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January 25th, 2010Personal Assessment
January 25th, 2010Have I exhausted all of the reasonable, productive alternatives for determining the total amount of our assets and income? Have I done my research thoroughly, so that I have a valid understanding of our financial situation. If I do a thorough job of investigation and reviewing the available information, I will feel confident to choose a settlement offer that is acceptable. Taking responsibility for my own protection through educating myself is a positive step toward my future financial independence.
Have I exhausted all available mediation and settlement opportunities? I am confident that I can protect my own financial and economic well-being through my ability to evaluate settlement opportunities carefully, even when my feelings are hurt or I long for revenge.
Have I acknowledged my share of what went wrong in the marriage, even if I feel it’s mostly my spouse’s actions which have caused us to divorce? Being able to recognize that each of us has contributed to the situation will help me to have a balanced perspective for settlement.
Have I made the right choices for myself in terms of advisors, goals toward economic self-sufficiency, and emotional independence? Resolving these issues and learning to separate before the divorce is finalized will help me negotiate a fair resolution based on facts, not feelings.
Have I honestly evaluated whether the proposals which have been made are reasonable? If I do not believe them to be reasonable, do they provide for me sufficiently so that I am able to accomplish most of my goals? Learning to accept a settlement which is imperfect may be the best way to resolve my divorce in the long run, even if it is disappointing in the short term. For more information, see our resource center at http://www.peace-talks.com/resources.php. Online support is available at http://www.divorce360.com/.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
Effecting a Settlement
January 19th, 2010As you are headed for trial, take a final breath and ask yourself whether you have done all you can to avoid the continuation of conflict. By now, if you are still disputing a settlement, you have probably decided that it is really your spouse who does not want to settle, and he/she is doing everything possible to prevent your getting your fair share. True or not, you still have the power to end the dispute. One can always turn the other cheek in a fight. Even in war, it takes two to tango. The 60’s slogan is apropos here: What if they had a war and nobody came?
Taking stock of your situation one final time, and determining whether settlement is possible, evaluate…
- Am I still consumed with hurt and rage that I wish to visit on my ex-spouse?
- Do I still want him or her to come to his senses and call the whole thing off?
- Have I acknowledged my share of what went wrong in the marriage, even if my spouse had the affair or became the alcoholic? What did I do, or what did I overlook?
- Am I ready to become more self-sufficient economically? If I have small children, do I have a reasonable plan for how I can be with them as much as I need to and participate in the family money making as soon as I am able?
- Do I have a lawyer who advises me to make compromises, to keep my family interests at the center of the divorce, and to settle issues whenever possible? Or do I have a lawyer who encourages me openly or indirectly to fight?
- Do I need to keep fighting or do I and my children have the basis for a healthy post-divorce life? Maybe my ex-spouse will see the children more than I want him to, but will that really harm my child, or will it be an irritation he or she will have to stand up to when at an appropriate age to do so?
- Am I acting out of fear of the unknown; are my fears rational or irrational?
- Have I worked out ways of separating from my spouse physically and psychologically? Do we have plans that limit contact to the extent I feel comfortable; could limiting contact further help us reach settlement?
- If we’re stuck on economic issues, is there another way to look at the issue? Could we make an interim agreement that has a definite endpoint that will give us both time to adjust? Maybe it is less fair for one of us for 5 years, and then tips the other way. Maybe our negotiations leave things too open-ended for too long.
- Are we communicating in a way that serves the divorce rather than conflict? Am I badgering him? Is she provoking me? Could we get help communicating rather than negotiating?
- Am I still focused on the past? What could I do to look more happily toward the future? How will the settlement proposals support my goals for the future?
- Do I have proposals on the table that I can live with? Are they really impossible or are they unfair? If unfair, how much fairer would they need to be before I can live with them?
After answering these questions, you will have a sense of whether you are ready to settle or in what areas you need to do more work. Your inability to find an acceptable settlement could be personal, or it could be between partners, or it might require more assurances where your children are concerned. In this imperfect world, weigh the value of stretching out the divorce versus living with this amount of imperfection. If you are satisfied that you have not settled your divorce for solid reasons — that you or your child’s safety, mental health, or economic stability are at issue — then you need to switch into the mind set of preparing for trial.
