Common Concerns

We will do everything possible to structure your case so that you may obtain the best legal result. Punishing your spouse or winning an all-out, no holds-barred victory, however, is an unrealistic and unattainable goal. Your attorney's job is to represent your best interests and to achieve the best resolution for you. His job is not to serve as your avenger. He cannot give you retribution for the sins of your spouse. If you enter this process expecting revenge and retribution, you will be sorely disappointed and unhappy with your attorney, yourself, and the outcome of your case, no matter how favorable that outcome may be to you. Before beginning the attorney/client relationship, you should make every effort to put your priorities in order and realize that there are some things the legal system cannot provide.

Most people share the same fears, questions, and beliefs about divorce. Following are some of the most common of these fears, questions and beliefs.

  • Emotions

    In a domestic dispute, negative emotions such as hostility, anger, and revenge can needlessly delay a resolution and increase the cost.  Perspective and objectivity, on the other hand, can promote a conclusion and reduce the cost.

    Many factors may be involved in the breakup of your marriage, and you may feel indignation, anger, and resentment toward your spouse.  You may want to punish your spouse by making the process difficult and time-consuming.  This type thinking usually results in a no-win situation for everyone concerned.  If both spouses maintain perspective and a realistic idea of a reasonable and equitable outcome, less money will be spent in legal fees; in an equitable distribution case, this results in more money distributed to the parties.

    One of the key factors in settling a divorce is both parties’ desire and ability to set aside differences and past hurts.  Attorneys often hear, ” It’s a matter of principle. I won’t compromise on this.” There have been cases in which a fair and equitable resolution was reached, but both parties were at an impasse regarding some minor issue such as the distribution of an inexpensive item of marital property. As a result, they spent thousands of additional dollars in legal fees on who would get the lava lamp!

    The ability of the parties to control their emotions and keep matters in proper perspective is especially important in cases involving minor children.  Much has been written about the effect of divorce on children and it is all too true that the children are the true victims of divorce.  It is also true that parents involved in divorce too frequently use the children as the “battlefield.”  Why?  Because nothing is more dear to us than our children and nothing can get to us quicker than matters involving our children.   You and your spouse both love your children and each of you wants what you believe is best for them, although you may have differences as what that may be.  The children love each of you and they are upset, frightened, and possibly angry by the breakup of your marriage.  Children frequently blame themselves for the breakup of their parents’ marriage.  Don’t add to your child’s pain by using him/her to punish your spouse.  Accept the fact that your spouse has rights as a parent.  Accept that, except in cases of serious abuse, it is always best for the children for them to maintain frequent regular contact with both parents.   If necessary, provide counseling for your children to help them deal with the effects of the divorce.

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  • Costs

    Just as it is impossible to predict exactly how long your case will take, it is difficult to realistically estimate the total cost of your litigation, even when your attorney knows the issues that will be contested and the strength of the parties’ feelings. If you and/or your spouse has completely lost trust in the other, want complete discovery on all issues, and desire to argue many issues to the bitter end, the process will be long, drawn out and expensive.

    Going to trial is always more expensive than settling.

    Be aware that you will pay for your case in three ways – with your time, your emotions, and your money:

    • Time: You will have to spend time preparing your lawsuit. Your attorney will prepare your case, but this can only be done with your help. Your full cooperation is absolutely critical to your case.

      Attorneys bill for their time and advice. If you can do some of the groundwork, your money can be used more efficiently. If you are not prepared to spend time on your case, the outcome may not be as satisfactory or cost-efficient as it might have been.

    • Emotions: A domestic dispute is one of life’s most painful experiences. Your emotions will likely be on a roller coaster. In most cases, both parties do not want to end the relationship to the same degree, and one person has been more emotionally hurt than the other. That is one reason to consider counseling as you go through the process of divorce and resolving the myriad issues involved, legal and otherwise.

      The more issues to be resolved, the more painful the process. It is not unusual for one party to raise issues simply as a way of prolonging the matter or punishing a spouse. Be aware of this. If it seems to be happening in your case, your attorney will call it to your attention.

    • Money: Preparing and trying a lawsuit is very expensive. Scrutinize the issues at an early stage and determine which ones can be settled. You do not have to make unreasonable or unnecessary concessions, but you should look carefully at issues that separate you and your spouse. You do have some control and you can make concessions that will resolve your case more quickly and thus reduce your costs. Your attorney will identify issues that are in your best interest to settle. Remember that if you go to court, you loose almost all control of the outcome and an uninterested third party (the judge) will decide your future. You should also consider that if you insist on going to court, you will more than likely not get everything you want.

