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A Litigant’s Primer to Divorce Litigation
1. Reflect, Meditate, Pray
Whether you are a person of faith, describe yourself as a spiritual person or an agnostic, your marriage was contemplated before you entered it, even if you and your spouse eloped. The same thought process you used to think about entering your marriage is what you should use to determine the end of your marriage in divorce. Unless there is domestic violence or domestic abuse involved, which will be covered in a separate article, you need and indeed owe yourself, time to think. While there is no set time limit to contemplate divorce, I recommend thinking about it for three of the four seasons.
2. Truly Think About the Kids
You and your spouse both love your child or children. You should not try to alienate your child or children from their other parent as part of the divorce case. You will scar them for life and ultimately damage her, his or their relationship with you. I trust that you know your goal should be that your child or children look at the pre-divorce family pictures and after-divorce multi-family pictures with the same feelings of comfort and joy.
3. Gather Your Resources
How much did your wedding cost? Did you have a budget? What resources did you use to pay for your wedding? Those answers are instructive when thinking about divorce because most people planned in advance for their wedding. Moreover, many people spend extravagantly on their weddings, but want to spend little or nothing on their divorce or worse do it themselves when they have much more to lose if they do not protect their rights to child custody, alimony, equitable distribution and other equally important interests. A good portion of my divorce practice is fixing what client’s have done to themselves as Pro Se or self-represented litigants in their divorce.
Motions for Reconsideration or Appeals are sometimes necessary but ultra-expensive, and super time-sensitive. It is hard to get back what you unwittingly give away as a Pro Se or self-represented litigant. I hope to discourage you from being penny-wise and pound-foolish. To that end, I strongly recommend that you create a multi-phase budget to fund your litigation with an attorney.
It is common knowledge that divorce litigation is expensive. It is something you are choosing to do or are being compelled to do because you do not agree with your spouse. Therefore you need a plan to fund it. You do not ask the department store for a payment plan, you do not go to the grocery store and expect to get food for free, you charge it on a bank or store credit card if you do not have the cash on hand. You have time to plan, to fund your divorce, so do it. I recommend that you spend your time and money: wisely, intelligently and most of all strategically.
You have decided to move forward with your divorce. On your own you sketched out what you want. In fact you should have a note book of how you want every thing to be distributed. If you have children, you have thought about and have ideas on custody, parenting time and child support. You have gathered and made copies of important documents (deeds, stock portfolios, passports, birth certificates, marriage certificate, etc). You have met with several attorneys and hired an attorney who best meets your needs and budget. You have your funding sources lined up and can met your retainer requirements and are providing that attorney with all the information needed to file the complaint.
Welcome to divorce litigation. Your divorce attorney has filed, your spouse still has time to answer. At this point you can begin to file motions for funds, parenting time agreements for child custody (if you do not still live together), freeze assets from dissipation, sell assets or property to fund the divorce litigation, file a lis pendens to prevent the sale of property, whatever is necessary. Your soon to be ex-spouse will answer and may make a counter-claim and file motions as well. The Judge has set a schedule for discovery. Discovery is a process of requesting documents and records via a demand from each side, admissions requested, experts hired, depositions taken. Letters are going back and forth. Due to the volume of documents going back and forth in a divorce case, I typically have my staff e-mail my clients everything in .pdf format so their divorce file is as complete as mine. This policy is part of our Green Initiative and has the added benefit of saving clients costs for making paper copies and better focuses divorce funding resources where they are needed.
You have all the information you are going to receive. This is the best time to come to an divorce settlement agreement, this is the phase where emotions are the most in control and logic can prevail. 95% of all cases settle, only 5% or less go to the end of trial. Why shouldn't your divorce case settle? Listen to your divorce attorney, make sure that you have presented your best offer to your soon to be ex-spouse because in the next phase you will have what you want, a clear conscience for the battle to come.
7. Divorce Trial
Almost all efforts to settle have been exhausted. Your divorce attorney has prepared a trial notebook, made copies for the court and the other attorney. Now it depends on the Judge, he or she will determine when your divorce trial begins, how many hours you have on a particular day. You should remove from thought TV show or Hollywood movie divorce trails, or even continuous trials; your divorce trial may take place over months not days or weeks. The Court System has time tables that push you to this point, but because of back log and your Judge's particular schedule, no one can predict when you divorce case will begin, end or what the Judge will ultimately decide. My recommendation, only go to trial in a divorce if you have to, and sometimes you must because the other side is unreasonable. Hopefully, your divorce attorney is able to obtain for you the result you really want but at the very least you should be able to tell your attorney she or he fought for you and you truly appreciate the effort made on your behalf. You must understand that divorce is rarely winner take all, it is more like a split between the range of 60%~40%, which why if you settle you can tweak it to 50%~50%.
I always tell my clients to please remember, “The date of the final judgment of divorce is the End of the End and the Beginning of the Beginning”. What does that mean, well, the final judgment of divorce’s date is not only the End of the End of your marriage but it is also and more importantly the Beginning of the Beginning of the rest of your Life.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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