9 secrets most divorce lawyers won t tell you

Transcription

1 9 secrets most divorce lawyers won t tell you

2 CONTENTS Introduction Why is Divorce So Difficult? 1. Your Lawyer s Outlook Matters - Your Attorney s Outlook on Divo rce 2. Your Lawyer s Experience Matters 3. Divorce is Hard 4. You May Need to Become More Frugal - Should You Set Up a Budget? - Costs and Benefits During Divorce 5. Finding Solutions by Working Together Is Usually Your Best Bet - Choosing Your Battles - Mediation: Is It Right for You? 6. You May Have to Accept Responsibility for What Happened During Your Marriage - What You Need to Know About Grounds for Divorce 7. You ll Have to Do What You Say You ll Do - Sticking By Your Word When You Have Kids 8. You Shouldn t Use the Legal System for Revenge 9. You May Need to Change the Way You Look at Divorce - Judges Want to Be Fair You Can Get Through This

3 INTRODUCTION If you re like most people who are going through divorce, you already know that it s not easy. However, knowing what to expect and having someone on your side someone who cares enough to take the time to understand what s important to you (and why) who can help you work toward your goals can be a tremendous help. You need an attorney who isn t afraid to tell you what you need to know in order to make it through your divorce with the best possible outcome. You need a lawyer who s committed to steering you in the right direction and ensuring you don t make mistakes that could affect the rest of your life. Finally, you need a lawyer who respects you and treats you with the dignity you deserve through this difficult time. I hope you ll find the advice in this book helpful and I hope you use it. Our firm has worked with many divorcing couples in situations similar to yours, and we want you to benefit from all the lessons we ve learned over the years. If you need case-specific advice, feel free to call us at We re here for you when you need us. Katherine Eisold Miller Mediator and Collaborative Lawyer 271 North Avenue, Suite 812 New Rochelle, NY t. (914) f. (914)

4 [ why divorce is ] so difficult? Divorce is hard on everyone involved. It can cause intense emotional pain, stress and in many cases, grief. The reality is that no one comes out of divorce unscathed. What most divorce lawyers won t tell you is that it s possible to have a successful divorce one that results in an outcome that everyone can live with. It doesn t have to be as difficult as some people make it. Unfortunately, because most divorce lawyers won t tell you that a successful divorce is possible, nobody s talking about how to make it happen. So what do you need to know? 3

5 1 your lawyer s outlook matters If you ask a dozen different people about their personal experiences with divorce, you ll get a dozen different stories. The reality is that no two cases are alike and that means there s no one-size-fits-all approach that works for everyone. Most people don t want to become tangled in unnecessary fights and pulled into drawn-out battles, but some divorce cases end up that way. In some cases, it s because the parties don t want to let each other win, and in others, it s because they re not listening to their lawyers guidance. Unfortunately, some attorneys even encourage their clients to litigate when there s a much simpler solution to the problem. Your Attorney s Outlook on Divorce Your lawyer s outlook on divorce can make a huge difference in the outcome of your case. It s important that you know divorce doesn t have to be a win-or-lose situation. If you re looking at as if it s a battle, you have a 100 percent chance of losing because in that type of fight there are no winners. Instead, look at it this way: you re both trying to come out of this with the best possible outcome. You can make it more difficult for your ex, but at what cost? Chances are that you ll also make it more difficult for yourself and you ll end up paying more in attorney s fees, too. 3

6 2 your lawyer s experience matters Some lawyers handle a variety of cases, from criminal defense to personal injury. However, for most people in situations like yours, it s best to work with an attorney who focuses primarily on divorce, separation, child custody and other family matters. Your lawyer s experience dealing with situations similar to yours can make a huge impact on the outcome of your case. In New York, 97 percent of divorce cases settle before going to trial. Typically, it s not a matter of whether a case will settle; it s a matter of how and when it will settle. Once you realize that, you can choose how you ll spend your time, money and emotional resources to reach a resolution. That s precisely why it makes so much sense to work with an attorney who has the training and experience necessary to get that done. [ ] it s an attorney best to work who with focuses family matters primarily on 4

