of documents, requests for admissions, and
depositions. A lot of lawyers love discovery. It turns little
$500 cases into $5,000 cases, and it keeps the lawyers thoroughly in control
of your divorce. The lawyer prepares every question, every request
for production, every request for admissions, and has to review all of
your responses to similar requests and questions from the other side.
This is time consuming... and very expensive. Whenever possible,
it's better to gather the information some other way. There are times when
the information is simply not available to you on any informal basis and
when that's the case, the discovery process can do wonders. But if
you and your spouse can simply exchange the information you need, the process
will be much easier and much less expensive.
Ignoring
their lawyer's advice
Your lawyer will ask or suggest that you do certain things and get
certain things together in preparation of your divorce. These are
not suggestions made simply for the purpose of having something to say.
They are to help you get what you want out of the divorce and to help the
attorney prepare either for settlement discussions, for drafting a proposed
agreement, or for trial. If you fail to do as requested, you will
not only be paying for advice you are ignoring, you will also likely irritate
your lawyer and possibly leave yourself with serious problems at trial
when your case is not properly prepared. But if you are going to
pay someone for their advice... why in the world not follow it?
Not
Paying Enough Attention to Taxes
This happens very often. People negotiate, reach agreement, and
get divorced without thinking about the tax impact of the concessions they're
making. Then sometime later, perhaps months, perhaps years, after
the divorce is final, you find out for the first time that because of tax
consequences your divorce is suddenly costing your a lot more than you
expected. I am not a tax expert and would not even play one
on TV, but I know plenty of them and it is fairly easy to refer a simple
question to someone who is an expert to see what effect different approaches
will have on your tax picture.
Trying
to Win a Spouse Back by being Generous
This the way it often happens: the spouse being left doesn't want the
marriage to end and hopes to win the other back by "being nice."
He or she lets the other have everything and agrees to far less than fairness
would indicate, hoping that somehow this will persuade the one wanting
the divorce that they are wrong and that the spouse being left is so kind
and loves the other so much they should try again to make the marriage
work.... This is like trying to stop a shark attack by offering your
leg in order to persuade the shark you are a friend.
What you have to do is decide what issues you want to focus on, what is most important to you and what is least important, communicate this to your attorney and then work together in order reach those goals. It may be hard to try to make rational decisions on a matter which is nearly entirely emotional... but if you don't do so you are begging for more serious problems later.
Click here to e-mail questions, suggestions or corrections regarding this page.
Disclosure on Non-Representation Link
Disclosures on Certification of Specialization
Link