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  • Length of Time

    Generally speaking, it is impossible to predict exactly how long the case will take. After the case is under way and your attorney understands the issues, he will be better able to gauge the duration. How long it will take depends on the following factors:

    • The number and complexity of contested issues;
    • The attitudes of each of the parties, their attorneys, and their inclination to settle;
    • The court’s calendar. Some hearings can usually be scheduled within 3-6 weeks. A trial on the issue of permanent alimony or equitable distribution may take months to be calendared. You should not undertake litigation thinking that things will go quickly; they will not. If your case involves equitable distribution of the marital estate, your case may continue even after you are divorced. The complexity of the case bears directly on the length of time it takes to prepare and try the issues.
    • The other attorney: your attorney has no control over the schedule or personality of opposing counsel. An extremely busy or uncompromising opposing attorney can prolong the final resolution of your case.

    By far, the most common factors that prolong lawsuits, particularly lawsuits arising from domestic disputes, are the intensity of the parties’ feelings and the degree to which the parties want to fight. It is not unusual for one party to insist that he/she have their “day in court,” and there may be nothing that either your attorney or your spouse’s attorney can do to change that situation.

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  • Practical Matters

    Litigation often spawns more litigation.  To determine whether certain issues are worth litigating, you must weigh the price you will pay with your time, emotions, and money, against the anticipated outcome and its benefit to you.  Again, your attorney will advise you on these matters.

    • Dating prior to the final divorce: Don’t, unless your attorney has specifically advised you that it is okay.  Dating prior to final divorce or the signing of a Separation Agreement could be construed as corroborative evidence that you were most likely dating or committing a similar act of marital misconduct prior to separation.   At best, your dating prior to divorce or the signing of a Separation Agreement may escalate the level of your spouse’s anger thereby making it more difficult for your attorney to resolve your case quickly.  Only your attorney, not you, your family, friends, or acquaintances, is qualified to determine whether you will jeopardize your case by dating after separation and prior to a final divorce.  Not even another attorney can make this determination unless he/she is as fully versed in the facts of your case as is the attorney you have hired to represent you.

    • Money: If you do not have sufficient funds to survive until your case is resolved, including payment of your legal fees, you should advise your attorney at the initial interview.  This is not to say that all your financial problems can be resolved immediately;  however, there may be legal means available to ensure that you are able to survive financially until your case is resolved.

    • Changing Locks, Credit, Moving Out of Town, Whether You Should Work, Etc.: As your case progresses, you may have many questions of a practical nature.  Don’t just assume that your instincts are right!  Ask your attorney before making a decision.  He will advise you to act in such a way that you do not jeopardize or further complicate your case.

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  • Is Your Attorney Tough Enough?

    All too often the client has the attitude that a lawyer who is a “fighter” is a lawyer who refuses to cooperate with opposing counsel, makes demands and gets instant results, goes to court at the drop of a hat, and plays Perry Mason in court. This notion is sadly misguided.

    The time to fight may be during tough negotiations or in court, but not cooperating on routine matters accomplishes only greatly increased attorney fees because it requires both attorneys to do everything the hard way.   Cooperation by the attorneys as well as the parties, particularly during the discovery phase, is always in the best interest of the client.

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  • Attorney Commaraderie

    Attorneys who specialize in Divorce and Family Law will probably try many cases against each other over the years.  They will attend the same professional events and may even work on committees together.  Camaraderie develops naturally over the years.  Just because your attorney and your spouse’s attorney exchange pleasantries, share a joke, or have lunch together, does not mean that they are being disloyal to their clients.  Your attorney is professionally committed to the best result for you given the facts of your case and the law.  Being rude, hostile, or mean to opposing counsel does nothing to further your case and generally harms your case rather than helping.

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  • Your Spouse’s Suggestions

    Unfortunately, client’s commonly believe that an opponent’s suggestions should routinely be rejected because they are either bad ideas or they reflect some ulterior motive. Some clients want to automatically do the opposite of whatever is requested.  A request, suggestion, or offer from the other side is not always bad.  Most attorney’s are not out to “get, trick, or ruin” opposing counsel or their clients.

    Remember, too, that your spouse is most likely paying just as much as you in legal fees, suffering similar emotional pain, and devoting similar amounts of time to the case as you.  Your spouse also wants a resolution. Try to keep things in perspective.

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  • Counseling

    Domestic disputes are emotionally charged.  Clients are encouraged to seek counseling before and during the process.   Counseling can help clients to work through their pain, accept the marriage’s end, learn coping skills, and pick up the pieces of their lives and go forward.

