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.

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.

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.

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.

Banks and brokerage houses maintain records for several years. If statements mysteriously disappear from your records drawer, you can always get them from the bank or brokerage house. Oftentimes their records will go back for years on computerized record storage. There may be a charge for researching and copying these records, so ask in advance how much it will cost. If  mysterious stock and bond (or other asset-type) statements arrive in the mail that you do not understand, photocopy them.

Tax returns

 Copies of your tax returns should be available from your accountant, or you can get them directly from the IRS by sending a copy of IRS form 4506 with a check for $23.00 per tax return to the address listed on the form (where you send your request depends on your state of residence). You can also access the IRS online at:   http://www.irs.ustreas.gov/prod/cover.html

Registrations and official records

The Secretary of State maintains records of corporations and partnership registrations. Professional associations keep track of all professional licenses, and court clerks’ offices keep a registry of lawsuits. Every car, boat, house trailer, and camper has a title and registration. In the case of a car, house trailer, or camper, the title is registered with the department of motor vehicles. Boats are registered with the Coast Guard.

Houses and condominiums are registered with the town clerk in the town hall in the city in which the property is located. The town clerk’s office, assessor, or tax collector maintains these deeds. You can request a certified copy of a deed at the recorder’s office. Sometimes they will honor these requests via mail. The copying fee is nominal.

Almost every kind of asset has some sort of ownership record. You can search each source directly, and the internet is also a useful resource. An example of a comprehensive internet site which permits you to search various record databases is but as the worldwide web grows, new sites become available every day.

Pension, profit sharing, and 401k and stock option records

Pension, profit sharing, 401k and stock option records can be accessed through the providing entity. Typically, this is an employer or brokerage firm. If you do not know who that entity is for your spouse, you can find out using interrogatories or a deposition, but in most cases, a simple request from your spouse’s attorney should suffice.

Make sure you are informed about how to build your case. 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.

Finding Your Spouse’s Hidden Assets

Irrespective of the risk, hiding assets is not an infrequent event. Fortunately, finding most hidden assets is reasonably easy. It’s just a matter of being thorough and persistent. Almost every source of income and asset has a paper trail, or some other evidence of its existence. Private investigators now have databases to search even off-shore bank accounts and stock holdings. You have access to a great deal of personal information about your spouse, so if you have the incentive and time to spend doing a little detective work on your own, you can save a bundle on private detective fees.

Income

All wages and income which have been paid by an employer are required to be reported to employees and the IRS via W-2 and 1099 forms. Therefore, the employer will have records of wage information, which will also appear on tax returns.

Sometimes people are paid “under the table” or “off the books”. This kind of wage money is harder to trace, because such practices are illegal, and hence secretive. Employers who practice this illegal bookkeeping will be unlikely to cooperate in requests to provide accurate wage information. Unless you think there is much money of this type involved, it may not be worth tracking down since it will be so difficult, and therefore costly, to prove.

Many clients claim that their spouse is not disclosing all of his or her income to the IRS, or to the court. One scenario is a self-employed spouse who does not declare all of  the income to his or her business on a tax return. This scenario is frequent among waitresses, who receive large portions of income in tips. In these instances, the tax return will not tell the whole story, and you may need to search out hidden assets.

The first place to start is with your lifestyle. If you are going on lavish vacations, eating at expensive restaurants, and driving expensive cars, consider how much money these things cost. The $30,000.00 that your spouse is claiming as the income from the florist shop is not sufficient to support the lifestyle you are describing to your attorney. The more details you can put together about your lifestyle situation, the more helpful you can be to your attorney. How much does the car cost every month?  How much did your last vacation cost?  Or, at least how long were you gone and where did you go?  Does your spouse keep cash around the house?  Does there always seem to be money for what your spouse wants to do?  These are all clues as to actual income, as opposed to what may be reflected on a tax return.

An even more obvious way is to look through your checkbook register. If your spouse is claiming $30,000.00 in income, but $60,000.00 goes through your checking account every year, that is the first and most obvious evidence. You may also take a peek in your safety deposit box, under mattresses, and in the sock drawer. Your spouse may even admit to you about extra cash, and brag about undeclared income. If your spouse does this, be sure to take notes! Educate yourself and be aware of your rights. 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.

Proceed with discovery in logical order. Start early enough to have time to do discovery step by step. Start with a subpoena or interrogatories. See if you uncover anything suspicious which is worth investigating further. If so, then take the next step to find hidden income or assets. Occasionally, some cases warrant a full-blown investigation but those cases are rare. On the other hand, if you skimp on your discovery, you may feel like you did not get a fair shake, and that is a decision you will be living with for the rest of your life.

Sometimes, your financial picture is more complicated than simply reviewing tax returns and bank records. Perhaps the most confusing of these more complicated issues is finding hidden income.

Avoid falling into unnecessary fear and anxiety by knowing as much as you can about how divorce works. For articles, plans and checklists see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.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.

