Breaking Bonds, page 15
When you meet with the attorney, find out what his/her fees and hourly rates are, how often you will receive bills, court costs to expect, and what he/she charges for a retainer, which is a deposit against the total cost of the divorce. You will pay for other expenses related to your case, among them appraisals, filing fees, faxes, postage, copies, delivery services, experts, and travel. The attorney should give you an estimate of the total cost in writing and an idea as to whether you will be able to get your spouse to pay for some or all these expenses. Some attorneys will work with you on a payment plan, so be sure to discuss this in the first meeting if you need one.
Read the fee agreement carefully before you sign it and make sure that you completely understand it. You should take it home with you so that you can review it while you are under less stress and can focus your attention on it. The time to ask questions about this contract is before you sign it, not afterward.
The attorney also should tell you how long the divorce will take and what your chances are of getting what you want. Find out how long it takes for him or her to return phone calls and what his/her procedure is to handle emergencies.
You may want to consider interviewing more than one attorney before hiring one. Trust your gut in making your decision and avoid aggressive and egotistical types. If the lawyer you meet is a poor listener, keep looking.
When you first meet with the attorney, bring a brief one- or two-page background of your marriage and family life with you. Include the names, birth dates, and social security numbers of all family members, the date of your marriage, whether any of your children are from a previous marriage, or if any prior marriage ended amicably. This description will be very helpful, even in a no-fault divorce state. No fault divorce is a divorce that is granted without a requirement by the court to show evidence of wrongdoing by either party.
Some states require grounds for divorce. If your state is one of these, bring as much evidence as you can that shows your husband is not a fit husband, including names of witnesses to your husband’s behavior, photographs, and police reports. If your husband has been unfaithful, bring any proof, and testimony from your private investigator, if you hired one. Bring any information that you have about any conviction or sentence of imprisonment.
Take a financial statement with you of all your known assets and liabilities (debts) to your first or second. If you have a prenuptial or postnuptial agreement, bring a copy of that too. Once you decide that the attorney is right for you, give him or her this information. If you do not have a financial statement, do the best you can to make a list of what you own and what you owe. Let your attorney know about the things that you do not know. Bring a copy of your tax returns for the last three to five years and your most recent annual social security statements, if you have them.
If you have limited assets and income, contact your local Legal Aid Society (see Resources) to see if you qualify for free or reduced-fee legal assistance. Read books or research answers to your basic questions about divorce in your state on the internet, so that you don’t need to call your attorney on them. He is going to bill you for his time, so use it wisely.
If your husband is in control of all your money, be sure to tell the attorney up front to make sure that he is willing to work with you and get a judge to order your husband to pay your legal fees. If you need to borrow money from family members to pay your legal fees, it is important to let your attorney know that the money received for that is to be treated as a loan, rather than a gift. Have a written loan agreement with your family, even if you think that the loan may be forgiven after the divorce is final.
Find out at the meeting whether the attorney feels comfortable in serving as your trusted adviser, as opposed to being the decision maker, as you will be living with the consequences. You must be the decider. Some attorneys have big egos and will make unilateral decisions that affect their clients for the rest of their lives.
The attorney for a client of mine was not a good listener and was very insistent that she receive all the retirement assets and give her husband the house. This was most expedient, as it was what her husband wanted.
My client had prepared a budget of what her income would be after the divorce, so she knew that she would not be able to afford to keep the house herself. Her attorney neglected to inform her that the retirement account was all “before tax” money and the state laws in our state do not differentiate between “before tax” and “after tax” assets in the division of assets. There will be more on the topic of taxes in “Stocks, Bonds, and Cash” and “Retirement Protection and Disability.”
My client was in sales, so she had a variable income, and she only had a very small emergency reserve fund. She was under age fifty-nine and a half, so if she had to sell part of the retirement account in an emergency after the divorce, she would have had to pay federal income taxes as well as a 10 percent penalty on the amount withdrawn. She also would not have received enough cash in the settlement to afford to buy a house of her own. While it is true that retirement assets grow faster over time because of tax deferral, the attorney helping my client was disregarding her specific financial needs.
Fortunately, my client stuck up for herself and said that she was unwilling to take more than half of the assets in the retirement account and that she was entitled to receive the cash value of half the equity in the home. She ultimately got what she wanted.
Make a list of questions to bring every time that you meet with your attorney so that you get the answers and advice that you need without having to contact him or her multiple times. Every time that you call costs money, so don’t involve the attorney in every disagreement with your spouse. Only call him or her when there is a crisis or when you need specific advice. You should try to speak to the attorney’s secretary or paralegal first on matters that do not require legal advice. Remember that the paralegal’s time costs money, too.
