Divorce is Hard.

Divorce is tough, very tough. This is likely the hardest thing you have had to go through in your life.  Other events, while they may have been harder at the time, did not last for months, if you are lucky, or for years if you are not. Divorce touches every aspect of your life; your family, friends and your work. Nothing will be left unaltered.

This is the reality of divorce so you need to cut yourself some slack. Try not to be so hard on yourself. Recognize that your world has been fundamentally altered and the new way of life needs time to settle.

If you are a mom who now has an empty house when the kids are with dad and the silence is killing you, or if you are a dad who does not get to see his kids every night before bed and misses that goodnight kiss, it is OK to feel the emptiness. Let that feeling sit with you.  You need to grieve the loss and accept the change.

Think about all the things you never had a chance to do when you were married. Go to the shore with a book, a picnic lunch and watch the waves. Go into the city and spend the day people watching. See old friends you may have lost touch with and go on weekend trips to visit family who are out of town they will be glad to see you and you will give them comfort that you are coping. Your life will begin to fill with new experiences and you will begin to discover the person that you are outside of your marriage.

The re-creation of you will not only be therapeutic, it is essential for your children. They will sense that you are becoming more centered and at peace and that life goes on and expand. They will begin to see that things are going to be fine. Your children need you to be happy, it will reduce their stress. Their ability to see a happy future depends, to a great extent upon you moving on.

Again, this is easier said than done but it is doable so get started with baby steps if necessary.

Why Do You Need to Hire A Divorce Consultant?

In my last post I explained what a divorce consultant does.  So why should you hire one?  Divorce is an expensive process on its own, why should you add another professional?

A few questions you need to consider.  Are you talking to your lawyer about non legal issues and incurring large legal bills? Do you understand the decision you will need to make during your divorce? Do you have the time to do the leg work required to respond to court replies, pull the financial information together to determine your marital lifestyle, respond to the information requests and document production(discovery requests)? Are you prepared to respond to the potentially outrageous demands from your spouse in a way that will lead to settlement as opposed to leading to court? Do you know your money situation, how much you have and where is it being spent (without this knowledge you can find yourself in a world of grief)? Have you thought out the best possible parenting strategy for your children and how you will manage it given your work schedule or that of your spouse? What will your financial situation look like when you get to the end of your divorce?

Simply, without knowledge of the decisions you have to make and the alternatives around those decisions you will spend longer getting your divorce done, you will be in a reactive mode rather than being proactive and controlling the situation and, your legal bills will be many multiple times what they would be with a consultant having your back.

When you work with a Divorce Consultant you will:

  • Have peace of mind that you made the best possible decision given your circumstances.
  • Understand the potential alternatives around the decisions you need to make.
  • Have a picture of what your outcome will look like from the beginning so that you can plan for your future.
  • Get a better outcome for your children so that they suffer less.
  • Be able to be proactive rather than reactive resulting in less drama.
  • Go into mediation with a plan and strategy to get your divorce done.
  • If you have to go to court provide your lawyer with the evidence to support your arguments so they can win your position in court.
  • Sleep better at night.
  • Have less anxiety.
  • Have someone to talk to as you think through issues and not be on the clock incurring costs for every minute of conversation.

The better question is: Can you afford not to have a divorce consultant?

What is a Divorce Consultant?

It’s a new profession that assists you in your divorce to understand the decisions you are facing; help build a strategy for you and your loved ones; and prepare the evidence necessary to support your needs.  Divorce Consultants also help you understand your alternatives, as there can be many ways to settle your divorce.

Divorce can be either litigious or mediated, and it also often needs to consider custody of children.  It is a legal and emotionally charged event. As a working executive, you are often too time poor to appropriately deal with the conflicts that arise and the needs of the divorce process.  Your Divorce Consultant will work with you to prepare what is needed and provide a well thought out, logical argument, backed by the supporting evidence, to get you a quick mediated outcome or save time briefing your lawyer.

