The most important factor in determining the outcome in divorce situations is expectations. If expectations are realistic the divorce experience will be less traumatic. On the other hand, fantastic expectations will likely result in great trauma for the entire family unit. To help keep the expectations in a more realistic range, the following concepts should be considered.
Many people tend to forget that the spouse they are divorcing is the same person with whom they wanted to spend the rest of their life. The person they chose was a decent human being then, and that person is still a decent human being even though divorce is imminent.
When a couple get married they are usually in similar emotional states dreaming the same dream. By the time a divorce happens they have taken the same emotional journey, and both have experienced similar amounts of pain. There is a difference, however, in that one very often has felt some pain day after day for a very long period of time, while the other felt the pain in a shortened period of time at the end of the marriage. Both of these people have seen the dream vanish.
If you are having trouble deciding whether or not to end your marriage (for some people this is the hardest part of all), talk to your friends. They are often in a better position than you are to make an objective assessment of the pros and cons of your marriage. There is one important condition - you must be completely honest with them.
There is a fairly universal human tendency to want to blame other people for our difficulties. Most especially does this manifest itself in difficult marital situations. In these kinds of situations many people find it extremely easy to perceive their spouse as being the cause of much of the discomfort. It is extremely difficult for most of us to accurately perceive reality when our marriage is deteriorating. This is so whether or not we are aware of the deterioration.
Many people believe that the court system will treat the spouse harshly that insists on ending a marriage since the other party wants to make the marriage work. In fact, in virtually all cases the court will not make decisions based on how the marriage happens to come to an end. For the most part courts decide the issues based on today and tomorrow and not on yesterday.
While there is much in popular literature depicting divorce as having a negative impact on children, much might also be said about the lifelong impact of seeing Mom and Dad relate in ways devoid of caring and affection every day for years.
The results of most divorce cases are fairly predictable. One fact that is very predictable is that if one or both of the parties are motivated by bitterness, both will spend an exorbitant amount of money on attorney's fees and the process will drain excessive amounts of emotional energy from the lives of all involved.
When the emotion is removed from a divorce situation, an experience divorce lawyer knows the final outcome in most cases. Often the most difficult part of a divorce is moving beyond the emotional. The court system is not equipped to effectively deal with all the emotional turmoil surrounding so many divorces.
The divorce agreement is 99% of the matter in a divorce case. Almost all divorce cases end with the parties signing this written agreement. From the time an agreement is signed and filed with the court, it takes only about six weeks to get a hearing. There is only one hearing required and that usually lasts less than five minutes. The time from that hearing until the divorce is final is usually 120 days.
Dating after separation and before a divorce is finished, while not significant in the judge's mind, can make the process more difficult by angering and hurting the other spouse. The court is concerned that a new person might be introduced to the children too soon, or that inappropriate behavior with a member of the opposite sex might take place in the presence of the children.
All couples with children under 18 years must attend a class that shows how their behavior in living separately can impact the children. Completion of this class is required before the court will schedule a final divorce hearing. It currently costs $65 per spouse and usually takes place over the course of one weekend.
The perceived reality that each person brings to a divorce situation is fraught with anxiety that can lead to believing that everything the other party says is seriously threatening. The natural response is to cling tenaciously to negotiating positions that are the exact opposite of whatever the other spouse wants. The reason for these perceptions is the fact that we see marital situations through differing filters - moral, financial and philosophical. The first step in getting beyond the problem is to distinguish between how we feel about any particular choice and how we think about it. We must then identify all possible choices. Finally we should distinguish between reactions based on emotion and those based on reasoned assessments.
The major issues in a divorce are: custody, support, visitation and division of assets. There are obviously sub-divisions in each.
Child Custody
The court is required to enter an order that the parties shall have joint legal custody of the children, unless the court makes written findings of fact why this case is different. Joint legal custody only means that both parties have a say in deciding major issues involving the children: health, education and religion. The most important factor in deciding physical custody is determining who has been the primary caretaker for the child or children. This consideration can be displaced but usually only if that parent is demonstrably unfit to care for the children. The primary consideration is always the best interests of the children.
Child Support
Before 1988, determination of child support was easily one of the most difficult, time-consuming decisions judges made in a given case. In 1988, the courts began using the "child support guidelines." This is a formula that depends primarily upon the income of the two parties, the number and ages of the children, the amount of daycare cost involved, and the amount of medical insurance costs for the family. The judges are required to go by this formula unless they make a written decision as to why this case is different from the normal situation. For the most part, judges very often follow the guidelines.
Alimony
Unlike child support, the question of how much is to be paid in alimony can often be a very difficult question to answer. There are no hard and fast rules for judges to follow.
There are, however, some general principles that usually hold true. In a short term marriage, alimony is much less often required. In long term marriages, alimony would tend to be used to equalize income. If there will be a fairly long term payment of child support in middle class families, alimony is less likely to be ordered. If the marriage has had little impact on the wife’s earning capacity, alimony will be less, if any. The longer the marriage and the more disparate the earning capacities, the higher the alimony.
Marital Assets
The first step to be accomplished with respect to the physical assets is to identify what they are and ascertain their value. In the long run, the court will seek to make an "equitable" division of all the property. Virtually all that the parties own together and individually will be included in the pie. With a short marriage, the court will want to put the parties back where they were before the marriage. With intermediate or longer marriages, the starting point in any determination of the division of assets will be 50/50. If one party wants more than 50%, they must convince the judge why this should be so. There are few and minor exceptions. The division of assets can be accomplished by selling property and dividing the proceeds or by division in kind employing set-offs of values one against another.
