The Legal Zone (S1:E2): Getting a Divorce

Transcript

Introduction

Hi, welcome back, everybody. This is Season 1, Episode 2 of The Legal Zone, brought to you by The Campbell Law Group. I'm Regina Campbell, and today we're going to talk to you about getting a divorce. Some of you out there might be going through a divorce or have been through a divorce, so you might be able to relate to some of the stuff we're going to talk about today. But I think it's really important to understand what to expect from a divorce. And even if you have been divorced, if you're going through a second divorce, you'll be surprised: sometimes it can be very different from the first. So there may still be some additional tips that are helpful for you.

Getting a divorce is one of the major life-altering things we might do in our lives. It's up there with the most stressful events, just like a death or a move. But it doesn't mean it has to be life-ending, or life-changing to the extent that everything comes to an end. It's uncertainty, and it changes your life, but you still continue to be you. You still continue to have your children together, if you have them together. We're going to go on in life. And it's important for you to know what to expect in this process so that, hopefully, you can come out of it in good shape, not just from a legal point of view, but from a personal point of view.

As someone who has been through a divorce, and actually a very difficult divorce, I can relate on a personal level too, not just as an attorney. But today we're going to explain a little bit more, as an attorney, what to expect.

Being served with a petition

It's possible you might have been served with papers, in which case your partner, whether it's your husband or your wife, has already gone through the process of starting what they call a petition, a petition for dissolution. It might be a surprise, or it may not be a surprise; it may have been something you expected. In the petition, you're going to notice that it indicates what kind of relief they're looking for. That may even be a surprise.

But we'll talk a little bit more about how it doesn't always mean what it seems to be saying in the petition, and why sometimes you need to plead everything that is required in order to preserve your rights. It doesn't necessarily mean your spouse is going to be entitled to all of these claims or allegations. They might have just put some of the information in there from a legal sufficiency basis. This sometimes catches people by surprise when they talked to their spouse before the petition, and then they see the petition and say, "Wow, what is all this stuff in here? For instance, we talked about no alimony between each other, and here the petition requests alimony." Sometimes that's just a function of legal sufficiency, and potentially of the attorney's need to preserve those rights in the event you do not reach an agreement. So it's not always a reason to be very concerned.

But let's take a step back for a moment. Let's say you did not expect, or were not aware, that your partner was going to file for divorce. In those circumstances, the shock alone and the disbelief can take over quite significantly and be very emotional, understandably so. This is a time to take a step back and not react immediately, whether that's talking to the other spouse or going off. It's time to stop and think about how you're going to react, and what is really going on.

It is also a time to consult with an attorney. Most of the time you only have about 20 days, in most states, in Florida for instance, to file some kind of motion for extension or an answer in order to preserve your rights under the petition. At this time, you also want to consider whether you want to file counterclaims, which might preserve your rights to alimony, child support or certain equitable distributions that might be different from what your spouse requested. So taking a step back is important, but there's a time sensitivity issue here if you are served. You want to make sure you're complying with the summons and the required time period in which to respond. That's on a legal basis.

Taking care of yourself

On a personal basis, as I indicated, just take a moment and breathe. I know it might leave you without breath, especially if you're not expecting it, but stop and think about what this may really mean. You also want to consider getting psychological help and support from your family.

I'm going to caution you, though, against trying to compare your case or your potential life to some other divorce or some friend's case, or listening to stories about how so-and-so Suzy's husband left Suzy on the street, or Suzy left the husband on the street and got everything. I would caution you against listening to those stories, because in the legal world there's very rarely anything apples to apples, so to speak, and everyone's life and situation is very distinct.

So that's step one. That's the petition stage, the legal first step.

Planned and joint divorces

Now, there are times when people actually plan for divorce. They might discuss it and do it on a neutral basis, potentially file joint petitions, or already have an idea of how they want to split their assets or figure out the rights between each other. In that case, the process might be a little bit easier. The petition just becomes the vehicle through which you accomplish the divorce, but the majority of the conversation happens beforehand. A little bit more about that when we talk about coming to an agreement, which is a little further along in the process.