Divorce Consultants approach custody in a child friendly manner.  They take care to ensure that your children are insulated from the divorce and make sure that they are cared for.  After custody is settled divorce is a negotiation of who gets how much of your assets, income and possessions that you have accumulated.  The Divorce Consultant approaches these issues in a practical and methodical manner that will position you to get great results that are fair and balanced.  As a result your divorce will be faster, more amicable and will cost you less; emotionally and financially.

If you are already in a highly litigious situation, a Divorce Consultant may be the factor that turns your divorce in your favor.  As a working executive you are likely unable to devote the time it takes to respond to a litigious situations and failure to do so will cost you a fortune in legal fees, payments to your spouse and will cause your divorce to be unnecessarily long.

If you are contemplating divorce, a Divorce Consultant will position you with the information and alternatives to settle your divorce in mediation quickly and efficiently. The party that enters a negotiation with the greatest amount of preparation will direct the discussion and end up with the results they want. While you cannot control your spouse, a well thought out proposal that is fair and balanced will position you as “reasonable” and you will ultimately prevail.

Another consideration is that your lawyer will have a much better ability to represent you if you provide your lawyer a well thought out, logical argument, backed by the supporting evidence.  Your position will be stronger and your Divorce Consultant’s work will make your lawyer’s job considerably easier. Preparing your lawyer will get you better results and save you an enormous amount in legal fees. Your Divorce Consultant will develop the supporting your arguments, prepare the financial data for the exhibits and find the copies of documents that will prove your case.

Absent a divorce consultant your lawyer will be required to do the same work but will not, typically, have had the benefit of extensive financial knowledge, an understanding of tax issues nor the ability to spend the time to dig through bank statements to find the evidence needed to support your case

Hiring a divorce consultant will take the weight off your shoulders of the tremendous amount of work needed to successfully manage and prevail in your divorce.

Irreconcilable Differences or Not?

Irreconcilable differences is the term used in complaints for divorce in NJ as the reason for the divorce.  Basically states that the relationship has reached a stage of full break down and there is no reasonable hope that you can find a way to stay married. It is a neutral way to file and is the basis most reasonable attorneys recommend to file.

The alternative to irreconcilable differences is to file on the basis of extreme mental cruelty, adultery, abuse, abandonment or drug or alcohol use for more than 12 months. The problem with this approach is that it airs your dirty laundry to the public and starts major fights.  If you file on the basis of mental cruelty your spouse will file back with an equally nasty reply.  This sets you up for an ugly divorce.  Ugly means long and expensive; legal fees through the roof.

Unfortunately the divorce system is almost set up to make divorces more difficult than they have to be.  The ability of spouses to file based on adultery or extreme mental cruelty when NJ is a no fault state is ridiculous. To explain – In a no fault state you do not need to have a reason for the divorce as you do in some states.

The other issue to consider is that what you allege will not likely change the final outcome of your divorce.  You will still get roughly 50% of the assets and liabilities; and pay/get the same amount of alimony and child support irrespective of how you file.  This is not something that attorney’s tell you up front.

Some attorneys’ will argue that the judge will take the basis for your complaint into consideration in their decision as they are human.  Let’s put some reality to this; only 1% of cases go to trial where a judge actually decides your case.  So do you set yourself up to have a long, nasty and expensive divorce or do you keep your anger and angst in your therapist’s office (where it belongs) and out of the negotiations.

The courts do not seem to care if one party had an affair or yelled at you all day when it comes to your financial settlement.  A lady I recently ran into was counseled to re-file on the basis of mental cruelty as her attorney believed that it would it strengthen her position to have greater parenting time.  I am dubious and think that her attorney is just setting her up for a more difficult time.  Will have to follow up and see how things go for her.

It does not matter about the alleged sins of the parties in the marriage when it comes to the financial settlement. In other words it makes no difference if one party was abusive to the other you will still get the same alimony and share of assets. If there was real and permanent harm caused by the other party this would be handles in a Tevis claim, not your divorce.