Dividing Big Ticket Items
Judges are interested in big ticket items. If the two parties cannot agree on a value, the item can be professionally appraised. If one of the parties doesn't accept the appraisal, or there are conflicting appraisals, the judge will make the decision as to value and may order the item sold, or divided evenly, if possible. That makes the appraisal moot.
Appraising the current value of a pension or 401K is sometimes required, and there are professionals who do it. How much is included in the division can vary depending upon the length of time relative to the length of the marriage when contribution was made to the pension. Trade-offs are always potential money savers. Care must be exercised to make sure appropriate values are being dealt with. An agreement saves the cost of the appraisers.
Real Estate
Judges very often prefer that the children be allowed to continue to reside in the former marital home for some period of time after the separation – depending upon each situation. This is so if the children have lived in the residence for some time, and it is no more expensive than other similar housing. The reason many judges give for this is that allowing children to remain in the house where they have lived for a while helps to ensure that the separation of the parents is less traumatic for them.
For this reason, the sale and division of the house is often postponed. How long it is postponed depends upon a number of factors including, among others, the ages of the children, how long the children have lived in the house, the financial circumstances of the parties, the extent of other assets, and the like. As always, different judges have different tendencies on these issues.
Real estate commissions are sometimes considered in the division of assets just as the present value of a retirement vehicle is considered rather than the total value. In retirement plans, there are penalties (often 10%) as well as income tax if withdrawn before retirement age. Retirement vehicles are, in essence, the right to receive money in the future and, therefore, have a present value less than that stated. They also come in two kinds essentially – defined benefit and defined contribution. Defined benefit plans involve an amount paid at a certain time in the future in monthly payments for a certain period of time or for a lifetime. This is the old traditional retirement plan. Defined contribution plans are essentially an amount of money put in by the employee and/or the employer that earns dividends and result in an amount that can be received in the future at some point.
Forget the Small Stuff
Judges have little patience for low-value goods; pots and pans, or anything under a certain amount. Judges get angry if lawyers or clients fight excessively about these things. Fussing about these things can be regarded as a smoke-screen to distract from important issues. Obfuscation makes judges angry. A judge will, if the parties are completely unable to agree, sometimes order the goods sold or just split up arbitrarily. A former judge's clerk told me the judge once gave her his notes and lists from the parties and told her to decide who gets what! Judges don't want to deal with these issues and the goods usually don’t amount to much, even when totaled. The time and cost of appraising small stuff and fighting about it is usually just not worth the trouble.
Cost of Legal Proceedings
Approximately 98% of divorce cases settle without having a judge conduct a trial, hear the evidence, and impose his/her judgment to resolve all of the issues. Some cases settle early, some late. The cost of a trial is extraordinary! In deciding the appropriateness of any offer or counter offer, it is sometimes a good idea to weigh the cost of legal proceedings in a cost/benefit analysis. How much is reasonably expected to be gained? How much is reasonably expected to be paid in the process?
Two Kinds of Lawyers
Sometimes, without either party wanting it to happen, a divorce case becomes a major battle. This happens in a variety of ways. A factor often involved is miscommunication between parties. According to this scenario, the husband tells his attorney something, who tells wife's attorney, who tells the wife. The wife doesn't really get the same message that the husband intended, and when the process goes back, it is distorted again so that the husband hears a distorted response to a distortion of his original statement, and therefore he reacts on incorrect information. Before you know it, the client believes that the spouse is out to take as much advantage is possible. This client responds by authorizing the attorney to take more aggressive action which, of course, is usually responded to in kind. It can also happen that one or both of the attorneys wants to be sure to do the absolute ultimate best for his or her client, and so by emphasizing or exaggerating one thing and minimizing others, distorts the communication between the parties.
Negotiating is critical in resolving differences. The negotiating process often involves asking for, or seeming to ask for, more than is actually intended in order to have a fallback position that is still available. However, an aggressive starting point can emotionally offend the other party who may react in kind.
Most of these difficulties involving communication can be avoided when the parties use mediation or collaborative law to resolve their differences.
There are various kinds of lawyers. Some lawyers make a major effort to guide the parties to a reasonable settlement with a minimum of time and money. Other lawyers will try to fight for anything the client asks for, whether or not they are likely to succeed in court. This approach appears to put the client's interests first, but often does not. Sometimes aggressive representation is called for; sometimes conciliatory representation is best. The cost of one spouse's proceedings in divorce court depends to some extent on the kind of lawyer the other spouse has. One judge used to ask certain parties arguing in front of him to say in open court how much they had paid their attorneys in this proceeding. He did this when he had a pretty good idea what the amount would be based on the case and lawyers involved. The answers were always followed by gasps from the audience because of the enormous amounts stated.
Summary - What does all of this mean for your divorce?
To obtain the best outcome of your divorce, it is essential to make decisions based on law and logic, and emphatically not based on emotion. Judges are not primarily concerned with the emotions of the parties. They are not concerned at all with the parties' ideas of fairness. Making decisions about the divorce should be undertaken just as you would make rational decisions about investments. Instead of choosing which stocks or bonds to invest in, you are choosing to invest in legal fees and appraisal fees or to make concessions. Decisions should be based on the amount of return, as well as considerations of the children, and not on the need for revenge or to "win."