Maintaining the status quo and temporary relief

One of the other things you want to take into consideration when you think about divorce, or a divorce has been filed, is any administrative orders or rules. Most states require the maintenance of the status quo. You want to be careful that you don't have one of the parties starting to empty out a bank account, canceling health insurance, life insurance or homeowners insurance, or stopping paying the mortgage. These are all signs that you're going to have to act quickly, whether you are the petitioner or the respondent.

Courts do not usually have the ability to act very quickly when someone needs temporary support or relief. From the moment you file a motion for support or relief, it could take at least three, four or five months for a hearing to actually occur on the issue. So part of it is that you want to consider a Plan B in the event your spouse does something like that. Hopefully they do not; they're supposed to maintain the status quo.

But unfortunately, particularly in contentious divorces, I find that one way people try to gain bargaining power is by trying to starve out the other party, particularly if the other party doesn't have access to the marital funds to be able to hire an attorney. It may be the less sophisticated party in terms of money, or in knowing where the money is. So these are the kinds of telltale signs you want to keep an eye out for at the beginning of divorce proceedings. This can also occur throughout the divorce proceeding. It might have started off nice, and then it gets ugly when the other person doesn't get their way.

In most cases, I find that reasonable people can reach a solution and find a balance, so as not to destroy everything you may have created, and particularly not to disrupt the children, if there are children. A little bit more about how to deal with those types of difficult spouses or situations later on in the podcast.

Financial affidavits and mandatory disclosure

Usually, in most states and in Florida specifically, they're going to require you to fill out financial affidavits, which basically state your financial circumstances and income under penalty of perjury. You're also required to produce what's called a certificate of mandatory disclosure, which is the minimum amount of documents that must be exchanged between the parties. So that's usually the next step.

In addition, the court is going to look into resolving any temporary issues. If someone's moving out of the house, you may want to come up with temporary child support, and not just child support, but timesharing. In Florida, we have timesharing versus custody. These are arrangements so that we can try to have the least amount of disruption possible for the family unit, particularly for the children, who have no control over this and are in the middle. It's something to be very cognizant of. Try to be as reasonable as you can in balancing that, and of course, never involve the children in these issues or in discussions about the divorce or anything else going on. Try to minimize their involvement in any of this. That's something else we'll also talk about shortly.

But if you're having any of these temporary issues, they need to be raised early on in the case. You do not want to let the case go on much further without getting some of those temporary issues resolved. In cases where the parties stay together and there's amicableness, so to speak (I guess I'll make up a word there), a lot of times things will continue the same. Each party will do their parental roles and duties as they always did, and you will go through the process, the financials, and come to some kind of arrangement, or you go to trial. But it will be handled on a more amicable basis.

Temporary attorney fees

Something else to keep in mind: temporary issues also include attorney fees. You want to make sure you have the right to attorney fees, and access to money, so that you can afford your own attorneys to protect your interests. In Florida, each party is entitled to similar representation as the other party may have. Sometimes you see one party has $100,000 to spend on an attorney, and the other party might have gone through four attorneys trying to get someone to take the case, because they can't afford to pay a retainer or pay attorney fees until the court awards them. So most often, one of the urgent situations you may find yourself in might be a motion for attorney fees that you want to consider.

Discovery: assets and hidden money

Next, we go on to the discovery stage, so to speak, of what to expect in a divorce. In a divorce, discovery is just the investigation of what each party has. It might go beyond the minimums, to find out whether there have been any extramarital affairs. Is there any portion of the marital assets to be recovered? Are there any non-marital assets that potentially have a marital component that needs to be divided, or are they to be left separate? It involves determining valuations of marital assets and contributions throughout the marriage, especially if they're mixed assets, which are marital and non-marital.

And it's figuring out how you're going to handle distributions, which might include a mortgage that you're both on. What do we do now? If we decide to sell the house, or one of the parties keeps the house, what do we do? One party's name is still on the mortgage, and that can affect that party's ability to go get another house. So these are things that get worked through, uncovered and organized during discovery.