7 3 divorce is hard Both men and women experience excessively high levels of stress and anxiety during divorce (44 percent and 63 percent, respectively), according to experts. That s true even when negotiations aren t particularly difficult, according to the most recent research. You will have ups and downs. It s a natural part of the divorce process. Some days you may feel optimistic about the future, and other days you might not have any idea what you need to do next. That s all perfectly normal. The good news is that there are many resources available to help you through this difficult time and if you need help, let your attorney know. Your lawyer can help you find an experienced, compassionate counselor or therapist who s trained in helping people through divorce. While your attorney can be a good sounding board and can often help you remember to look at the bigger picture during your divorce, a counselor or therapist will be able to teach you new coping strategies and support you through this difficult time. [ ] You ups and will downs. have It s of the a natural divorce. part 5

8 4 you may need to become more frugal Disagreements over money are incredibly common in American marriages. In fact, money is one of the most commonly cited reasons behind divorce but divorce doesn t make financial issues disappear. If you re like most people, you ll need to set up a budget. At the very least, it s a good idea to take a look at your finances and see where you may need to slow down your spending without making a significant impact on your lifestyle. Typically, divorced parents see a 40 to 45 percent decline in family income when they ve been in two-income households. Those numbers are disturbing, but don t let them scare you; most people make a few adjustments and bounce right back to their original standards of living. [ ] you ll need to set up a budget. At the very least, it s a good idea to take a look at your finances 6

9 4 you may need to become more frugal Should You Set Up a Budget? A budget can help you account for child support, spousal support and your new income level. If you have substantial assets, or if you re concerned about what will happen with your finances, it may be a good idea to meet with a financial adviser who can help you come up with a workable strategy. Costs and Benefits During Divorce In many cases, it s just too costly to litigate. If your attorney advises you to accept a deal your ex has offered, give it serious consideration. Conversely, your lawyer might advise you to let go of some issues. Remember that your lawyer s job is to watch out for your best interests, and that extends past the final divorce judgment. Remember, your lawyer s advice comes from experience and knowledge of New York divorce law. Mediation and collaborative law are both designed to help you reach a workable solution one that everyone can live with. When you make the conscious choice to spare yourself from the expense (financial and emotional), you re able to focus on what s most important. it may be a good idea to meet who can help you come up with a workable strategy. [ ] 7

10 5 finding solutions by working together is usually your best Bet Sometimes litigation is necessary. Some couples can t see eye-to-eye, no matter how persuasive the arguments are, even if there s a common-sense solution that both attorneys are trying to reach. For the most part, though, you ll come out of your divorce more satisfied with the outcome if you and your ex work together to find solutions. Focus on what s most important to you, and give some real thought to what s important to your spouse (and why it s so important). This strategy can help you get what s most important to you by cooperating with your spouse on what s most important to him or her. However, that doesn t mean that you have to make concessions you re not comfortable making. Choosing Your Battles It s true that there are very important negotiations that take place during divorce, but some of them truly aren t worth your time. If you find yourself focusing the same amount of energy on every aspect of property division that you are on custody and visitation schedules, you may want to step back and reevaluate which battles are worth fighting. [ ] give to what s some important real thought to your spouse 8

11 5 finding solutions by working together is usually your best Bet Mediation: Is It Right for You? Mediation may be a good option if you re willing to work with your spouse to reach a fair resolution. It puts you and your ex on common ground while providing you with the opportunity to speak for yourself. A mediator will help you stay focused so you don t have to worry about the lines blurring between emotion and fact. Mediation isn t a good choice for everyone, but the vast majority of divorcing couples can benefit from it. Both parties have to be committed to keeping important decisions out of a judge s hands, and both parties have to be prepared to engage in discussions with each other (and the mediator) to get things accomplished. [ A help mediator you stay will ] focused 9

