STOP, LOOK, AND LISTEN
A guide to preparing for the divorce
I never started out to be a divorce attorney. It just happened. After years as a tax, corporate and business attorney who actually tried cases, my practice drifted into “family law”. It is the most difficult and complex area of law because you are not only practicing “divorce and family law” but you have to understand everything from Real Estate, Corporate, Business, Commercial and Tax and trial law. After 42 years of this practice, I am not sure how to spell “divorce attorney”, but I know that I am one. This paper is one of several that I am writing and the first in the series of “what does this all mean”
- STOP LOOK AND LISTEN. The lessons that you should have learned before the Divorce.
- THE ANATOMY OF DIVORCE LAW: The basic legal issues in every divorce case
- THE PROCESS: from initial meeting to entry of Judgment. What happens, when and how long is it going to take.
- A WORD ABOUT ABUSE, DOMESTIC VIOLENCE, ORDERS OF PROTECTION & BOTH ANGER MANAGEMENT AND COUNSELING. . .. (and who in their right mind thinks that “joint parenting” will work under these circumstances or even under any circumstances
Most of you have learned basic lessons in life before you grew up and perhaps the most important was “stop, look, and listen” which seems to be the operative three words of advice that I can give you before you take the journey down the long road that begins with a marriage and ends with a divorce. When it has become painfully obvious that the marriage is over, the first bit of advice that I can give you is “STOP”.
- STOP talking and start listening.
- STOP making stupid financial mistakes
- STOP the abuse . . . that’s not something that anyone should tolerate.
- STOP assuming that all you need to do is hire the “right” lawyer and your problems are over.
FROM THE POINT OF VIEW OF THE SPOUSE WITH LESSER FINANCIAL EARNING ABILITY (AND THAT IS TYPICALLY THE HOUSEWIFE).
v STOP TALKING about your complaints is much like the boxer who discusses his strategy (i.e.: two left jabs and then a right punch to the jaw). You need a plan, you don’t need a “broadcast” Stop discussing the problem and prepare.
v LOOK: If you don’t read every incoming piece of mail your spouse has, at least look at the envelope and keep track of who is sending statements or accountings each month. I can’t tell you the number of times we have discovered assets in places other than the bank statement that you receive by simply looking at the other mail coming in. The statements may be going to the office (or in very clever cases, to a post office box) but the advertising comes to the home. It’s not hard to figure out that something is going on at the First National Bank, when it sends a statement every month and your Spouse is writing the household checks from 3rd 5th Bank. Brokerage statements come monthly (although sometimes strictly on the net) but those account executives still cannot resist some mail advertising. LOOK and make notes.
v If you are the income earning spouse and there are children, you need to understand the economics of child support. You will have your spouse (his/her attorney) looking at your pay check to determine net income. Net Income is what you get after deducting taxes, but adds back in your 401(k or credit union payment. Sounds reasonable. Two kids, 28% of your net. For example: you gross 2,000 per week with taxes (federal, state, Medicare, & FICA) of $700, and a $400 contribution to the 401K. Result, child support of 28% of $1,300.00 a total of $368.00. You have paid your share and the rest is yours. What about that $400 you’ve put in your 401k, its marital property and you will be giving your spouse at least 200.00 of it (50%) Now you have paid 364 in child support and lost 200 of your 401 k. That’s 564 from your 1300 take home pay (which leaves you $736) and we have not yet begun to cover spousal support (alimony) and that pesky attorney fee that your spouse never paid. STOP making a contribution to your 401k, pension, credit union saving or anything else. It just “feeding the enemy”
v And now for my favorite subject “legal fees” As you all may have heard, this is how I earn my living! Lincoln said, “All I have is my time to sell” Lawyers take post graduate courses on how to collect fees. The good news is that in the not so distant past, your courts and the legislature have stopped the feeding frenzy and fees are “supposed to be” some relation to the time spent and difficulty of the case that determines “legal fees”. Retainers are “deposits” not signing bonuses and lawyers must account. That said, remember the lawyers time is not only spent in his office with you in conference, or in court, but also in drafting documents, research (yes every case has something unusual that requires some reading that you must pay for), but also reading your emails, letters, faxes, and the correspondence from the other side. Reviewing the documents and preparing for hearings, meetings, etc. You may think that every time you get an idea or question in your head, you must call and he or she must answer the phone. Consider this, your call causes him to interrupt what he is doing (don’t believe that you are the most important case in the office); he must stop, remember your facts, that nasty spouse who is hiding money, the children’s special needs, and how he must communicate with you. Then you ask and he answers (or thinks about how to best answer your inquiry) finishes the conversation and then spends a minute or more to make a note in the file (that he needs to spend another couple of minutes finding). That call gets you a charge of a quarter of an hour and that is reasonable. Wouldn’t it be better if you made same notes, listed out your questions and made a call or better, sent an email with more than asking the question, “what’s new in my case”?; If you are simply wondering when the next court date is or where the court is located, what time etc. or do I need to be there, ask his receptionist to get the info and call you back (generally there is no charge, and that is what he/she is paid for)
v Speaking of retainers . . . . We have “leveling the playing field” or the Illinois version of the “Attorney Relief Act”. The theory is that the working spouse can afford to hire the most expensive attorney leaving the lesser working spouse to go to Legal Aid. It’s not fair and thus we “level the playing field” your attorney is entitled to a retainer as great as your spouses (or your spouses attorney can simply give one half of his retainer to your lawyer). The second option is known as the “dirty little secret” because I can’t remember any opposing attorney calling me to offer me one half of his fees. Balance this with the feeling that your attorney should not have to “beg” your spouse (and his attorney) for fees. A very famous man, 2000 years ago said “I can only serve one master” and I am sure that if he was an attorney, he was very reluctant to call his opposing attorney to ask for fees. Buckle your belt, pay a reasonable retainer to your attorney. . . he or she will work harder with your money in his account; and he will catch up on fees later since the fees seem to always come out of the “marital estate”, but that’s the subject of another speech.
