dividing the houseQ: What is the most common mistake that is made in family law cases? 

A: Parties become so emotionally involved that they fail to act calmly and rationally.  These cases, by their very nature, are stressful. If a party can’t handle that stress, they are at a disadvantage and  will frequently sabotage their own case!  In practice, there are many different ways that this will manifest itself.

Some of the the most common instances of this include:

1) An overwhelming need for a “quick” resolution – even if it doesn’t make sense for the party or the family;

2) An unwillingness to comply with orders of  the Court – which almost always creates greater difficulties for the party;

3) The hiring-firing of multiple lawyers and/or the unwillingness to really listen to and implement the advice of counsel;

4) Acting rashly and impulsively and taking major actions without consulting with counsel.

An experienced family law attorney will understand that these are stressful times for his/her client and will try to keep clients calm or recommend therapeutic help when appropriate. Parties who find themselves overwhelmed by the process may need to seek professional counseling.

There is an old saying in the family law profession: “In criminal cases you have bad people on their best behavior and in divorce cases you have good people on their worst behavior.” 

Parties need to understand that emotional behavior is not the  path to the successful resolution of a family law matter.

dividing the houseThere is no “one size fits all” answer as to whether you should be the first to file for divorce. There are various reasons why it may or may not be to your strategic advantage to be the first to file. You might even think of it in sports terminology: Do I play offense or defense?

Some of the reasons that you may want to file first include:

1) A likely decision by the Court that is favorable to what you are seeking;

2) A need to finalize the divorce as soon as possible to allow for remarriage;

3) A psychological need to end the marriage as soon as possible in order to move on with your life;

4) A need to send a clear and unequivocal message to your spouse that “the marriage is over and that there is no hope for reconciliation”;

5) A need to force your spouse to vacate the marital domicile;

6) A need to put into place orders to protect marital assets;

7) A need to obtain orders for alimony or child support;

8) A need to obtain an order for child custody or to ask that you be allowed to remove the children from the current state of residence;

9) A need to expedite the sale of a marital home or other marital property.

Conversely, some of the reasons that you may not want to be the first to file for divorce include the following:

1) A likely decision by the Court that would not be favorable to you (and the possibility that you might be able to arrive at an agreement with your spouse that would be signifcantly better for you than what the Court would order in your circumstances);

2) Situations where the current support being provided by your spouse is more than you could reasonably expect the Court to order;

3) When your spouse is gravely ill and you want to preserve an interest in their portion of the marital estate;

4) Situations where your spouse is in a “hurry” to finalize a divorce (either for psychological reasons or for a desire to remarry) and you gain a tactical advantage in negotiating an agreement from their haste to resolve the matter as quickly as possible;

5) When you believe the marriage is still salvageable.

With the exception of the analysis of your particular situation and likely outcomes by the Court, most of the above is fairly straightforward. An experienced divorce attorney that understands the tendencies of the Courts and judges in your particular jurisdiction should be able to study your particular situation, perform this analysis and advise you as to your best course of action.

aggressive lawyerThere is a fine line in divorce and family law between assertively pressing your case and literally fighting about each and every issue all the time. Recently, I was asked by a family member to refer her to a good divorce attorney (both parties were too close personally to represent her myself). I considered several colleagues who are very competent, but settled on giving her the names of two lawyers  in particular. In discussing these choices with the family member, I told her that in my opinion there’s a fine line between assertively and aggressively representing a client and being so obnoxious and aggressive that an attorney only makes the situation worse for the client and the family. In any particular case, this line can be easily crossed. I thought these two individuals wouldn’t back down, but they also weren’t likely to create conflicts unnecessarily.

Unfortunately, there are many overly aggressive lawyers, and some members of the public think this is a great thing. The reality of the situation is that most family law and/or divorce cases settle in the end and only a small percentage go to trial. If there are children involved, the parties almost always will have to maintain some type of working relationship after the litigation. In many areas of family law, there is room for win-win arrangements that accrue to the benefit of both parties. If the attorneys are constantly battling and fail to really communicate the opportunities for these arrangements are lost.