For a terrific video describing the Seven Keys to Resolving Family Conflict, see http://www.youtube.com/watch?v=xYBx–zUtlo. For additional tips on how to diffuse an argument before it gets out of hand see http://singleparents.about.com/od/successfulcoparenting/ tp/stop_arguing_with_your_ex.htm.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
When You Can’t Avoid a Trial
January 15th, 2010If you know your settlement priorities, and you simply can’t abide by the most recent negotiations and offers that are on the table, then a trial is your remaining option. Inappropriate or non-existent settlement offers are legitimate reasons to try your case. However, needing to tell your story, or seeking justice, or revenge on your spouse by venting every perceived misdeed perpetrated by him or her during your marriage are not legitimate reasons.
Sometimes clients and lawyers are not on the same wavelength concerning what will be important at a trial. While the client may be feeling a great deal of stress, grief, loss and anger over the situation, the lawyer views this essentially as a business deal. The lawyer needs to view it that way — that’s why you are paying him/her: for expertise, experience, and objectivity.
While for the divorcing parties a trial is both an economic and psychological decision, understand that judges are mostly concerned with providing a reasonably fair allocation of income and assets based on the laws of your state. They are not concerned with unraveling every transaction between you and your spouse. Fault issues like endless arguments and hurtful words may be at the forefront of your mind, but will seem minor to the judge. Don’t make the decision to try your case on moral grounds alone. This is essentially a business transaction, even if it doesn’t feel that way, and you need to decide how you can finalize your case in the least expensive way possible. Don’t let your emotions get in the way of a good, solid business decision.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
When and Why Should I Go to Trial?
January 11th, 2010Before you even think of preparing for a trial make sure that you have exhausted all mediation and settlement negotiation possibilities. There are two costs in a trial: economic and psychological.
The economics of a trial are clear. Unless you are fighting about more than $15,000, a trial could not possibly make any economic sense whatsoever. It makes more sense for you and your spouse to keep the money in your family, even if that means paying more money to your spouse than you’d like to pay, rather than to pay more money to the lawyers to prepare for and hold a trial. The amount of trial preparation that goes into a case is enormous, even for the smallest trial. Trials don’t create money, and they don’t give you more hours in a day to spend with your children. The fees you’ll spend for your lawyer, your spouse’s lawyer, expert witness fees, psychologists, and anyone else who has to be paid as part of the process comes out of your joint pocketbook. Although a judge may allocate the fees to one or the other to pay, that still leaves less total money to divide up.
To make the fee situation even more expensive than it already is, a lawyer doesn’t want to take a chance of ruining someone’s life by doing a poor job in a trial. Your lawyer will want to make sure you have the best representation possible, for the best chance possible at a favorable outcome. As a result, your lawyer will probably over-prepare. This preparation could end up costing you a small fortune. In the end, you may not feel it was worth it, especially if you settle the case just hours before the trial is scheduled to start.
In psychological terms, it is never worthwhile to go to trial except in the most exigent circumstances. The amount of emotional damage which occurs between two spouses during a trial is immeasurable. Imagine how you will feel after you have said every unfavorable thing you can think of about your spouse, and he or she has said every unfavorable thing that he or she can think of about you. And he or she has probably exaggerated, misinterpreted, or made some things up (at least in your opinion!) about you. Now imagine sitting next to this person at your child’s wedding. Imagine running into him or her at the grocery store. Imagine trying to call a former mutual friend. It won’t be easy to live in the same community after a trial, and it will be even harder to effectively co-parent your children. When you’re thinking about whether to take your case to trial, don’t just count the dollars and cents. You need to consider the emotional aspects as well.
Before you proceed to a trial, make sure that what you are fighting over will matter five years from now. If it will not, then find a way to settle.
Take this time to make sure you have done your research. See http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
How to Use the Pretrial Process
January 4th, 2010If you do not settle at the court ordered settlement conference, you “advance” to the pretrial stage. During the pre-trial process, discuss the pros and cons of all possible outcomes with your lawyer. Your lawyer should be able to give you a worst possible and best possible scenario, and a range of expected outcomes in-between the two extremes. Your lawyer should also be able to tell you where any particular offer on the table falls in this continuum. Understand that your lawyer doesn’t know for certain what would happen at a trial, but any experienced lawyer can give you a decent guess. Once in a while a case will have a factual scenario that is so unusual that it is impossible to predict a range of outcomes.