v EMAILS AND FAXING. If you have an attorney who does not have email, you’re as dumb as he or she! If you are receiving notes that are dictated to a secretary, or worse, written by the attorney, you are going to be paying dearly. With the advent of the fax machine and later email, clients assume that you are waiting at the machine, with nothing to do but to read their “missiles” That is a problem that every attorney faces. We try to educate our clients; this is a way to get to us with information or to ask questions, but not to abuse us. STOP using the same password or account that your spouse and you got when the computer was something to amuse you and write your friends. You need a complete computer and fax as a confidential method of sending and receiving (yes I said “receiving” correspondence), copies of opposing attorneys letters and pleadings, and copies of things that are being sent to the other side.” Another word, you need your lawyer to keep you informed, and copies of emails, correspondence, etc. are the best way to learn what is “going on”. Recognize that some emails or correspondence are simply “cc to client” “FYI” and don’t require a long phone call, urgent message etc. This is the fastest way to break down that smooth line of communication and you and your attorney should employ.
v STOP using your employer’s, friends, child’s email or computer. Grow up, get into this century and get a computer of your own. Don’t depend on your spouse to set it up or you will lose all tactically advantage.
v STOP showing up at every status call. Judges are reaching a point where they want cases to move along and set up status calls on a regular call. A status call is generally a one minute opportunity for the attorneys to appear before the judge and report what’s going on. Even more important, it gives your attorney a chance to “stay on” with his or her counterpart. It’s the excuse to talk settlement (or at least agree on what they disagree about). Divorce cases are complex and no mater how simple you think they are, multiple issues arise (this is probably the subject of another paper). It always helpful for the attorneys to know what issues are agreed, disagreed and impossible to settle. Sometimes, in looking for agreed items, the disagreed become so identified that they can be isolated, compromised and the economic impact of “over lawyering” can be diminished.
v LISTEN: It’s hard to get clients to really listen without interrupting when the adverse spouse or his/her attorney is explaining their position. You may have “all the answers”.
v LOOK: When was the last time that you really looked at a tax return? It’s not the first page that is interesting, it’s the items that make up income and more important the deductions. You will probably see your tax return for the last time on the day before you announce (or the summons announces for you) that the marriage is over. If you have already copied the tax returns, house papers, bank statements, brokerage accounts etc. before your spouse makes them disappear, think of how much money you will save in the discovery process.
v LOOK: If you signed a prenuptial, where is it and just what does it say? Does it exclude temporary alimony and legal fees or simply advance them against the settlement and make them your responsibility. Many agreements have “sun down provisions”. These provide that the limitations on divisions of property or alimony will expire in “so many years”. . . . When? This document will be read by your spouse’s attorney, why not has a copy for your attorney.
v LOOK: One more word . . . . If you don’t want to waste time with subpoenas for documents, legal fees that eventually diminish the “marital estate” which means wastes “your money”, get copies of all documents BEFORE you announce the divorce. Any lawyer with a word processor or secretary will tell you that he or she can get that document with a subpoena . . . . Ask about the time charges for preparation and enforcement of a subpoena to get a tax return that you could have copied before the spouse new what was happening. Another word of advice “lawyers lose documents” you can always give the lawyer a copy of a document and keep the original until the time “he really needs it”. I don’t want the responsibility of original documents in the files . There are too many times the files are used, left untended or worse, lost. .
v Finally, you need to have a wish list of what you want. This is not rocket science and you know that if there are kids you want to establish custody and visitation (my feelings about “joint visitation” are the subject of another paper).
v If there are kids, they:
- Must have shelter and food etc. This by necessity means someone is paying support for the children, medical, dental etc., educational, and insurance expenses.
- If both spouses are not earning the same amounts of income, we need to figure how the lesser income spouse if going to make it. Please don’t tell me that public aid is the solution. . . . you married him/her and take responsibility
HERE IS THE SUMMARY: These are relative simple ideas and now you see that you should have some idea what you want at the very beginning. Your attorney will tell you your rights and obligations, but don’t fall for the “cop out” that you don’t have any idea of what you want. Give yourself a break and think about what you want (and convey this information to the attorney at the first meeting) then ask him/her if you are being reasonable (note I am not using the word “fair” because nothing is ever fair). You need to be prepared before you decide to hire the attorney. Gather the documents, look for the information, understand what has been going on, and get a good idea of how you want the litigation to end (what are your goals). Then you can hire the attorney who can best serve you because you have done your homework and understand your own case. So, STOP, LOOK, LISTEN, pretend you’re a kid, your parent’s advice was not so wrong after all!