So why do folks file on this basis? Does it allow them to vent in public as to how awful their marriage has been, some form of “gotcha” against their spouse, a feeling that they can tell their story?  While it may initially make you feel better to have your story heard, all of these reasons do not belong in a negotiation.

Keep it simple, as neutral as possible and get out of your divorce with your money in your pockets and with your sanity intact.

 

Pat on the back.

I rarely publish outstanding results for my clients but this one was just awesome…

I prepared a 5 year marital lifestyle analysis according to Case Information Statement  (NJ financial form) categories so that the judge would see the numbers in the standard way.  In the text of the motion we referenced the exact pages of the transaction download so that every statement in the certification was backed by hard facts.

The presentation was clear and concise and the judge understood our position and gave my client an outstanding result.

The best part was that the judge turned to the lawyers and said “great papers”!

Still walking on air.

 

What Can You Do When it is Just Not Fair

What can you do when all the court decisions seem to be against you? Your judge just seems not to get it and decisions are decidedly favoring your soon-to-be-X. How can you change your strategy to get on the “right” side of the judge?

If you are in this situation my heart goes out to you. You begin to believe that the judge is being paid off by the other side or that your legal counsel is just not good enough to beat the other side. Unfortunately in family court, the judge you get is the judge you get. You can’t change your judge unless there is a major conflict of interest.

So what do you do?

A few suggestions;

  • Avoid the court – which is always a good idea regardless of your judge; try to negotiate and settle via consent order.
  • If you really have to go to court – pick your battles. Be careful to only ask for what you can reasonably expect to get and keep the list short.
  • Get out of the court into mediation
  • Agree to binding arbitration if you believe that your spouse will not negotiate in good faith

Before you do anything on the list above you need to take a hard look at why you are in this position.  What have you done, consciously or unconsciously to get you in this spot? What can you do differently?  Is there a different approach that might work better? Have you been reactive rather than proactive?  Have you always been on the defensive rather than the offensive? Is there a way to nudge the situation into your favor?

When you are stuck in a difficult situation getting a new set of eyes to review where you are can be very helpful, even if it costs you a few dollars. Talk to a divorce consultant, a different lawyer or forensic accountant that specialized in divorce, the questions asked by the new parties can be the key to shifting your situation.

On Being Wrong

I happened to watch two TED talks this morning, (Julia Galef – Why you think you’re right – even when you are wrong and Kathryn Schultz – On being wrong) that examined the fact that we all believe that we are right in our judgments and how we see the world. In other words we all believe that what we think is right.

It struck me that when folks are involved in divorce this mindset is what causes much of the troubles.

I have seen complaints for divorce that claim that the other spouse committed adultery or was emotionally abusive; certifications claiming that the other spouse has stolen money, gambles or looks at porn on the family computer.  As you can imagine these types of claims cause the divorce to go into a tail spin and results in the family spending every penny they have on legal fees to prove that they are right. It goes further; many of the professionals involved in divorce jump on the bandwagon and believe what is told to them by their clients. Every single court motion done is all about how the client is right in asking for relief, all the documents attempt to prove their position to “win”.

What if we just stopped and asked the question – What if I am wrong?  If you were wrong how would you change your actions?

Without question, while you are in the thick of a divorce this will be difficult to do.  Perhaps you can ask the folks around you to ask the question of you on a regular basis.  By folks I mean your friends, family and your lawyer.

When you are angry about what your soon-to-be-X has done “to” you; ask the question what if I am wrong about their motivations or intentions or about how I perceive this? Looking at this from a fresh perspective will allow you to pause, even if it is just for a second, and let a different view enter into your thoughts. This can be transformative.

If you discover that you are wrong it may be possible to shift the course of your divorce and end the litigation or head to a mediator and negotiate a settlement.

 

Is Your Spouse Ready To Settle?

