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by jennifer j. rose, Esq.
Nearly half of all marriages end in divorce. Sooner or later, half of our married clients will need our advice in a matrimonial law matter. Like death and taxes, divorce is an issue that doesn't simply go away. Some general practitioners consider domestic relations the bread and butter component of their practice; other use family law practice as a loss leader to generate other more lucrative business. There are general practitioners who would rather that domestic relations matters not cloud a carefully cultivated relationship with a good client of longstanding; they carefully refer those cases to other counsel. But that's not always possible.
Our clients are far more sophisticated about divorce than they are, say about personal injury cases or shareholder derivative suits. Each client thinks of himself or herself as an expert on the subject. After all, who doesn't have a friend or relative who's divorced? Like love, divorce themes surround us in popular culture from the song D-I-V-O-R-C- E*, the movie Kramer vs. Kramer, the television program Civil Wars, even the National Enquirer headlines. A common mythology surrounds divorce, just as it does childbirth. No client is immune to gratuitous advice from Aunt Sally and coworkers. When my client tells me about the guy who makes $50,000 a year and was ordered to pay no child support for nine children in the custody of his ex-wife, I tell that client to immediately hire that guy's lawyer instead of me. [*You know what happens when you play a country-western record backwards? You get your job back, your spouse returns home, and the dog springs to life.]
Many cases give lawyers the luxury of time to research facts and the law before filing the initial pleading. Not so with divorce. Every state has a no-fault (or irretrievable breakdown) ground. Chances are, the client has pondered long and hard before calling for that first appointment. Fortunately, the initial stages of divorce practice are not difficult or time-consuming. The most important factors for lawyers to detect before filing the action are:
1. Does the client want to dissolve the marriage?
2. Can the client afford to begin the litigation?
3. Does the court have jurisdiction?
4. Is the client ready to proceed immediately, or does the client want time to prepare for (or orchestrate) the case?
Begin the interview by advising the client what a divorce action can and can't do. For instance, a divorce won't deliver a blemish-less credit report for a couple on the edge of bankruptcy. A divorce won't make one party wealthy beyond belief. A divorce action won't make an errant spouse fall off the end of the earth. Give the client a thorough reality-check. A divorce decree can create an enforceable support order, award custody and establish visitation rights, and distribute property between husband and wife.
Determine which forum has jurisdiction. Does your client meet the residency requirements for filing for divorce in your state? If not, how long will the client have to wait before he or she meets those residency requirements? What legal action can be taken while the client waits out those residency requirements? If children are involved, are the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act (UCCJA) met? Would a legal separation, a Uniform Reciprocal Enforcement of Support Action (URESA) proceeding, or an annulment give your client relief while he or she waits? Is there another forum in which your client could more easily obtain relief, such as filing in the client's former place of residence? Would that yield the relief your client seeks? Can you refer the client to counsel in his or her former state?
Each client carries unique emotional baggage. While most lawyers are not trained therapists, a significant amount of therapy takes place during our contacts with domestic relations clients. The stages that one goes through in a divorce situation are not unlike the stages of grief identified by Elizabeth Kubler in her work On Death and Dying. Explain to the client that there are really three "divorces" that operate in the client's life: the physical (which may take place when the parties establish separate living quarters or no longer share the same bed), the emotional (when the parties no longer feel married to one another), and the legal (which is represented by the divorce decree). While the physical and the legal divorces will take place at the same time for each party, the parties may not reach their emotional divorce simultaneously. Caution the client that the only divorce that the lawyer will be involved in is the legal one. Refer the client to a therapist for emotional issues.
Discuss the areas of controversy with the client. Rarely will the actual dissolution of the marriage be in issue: even where the client is resistant to divorce, it takes two willing parties to make a marriage. As you identify the problem areas, you will be preparing the initial divorce pleading.
Listen carefully to your client. Try to establish which issues are negotiable and those which are non-negotiable. Decide if the client is motivated by unstated factors:
1. Forcing reconciliation with the other spouse. "I know my spouse
will come back to me if custody is at stake."
2. Bargaining chip to gain concessions to property, support demands. "I'll trade you the farm for the child."
3. The child is viewed as chattel. "How can he take my baby away from me."
4. Spite. "She ran off with her boyfriend, and I can't let her have half the property."
Is the client likely to succeed? Make an initial assessment of the client. You may have some initial vibes that tell you this client is going to mean trouble. Of course, at this point, you usually haven't even seen the other party. Pretend you're in the judge's seat for the first fifteen minutes of the client's testimony. What would you award to this client? Consider these clues:
1. The client brings the child to the office, ignoring the child
while the child crawls over your furniture, marks up your desk
with crayons, and rips volumes from your bookshelves.