12 6 you may have to accept responsibility for what happened during your marriage New York has been a no-fault divorce state since In a no-fault divorce, you are legally allowed to claim that your marital relationship has suffered an irretrievable breakdown. You don t have to explain your reasoning to the court, and you don t have to bring in evidence that supports your reasoning. What You Need to Know About Grounds for Divorce Either party in a divorce action has the right to request a jury trial on one (or more) of the six grounds for divorce. Most often, people waive that right but it s important that you know it can be used for: 1. Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper live with the defendant. 2. Abandonment by the defendant for one year or more. Abandonment has four elements: a voluntary separation; an intent not to resume cohabitation; lack of consent of the spouse who was left behind; and no justification for abandonment. The courts can impose an abandonment claim even if there was no actual abandonment; for example, one spouse locks the other spouse out of the house, there s a lack of sexual relations, or one spouse s actions make it impossible for the couple to live together. 3. Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant. 4. The commission of an act of adultery. Adultery is defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. 10

13 6 you may have to accept responsibility for what happened during your marriage 5. Living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree. 6. Living separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Everyone makes mistakes. It s what makes us human. However, know that if your ex chooses to raise any of these issues in court, you ll be asked to answer for them. Likewise, you have the right to raise any of these issues but whether you do or not is between you and your attorney, and it s not a decision you should take lightly. [ everyone mistakes. makes ] It s human. what makes us 11

14 7 you ll haveto do what you say you ll do Once you agree on something with your ex, you ll have to follow through. When you sign your settlement agreement, it immediately becomes legally binding. When the judge signs your divorce judgment, it will also become an order of the court. Before you make any concessions, discuss your options with your attorney. He or she will be able to help you make the right decisions. It s important that you re always honest and forthcoming with your lawyer, particularly if you don t think you ll be able to live with a certain resolution, because every facet of your situation can be relevant to your case. Sticking By Your Word When You Have Kids Doing what you say you ll do is particularly important when you have children not just because there are potential legal ramifications, but because a healthy relationship with your kids depends on both you and your ex taking an active, participatory role in their lives. It s important that you re always honest and forthcoming with your lawyer [ ] 12

15 8 you shouldn t use the legal system for revenge While it can be tempting to use the legal system to get back at your ex, that s not what it was designed for. You re entitled to what you deserve from your marriage, but using the courts as a method of revenge will most likely backfire on you. It s completely natural to want your ex s bad behavior to come out in court. Getting justice, even if it s simply an admission of guilt that you re after, can be a vital part of healing. Court is not the place to make that happen. New York divorce law is designed to provide fair, equitable solutions for everyone involved. A judge s primary concern is to resolve cases. Judges aren t interested in your feelings and it pisses them off when litigants file repetitive motions. Besides, dragging your ex back in to court repeatedly becomes expensive. It s always best to keep your emotions in check when you re thinking about using the legal system for revenge. a judge s primary concern is to resolve cases. [ ] 13

16 9 you may need to change the way you look at Divorce you may need to change the way you look at divorce. Most people feel that it s a win-or-lose proposition, but it s not; you can both come out of divorce feeling as if you ve reached a workable solution. Marriages end. That s a fact. That doesn t make them failures. Judges Want to Be Fair A judge s job is to evaluate a situation and determine what s best based on the available facts. However, no matter how hard he or she tries, the judge can t get inside your family s situation. Only you and your ex can do that. [ ] the judge can t get inside your family s situation. Only you and your ex can do that. 14

17 [ you can get through this ] Divorce seems so difficult, whether you re just thinking about filing or you re in the middle of the process. It s scary, too. We know that. But you ll make it through this, and you ll come out of it stronger and more resilient than you thought you would. We know because we ve seen it happen with each of our clients and we ve been there ourselves. You focus on your kids, meeting your daily obligations and taking care of yourself. We ll be there to help handle the rest.

18 t. (914) f. (914)