Most people are nervous and upset when they first come in to see us. We say things and they don't hear every word. Sometimes clients have talked to two or three different lawyers – not to mention their friends and relatives. Different versions of the law and facts are jumbled in with their pain and anxiety. For many people who hire us it is the first time they have ever used a lawyer for anything but a house closing or traffic ticket. Sometimes they are more afraid of lawyers than ending their marriage. And there are a few who have so prepared themselves for war and the end of their lives as they know it that they will not consider anything but bloody combat.
If you belong to that first group – the distraught and disoriented – you should be concerned. Make no mistake – a divorce may be the most serious thing you do and you owe it to yourself to ask questions and understand what is taking place.
If you are among the second – the Green Beret, ready to defend your rights and future – you first must step back and consider the nature of the battlefield, your goals and the costs.
One of the main problems is that divorce is an unusual area of law. The judges in a divorce case have more power than in most other types of cases. Unfortunately, divorce cases involve not simply dollars and cents but feelings of pain, anger, betrayal, desperation and hostility to mention a few.
In all honesty, the judicial process is not an ideal way of dealing with the issues and problems that arise when you end a marriage. But it's the best . . . well that's too strong . . . O.K., it is the only real system we have and, in the majority of cases, a just result is obtained. Unfortunately it is extremely expensive and can go on for what seems like forever.
Before we get into the nuts and bolts of how you get divorced let's get a few things very clear.
First – it is our sincere belief that if you are not sure that your marriage is over court is the last place to try to save it. And most times lawyers are the worst people to ask to help you. If your spouse is starting the process then you may not have a choice. It's appropriate and smart that you get information and know what your rights are in case a divorce comes about. You should see a lawyer who does quite a bit of family or domestic relations law (the nice name for divorce law). You should cover your backside and protect your kids. Keep your eyes open and ask questions.
And for goodness sake, take your family and friends with a grain of salt. They love you or they may be jealous of you. They may be smart or dumb, committed to you or just butting in. But they should not be your legal advisors. Their role is to provide support – emotionally and at times monetarily – but not to be your unpaid, untrained yet thoroughly involved and out for blood amateur attorneys.
If you are not certain that your marriage is over do what you must to make sure you have given it every reasonable chance.
It is not being a sap to give it a final try. There is no shame in trying to trust one more time. We have enough business. If you decide never to see us and are able to make your marriage work give us a call and let us know. We are rooting for you to make it. Really.
It sounds corny but you will know when it is over for you. And then you will be ready to do what is necessary. The question of “how will I make it if I leave him” or the fear “she will take me for everything I’ve got” will be there but it won’t matter enough to stop you.
We say all this now, not because we are frustrated social workers, because sometimes we forget to stop and say it often. A good marriage with love, trust, shared experiences and goal – not to mention passion and security – can be one of the most remarkable human activities a person can experience. Even having just some of the things you think your marriage should provide, probably puts you well ahead of the vast majority of people. It shouldn't be tossed lightly.
Second – keep in mind that the outcome of a divorce matter is determined not only by the law as written but also by the personalities of the judges who make the decisions and experts who help them. Things are not black and white in domestic relations cases. The best lawyer in the world can give you her best opinion of what a judge will do and be dead wrong. To put it bluntly going to trial is in good part – a roll of the dice.
The system is set up with the idea that divorce intimately touches peoples' lives, and the law is designed to allow judges to consider almost anything they want. Judges are only human and the system can't do everything. If you and your spouse need the court to decide things about your lives and family – eventually the court decides. But it will be just one woman or man making the decision. No jury – just a judge. There is no magic way for the judge to know who is telling the truth, no DNA test to determine the best parent.
Sometimes judges do great work . . . sometimes you would be better off without them. Sometimes your lawyer can do everything right and the other lawyer everything wrong and still your case ends up in the toilet. No honest, experienced, realistic lawyer can absolutely guarantee a specific result.