2. The client brings the child to your office and demands you discuss custody preferences with the child in the parent's presence.
3. The client doesn't know the child's birthdate or middle name.
4. The client refers to the child as "it."
5. The client has a long history of spousal abuse, either as perpetrator or as the victim who refuses to extricate him/herself from the abuse.
6. The client focuses upon issues that "just don't sound right" to you. You have a sense that the client is making false accusations of abuse to gain leverage.
7. The client is intent upon alienating the child from the other parent.
8. The client is argumentative with you, insisting upon doing it his/her way, despite your advice.
9. The client announces an intention to violate court orders.
10. Will issues involved here color your relationship with an established client? Would you be better off by sending this client to another lawyer right now?
Often, clients will want your on-the-spot assessment of their chance of success. Tell them you're not in the position to give odds; if you were, you'd be at the track instead. Some issues, such as child support, can be easily estimated by state child support guidelines. Temporary counsel fees can often be estimated by using "rule of thumb" rules or local custom. Be sure to inform the client that these are just estimates, based upon the information at hand, and not Gospel.
Tell the client what it's going to cost. Like it or not, you run a business. You may work for free, but your secretary doesn't. And it's a real convenience to keep the lights on. Matrimonial litigation can be expensive. Be upfront with the client about fees.
Estimate the time involved in the case from start to finish. The personalities of the parties, and also their counsel, can be determinative. The level of client preparation and knowledge about the parties' finances, coupled with a willingness to share that information with the adverse party, can make for a less costly divorce. Let the client know that you're unable to predict the total tab due to unforeseen circumstances. Explain your fee schedule, whether it's based upon a flat fee, hourly rate, unit billing or some other basis. Let the client know what payment of counsel fees by the other party really means. Explain that unlike probate or injury litigation, your fee is based upon work performed, not a contingency percentage of amounts collected.
Nearly each divorce petition, summons or complaint is similar. Many states use printed fill-in-the-blank forms. The unique information contained in those documents would be the parties' names, addresses, date of marriage, and children's names. In addition to termination of the marital relationship, the forms of relief sought are:
1. Temporary (pendente lite) measures to maintain the status quo of
the parties during the pendency of the action, such as custody,
visitation, support, attorney's fees, suit money, and injunctions
or restraining orders.
2. Distribution of property.
3. Allocation of responsibility for debt repayment.
4. Child custody and visitation.
5. Child support, including medical support.
6. Alimony or spousal maintenance.
7. Tax dependency issues for children.
8. Payment of counsel fees and suit money by the adverse party.
9. Restoration of a party's maiden name.
10. Mechanisms to enforce the terms of the decree.
While asset and income information about the parties is important, that information is not often available to the client at the time divorce proceedings are initiated. The lawyer need not wait for the client who does have that information to marshall all of it prior to beginning the divorce case. Often, that information is not obtainable until discovery takes place.
Unlike many other forms of litigation, where extensive factual preparation takes place prior to commencement of legal action, starting a divorce case is remarkably simple. Frequently, the initial interview can culminate in the signing of a retainer agreement and the initial pleading. Be sure to inform the client that the first steps are the easiest ones in the proceeding. The best is yet to come.
Assess the client's awareness and knowledge of the case. Determine how much the client knows about the family's financial picture. Property must be identified and valued. Will appraisals be needed, or can the parties agree upon values? Learn the character of the parties' assets as premarital, marital, gifted or inherited. Are the parties' incomes straightforward, representing by W-2's and nothing more, or are the parties self-employed? Are the support needs unique? If child custody is involved, will a home study or other outside evaluation be necessary? What is the expected cooperation level of the other side? How much discovery will be needed? Will witnesses need to be located and briefed?
WHEN TO FILE, OR IT'S ALL IN THE TIMING
Seldom do our clients have the luxury of time in which to make filing decisions. The decision to file is more often based upon situational exigencies that neither client nor counsel can anticipate. The decision to file, and when, often has been made prior to the time the client walked in the door. Domestic violence, lack of financial support, child-snatching, and property transfer issues usually require immediate action. Often, there is little time in which to prepare for a hearing on temporary issues.