A few years ago I wrote a blog called “Time Kills Deals”.  The blog talked about how prolonged negotiations not only cost more money in legal fees but “time” itself can cause folks to get fixed in their own positions.

I still believe that the best outcomes from a divorce happen when the parties move quickly through the process.  However there are some folks who just need more time for the shock of the divorce to settle in and are just not ready to make these decisions.

This will obviously be very frustrating for the spouse who wants it done.

Unless there is tremendous wealth involved, divorce strains the finances, (same income two households), the ability to change/downsize your lifestyle to meet this challenge is not easy and usually the lower income spouse is struggling and savings are used to meet the gap. The longer the situation persists the more savings are used and, at the end, when you would like to have a nest egg available, it is gone so this delay is not only frustrating it can be costly.

A cynic might think that the spouse who is not making decisions is doing this as a negotiating ploy; your spouse states their position and then every time you try to settle the situation to make a compromise their demands just get bigger.  If you believe this is the situation and want to settle just give them what they want, if you can, and be done.

If their demands are just too large wait them out. The courts will be pressuring you to settle with constant case management conferences; but if the unbending spouse still will not give in you either have to try the case in court (think $25,000 to $50,000 in legal fees) or you can opt for binding arbitration. Choosing this option will give you breathing room as you will no longer be on the court’s docket and timing is completely within your control.

The bottom line is that if you have a spouse who is not ready; they’re not ready.

Any decision you reach will be skewed their way just so you can settle. Wait them out. Let them want to come back to the table before you continue to try to modify our position just to get things done. That would be called negotiating against yourself.  Clients have said “maybe if we go back to them with X they will settle”? It rarely works and all it does is give the other side an advantage.

One of my clients waited 4 years before he approached his wife for a settlement.  So if your spouse just wants to fight, let them fight against themselves and just wait it out until cooler heads prevail.

Mediation vs. Arbitration

This is a question I am asked so often, I thought an explanation would be appropriate.

Mediation

Mediation is a process where a third party, a “Mediator” helps you and your spouse settle the issues in your divorce. It is the best way to resolve your issues, costs the least amount of money and usually results in a settlement that will stick. Most optimally mediation is used in low to medium conflict divorces and where the assets to be shared are straight forward and uncontested.

The mediator is not there to make the decisions for you; the mediator will help you understand each other’s position and help you reach a compromise that is acceptable for both parties. A good mediator will often make suggestions as to how they have seen things done by other couples or where they see a way through an impasse, but ultimately, the decision is yours. Mediation is not binding so if the results are too biased one of the parties can just walk away without any harm, other than wasted funds on mediation fees. That is why mediation works and is successful; the positions reached are not horrible for either party. I phrase it that way because a good settlement is where both parties are slightly unhappy. Neither of you won or lost.

Sometimes you attend mediation with your lawyers. This happens in higher conflict divorces where the parties cannot easily talk to each other or where one party needs additional support.  All of the parties, (you and lawyer, spouse and lawyer and mediator) can be in one room, the mediator can work with the lawyers and the lawyers step out to talk to the clients or the mediator can go back and forth between the parties, each in different rooms, to negotiate a settlement.

Arbitration

Arbitration is used where there is no meeting of the minds by the parties on the issues and they need a third party to make the decision for them. Arbitration is similar to going to court in that each side presents their case to the Arbitrator and then the Arbitrator makes the decision.

In arbitration an Arbitrator is hired, (typically a retired Judge or highly experienced attorney) and each side presents their arguments to the Arbitrator as to why they think their position is the best way to resolve the case. Arbitration is like a trial. Witnesses may be called and testify, under oath, and can be cross-examined. Exhibits are put into evidence. At the conclusion there are summations and the Arbitrator makes a decision. Who should get/pay a certain amount of alimony for X number of years, who should get what assets and at what value and who should assume what debts is presented to the Arbitrator until every issue is decided.