Follow your attorney’s instructions and give him or her the information that he or she requests promptly. Make sure that it is organized well! Do not use your attorney as your therapist or for small talk, as it will be very costly if you do. If you do not have all the paperwork that you need for the appointment, reschedule the appointment and make getting the necessary documents a priority.
Let your attorney know if you plan to move during or after the divorce. If your state requires a consent form and you are unable to get your former spouse to sign one, your attorney will send a letter with your intentions to move to the court as well as to opposing counsel. If your physical safety is an issue, your attorney will explain that your new address must remain concealed from your abusive ex-husband in the change of address letter filed with the court.
Limit chitchat with your attorney, but do tell him or her about any problems or important issues so that you can deal with these issues up front. It is not necessary or helpful to go into a lot of the details, but be sure to give the important ones. It will be very helpful for you to give some thought to these issues and to write these things down to refer to before the meeting. Be completely truthful about important information, even if the information doesn’t always put you in the best light. You want to avoid having your attorney blindsided later, which may cost you dearly. Remember that the attorney is there to give you counsel, not to judge you.
Be sure to write or stamp “Attorney-Client Privilege” on any documents you give your attorney in a meeting.
Your attorney will file a petition or application for divorce, which lists what you are asking for as the petitioner, or plaintiff, and explains the reasons for the divorce. Your spouse will have an opportunity to respond by having his attorney file an answer or schedule an appearance. The paperwork can be served to you by a process server or by the opposing attorney.
A court date will be set for an initial appearance, and both you and your husband must appear in court at that time. If you are requesting a temporary order regarding an issue such as where the children will live, if child support will be paid and how much, or who will live in the home, that business may also be handled at this time. The lawyers may meet out of court to try to reach a settlement, or the court may suggest that you and your husband go to mediation. In some states, protocol requires a couple to go to mediation before going to court.
Mediation is a way of resolving the dispute between the parties that is facilitated by a neutral third party called the mediator. It increases the control that the parties have over the resolution, rather than having a judge make an arbitrary decision. It is less costly and takes less time than going to trial (see “Mediation”). If you do not settle in mediation, a trial date will be set. You are entitled to your day in court, and it is your legal right to appear before a judge. A trial may be unavoidable if your husband is unreasonable in mediation.
I live in a no-fault divorce state, but in some states, it is possible to argue that fault grounds, such as abuse or adultery, should influence the division of assets and whether alimony is justified. Be sure to ask your attorney about the laws in your local area.
The next step in the legal process, whether you go to court or do mediation, is discovery, a process whereby essential information is gathered to prepare for trial. Early in the process, your attorney will send his attorney interrogatories: a list of questions your attorney wants to be answered about finances, facts, allegations, and evidence. He will also send a request for documents, which may include, but is not limited to, bank and brokerage statements, phone records, deeds, mortgage statements, W2 forms, 1099 forms, and tax returns. Your spouse’s attorney will also send interrogatories and a request for documents to your attorney.
You may need to press your attorney to send these official mailings, especially if he or she is busy with other cases. If your attorney hasn’t told you the mailing date, I would advise you to send an email to your attorney, with a copy to his paralegal, requesting that they send out interrogatories that week or the next, and to notify you of the date afterward. These forms are standard, so be sure to get a very good reason from his paralegal if there is going to be a delay.
A week after the due date, if your husband has not responded, send your attorney’s paralegal an email that your husband is in contempt of court and request that they send the opposing counsel an email that you will be filing a petition for contempt very soon if you don’t receive a response within days. Answer the interrogatories that you receive as soon as possible. Prompt response will help move the divorce process along. In my state, the opposing party has sixty days to respond to an official request.
There will be a lot of paperwork that your attorney will have you sign, and you will have to swear that the facts in those documents are true. Be sure to read each document very carefully and double-check it for accuracy before signing. Make sure that the numbers in the financial statements are correct and that everything you know about is included. Let your attorney know of any inaccuracies, untruths, or misstatements you see in your husband’s documents as well.
It should be possible to get a divorce within a year of filing, but this may not happen unless you press the issue. After the interrogatories and requests for documents have been answered, give your attorney a list of some reasonable dates with the instruction to get the date set for mediation and trial.
Be prepared for depositions, sworn testimony given in the attorney’s office and transcribed by a stenographer. The attorney will ask the opposing party questions to help prepare for trial. When it is your turn to give your sworn testimony, and be questioned by your ex-husband’s attorney, observe the same protocol that you would when going to court (see “Proper Protocol”). Get a good night’s sleep the night before the deposition, and have a coaching session with your attorney beforehand if you are nervous about how you will come across.