In a few cases, the client can plan for divorce litigation and plan accordingly. The client who is likely to succeed in matrimonial litigation rarely needs advance lifestyle preparation. Other clients need counsel and time to develop a track record of parenting or transfer property. Lawyers can be effective in preparing the client to meet statutory and case law criteria which would aid the client in successful litigation. While "orchestration" of a divorce case is perhaps a callous and tacky characterization, planning can enhance the client's chance of success occasionally.
In custody cases, some clients need to develop a parenting track record. While few of us are authorities on parenting (although we think we are, having at least at once in our lives actually had parents), we do know what wins a custody case. Prepare the client for custody litigation:
1. Suggest that the client enroll in a parenting class and a program
of self-education by reading about child care and parenting.
2. Urge the client to become involved in the child's life. Address the child's educational needs through school involvement, homework and tutoring. The parent should be encouraged to facilitate the child's extracurricular activities through Brownies, Scouts, 4-H, Little League, piano or dance lessons.
3. The parent should become familiar with the child's medical needs. Does your client know when the child's last medical, dental or eye examination took place?
4. Religious education is another area in which parental involvement is often an open issue, especially where neither parent previously took an interest.
5. Education for the child's self-sufficiency is an area often overlooked. Encourage your client to work with the child on age- appropriate homemaking activities such as cooking, sewing and cleaning. The child's personal grooming, exercise, time management and relationships are all influenced by parental involvement.
6. Consider using conciliation procedures as an overture to divorce counseling. Each parent needs to learn new roles and communication skills with one another on a different level as divorcing parents. Use the other parent's resistance to conciliation as a means of proving lack of willingness to communicate with your client.
Generosity toward the other parent's involvement with the child cannot be over-stressed. Encourage the client to support the other parent's relationship with the child. Assess the ongoing parent-child relationship and level of cooperation between the parents. Encourage the client to document efforts to encourage the child's relationship with the other parent. Always ask the client what amount of visitation the client would be willing to expect if the client were not awarded custody of the child. Even where the parties are bitter, encourage your client to demonstrate the client's level of support for the child's relationship with the other parent.
When the timing of matrimonial litigation can be deferred or controlled, your client may have the benefit of pre-divorce planning and remedial work. Usually this instance only lends itself in the instance where the other party does not wish to pursue divorce or separation but your client wants out. Your client may need time and counsel to:
1. Enter therapy to resolve anger, depression or other mental health
2. Change working hours or employment to adapt to a child's needs as a caretaker parent.
3. Gain sobriety from drugs or alcohol.
4. Shed a paramour.
5. Establish independent living quarters.
6. Renovate and stabilize a relationship with the children.
7. Wait until the other party receives a job transfer or promotion, begins or completes school, or moves from the family home.
8. Develop his or her own track record of effective parenting superior to that of the other party.
9. Sell the family home, pay off debts, receive a bonus or tax refund, or spend an inheritance.
10. Get over the Christmas holidays.
Even where timing cannot be controlled, many other protective measures need to be considered. A power of attorney and will may need to be redrafted. Bank and credit card accounts should be protected against a spending spree by the other spouse. Safety deposit boxes may need to be closed out. Beneficiaries of life insurance policies may need to be changed. Whether any of these steps is in the client's best interest depends upon the circumstances of each case.
WHEN WILL IT ALL BE OVER?
Explain the time frame to the client, from start to finish. Each state has certain statutory requirements from date of service of the original petition upon the other side to final hearing and decree. Some states have a waiting period such as ninety days before a final hearing can be held. Originally intended as a "cooling off" period, that period is actually an attorney's work period. Some jurisdictions mandate a referee or conciliation process or require that the parties participate in divorce education classes. Discovery takes time. Lining up witnesses and preparing for the case take time. Settlement negotiations may take time. Finally, crowded court dockets may mean that the case may not be heard for a long time. Of course, all this is not what the client may want to hear. I draw an analogy between the divorce process and the courting process, and even pregnancy. Nine months or more is often the norm.
A SMART CLIENT IS A GOOD CLIENT
Encourage the client to embark upon a program of self-education to prepare for the divorce process. Provide the client with a suggested reading list. (SEE 10 COMMANDMENTS) Encourage the client to participate in divorce education programs where appropriate. Determine the client's skill level and ability to help you marshall financial and other data. Get the client involved in developing his or her own case. Help the client understand the emotional adjustments needed as a prelude to the divorce. The client who understands the divorce process will understand and appreciate your efforts. You can help the client by creating a "divorce packet" of helpful materials. These materials, circulated to others by your divorce client, can create a marketing opportunity for you.
