Legal Services Available from Jon D. Lydell Mediation & Law Offices

Preparing For Divorce - Introduction

This handout is intended to help you understand a few of the emotional aspects of working your way through the legal system, and give you some tips on how to handle some of the emotions you will be dealing with. I encourage you to not only read this, and to take some time to think about some of the concepts, and how they apply to your specific situation. This is by no means intended to be legal advice for your specific situation, or to replace any counseling that could be helpful. I have drafted this only to help address some common problems that I see my clients struggle with, and to help reduce the stress that a divorce causes anyone.

Stress

First, divorce is one of the most stressful times in anyone's life. Experts have indicated that the stress from a divorce rivals the stress from the death of a loved one,. and indeed you and your spouse will probably go hrough some of the stages of grief, such as anger and depression. It is important that you recognize this, and attempt to get support from family and friends, as well as do what you need to do for yourself. Part of your stress will come from trying to deal with the legal system, which most people are not familiar with.

As we work through your divorce, you will perhaps learn of laws that are unknown to you, some of which will greatly impact your life, and those around you. Please remember that everyone is judged by the same laws, and that everyone is required to play by the same rules. You may feel that a situation is unfair, or that a particular law does not recognize your particular situation. One key to lowering your stress is to not necessarily look at what is fair, but what is practical, and what is possible. For example, it is simply not practical to spend $1,500 on attorney's fees and costs to modify support by only $10 a month. It simply is not possible to share custody 50% of the time, when the children live hundreds of miles apart.

Legal vs. Emotional Problems

Understanding that, you can now move on to defining the goals of your divorce. Simply put, it is to Redefine the legal obligations between the parties. This of course not only includes changing your status from married to single, but resolve issues in three other areas:

1. Divide Assets and debts.
2. If there are minor children, to determine:

• Who shall have primary custody of any minor children.
• How much visitation the non-custodial parent will have.
• The proper level of child support.
• Determine the amount, if any spousal support.

As you can see, the law will concern it with only a few limited, although important, issues. It will be to your benefit if you can distinguish legal from emotional problems. My job is to help you with the legal issues in a manner that is the absolute best for you and your children. Although I believe that my job is to be a "counselor" in the full meaning of the word,. I simply do not have the training to give you counseling on the emotional issues you may encounter. Additionally, it simply would not be cost effective for you to look to me to counsel you on many of these issues. I will try to give you not only the best legal advice I can, I will also try to give you whatever practical advice I may have.

However, if you feel that you need to talk with someone at length about emotional problems caused by your divorce, it would probably be in your best interests to find a professional who can help you determine why your marriage failed, and how you can deal with the divorce. If you like, I can refer a few people to you for you to check out and see if you like them. One method I have found helpful to my clients is for them to write down specific short term and long term goals. Long term goals should reflect the basic goal of Getting on with your life! You wish to resolve these issues with your soon to be ex-spouse, and develop new habit patterns of life as a non-married person.

Many people attempt to use issues in the case to punish the other side. This type of motivation almost always has long term consequences, and prevents the party from looking forward to their new life, by keeping them focused on the old life. Additionally, it often causes those same people to act unreasonably, and believe me, the court will recognize when one party is attempting to act in bad faith. Short term goals should reflect what you wish to accomplish during the pendency of your divorce. The courts will likely be making temporary custody, visitation and support orders, and your goals should reflect what you wish the court to order until your divorce is final. You might also write down goals to help you move into your new life, such as to develop a new hobby or skill.

The Court's Involvement With Your Children

If there are minor children involved, your divorce will by necessity be a bit more complicated. The state has a special interest in children, and thus the court will have a say on all child-related issues. One result of this state involvement in the welfare of children is that either party can return to court if the facts have changed. One of the principles the courts go by, is that absent a threat of harm by one parent, kids need both parents. Your children are one-half your (ex)spouse, and it is important to remember that if you talk badly about the other party, you are talking badly about one-half your child. It is clear that children suffer greatly when the parties attempt to resolve their differences by attacking each other through the children, and by making the children live through every twist and turn of legal proceedings. You will be doing your children a great favor if you can shield them as much as possible from the legal aspects of this case, and assure them that none of this is their fault.