If the matter does go to trial, there are usually limited areas of disagreement and it is also helpful if the parties can agree on some issues if only for the reason of limiting costs.

Some attorneys promote the image of being “aggressive” – which often means they are looking to run up a bill and usually leave their clients angry and their families and children in ongoing turmoil. No matter how angry or upset you are with your spouse, don’t make the mistake of hiring such an attorney.

This is not to say that your attorney should be a passive wallflower. But, you should always keep in mind that there is a fine line and that your attorney’s job is to do what’s best for you, the client. A good family law attorney willl be assertive and aggressive in representing your interests, but will choose his  (and your) battles wisely.

splitting personal propertyIn a divorce, fairly dividing the relatively small value items of personal property (all that junk in the house) is an area where the legal system often performs poorly. Oftentimes, the monetary value of these items doesn’t justify the legal costs incurred in their retrieval. In Court, the division of these types of items is usually the last thing to be addressed. Every attorney has a horror story to tell about the case where many torturous hours were spent between two litigants arguing over every small piece of furniture, silverware and tools.

A spouse who is no longer residing in the marital home (either because they voluntarily left or they were put out by the Court) is at a distinct disadvantage in identifying, dividing and retrieving these types of items. If you can divide these small items between yourself and your spouse without the involvement of the Courts you will save a great deal of expense and hassle. If you cannot do this on your own, start by preparing a complete and comprehensive list of everything that you want to get back. Don’t wait to go to Court. Show that you are serious about retrieving these items and that this is important to you by having your attorney forward the list to your spouse’s attorney before you go to Court. Don’t wait for the last minute and be faced with a decision as to whether to settle the case or fight for the bed! Also, don’t tie up valuable attorney time by wasting time on low value items.

Be flexible and be willing to trade-off different items. Don’t ask for all the televisions in the house – but try to get at least one. Try to get something in each class of item – a vcr, a stereo, a dvd player, some silverware, plates, etc. This way you won’t have to start from scratch. The same with furniture – divide it room by room. If you don’t have space for an item or it will be difficult to move, seriously consider whether you really want it back. Do you really need a lawnmower and garden tools when you’re moving into an apartment? If you are not allowed back in the house because of a restraining order – ask to inventory the items in advance in the company of a police officer (called a detail – and be prepared for a cost – usually a minimum of 3-4 hours). If you have pictures with sentimental value to divide and cannot agree, offer to split the costs of making a second set (this is usually what judges will do anyway). Decide what you really need and what you can live without. Lastly, seize the opportunity to reduce the clutter in your life and get a fresh start!

dividing the houseWhen thinking of divorce, one of the most common questions that arise is “What will happen to my House if I get divorced?” Courts usually have the power to order the sale of the marital home. However, the status of the marital home during and after a divorce depends on whether there are children residing in the home, whether one party can “buy out” the interest of the other, or whether there are other assets to offset the equity in the home.

The first consideration is usually whether minor children are residing in the home. If there are children living in the house and it has been their home for a period of time, the Courts are usually very reluctant to order the home sold (absent extenuating circumstances, such as a severe mortgage delinquency or pending foreclosure) and the children uprooted. This is especially true earlier in a divorce action. Usually, the Court will give the party residing in the house a chance to come up with a plan to make the mortgage payments and retain the property. Judges would much rather give the parties the time to craft their own plan and on their own terms as to the disposition of the marital home than enter an order for its sale. If the case goes to trial and the Judge is forced to make a decision as to the sale of the marital home, it is likely that the Court will still not order the marital home sold until the children are emancipated. It is usually said that the non-resident spouse (usually the father) has an “illiquid asset” when there are children residing in the house. However, it is possible that the Court would offset the equity in the marital home against the value of other assets (such as retirement assets).

When there are no minor children residing in the house, the immediate sale of the marital home is much more likely. This is especially true if the equity in the marital home represents the primary marital asset or bulk of the marital assets. If there are substantial other assets, they can often be utilized to offset some or all of the equity in the marital home. Although judges are usually amenable to giving either spouse the opportunity to “buy out” the other spouse’s interest in the home, they are also cognizant of the fact that this is often impractical.