THE ADVICE LAWYERS ARE AFRAID TO GIVE CLIENTS
Reconciliation is advice lawyers often forget to give clients. Perhaps we're afraid to do so. If the client, currently, does not really "qualify" for the relief the client is seeking (such as custody or a standard of living higher than he or she's now enjoying), and the client knows that the other spouse isn't enthusiastic about terminating the marriage, consider reconciliation. Advise the client of steps to be taken to establish and enmesh the client in the life pattern the client envisions as his or her ideal. Your client may emerge a year or so later, having developed the skills necessary to obtain that goal, and return to you for a divorce proceeding. On the other hand, you may create a client who will never darken your doorstep in a matrimonial case again, once the client's actions have made for a stronger marriage and an intact family. Don't be afraid to suggest reconciliation. I can think of several "successful" matrimonial law cases in which I simply told my client, either at the beginning or during divorce litigation, to resume the marital relationship and act like the mother or wife or father or husband that the client professed to be.
Some lawyers enjoy the personal challenge of divorce practice; others would rather undergo a weekly root canal rather than see another matrimonial client. The lawyers in the latter category are better off referring the divorce case elsewhere. Even when that's not possible due to exigent circumstances, starting the divorce case is really simple and straightforward. Establish realistic expectations in the client. Lawyers win convictions and acquittals. We win personal injury awards. Explain that we seldom "win" divorce cases. Retreat from the notion of winning and losing in matrimonial law cases. Refrain from terminology that suggests a "win" or "loss" to clients. Avoid using harsh terms such as award, refuse, deny, win, lose, or give when speaking to clients. Try to adopt gentler and more positive terms such as place, determine, or decide instead. Defuse the client's anger and focus upon creating a new beginning for each client. Instead of viewing divorce cases in the same vein as the Ebola virus, look upon each as a new beginning for each client.
SOURCES & RESOURCES
Much of divorce practice is really "referral law." A family lawyer needs to have ready referral sources to build the case and help the client. You should have a ready list of:
1. Mental health agencies and substance abuse agencies. Don't
hesitate to ask that your client obtain an evaluation as a
preventative measure in the appropriate case.
2. Therapists. Rarely will one therapist fit the needs of all clients. Gender, age, religious orientation may determine the best referral.
3. Social service agencies. Acquaint yourself with the child abuse investigating and welfare entitlement systems in your area.
4. Real estate and personal property appraisers.
5. Certified public accountants. A good working relationship with a CPA can help you identify and remedy tax issues as well as aid in framing property settlements.
6. Domestic violence groups. A support group can be helpful for both victim and perpetrator.
7. Community colleges. Look to these as a source of parent education, job training, even vocational assessments.
8. The human resources director at the local high-volume employer can help you identify what employee benefit programs are available to your client or the client's spouse.
9. Community groups such as Parents Without Partners or Divorced Catholics.
Not only can these groups provide you and your client with important and necessary resources upon which to rely during a divorce case, each of these groups are valuable sources of new clients for you.
ADVICE TO CUSTODY CLIENTS
You are in custody litigation. This is intended to give you basic information about what you can, and can't, do with your children....if you want to enhance your chances of success.
1. Communication with Your Spouse. Try to discuss your child's welfare with your spouse. Limit your discussion to the child's welfare. Don't discuss the new boyfriend or girlfriend or your anger with the spouse--- it's counterproductive. If you cannot discuss these matters with your spouse, write the spouse a letter or memo. Save a copy.
2. Dating. This is addressed from a practical, not moral, stance. You are still married, and you will be until the judges dissolves your marriage. Terminate or put on hold any extra-marital relationship. If the new boyfriend or girlfriend cares about you enough, he or she will wait for you. If not, so be it. You need to concentrate on maintaining and developing your relationship with your children. You do not have the time or money right now for affairs. That time will come later, after this case is closed. If you perceive the extramarital relationship to be a very stable one leading to marriage, and you elect to ignore my advice, remember that you have been warned. Do not involve the paramour in your child's life. Regardless of how much the new love object purportedly cares for your child, limit your contact with the boy/girlfriend to times when the child is with the other parent. Your paramour's lifestyle, behavior, marital status, and indeed relationship with his/her own children, will come under scrutiny in your custody case.
3. Medical Care. Elective, nonemergency medical care should be undertaken after consultation with the child's other parent. If the parent refuses to discuss this with you, let that parent know the name of the service provider, the procedures undertaken, and the diagnosis. Don't keep the child's medical care a secret from the other parent.