And there is no such thing as a divorce case being really over. If you win in the trial court your spouse can appeal. If you win the appeal your spouse can take the fight into the street and battle you through the kids or just flat out refuse to obey the court. Just because a judge orders it doesn't make it happen. You can spend years enforcing a decree – costing time, tension and expense. And sometimes it just can't be done. No matter what.
That is why almost any nearly reasonable settlement is to be preferred to even the best trial result.
So if you can safely talk to the other side even while you are in court do it! Take control of your own future and your children's future. Learn what you are entitled to receive. Then consider settling for a little less to get on with your life. Don't get ripped off but remember getting that last dollar or extra hour with the kids can be terribly expensive in more ways than one.
Third – the legal system can't and isn't meant to deal with every problem; right every wrong and vindicate all just causes. The Courts just can't do it. They don't have the people or the money. And some say they don't have the right to mix in to every part of our lives.
In the
Domestic Relations Division – on a good day when almost
everybody shows up – we have 40 judges. Remember, Domestic
Relations deals with much more than divorce (officially called
Dissolution of Marriage).
The list is endless and so are the numbers of people who are in Court.
Now take those 40 judges and presume they all work 48 weeks per year (actually if they take all the time they are entitled to take it is more like 44 weeks per year for a judge who has been around).
Since court normally runs from 9:00 a.m. to 12 p.m. and 2 p.m. to 4:30 p.m. this is 5½ hours a day less say ½ hour for recesses, court reporters being late, etc. Figure, to be fair, 5 hours a day x 5 days a week x 48 weeks or 1200 judge hours per year. Take that times 40 judges and you 48,000 hours of judge time per year.
Sounds like a lot, doesn't it?
Not when you split those hours among the 50,000 to 75,000 cases that are in the system each year (and that is conservative). Mathematically, that means at best 57.6 minutes per case and at worst 38.4 minutes per case per year. Depressing isn't it?
Things are not quite that bad. Most cases are settled between the parties before trial. In our experience, even in our office which handles a lot of heavily contested matters, less than one case in 20 goes to trial on all issues.
Getting back to point three. Practically, because going to court for anything involves 1 to 2 hours of attorney time – sometimes more, seldom less – and costs $200, $300, $400 or more each time we go to court –
That's right you heard it here, lawyers saying, "Don't go to court over the small stuff." Don't run into court because:
Don't spend $600 or $700 because Halloween is on her day and she won't agree to split it. Don't blow $500.00 because a $40.00 dollar insurance co-payment wasn't refunded to you.
It's not worth it because it costs way too much in your time, money, energy and aggravation.
And, just as importantly, it externalizes (out sources to you business people) the decision making processes of marriage partners and parents.
What does "externalization of the decision making process" mean? It means that you and the person that you used to have sex with, sleep with, share the same bathroom and perhaps plan for the future with and confide in – the two of you (and soon your kids) learn to use third parties to regulate your lives. Soon the Court, the police, social workers, your lawyers are needed to do what the two of you should be able to do for yourselves. You run to them so they can tell you: which bedroom to sleep in, what food to buy, who can take the kids to the doctor and what car your can use. As petty as you think two people can get with the help of skilled lawyers you can learn new ways to elevate the insignificant to monumental proportions.
Given the year or two that court can take if everyone is fighting a couple can be well trained in using strangers instead of their own good sense to run their lives. Once you and your spouse or lover develop these patterns they can be very hard to break. And you then have the privilege – we're being sarcastic – you have the curse of passing this behavior on to your children.
Sometimes you have to go to Court because:
But only for the big stuff. One of the hardest parts of our job is telling the person who pays us when to bit the bullet. Believe us. It is much easier to go into court and scream and holler than say "swallow it."
Before we go on I want to stress a few things again. This information is in no way intended to be a "do-it-yourself' guide. We couldn't possibly cover every situation that could come up and everybody's situation, as I've said before, is a little different. You should always have an attorney representing you to help you through the process and to make sure your rights are fully protected and looked after. Also, throughout this guide I refer to divorce. But many of the same things apply for paternity (getting named as a parent when you were not married) and support (getting money from the other parent).