And unfortunately, in difficult cases it's ripe for people to hide money. Someone's mother has been holding onto their money throughout the marriage, or has been giving them assets or gifts, so to speak. It becomes more complicated, and can lead to protracted litigation, if you have issues where money has gone missing, or there have been some shenanigans, or even money being hidden within companies: maybe under retained earnings, deferred compensation, international holding companies, layered circumstances that require an attorney, and potentially even a forensic accountant, to help you unravel them. That's not just for what your equitable distribution may be from that particular company, but also for what income might be available for purposes of alimony and child support that's hidden under layers, as I like to call them. So that's the discovery.

Discovery: timesharing and parental responsibility

This is also where, if you have child timesharing issues or parental responsibility issues, you conduct evidence gathering, which is what we call discovery, about the fitness of each parent to take care of the children. That's whether it's on a 50-50 basis, or whether you want to suggest the other party should have less time with the children due to job constraints, or their inability to really handle the children's responsibilities, such as taking them to extracurriculars and doctor's appointments. So this is also a time when some of that investigation might be done.

Discovery: alimony, need and ability

The same thing with alimony. During this time, discovery becomes a function of the elements you have to prove in order to get alimony, if you or your spouse is a potential candidate for alimony. Alimony is basically a function of need and ability. Need is: does the spouse have a need for income, or a supplement of income, in order to maintain a similar lifestyle to the one that spouse had during the marriage, or that the parties had during the marriage? And then there's figuring out what that is. How much do they need to be able to live a similar lifestyle to the one they had during the marriage?

Unfortunately, this is also an area that can be litigated. Someone thinks that they used to live in a mansion and had five maids, and of course their alimony needs are fairly high. Or you can have the circumstance where the other spouse thinks the spouse's needs amount to food and water, and that's all they need to maintain the lifestyle of the marriage, which of course is not often the case. The truth usually lies somewhere in the middle. But this is the time in which you gather evidence to meet your burden as to what the needs may be, and of course the other side is going to argue against them. So this is the time you might gather evidence related to alimony. You may also want experts, forensics, who can assist with what they call a lifestyle analysis.

The other half of alimony is ability. You have to show that the other party has the ability to pay the alimony, even if you have a need. Once again, it's discovery about income and evidence gathering. Often, unfortunately, we see what we call divorce poverty: one or both of the parties all of a sudden become poor, or start to make significantly less money, right before or during the divorce, in order to try to avoid or reduce their alimony and child support obligations. This is a lot of the stuff you're going to go through in discovery. For the most part, that's the evidence-gathering stage.

The human side of discovery

Throughout this entire time, just to go back to the human side, the personal side, it's usually a very difficult time. You're asked very difficult questions. You're asked to gather documents from years before. Unfortunately, it's also ripe for harassment in some respects, with requests for things that might be way to the left and way to the right. It's very important that you have a support network, people to lean on to help you with the children, and that you breathe, remain calm and try to think as objectively as you can. This is just part of the process. Stop and think about the big-picture items, and just remember it will pass, as difficult as it may seem. Everything passes in life.

Mediation

Most of the time, by this point the case is starting to get expensive. Hopefully the attorneys have had discussions about cutting through some of the red tape, looking at big-picture items and considering settling, especially now that you might have more information to make that determination: whether you settle, or whether it really makes sense to take this to court. So hopefully you're also leaning toward going to mediation. Most of the time, 90% of cases settle in mediation.

But it's important to go into mediation with enough information to actually settle the case. If you go into mediation without at least a reasonable amount of the discovery done, where you feel confident you have a handle on your assets, the children's issues, alimony and income, you might be doing it prematurely, and setting yourself up either for a bad agreement or for not being able to settle and losing the opportunity to do so.

Mediation is also helpful if you understand that, as they say, in a good bargain no one is completely happy. You have to understand what your best day in court and your worst day in court potentially are, put your feet down on the ground, and try to find a reasonable balance in between.

Trial costs

After mediation usually comes trial. Trial is usually set, or it's around the corner. Trial can become extremely expensive when you have to start establishing trial exhibits and witnesses, taking depositions and paying for deposition transcripts. It's a very costly process, which is probably most of the reason why a lot of cases settle in mediation.

