Legal Stuff
"The first thing we do, let's kill all the lawyers." -William Shakespeare
Yeah, you said it, Bill! The divorce business is a big industry. It's a hidden industry that nobody really thinks about until it's too late.
FIND A LAWYER THAT LISTENS
We cannot speak to this other than our opinions based on stories and personal experience. This is the intimidating factor of a divorce - the legalese, the paperwork and the hoops you must jump through to keep it all legal, enforceable and hopefully fair.
Keep reading this section. Our Finances page discusses the changes to your financial life and the costs of divorce. Use our Financial Worksheet to get a grip on your monthly spending and needs, and determine your priorities with our Priorities Checklist. These forms were designed for you to educate yourself on what you need and what you want before you are hip deep in the legal proceedings. Have these worksheets prepared before you start...
We had to learn a lot of new terms when we went through all this. If you aren't a lawyer, and especially if this is your first time around this crappy block, make sure to review our Glossary of Terms. We don't promise that it is 100% accurate, but it's a look at what you'll need to learn about.
Click the links below for detailed information and opinions on these subjects:
FINDING A LAWYER
ALIMONY AND SUPPORT
THE FINAL DOCUMENTS
The following interview was conducted with Ellen's lawyer. If you'd like to get in touch with him, please send us your contact information and we will promptly forward it to his office. We appreciate his willingness to answer our questions and share his tips. If only had known to ask some of these questions, so long ago...
The Interview with a Virginia Divorce Lawyer
1. Why did you choose family law? Are you happy with your choice or does it get to you?
I like the human nature of the problems, it suits my personality perfectly, and I would never practice any other kind of law.
As a young lawyer (and low guy on the totem pole in my office) I did commercial litigation—suing and defending suits for corporate clients over sums of money. It didn’t take long to realize that no one really cared about the outcome—it was only money. Even my fees were a line-item on a corporate budget. When I was handed my first divorce case (because all of the more senior lawyers in my firm were able to duck it) something just clicked for me when I realized that my client was going through the biggest crisis of her life. A real person with a real problem.
In most family cases, the client comes in to see the lawyer in the grip of that crisis, full of uncertainty and fear. Usually, by the end of the case, often with the help of a good counselor, the client has dusted herself off, cleared her head, and is ready to move on to the next phase of her life. It is very satisfying to be a part of that.
2. LousySpouse.com makes many recommendations on how to find a lawyer, and what to prepare before a first meeting. Is there anything that you would add to that?
As a lawyer, the best clients come to me as referrals from other lawyers.
Turned around, this means the best way to find the right lawyer is to get a referral from a lawyer if you can. Ask family, friends and co-workers for the names of the lawyers used in their divorce cases. Ask why they thought the lawyer did a good job, and listen closely to the answer: “she was a bull dog” is a very different answer from “he was very sensitive to the needs and best interest of our kids.”
Family lawyers (especially) come in all shapes and sizes. Not everyone needs a ruthless litigator; not everyone needs a gentleman collaborator. Try to match the reputation of the lawyer with the experience you are hoping for—you can control the process to a great extent by selecting the right lawyer. Other lawyers are in the best position to refer you to their colleagues.
Call the lawyer and expect to be able to speak with him or her for about 15 minutes, free of charge. Feel free to ask the lawyer how much experience he or she has with cases like yours, and what his or her approach would be. Ask what the hourly rate will be, and how much of a retainer the lawyer will expect. You should feel a rapport with the lawyer after the first conversation—is this someone you could trust? If you don’t get a good feeling, call the next name on your list.
At our firm we use a detailed intake form which lists the personal details of the parties, their employers and salaries, asks some pertinent questions about the children, if any, and refers to all of the various kinds of property and debt which may be involved in a case. Ask the lawyer if they use such a form and if you could have a copy of the form before the first meeting. This will give you an idea of what data you need to gather before having that first substantive meeting with the lawyer.
And at the first meeting, bring an actual written list of questions! It is good to think about it in advance of that first meeting, and to write things down so you are not racking your brain trying to remember while you are paying that hourly rate.
3. What are the biggest mistakes that people make in engaging in the initial processes of divorce?
In the worst cases, there is a total breakdown of trust between the parties. In these cases paperwork often disappears when the separation conversations begin. Start making copies of account statements early on, and keep the copies somewhere safe outside your home. It is so much easier for the client and the lawyer to have an accurate financial picture at about the time of separation than it is to try to recreate that picture in after the fact—and in a document vacuum.
Listen to your lawyer! Get your love and support from family and friends, get in to see a good counselor, and take your legal advice from your lawyer. Try not to mix those things up.
A good lawyer will tell you what your choices are, and explain the likely consequences of the different options. Then it is up to you to make decisions for yourself based on that legal advice and taking into account the feedback you are getting from other sources.
4. How do we as spouses of Lousys protect ourselves in the final settlement and in the future?
That is the lawyer’s job. The best way to protect yourself is to choose a good lawyer and then provide him or her with all of the information he or she needs to do the job correctly.
there is no perfect outcome in these human cases. Even in litigation the result often involves a compromise (even lousy spouses are entitled to time with the kids and a fair share of the property), so make a list of priorities and show it to your lawyer. Discuss the likelihood of achieving those goals and look for something lower on the priority list you would be willing to trade to maximize your highest priorities.
In family law cases the best result is often one that leaves both sides just a little bit unsatisfied. You should understand that from the start.
5. How much will Lousy's lousiness effect the outcome of my final settlement? Does it ever matter that the Lousy is having an affair? or several? Will that have any bearing on custody?