Financial Planning

Divorce usually means an increase in expenses, despite a stable income. One cannot support two households in the same manner and with the same income that supported one household. Additionally, there are attorney's fees to consider, court costs, and if there is no possibility of settlement, there are the costs of preparing evidence for trial. Many of our discussions regarding your case will involve these precise issues, however, now is probably a good time to contact your accountant in order to minimize your tax problems, and look for some creative financial planning. In any event, it is generally a good idea to make an estimate of the living expenses of all the parties both before and after separation, and then compare the numbers to see the financial impact of the parties from the divorce. Look at all the assets and debts, and then think of all the parties needs. This is basically the viewpoint the court endeavors to take.

A Few Basic Legal Concepts of Your Divorce

It is not uncommon to take up to a year or more to finalize all the issues in a divorce. I firmly believe that it is usually better for the client financially and emotionally to settle the issues outside of court, if all sides are reasonable. However, a quick settlement is usually a bad deal for one side or the other, as the attorneys and parties have not had time to learn all the facts of the case, and to mull over the possible consequences of a proposed settlement.

It can be depressing to not be living in the family residence, and/or to have a lower standard of living. It is important to not let this force you into a quick settlement that you will later regret. You will need to learn some new terms, so that you can easily communicate with me about the issues of your case. There will be choices that only you can make, and clearly understanding the terms the court will use will help you to make that decision. There may be restraining orders involved with your case, either temporary or permanent restraining orders.

One key concept you must learn is that restraining orders do not make the other party comply with them. Restraining orders are enforced by arrest after a violation, and often times the violation is difficult to prove. That is not to say that such orders are useless, quite the contrary. Often times the real value to such an order is the threat of what the courts will do, if such a violation can be proven. Additionally, repeated proven violations can greatly affect other issues in the case, such as custody and visitation, and as well the courts are not reluctant to use jail time to get the violating spouse's attention! However, all these remedies are after the violation has occurred. Another related topic is that the judge will not rule on every dispute, nor will the police arrest a violator for every violation.

It is important to remember that no attorney can change the law to suit a client, and that an attorney cannot achieve what the law does not allow. I may be advising you to take certain steps to protect your rights. It is important for you to remember that the other side will be doing the same, and to view it as merely a practical act, and not an act of distrust or vengeance. Sometimes the only reason hearings occur is that one side is so polarized, they simply cannot see the situation from the other side.

What To Do When a Hearing is Scheduled

If a hearing is scheduled, it is not a bad idea to visit the courtroom prior to the hearing so that you will not be so scared of the unknown. When your hearing date is scheduled, dress for a business appointment. When describing a situation or issue to the court, it is best to stick to the facts, and let facts speak for themselves. In other words, try to talk about dates and times, rather than your general feelings.

Try to avoid absolutes, as this can harm your credibility if the other side can show only one case where it wasn't true. It is rare that the parties in court are calm, civil and courteous. If you can behave in that fashion, it will go far to advance your case. Do not talk in the courtroom unless the judge is talking directly to you. If you need to communicate with me, jot down a quick a note. I normally keep a pad of paper on hand for just that purpose.

Post-Divorce Conflicts

Often times what is causing the conflict are issues related to children. One important concept for parents to understand is the need for them to continue to communicate with the other party for a very long time. For example, if there is a minor child that is three, the parents will need to talk about visitation for the next fifteen years, or until the child is eighteen. It is simply not economically feasible for you to hire an attorney to litigate a dispute where one party wishes to exchange the child 30 minutes earlier or later than agreed. As your children grow older, there will be different demands on their time from school and related activities, as well as changes in your own and the other parent's schedule.

It will be in your best interests to begin to develop a kind of business relationship with the other parent, to be able to talk about minor issues without the involvement of the courts. Many times, once the divorce is final, the level of conflict between the parties drops considerably. Part of my job is to help you get through this difficult period, and help you establish your legal rights at the time of your divorce. But you can keep in mind that it will likely be easier to communicate with your ex once all of this is over with.