Sometimes you will have the unhappy choice of the settlement offer being unacceptably low for you to take, but it simply is not worth the economic or emotional toll to go to trial. This will take some tough thinking on your part to determine whether or not you wish to proceed with a trial. While the settlement may not be fair, it may be better than what even a more favorable outcome would be for you after a trial. You need to consider all of the costs: emotional, financial, and legal, before you decide to turn down a settlement offer.
For example, suppose your lawyer thinks that you should receive at least $20,000 from the settlement on the house. The offer on the table is $15,000, but your lawyer estimates that it will cost you $7,000 to try the case, and that if you try the case you should end up with between $17,000 and $25,000. In this scenario it may not make sense to make the additional $7,000 investment, because you would have to come out with more than $22,000 in order to “break even” with the offer that’s on the table. It therefore makes sense to take an offer that seems unfair, but which is ultimately more cost effective.
Sometimes when a scenario like this happens the lawyer is seen as representing the compromise rather than the client. This is always a tough situation for a client and for an attorney. It’s easy for the attorney to see the dollars and cents aspect of the case, but the client may be feeling that the lawyer should be advocating for what’s best for the client. Yet the lawyer is advocating that the client take a settlement that both the lawyer and the client agree is unfair. If you truly don’t think that your lawyer is looking out for your best interests, you need to fire your lawyer and get a different lawyer. If your lawyer feels that you are in a situation that has become a choice between two unfavorable options, your lawyer should be straightforward with you about that.
For a host of free divorce information, see http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
Court Sponsored Settlement Conferences
December 31st, 2009In most jurisdictions, before scheduling a trial, the Court will order a settlement conference. These settlement conferences are the court’s last attempt to help you settle the matter before trial, and they are mandatory. They may be called pre-trials, mediations, special masters sessions, alternative dispute resolutions, or mandatory settlement conferences, and are typically scheduled to last between a half hour and a day.
The Court may or may not furnish a settlement officer. For example, in Connecticut the court furnishes an officer from the Family Relations Office, and if you are unable to settle your case using the Family Relations Office, the court will supply a judge to act as a settlement officer. If you have a contested custody matter, you may also participate in a settlement conference using an attorney-therapist team. In California, volunteer programs through the bar association supply lawyers to assist in settlement conferences. Other states’ programs team a lawyer and mental health professional to make recommendations. Typically, clients don’t participate directly in this process but wait in the hallway to discuss, accept or reject the recommendations made by the officers. You may only have a few minutes to talk with your lawyer about the recommendations before being required to respond. At this stage, if not before, the benefits of private mediations discussed in Chapter 3 become apparent.
You have the option of rejecting recommendations made, but it is often counter-productive to do so when an experienced officer of the court tells you your likely outcomes in the event of a trial.
Once your case has been negotiated and, hopefully, settled, you can ask the court for a date upon which you can do an uncontested divorce hearing where you will present the agreement for the judge to approve. If you do not settle your case at this stage, a trial is scheduled.
If you are not sure where to get started, see http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
Reveal Any Potentially Damaging Secrets to Your Lawyer
December 29th, 2009If you are dating someone, if you have had an affair, if you have had a drug or alcohol problem, or anything else that find be embarrassing, or potentially undermining of your case, tell your lawyer about it. All the discussions with your lawyer are confidential. If you ask your lawyer not to reveal these items to anyone else, your lawyer will not disclose. Even if you feel some facts are unfavorable to you, it is better to put them on the table with your lawyer and deal with them. It would not be possible for your lawyer to address a situation adequately at the time of a trial if he or she the lawyer has not been able to prepare for it.
Consider the following situation: A young woman was trying to get custody of her son who she claimed had been kidnapped by her ex-husband. She seemed very straightforward and earnest, and her lawyer prepared the necessary papers to attempt to get the child back. At the hearing which was held several weeks later, her lawyer learned for the first time under direct examination by the opposing attorney that she was a pornographic movie star–and she’d voluntarily given the child to her ex-husband to care for while she got her life in order. Unfortunately, she had not shared this information in advance. Her lawyer was unable to describe the events in a favorable light. The client took a huge chance that her job and lapse in judgment by giving up the child would not come up in questioning and that if they did, that the judge would not care. As it turned out, the judge was very conservative. He questioned her moral character, and was upset that she had lied to the court about what she did for a living and the circumstances under which the child had ended up with the ex-husband. The judge not only took custody away from her, but he suspended her visitation completely pending further investigation by the court.