    Don’t wait for your spouse to agree to participate.  Individual counseling can help.  Often children and parents attend counseling together to alleviate the effects of a divorce or custody dispute on the children and to help the family heal emotionally.

    If you don’t know where to begin,  your attorney will recommend qualified counselors.  Your social, religious, and employment contacts also might provide leads.

    When choosing a counselor, be as selective as you were in choosing an attorney. Counselors have different styles and approaches.  Search until you find one with whom you feel comfortable.  At the first meeting, ask about cost.  Find out if your health insurance covers counseling.

    Reassurance from family and friends and legal advice from your attorney will help, but a counselor is trained to address your emotional ups and downs without also being your friend, relative, attorney, etc.

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  • Reconciliation

    Often a potential client visits an attorney to discuss divorce, although they have not yet made the decision to take the big step.  First they want to know their options.  Attorneys typically encourage them to explore alternatives and often suggest how to protect themselves and meet their needs, short of divorce.

    If your attorney raises the issue of reconciliation, he is not questioning or judging your decision, but is clarifying and confirming that you know your options and that you want a divorce.

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  • Get a Will!

    As you begin the divorce process, the first order of business is to review your will.  If you do not have one, get one immediately. Succession laws may conflict with your wishes.

    You may choose to consult David Hillier of this law firm regarding your will, as well as any financial concerns and considerations you may have.

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  • Social Media

    Social Media is a new facet of communication today.  We understand that everyone participates in social media to some degree.  When you are involved in divorce proceedings, or any type of litigation for that matter, a good general practice is to avoid discussing any element of your case, or your spouse, in any social media forum.  All social media is discoverable, and it never goes away.  If you are considering divorce or litigation, be very careful what you say in online forums, including email attached to cloud based social media sites like Facebook, LinkedIn and MySpace.

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  • What is Mediation?

    Mediation is a process in which two or more people involved in a dispute come together voluntarily to try to develop a solution to their problem with the help of a neutral third person (or persons), called the mediator. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions.  The mediator, usually trained in conflict resolution, is there to help the disputants evaluate their goals and options in order to formulate their own solution.   To achieve the fairest results possible, you both take an active part in your divorce and turn what could be a battle for control into a search for mutually beneficial solutions.

     

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  • How Does Mediation Work?

    Mediation can take place over a series of sessions but more often than not, it is scheduled for a continuous amount of time to keep the negotiations going.  Sessions are generally held in the privacy of the mediator’s office or an attorney’s office and begin with all involved signing an agreement that the negotiations will be kept confidential. At the end of a successful mediation, the mediator will prepare a Memorandum or writing expressing the agreements of the parties, at least on the issues which were resolved.  Any formal agreement will be drafted by a lawyer, yours or your spouse’s.

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  • What Should You Expect from the Mediator?

    The mediator’s role is to move the parties beyond personality clashes and historic grievances.  Only then can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations.   Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case or in any other way act as a judge nor does he/she have a fixed result in mind to urge you toward. The mediator is there to facilitate discussion and will attempt to help you express yourself as fully as possible but will not advocate one side over the other.

    The mediator may offer suggestions on possible resolutions or help inform you about the law and the legal consequences of the decisions you make. The mediator will not, however, give you legal advice.   Because legal advice should only come from your attorney, it is important to have independent counsel to advise you about resolving your dispute.

     

     

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  • What are the Benefits of Mediation?

    Mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem. Perhaps more importantly, frequently mediation can save time and money.

    Mediation keeps your options open and reduces issues of conflict.  Although most who begin mediation have a successful conclusion, some do not. If mediation doesn’t work, you can still sue and go to court or engage in arbitration. Because mediation is totally voluntary, if an impasse occurs, one can still  litigate or undertake another dispute resolution process.  But even when mediation is not completely successful, you may resolve some of areas of dispute, reducing the number of issues left to be determined.

    Studies show that mediation can increase compliance.  Many people resent decisions imposed by others with power -legal or not. It is important to consider that court orders are not self-enforcing which means that if one party fails to comply with the terms of a court order, the other party must incur the costs of requesting a court to assist in enforcement.  The goal of mediation is to reach an agreement that everyone can live with after each of you has had a direct role in negotiating the terms along with a chance to clear the air.  Since agreements reached in mediation were brokered and agreed to by both of you, you tend to have both a sense of legal obligation towards the agreements and a psychological sense of commitment because they are your own agreements. It is possible that you will find that you are both more likely to follow through in good faith because the agreements were reached voluntarily.

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