If a “buy out” is to happen, the equity in the home must be established. Certified real estate appraisers are often utilized. The appraisal(s) are then coupled with a formula (such as 50-50) to establish each spouse’s interest. When the home is sold, the valuation is usually straightforward. Assuming an arm’s length transaction, the value is the sales price.

Lastly, it should be mentioned that in a soft real estate there is a greater reluctance to sell real estate. Even though the parties agree to sell the marital home or the court orders it sale, the property may remain on the market unsold for an extended period of time.

bad-economySince the economic downturn of 2008, many have reported that the divorce rate is slightly down because of the economy. This is true. However, the Courts and attorneys that practice family law are busier than ever because people are reopening old support orders and filing for contempts as jobs are lost, incomes decrease, and asset values decline. Additionally, cases are being fought and litigated much harder and more aggressively as parties fight over an ever decreasing pie. One of the effects of the changing economy was the Massachusetts 2011 Act Reforming Alimony in the Commonwealth (read more).

For some people (usually men), this is a great time to file for divorce. If you are already paying alimony or child support you might even consider filing for a modification. Alimony and child support orders are almost always based on current income. If you are unemployed or your income has decreased substantially, alimony and/or child support should reflect this and you should be paying less. Many people fail to have the Courts reduce their support obligation when they lose their jobs or their income decreases (it doesn’t automatically go down – you must go back to Court!) and end up with large arrearages. If your income subsequently increases, the party receiving the support will have to refile and bring you back to court to increase the support. Many (if not most) support recipients fail to do this. They usually don’t even know that the income of the payor has increased! I have seen many cases where support orders are based on incomes that are a fraction of the payor’s current income.

This becomes especially important in alimony cases. Depending upon the judge, alimony may be particularly difficult to change. If the alimony order was based on a period during which the payor’s income was low, it may be very difficult for the recipient spouse to obtain an increase.

Lastly, the value of assets that are usually retained by men in property settlements (such as a family business or stock options) may be temporarily depressed in a slow economy and therefore the wife would receive a smaller share of other assets to accomplish property division.

broken-homeMany people are under the misconception that they are required to “legally separate” before they can get divorced. In most jurisdictions, this is no longer required. If you want to get divorced, you should file for a divorce and not a legal separation. Filing for a legal separation first will only increase the time and expense before the divorce is final.

However, we do run into several recurring situations that lend themselves to a filing of a separate support action (legal separation).

The first and most common situation is when the spouses have separated and one party needs to get support (child support and/or spousal support) from the other – but doesn’t want to file for divorce.

The second common reason is when a spouse has a drug and/or alcohol problem and the spouse filing for legal separation wants to send them a strong message “clean up your act or else”.

Although less common these days, devout Catholics will file for a legal separation because they don’t believe in divorce.

A legal separation should also be considered when the marriage is a little short of ten years. At the ten year mark, a spouse is entitled to one-half of the other spouse’s social security upon retirement (if they haven’t remarried and it’s more than they would be entitled to on their own social security claim).

There can also often be various strategic reasons to file for a legal separation instead of a divorce (such as if the other spouse has a new partner and will probably want to accelerate the divorce process).

Lastly, you should be aware that Courts will usually not divide property as part of a legal separation (although this doesn’t prevent the parties from agreeing to divide property between themselves) and that in most jurisdictions it is possible to counterclaim for divorce when one party files for separate support. Therefore, you might have effectively filed for divorce anyway!

toughtfulwriterOf course there are any number of things to consider prior to filing for divorce. Here are a few key items to reflect upon.

1) The great majority–perhaps as high as 95%–of all divorce cases are settled before going to trial. Many cases are resolved through mediation or a joint petition for divorce in which both parties agree to all terms.

2) What are your most important long-term goals in the divorce? Before filing, create and understand your goals. This will help you to make better decisions and get where you want to go in the end.

