Expectations in Divorce

Just about everyone wants to win, no matter the circumstance. But the range of victory stretches from happy satisfaction to vicious conquest. As you spend time in the divorce arena, your most important preparation will be to decide what your win will look like, not only financially but emotionally, and not only for yourself but for all those affected.

It’s fairly universal to want to blame other people for our difficulties, and this is particularly true by the time divorce seems to be the only answer. In this situation, many people find it 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 true whether we are aware of the deterioration or not.

That’s not to say that this isn’t an emotional time. The important point to acknowledge is that the courts are not equipped to resolve emotions, so emotions are a poor guideline on which to base your strategy. This includes clinging to negotiating positions that are opposite of whatever the other spouse wants, just because they are opposites. You are far better off distinguishing how you feel about a choice and how you think about it, and evaluating thusly.

Unavoidably, your decisions must address finances, but for many people, the higher stake is emotional, just as it was when the marriage began. Many people forget that they once judged the spouse they are divorcing to be a decent human being, and that that person is probably still a decent human being, even though divorce is imminent.

Trial or settlement?
Some cases settle early, some late, but about 97 percent of divorce cases settle without a trial. From the time a separation agreement is signed and filed with the court, only one hearing that lasts about five minutes is required. It routinely takes about six weeks to get the hearing, and the time from then until the divorce is final is 90 or 120 days.

If you decide to proceed to trial, there is far less certainty about how long resolution will take. It’s safe to predict that if one or both parties are motivated by bitterness, both will spend exorbitantly on legal fees and expend excessive emotional energy from the lives of all involved.

Because the cost of a trial is extraordinary, it is a good idea to compare the costs and benefits of any offer or counteroffer. How much can you reasonably expect to gain? How much can you reasonably expect to pay in the process?

Once emotions have been removed from a case’s conduct, an experienced attorney almost always knows how it will resolve.

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. The answers were always followed by gasps from the audience because of the enormous amounts stated.

Major issues in divorce
Knowing some intricacies of judicial philosophy will help prepare your court strategies. Making an argument that appeals to the judicial temperament is far more likely to succeed than arguing passionately on points that have been made many times before and are almost always ignored.

Child custody: State law requires the court to order joint legal custody of the children unless the court makes written findings of fact why this case is different from the norm. 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 for physical custody is determining who has been the primary caretaker. This consideration is usually displaced 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, child support was the most difficult, time-consuming decision probate judges made in a divorce. Then courts began using the "child support guidelines," a formula based primarily upon the income of the parties, the number and ages of the children, and costs for daycare and medical insurance. Judges are required to go by this formula unless they make a written decision why they didn’t.

Alimony: Determining alimony can often be far more difficult, but some principles usually hold true. In a short marriage, alimony is much less often required. In long term marriages, alimony will tend to be used to try to equalize incomes, and is less likely in middle-class families if long-term child support is involved. If the marriage has had little impact on the wife's earning capacity, alimony tends to be less, if any.

Marital assets: With a short marriage, the court will want to return the parties to where they were before the marriage. With longer marriages, the starting point in division of assets will be 50/50, and a party who wants more must persuade 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 setting off one value against another.

* Judges are interested in big ticket items. If the parties cannot agree on a value, the item can be professionally appraised. But if a party doesn't accept the appraisal, or if appraisals conflict, the judge will decide value and may order the item sold, or divided evenly if possible. That makes the appraisal moot. * Appraising a pension or 401K is sometimes required, and there are professionals who do it. The court considers the length of the marriage and when contributions were made to the pension. An agreement saves the cost of the appraisers. Retirement vehicles are, in essence, the right to receive money in the future and, therefore, have a present value less than that stated. With retirement plans, there are penalties (often 10 percent) as well as income tax if withdrawn before retirement age. In divorce, these plans can be divided without tax or penalty by “Qualified Domestic Relations Orders.”* Judges usually prefer that the children continue to reside in the marital home for a period after the separation, if the children have lived in the residence for some time and it is no more expensive than other similar housing. Many judges believe the practice helps to ensure that the parents’ separation is less traumatic for them. For this reason, the sale and division of the house is often postponed. Timing depends upon a number of factors, including the ages of the children, how long they have lived in the house, the financial circumstances of the parties, other assets, and the like. Real estate commissions are sometimes considered, especially if a sale is anticipated, just as present value of a retirement vehicle is considered, rather than total value. * Judges have little patience for low-value goods such as pots and pans, and can become angry if lawyers or clients fight about them excessively. If the parties are completely unable to agree, judges will sometimes order the goods sold or split 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 got what!

Forms of miscommunication
Sometimes, a divorce case becomes a major battle, if only by miscommunication: The husband tells his attorney something, who tells wife's attorney, who tells the wife. The wife doesn't really get the message the husband intended, and when the process goes back, the husband hears a distorted response to a distortion of his original statement. He responds by authorizing more aggressive action that, of course, is usually responded to in kind. Additionally, attorneys who want to be sure to do the absolute ultimate best for clients may add to the miscommunication by emphasizing or exaggerating one thing and minimizing another.Meanwhile, the negotiating process often involves asking for, or seeming to ask for, more than is intended in order to preserve a fallback position. However, an aggressive starting point can emotionally offend the other party. 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. This approach appears to put the client's interests first, but often does not. Most difficulties involving communication can be avoided when the parties use mediation, collaborative law, or four way meetings to resolve their differences.

Myth busting
* Many people believe the court system will treat harshly the spouse who insists on ending a marriage, since the other party wants to make the marriage work, but this is incorrect virtually all the time. Courts generally decide issues based on today and tomorrow, not yesterday.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 spouse. The court’s concern is whether 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.* The popular perception is that divorce affects children adversely, but 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.* Before a final hearing can be scheduled, all couples with children under 18 years must complete a class that shows how their behavior while living separately can affect the children. The class costs $80 per spouse and usually takes place over one weekend or two weekday evenings.