4. School. If you're the physical custodian, let the other parent know when parent-teacher conferences are scheduled. Give the other parent a copy of the child's report card. Share the child's schoolwork with the other parent. Discuss homework and school responsibilities the child may have with the other parent.
If you're the visiting parent, you have the right to contact the school and ask that you be contacted about parent-teacher conferences and the child's school records. Do so. Don't place all of the responsibility upon your spouse to let you know. Take an active part in the child's education.
5. Visitation. If you are the physical custodian, have the children ready for the visit. Have a supply of suitable clothing ready to accompany the child. You don't want the judge to learn that you let your child go off on a weekend visit with the clothes he was wearing and another change in a plastic bag, do you?
As a single parent, you need a break from the child. And the child needs a break from you. In an intact family, both parents relieve one another from the constant demands of the child. In a divorce situation, the appropriate relief is visitation with the other parent.
If you are the visiting parent, pick up the child on time. Return the child on time. If you're going to be unexpectedly late, call. Don't demand that the child keep toys and clothing at your house, just because you purchased them. After all, those items are the child's, not yours.
A medical condition short of hospitalization is no excuse for denying visitation. The visiting parent can, and should, assume some of the responsibility of caring for a sick child.
Do not use the child as an intermediary to carry messages between you and your spouse. You're an adult. You know how to communicate.
Visitation is not a time to revisit disputes with your spouse. It's your time with your child. Use it for that. This is not the time to introduce the child to your new love match.
Do not pump your child for information about life in the other parent's home. If it's worth telling, the child will tell you. Did you tell your parents everything that went on when you were 8 or 12 years old? Remember how you replied "Oh nothing" to your mother, when she asked you what you did in school?
Do not ask your child to keep secrets about what takes place in your home.
You do not have the right to refuse visitation because the other parent hasn't paid child support. The two issues are not related. You have a remedy for nonpayment of child support. You can lose physical care of your child if you deny court-ordered visitation.
Don't get too upset about your child's behavior at the beginning or end of each visit. The child's cries at the end of a visit are perceived by the physical custodian as tears of joy at being reunited with the parent, and the same outburst is viewed by the visiting parent as tears of sadness at the separation. Plan some kind of activity to allow the child to "wind down."
It's not the end of the world if the child misses a Little League ball game or Sunday School because it took place during the other spouse's visit.
5. Child Support. If you are ordered to pay child support during the pendency of this action, pay it. If you simply can't make the full payment, at least make a partial payment. The judge will not look kindly upon your claim for increased visitation or physical care when you have failed to contribute to your child's support.
Child support is money you have paid to the court (if an order has been entered) or money paid directly to your spouse for the child's support. Child support is not a Schwinn bicycle or Nike shoes that you bought the child during the weekend visit. It is the money that puts bread on the table and pays the rent.
7. Counselling. Divorce is tough. It's kind of like death, only no one sends you a condolence card. It hurts. However, it's not fatal. Go to a mental health professional. It's often easier to discuss your feelings with someone you'll never see again, someone who'll not say "I told you so." Therapy will not be held against you in court. In fact, in addition to helping you through the anger and sadness of divorce, the fact that you sought therapy can be looked upon as a positive factor by the court.
8. Parenting. You can never learn enough about parenting. It's an ongoing process. Enroll in a parenting class. Read about child care, child development, parenting techniques. Show the judge that you know something about parenting and that you have a willingness to learn.
9. Telling the Child about Divorce. Your child knows more about what's going on in his or her life than you may realize. You do not need to go into details about why the marriage ended with the child. There are a number of children's books, geared to varying age and reading levels, which discuss divorce and single parenting issues with the child.
10. Adjustments. Remember when you first became pregnant? You were filled with worry and doubt about what your life was going to be like. Your friends and relative all gave you advice about what childbirth and the new baby was going feel like, but when you actually went through these steps, your feelings were unique. Divorce is much the same. While everybody's case has common threads, the actual experience for each is unique.
You are making the same adjustments in your life day by day as a
divorcing parent as you did as a new parent. Be the best parent for
child that you can be. As a good parent, you try to be a good example
for your child in all aspects of your life. Your child will undoubtedly
divorce, end a relationship or quit a job sometime in his or life. The
example you give your child as a divorcing parent is as important as the
rest of the "good examples" you try to give your child.
© 1994 jennifer j. rose - Years of practicing matrimonial law in Iowa finally drove Ms Rose to a life of seclusion in central Mexico.
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