3) Focus on what will be important in five years, not what seems hugely important now but may fade in a few years. Don’t get bogged down in details, money which won’t matter in a few years, or items like the stereo, computer or flatscreen TV.

4) Do you really want to represent yourself? You might think you’ll save big on attorney fees, but you’ll need to get all the relevant information and legal forms, and you may well miss important issues an experienced attorney will be quick to point out. At least consider hiring an attorney on an hourly basis to consult with on special issues.

5) Be Organized! Get your papers in order. Write down questions for your lawyer. Perhaps ask a trusted friend, relative, or your accountant to help you organize.

6) Look (and ask) before you leap: don’t jump to conclusions or rush to a decision. It takes time to build a reasonable, fair and equitable settlement. Because you will live with the results of your divorce for the rest of your life, take your time, talk to your support network, consult with your attorney, and do not rush into things.

Tips to avoid a restraining orderIt happens over and over again. The subject of divorce comes up, or a divorce case is filed. Emotions run high and, before you know it, the other spouse runs out and convinces a judge that they are in fear of “imminent physical harm” and gets an ex parte (without notice) restraining order. Unfortunately, there are too many instances of serious domestic violence in our society.

In many instances the only real threat involved is the fear of bad publicity to the Judge. From the standpoint of the Judge – if he has 1000 people asking for a restraining order and he turns them down and only 1 party goes “postal” the Judge’s picture will be on the front page of the papers and all over social media. There are many Judges who rarely turn down any request for a restraining order no matter how flimsy the basis!

The mere presence of a restraining order can prevent a person from working in certain fields (notably education and health care) and make visiting with your children much more difficult. And a vindictive spouse (or ex-spouse) can even use alleged violations to have you incarcerated.

There are a number of ways to prevent a restraining order from happening:

  • Avoid being alone with your spouse! If you must engage your spouse in conversations, do so in a public place and try to keep them calm. If your spouse shows signs of losing it, leave! When the police are called it is usually the man who is taken away.
  • If you can’t remain calm – don’t contact your spouse. If you with your spouse and you find yourself losing it – leave!
  • Never threaten your spouse or assault your spouse physically in any manner – this includes breaking things and throwing things.
  • Lastly, if your spouse does obtain a restraining order – strongly consider fighting the restraining order. An experienced attorney can review the facts of the situation and give you an opinion as to whether you have a chance of convincing the Court to drop the restraining order.

Remember, an ounce of prevention is worth a pound of cure!

 

when to call your divorce attorneyAfter some time mulling over getting a divorce from your spouse, you have decided to take the plunge and call a family law or divorce attorney. Understandably, you may be nervous, anxious, excited, angry, frustrated, or any number of even conflicting emotions. After all, this is one of the biggest steps you can take in life. So what happens when you pick up that phone and call?

Let’s assume you’ve done some investigation, looking into different law firms, maybe checking online reviews or getting referrals from friends and family. Then when you call, you should expect the office staff or attorney to be empathetic and someone who will comfortably ease your anxiety and relieve your initial stress in making the call. Beyond that initial receptivity, what should you expect?

First of all, you should expect confidentiality, and know that the law office will never disclose to your spouse or anyone else that you made the call. The confidential nature of your call is paramount.

You should expect the person on the other end of the line to ask a few basic questions, including your name, your spouse’s name, and perhaps your spouse’s attorney, if he or she has one. Other questions include asking where you live, how you heard about the office (website, ad, referral, etc.), and then on to the big question of the type of legal counsel you are seeking, such as initiating a divorce proceeding, modifying an existing agreement, or inquiries regarding child custody or support, alimony, and other matters. If you are seeking to initiate a divorce proceeding, the office may review fundamental options with you, briefly reviewing these options so you may best proceed. This may include a discussion of the differnet options of litigation (contesting the divorce in court), mediation (to resolve all matters), and collaborative process (each party agreeing to resolution outside of court).

Following this initial conversation, the lawyer or his/her staff will schedule your first in-person consultation at a time and place convenient for you.

DISCLAIMER
The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262