Protecting the children

It's not a happy place to be, in litigation. It's very difficult from a psychological, financial and emotional point of view. And throughout all this, the difficulties we're talking about, the evidence gathering, the papers, "What do the petitions say? Someone said this about me and it's not true. How can they say that about me?", you're going through all these allegations and difficulties. Remember your children. Depending on their age, they're going through this with you, even if you try to hide it. They can always feel it. They see the difference. Of course they feel the difference; the family unit is not the same.

So you want to make sure the children are not around when you have these conversations, or conversations with adults, and make sure they're not being used as messengers. If they need to, they should be sent to family therapists, so they can talk about their feelings with a neutral third party and don't feel worried about hurting one of the parents' feelings, depending on what's going on. Keep an eye on their emotional and psychological needs as well. That's something you want to keep in mind throughout this process. And if the other party is involving the children, you need to consider whether you need to take immediate action to eliminate the interference with your rights, or the harm that's occurring to the children. So that's something else to keep in the back of your mind.

Going to trial

So here we are. I've just briefly gone through this, and additional podcasts will take apart each stage and the different elements within each stage. But I'm coming to the end here, and we're talking about trial.

With trial, at the end of the day, you are leaving your lives in the hands of a judge to decide what is best for you and your children. The judges will do their best, as they always do, but judges will tell you themselves: "You know what's better for you and your children than I necessarily would. If I have to, I'll make a decision. I'll listen to all the evidence, how it's presented, and hopefully I'll make the best decision for you." But ultimately, the best thing is if the parties can come to a resolution themselves, talk about it and find the right balance for their family, from an economic point of view, but also from a custody, timesharing and parental responsibility point of view.

Remember, at the end of the day, this is only part of your life. You will go on to have a post-divorce life, and what you do now, and all the difficulties you incur, can add to or subtract from your post-divorce life. If it's done reasonably, you'll subtract headaches from your post-divorce life. If it's been very contentious and difficult, it's going to add to the difficulties you carry on into your post-divorce life. So any judge will tell you that if you can make a decision on your own and come to an agreement, it's always better. If not, the judge will have to make a decision based on the evidence, on what they think is best for you and your family, whether it is or is not. So it's something to consider.

Evidence at trial

Trial is you sitting, like you see on TV, on the stand. You're testifying, and you're having to bring friends. Most of the time, children will not be brought into court or brought in as witnesses. If you have a type of case that requires the children to be involved, or the children are being severely put in harm's way, whether psychologically, emotionally or physically, a guardian will be appointed, and the guardian potentially will be there as well, along with other experts.

But it's not like TV, in the sense of "Well, Johnny said that you said you're having an affair with somebody." It doesn't work that way. That's hearsay. You have to bring in evidence, and you have to authenticate documentation. A lot of the stuff you think is going to come in probably will not be heard or considered by the court. These are all things you really need to understand, and they're not easy to hear.

A lot of my clients, when they hear me say this, say, "Wait a minute, this isn't rational or logical." And it is. In a lot of cases, I'll agree, some things may not seem rational or logical, but they're based on the rules of evidence and admissibility, to make sure that what's being presented to the court is competent and not tainted in any way. It can't be "Johnny said, Suzy said" in court one day, because we really don't know what Suzy said unless Suzy is in the courtroom to testify. So it has to be based on evidence presented within the rules of evidence, which starts to become very expensive: subpoenaing people, making sure they're present, and so forth. That can be really complicated in international cases, where you have multiple jurisdictions, houses, and children traveling everywhere and living in different places during the marriage. So it's just something to consider.

Closing

Hopefully I've given you some idea of what to expect, from a legal, technical point of view, and hopefully also from a human point of view. I want to thank you all for tuning in again and for joining us. We're going to have our third episode coming up, I think in a week or two, and we'll go ahead and announce it. I hope this has been helpful. Thank you for joining us this week on our podcast. Please join us for our next podcast, which will be coming up soon, I think in the next week or two. Please make sure you follow us on our social media pages and subscribe to our YouTube channel. We look forward to seeing you next time. Thank you.