If you have a common-law marriage, you will go through the same divorce procedure as if you were officially married. If you haven’t met your state’s requirements for a common-law marriage, you can just separate, as a legal dissolution of marriage is unnecessary. A family court will handle the custody and child support issues and the division of assets will probably occur in small claims court. An attorney can guide you through this process.
Here is a list of things you need to check on when gathering your financial information. A downloadable and printable copy of this list may also be found at www.breakingbonds.com/blog/.
BALANCE SHEET
ASSETS:
Checking accounts
Saving accounts
Credit union accounts
Money markets
Certificates of deposit
Savings bonds
Bond certificates
Stock certificates
Dividend reinvestment plans
Brokerage statements
Individual retirement accounts (IRAs), simplified employee pension (SEP) IRAs, and Roth IRAs
Pension plans and profit-sharing plans
401(k) plans
Non-qualified deferred compensation plans
Stock purchase plans
Stock option or restricted stock plans
Business interests (contracts or ownership)
Health savings account balances
Loans or promissory notes owned by you or your husband
Lawsuits filed by you or your husband
Potential claims (filed and not yet filed), including small claims as well as other lawsuits, regardless of court venue, over benefits such as disability and social security, insurance claims, and more
Annuities
Life insurance (type, face amount, owner, beneficiary, premiums)
Health, dental, vision, and disability insurance
Trusts
Inherited assets or gifts
Motor vehicles (cars, trucks, RVs, boats, motorcycles, and so on)
Real property (home, vacation home, rental, unimproved, commercial)
Timeshare interests
Leases
Receivables
Livestock inventories
Patents, copyrights, trademarks, and royalties
Creative works, both in progress and completed
Cemetery plots
Frequent flier accounts, airline and hotel rewards, credit card points
Club memberships (country, social, dinner, sports, and fitness)
Season tickets
Antiques, collectibles, and collections (note if a gift, owned before marriage, or inherited)
Equipment (sporting, electronic, and hobby related)
Firearms
Furs
Jewelry (note if a gift, owned before marriage, or inherited)
Safe deposit box contents
Storage facilities
Home furnishings and appliances (note if a gift, owned before marriage, or inherited)
Expected tax refunds or other refunds
Accrued vacation benefits
Expected inheritances
Assets held by others
LIABILITIES:
Mortgages
Auto loans
Credit card debt
Margin loans or security-based loans on brokerage accounts
Loans against 401(k)
Student loans debt
Other loans or promissory notes
Payables: Debts owed by a business, whether incorporated, sole proprietorship, or a limited liability company (LLC). This includes payroll, income and social security taxes, money owed for supplies, inventory purchases, and so on
Tax liens, overdue and currently owed taxes
Pending lawsuits against you
This list is by no means all-inclusive, so be sure to include anything that I may have left out. Make sure that your attorney is aware of any asset that is not marital property, such as inherited assets or personal gifts. If your separate assets were used to purchase property, include a copy of the settlement statement from when you bought it.
Let him know if you used separate funds for a remodeling project and how much. Bring the most recent statements, receipts, or copies that you have.
Remember that your husband may remove important records from your home as soon as he is aware that you plan to divorce him. You may never see them again, even with an official request for documents in a divorce proceeding. You are legally entitled to this information, but abusers do not feel that they need to play by the same rules as the rest of us. You can find out a lot of information by reading the tax returns, looking through file cabinets for statements, emails, computer files, desk drawers, sheds, storage units, and safe deposit boxes.
DIVIDE AND CONQUER
“It is important for a woman to be able to control her finances.”
―MARIA BARTIROMO
You need to put thought into what is best for you financially. Do not assume that your attorney will know these answers. For example, taking possession of the family home makes no sense at all if you can’t afford to maintain it after the divorce. Get recommendations from your financial advisor and your accountant as well as your attorney. You will get a different perspective from each of them, and these differences will be invaluable in making your decision.
Once you have a very clear picture of which assets you want to receive in the divorce, tell your attorney what you have decided and provide a list in writing. Be sure to read this chapter and the next two first, as you will want to make a fully informed decision.
EMAILS ARE E-TRAILS
“In words are seen the state of mind and character and disposition of the speaker.”
―PLUTARCH
Be careful in all your emails and your email responses to your husband, both during and after the divorce. They may be used as evidence in court against you. Do not ever react in anger to emails and texts, and if you must respond at all, be truthful. You are not required to answer them, so only do so by choice. Your emails are not private and can become “Exhibit A” in court!
