February 2016 Bar Bulletin
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Losing Faith - Tips To Prepare for an Upcoming Divorce

By Brien Galbraith

 

With the holidays behind us, many of us family law attorneys are emerging from the typical slowdown in practice. Meanwhile, many of our potential clients have had grin-and-bear-it holidays, with plans to commence dissolutions in the new year.

While we ramp up from the holiday lull, this provides us with an opportunity to spend more time assisting our clients in planning for their upcoming dissolutions without having to immediately jump into action. Should we find ourselves in a position where we have the luxury of time before litigation becomes necessary, below are a few tips I have found helpful in working with clients to build a strategy toward a more successful outcome and ultimately a more positive attorney-client experience.

Finances

One of the most significant aspects of any divorce is the division of assets and debts. Before litigation begins, and while parties may still have access to accounts, it is helpful for a client to begin the process of gathering documentation of the parties’ incomes and documentation of all property belonging to either or both parties. This should include all bank statements, investment accounts, retirement accounts, real property, personal property, etc.

The same is true with regard to documentation of the parties’ debts. This process can become much more difficult once the dissolution is commenced and battle lines are drawn, so it is good to get started early.

This should by no means take the place of discovery, but it can help put together a preliminary picture of what the parties have to divide. Likewise, it will help the client gain a rudimentary understanding of the property that comprises the marital estate.

At the same time the client is taking stock of their assets and debts, they should consider their own costs of living. It is essential that they take the time to review and gather documentation of all monthly expenses.

Filling out a financial declaration will help to provide a context for these costs. The client will gain an understanding of what it costs to maintain their household and in turn how much money they will require each month. Tallying expenses is helpful in determining a variety of issues, such as whether maintenance will be necessary.

Parenting

Should the parties have children, the client needs to consider the current parenting arrangements and to consider their ideal residential schedule for the children once they are no longer residing with the other party.

I cannot count how many times I have had a client tell me that he or she wants “full custody” of the children. After just a few follow-up questions, I have often found that full custody means something different to nearly everyone.

The client must take into account his or her work schedule and the work schedule of the other party, as well as any other constraints. The process goes much more smoothly once the client determines the residential schedule they actually desire, considering the limitations they face. This will not only assist you in later drafting a proposed parenting plan, but it will also help the client develop more realistic expectations.

Situations in which parties have the luxury of time before commencing the dissolution also allows the client a period of time to rectify certain aspects the court may find undesirable. They should do their best to begin adhering to the residential schedule they will be requesting that the court adopt. The creation of a status quo can be a strong argument in their favor.

Clients also need to be made aware that during the dissolution, their actions will be under a microscope. They need to be aware that any written communications they send to the other party could very realistically end up being read by the court. The same goes for postings on social media.

Post-Separation Relationship

Finally, it is important to learn from the client what he or she sees as their ideal post-separation relationship with their spouse. The client must put his or her answer into words. Not only does this provide you with insight into their goals and expectations, but it also forces the client to articulate their desires and, perhaps for the first time, create a vision of how they expect to interact with their spouse once the process of divorce is commenced.

I find that many people become so focused on getting out of the relationship, or stopping a dissolution from happening at all, that they do not take the time to think about how they will interact with their spouse during and beyond the process of divorce. Many simply think that there is a magical divorce fairy who sweeps in to take care of everything, hands them their final papers and sends them on their way. It is necessary to dispel this misconception immediately.

Parties must decide whether it is possible to maintain an amicable and cooperative relationship with the other party, or if the situation is such that direct communication will not be productive and communication between attorneys and costly litigation will be the only method available. Should they opt for the latter, they must be prepared to accept the consequences.


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