Not all hearings are quite so dramatic, but it’s better that your lawyer knows about a situation which you may find potentially embarrassing in advance.
For a good article on communicating with your lawyer, see http://www.aaml.org/go/library/publications/divorce-manual-a-client-handbook/divorce-manual-7-lawyerclient-communication/. Also, be as prepared as possible with the information you will need to share. See the articles, plans and checklist available at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
Personal and Fault Issues
December 23rd, 2009Suspicion about money hiding sometimes carries over into suspicions about other aspects of your spouse’s behavior. Unlike finances, proving fault issues, or dishonesty in the relationship, may not have concrete implications for the divorce. It may confirm or cause you to re-evaluate your opinion of your spouse, but conducting illicit searches can be emotionally satisfying, yet only minimally productive, legally. Consider carefully whether you really need to know what you are trying to learn about your spouse. If you decide to proceed with an investigation, personally or through a private detective, remember that lying down with dogs can give you fleas. Besides, fault is typically of secondary importance to the court. Spending money on a private investigator to establish fault issues is usually a poor investment. If you must proceed, here are some tips.
If you think that your spouse is having an affair, or has a secret business partner, the first place to look is your old phone bills. Are there numbers you don’t recognize? You can determine to whom the phone numbers belong through an internet search. One such website is located at: http://www.infospace.com.
If you feel that it is absolutely necessary, you can follow your spouse in the car, call at odd times at work, or ask your friends to help you out. Obviously, do not attempt such tracking if you think your spouse could become violent. Consider the ramifications in any case, because if you are wrong and your spouse finds out what you are doing, trust is gone and you will be on the defensive. If you or your attorney feel that you need to accumulate this evidence, however, consider doing the sleuthing yourself. You may be able to see with your own eyes what you would pay a hefty fee to a private detective to see. Obviously, don’t do anything illegal or dangerous.
When should I think about hiring a professional detective?
When your financial picture or personal situation is complicated, ( i.e., you know that your spouse makes a great deal of money but you have no savings to show for it, or a large bank account has “disappeared” and you can’t find any evidence of where the money went using the techniques outlined above), you may want to hire a private detective or asset searcher who can run a computer check on your spouse’s social security number, name and date of birth to determine if he or she has bank accounts in this country or abroad. Such procedures are expensive, however, costing upwards of $750.00 for each search. Searching for any amount under $5,000 is probably not worth it. The bottom line should be whether uncovering additional money is critical to your standard of living, rather than satisfying a psychological determination to trap your spouse.
There is no substitute for talking with your own lawyer and making an informed decision about how to proceed. If you are not sure where to get started, see http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
More Places to Look for Hidden Assets
December 21st, 2009Social Security
Social security records can be accessed through your local social security office. Social security is often stubborn about releasing records and honoring subpoenas, so if you need such records, get started on this project early!
Credit reports
Your spouse’s credit report is a great source of information. Oftentimes it will contain addresses given by your spouse, employment and wage information in addition to open or available credit, as well as credit-worthiness. You will need either a signed authorization from your spouse or a subpoena to get a copy of your spouse’s report, since this information is confidential. To obtain a copy if your spouse is uncooperative, you or your lawyer can file a motion requesting authorization, but you will need to prove to the court why it would be useful for your case. For example, if your spouse is claiming that he or she cannot refinance the house because of bad credit, then he or she can be required to prove that this claim is true by providing a copy of a credit report. Your spouse may have given another address as part of a credit application. This address will show up on the credit report.
Loan and credit applications
Most people present themselves in the most favorable light possible when applying for loans, mortgages, and credit cards. If you believe your spouse has not been truthful about his or her income, get a copy of a recent loan application and compare what your spouse now reports as earnings with the loan application. This information is typically provided with a statement that the information given on the loan is true and correct, and sometimes it’s even provided under oath, such as for a mortgage application. This information can be used to establish your spouse’s income at trial if he or she is not being honest about his or her earnings. It can also be used to challenge his or her credibility if the credit application states one amount, and the financial statement submitted by your spouse to the court states another amount.
Financial institutions typically keep copies of loan applications for several years. The more recent the loan application, the greater the likelihood that the institution from whom you are seeking information has a copy of the application. You will need a signed authorization from your spouse or a subpoena to get this information, as it is confidential.
The more informed you are, the less fearful you will be. There is a lot of free information at http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