Putting the Evidence Together

No matter how amicable your divorce, it’s still important to assemble financial documents as soon, and as thoroughly, as possible. The pre-trial waiting period is a final chance to collect the information you will require to complete your divorce. Although it’s tempting to procrastinate, in order to maximize your chances of settling your case,  you’ll need to have all of the necessary information assembled. Once you know what information you can assemble on your own, you and your lawyer will have a better idea of what documents you’ll need to get from other sources. In the event that your divorce turns adversarial, you’ll also be able to start thinking about evidence which comes from information that you can’t find in documents, such as testimony, photographs, and physical evidence.

Some of the necessary information may need to come from your spouse. His or her year-to-date earnings, pension statements, or individual bank accounts are some examples of documents that your spouse will have to provide, since you won’t typically have access to them.

The simplest way for you and your lawyer to get these documents is to make a list of what you need and to ask for them. If you and your spouse (and any attorneys involved) are cooperative, the information exchange occurs smoothly and quickly. This is the simplest, cheapest way to accomplish necessary financial disclosures. When you cannot obtain the information that you need, you will need to utilize legal procedures known as “discovery”. For articles, plans and checklists, see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.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.

Reduced Circumstances: Although some people may be disappointed over the reduction in lifestyle thanks to a layoff or change of interest rate, consider how dividing up a household doesn’t reduce costs.  Getting divorced will now mean that, however you and your spouse are dividing assets and responsibilities, you’re supporting two households on the same income that used to support one.  Even if you have a peaceful and inexpensive divorce, it definitely does not improve reduced resources.

It might be that problem is that you were unhappy and unfulfilled in the marriage, but you stayed because of the money.  Sometimes it’s easier to Spackle over problems with money than to address them.  You might be thinking “I want to leave this marriage” and then balked at the tumult of taking the kids out of private school, foregoing that trip to Hawaii each year, and downsizing your car.  If reduced circumstances have already stripped those things away, maybe you’ve just cleared the path to divorce.

In that case, more financial security created the problem by being a motivator for staying in an unhappy marriage, and losing those ties helped reveal the real issues.

Your Mistakes:  The mistake is really that you didn’t have the difficult conversations early. I can’t tell you the number of people who come in who have railed through their home equity line of credit because they didn’t have the heart to tell their spouse to stop shopping at Fred Segal.  But the discussion doesn’t revolve around the details.  It needs to be a dialogue that you are both engaged in.  “I want to share with you the home equity line of credit statement (or charge cards, etc).  I am concerned that we are over spending.  What do you think we should do?”  Have the conversation as a series of “I” statements (as opposed to “you should”) and a question to open up the discussion.

The other big fight we see is “We agreed you would go back to work after the kids went to school and then you never did.”

To turn the conversation around, the approach is similar to the discussion above:  “I am concerned that you’re not looking for a job when we agreed you’d go back to work when the kids were in school full time. What’s holding you back?”  If it’s that the spouse has changed his/her mind, then involve him or her in the budgeting process.  The loss of a second income will have an impact on the family.  How can each partner take responsibility for that?

Too many people just let it ride, and four years later end up in our office feeling like they’ve been let down by the spouse who didn’t go back to work or curb spending. They realized too late that the real problem was that both people weren’t involved in making an active decision.

Your Children:  While they may have started out as a surprise, their turning 18 and applying to college is not.  Have the conversations about college early and often.  And not just with your spouse, with the semi-adult children, too.  A drastic change in circumstances is something an 18 year old is able to understand.  But “we blew our wad on your siblings and didn’t plan for you” is sure to land him on a therapist’s couch.

Read more tips on dealing with finances in your relationship here: http://estestherapy.com/relationshiptips/2008/04/30/financial-stressors-keeping-your-relationship-strong-in-a-recession/, and to find out more about sharing college costs with your ex, go here: http://www.kiplinger.com/columns/drt/archive/2004/dt040826.html.

Many clients feel that they must explain the reasons they want a divorce to their spouse, and this explanation includes a list of past sins. Confessing mistakes and shortcomings often makes people feel better (e.g., less guilty), and it can help them forgive themselves for their perceived failures in the marriage. This confession temptation bites early, but can continue throughout the case. By and large, the most popular sin confession is an affair.

Although admitting an affair may help you to feel less guilt, beware that it may be used against you in your divorce. It can be considered by most courts in dividing assets and determining spousal maintenance. Worse, it can add fuel to your spouse’s already burning fire of hurt, rage, and revenge. Discussing an affair with your spouse can have many beneficial psychological outcomes, but your motivations and timing should be considered carefully.

If you’re involved in an affair or other intimate-type relationship when you decide to divorce, put the relationship on hold until your case is finished. If the person with whom you’re involved cares about you, he or she can wait until your divorce is finalized to continue your relationship. It is not worth having an illicit relationship become part of your case. The court process also can put undue pressure on a relationship that might feel healthier and serve you better if timed appropriately. For another good article on how “fault” can impact the division of marital assets, see http://www.divorcenet.com/states/rhode_island/no_fault_divorce_in_ri. Terrific information on Equitable Distribution and Community Property Laws is also provided at   

https://ritdml.rit.edu/dspace/bitstream/1850/927/4/Chapter-17.pdf.

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.