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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.

A divorce consultation budget:

You should select an attorney that you are comfortable with, the two of you will be working very closely together. While a particular attorney may be more than qualified to represent your interest, you and that individual may not have any rapport and that is a recipe for disaster. Are you comfortable talking to a doctor that has no bedside manner? Are you likely to tell that doctor where it hurts if you are not comfortable having a general conversation with them? What about a barber or hairstylist that does not talk to you about the haircut you want?

Expect and budget to pay a consultation fee. You are going to receive knowledge during your consultation and knowledge is not free. You either have to earn it for yourself, which you do not have the time to do or you have to pay to receive the benefit of someone else’s knowledge.

You need to get your car fixed. Is your mechanic free? No. You need to have your leaves raked and your lawn prepped for the next season. Is your lawn care service free? No. Your cuticles are a mess and your calluses are not able to be hidden by lotion any longer. Can you go to the nail salon for a free mani-pedi? No. You can however do all of those services for yourself, but that costs you time and money for supplies. What you receive for free may not be worth the money you pay or the time you spend in the end to correct any mistakes you make.

How do you choose? Research attorneys online, ask friends, relatives, co-workers and neighbors. How much should you pay for a consultation? It depends on the level of experience of the attorney you want, it also depends on the resources you have and what you are trying to protect. In talking with my colleagues, the range charged for a consultation is between $150 and $500. A low consultation fee does not mean low experience and a high consultation fee does not mean a guarantee of success. Remember, once an attorney or law firm consults with you, they are barred from consulting with your spouse. I recommend you consult with at least 3 attorneys.

As much as the attorney is providing you with insight and knowledge on your specific problem, you too are interviewing that attorney. Ask questions such as:

“What is your philosophy on custody cases?” If the attorney who you are consulting with believes that kids should ordinarily be with their mom and you are a dad, that attorney may not be the right one for you.

“What are my chances of receiving alimony as a 47 year old stay at home mom for the past 20 years?” If the attorney that you are consulting with only represents men and does not believe that alimony is appropriate in that circumstance, that attorney may not be the right one for you as a stay at home mom.

Think of your questions before hand, have a list, there is merit in being prepared, listen carefully to the answers. Have follow up questions. You are doing the interview. You are hiring a very important employee and as the employer you need to make sure you are hiring the right person for the job.

While this is a very emotional time for you, you are going to make a huge investment in the attorney you select. Men and women have cried many times in my conference room, so do not think that your feelings of being overwhelmed are unique, they are a very normal, very human reaction to a very difficult situation.

The attorney that you hire, will not be emotional about coming up with solutions to manage your litigation, but you need to be confident that he or she is a person you are comfortable sharing your most personal experiences with during this crisis. If you are not comfortable with their reactions to your questions or you are not satisfied with the answers, that attorney is not the right attorney for you. Use logic, educate yourself, make an informed decisions, but ultimately, I say go with your gut; to me this decision is more a feeling than a science.

A divorce litigation budget:

This is your biggest expense, potential clients always ask me during our consultation how much a case will cost. I have never been able to estimate, there are too many unknown variables. Known costs are: divorce retainer fee, incremental fee, court costs, to name a few. Each attorney you consult with should be able to answer these questions directly. Variable costs are: expert fees, deposition costs, mail costs, copying costs, real estate and/or art appraisal fees, etc., just to name some of the costs you may need to pay. It all depends on how much you or your spouse want to litigate.

A divorce funding source budget:

Your salary, your credit cards, your savings, your family and friends are all potential sources. While the Judge may order your spouse to provide you with funds for your divorce, if you are under employed or unemployed, that requires a Motion, which has to be made which means it has to be funded first and won second. You need to count what your friends and family can contribute or understand that you may be funding this divorce litigation alone with your salary, savings, credit cards or via a Court Order, assuming the Judge gives you fees. I am not saying have all the money you need for your divorce at once, since you do not know the total cost until it ends, but you do need to understand where you are going to obtain your funding for your divorce litigation when the time comes to tap that resource. I think it is unwise and unrealistic to believe you can start a divorce case with no money.

4. Pre-filing

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.

5. Post-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.

6. Pre-Trial

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.

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