Arbitration is an excellent alternative to a trial in court. With arbitration you have more control over the process which costs you less in legal fees. If you have a trial, the judge may have to deal with more pressing issues (domestic violence/Temporary Restraining Orders) or preside over uncontested divorces while you all wait in the hall. Additionally if you use the courts it is often difficult for the judge to give you blocks of continuous time so a trial can end up spreading over many court dates. All of this is very costly in legal fees.

Arbitration is also a good idea if there is privately owned business involved and where the owners may be expensing non-business expenses to the business (personal travel/entertainment or cell phone use for example). If this is revealed to the court, the court is required to report this to the IRS which could cause tax issues for the business owner and their spouse who typically would have filed joint tax returns.

You typically should ask for binding arbitration; this is where the Arbitrator’s decision is final and binding for all parties. Going through this process when it is not binding seems like a bit of a waste of time. If it is non-binding, and one party does not like the decision they can just walk away and you have to start all over, likely this time with a trial. If money is not an issue (aka more money than brains) this is a way to see how the case might be tried by a court but the emotional toll will be enormous, even if you have money to burn, so if you use this method, make it binding so you can get on with your life.

Arbitration can be used if there are only a few things that you cannot agree upon; you would mutually agree only to deal with those issues and it could be a fairly quick process.

The level of conflict and the parties’ willingness to reach a settlement will ultimately determine if you end up with mediation or arbitration. Start with mediation and see if you can make that work. You would then move to arbitration if there is no ability to reach agreement. The Arbitration Decision or Opinion can be used as your property settlement agreement and once in hand, and you have a parenting agreement, it is fairly simple to finalize your divorce.

Reducing Your Divorce Legal Bills

I recently worked with a client to assist her in negotiating a settlement of her legal bill for her divorce. Her lawyers were unscrupulous and I have not run into billing practices like this with any other lawyer clients have worked with. They over charged for just about everything; from the amount of time in meetings to telephone calls and even for the billing for the paralegal. My detailed review found over $32,000 of errors on a $90,000 bill!

I do not believe that situations like this are common but I think there are some very basic things you can do to make sure you are paying the correct amount for the services you receive.

Have a conversation with your lawyer and clarify that you will not be charged the standard .1 or .2 of an hour for non-legal work such as an email stating “Got you email I will call you at 4 to discuss”. This is a fair ask in that there is no legal content. Most good lawyers will not charge for this but watch out as the person inputting the billings may just count the number of emails and charge accordingly.

With multiple emails that go back and forth in a few minutes of each other it is also fair to ask to be charged the amount of time rather than the number of emails multiplied by the minimum “correspondence” charge. My client had 4 emails going back and forth and was charged for .8 of an hour at $425 an hour (.2 on an hour per correspondence) even through all  4 emails occurred within 4 minutes.

Also watch your telephone calls and make sure the times match. Get your phone records and sort by the telephone number and check.

Telephone calls and emails are a slippery slope because they happen frequently and usually without much thought as to the cost associated with them. My client was charged $85 for an email to her lawyer “I am here where ru?” sent while she was waiting for her lawyer at the court house. So be careful, and collect your questions until you have a few then send them or make the call.

Another way to manage your legal bill is to be mindful of the interrogatories that are sent to the other side and how yours are responded to. Ask your lawyer how to respond to them (format and length of response) and then do as much of it as you can. If you can type it up, so much the better, as it will be easier for your lawyer to review. Your Case Information Statement (NJ Courts financial disclosure document) is also another area that you can save legal dollars on. Sit with a Divorce Consultant or financial adviser and fill it out yourself.

If you have a high legal bill it may be worth taking a close look to see if your bill is accurate. If your case is ongoing and you suspect errors do this now as it will be easier to negotiate and potentially change billing practices if there is still future work to be done. Once you find errors, provide your evidence to your lawyer and ask for a reduction in the bill. If they do not agree to the reductions you can go to attorney fee arbitration rather than take them to court but I hope it does not come to that.