In almost all cases, the fault of the other spouse has very little effect on the outcome of the case. Now, the law says that marital fault matters in the division of property and debt, and that marital fault that has a measurable impact on a child may be considered by the judge in a custody case. But most cases settle out of court, and savvy lawyers know that the impact of fault is likely to be very low in court and therefore take the position in settlement negotiations that the case should be resolved as if the marital fault had never happened.
This can be frustrating for the innocent spouse, but look at it this way: that marital fault may be an excellent reason to get a divorce. You are taking a very positive step in your life by recognizing the fault and removing yourself from a physically or emotionally damaging situation. You should congratulate yourself, but don’t look for the system to provide you with vengeance. It almost never works that way, and such an effort will actually delay the beginning of your healing and the getting on with your life.
6. How hard is it to enforce the terms of a PSA?
If the agreement is clearly written, and if the agreement has been incorporated into the final decree of divorce, then a significant breach of the terms of the agreement is not difficult to enforce.
Virginia allows judges to use the civil contempt power of the court (fines and brief jail time) to enforce any provision of a court order, including all of the terms of a psa that has been incorporated into an order of the court.
Make sure your PSA includes a provision for attorneys’ fees if you have to go back to court to enforce it.
And remember, not every breach of a PSA is worth your time, money and emotional energy to enforce. Life goes on. Save enforcement actions for things that matter.
7. If my lousy is not employed now and then gets a great job a year from now, what's the process of changing my support? Is it possible? Is it pricey?
Child support, (and court-ordered spousal support), are always modifiable upon a showing of a material change of circumstances which justifies the modification of support. A great new job is usually just the kind of material change that warrants a modification.
Possible? Pricey? Those are matters of degree—check with your lawyer for a cost/benefit analysis.
8. What has changed about divorces since you started in this industry?
Judges are much more likely to order joint legal custody of children now than they used to be. It used to be that the parent who had played the primary parental role prior to the divorce would end up with sole legal custody. But now, joint legal custody seems to be the norm.
9. What should I be sure is included (or not included) in my final settlement so that there are no surprises later (exchange of tax returns, dispute resolution, automatic child support increases, school tuition, consequences for court order violations)
That’s a long one too—every case is different and your lawyer should try to craft language that will protect you from surprises, if possible. But not everything can be anticipated. People do strange and unpredictable things. In most cases, the agreement goes in a drawer someplace and never is seen again. But in the difficult cases, your lawyer should try to build in prohibitions against the things your spouse has proven likely to violate—like providing copies or proof of payment.
But of course, an agreement is a voluntary process. Even the spouse caught red-handed is not going to give up basic rights voluntarily. It is always a give and take.
10. How can Lousy's version of the truth be so different than the way things really happened / are happening?
Ha! Explain human nature in 50 words or less….
First of all, we all lie to ourselves. I look in the mirror every morning and think of myself as 20 pounds lighter. I am in denial. Deep denial. We all deceive ourselves to a certain extent, and we all have blind spots about our own shortcomings. So “the truth” as you see it is often different from “the truth” as viewed by an objective third party, like a judge.
Also, while you may be unhappy with your spouse at the moment, remember that he or she usually has a fair assortment of redeemable qualities. Those are the things you fell in love with, and they are real. He or she is charming, and can be convincing to everyone in the world but you.
These two things happen to all of us, and everyone in a divorce case to a certain extent.
One of the reasons why going to court is so unpredictable is that we cannot control completely what version of events is going to be perceived by the judge. The only way to control the outcome is to reach a settlement out of court.
11. Is there any benefit to serving Lousy first, or should you just wait for Lousy to serve you? Which is more expensive?
It usually doesn’t matter who files first, in terms of strategy or cost. You file when you need to file.
if the other side files first, you always have the right to file your own pleading in response, and to ask for any and all of the relief that you would ask for if you were first to file. And in a divorce case, judges are very lenient about allowing you to amend your pleadings as you go along; to file based on new grounds, or to ask for different relief.
Usually, the only reason to race to the courthouse is to seize control over assets which might otherwise disappear, in a case where the other side is particularly untrustworthy.
12. Do I need a lawyer to get child support and / or spousal support?
Not always. If you don’t file for divorce, you can get child support and spousal support in the juvenile and domestic relations court (in your county or city) by filing a petition. The court has intake officers who can guide you through the filing process, but cannot give legal advice.
Perhaps I am biased, but you should get some advice from a family lawyer regardless of the procedure you use, to make sure you are not missing something really important.
13. What if Lousy is loading his guns to litigate, and I can't afford it. What do I do?
How is the spouse affording the litigation? If you have to litigate, at the beginning of a case the judge can make an award of what we call “suit money” at a pendente lite hearing. If your spouse has control of the marital assets and is preparing to use those marital assets against you in litigation, your lawyer can file a motion asking the judge to order your spouse to break off a portion of those assets and pay them to you, specifically so you can afford the litigation.
14. Lousy's child support checks are coming from his girlfriend, not from him, or signed by him. Does that count?
Technically, no, it doesn’t count. The payor spouse must make the payments exactly as written in the court order: from his or her funds, payable to you, and paid on the day each payment is due. Failure to make payments exactly as required in the court order can subject the payor spouse to an unhappy surprise later when a judge declares that he or she is in violation of the order, and worse: in arrears in support.
But you have to pick your battles. Checks from the paramour are irritating, for sure. But they are better than no checks at all. Maybe the paramour takes the payment of the support obligation more seriously than your spouse does. Might be a blessing in disguise—now your spouse is somebody else’s problem.
15. Tell us your favorite stupid or evil Lousy story...
A client called the other day and her husband unknowingly butt-dialed her on his cell phone, which was in his jeans pocket, and she and her mother listened for 30 minutes while he proceeded to have sex with his girlfriend.
Pretty stupid.
Please Note: The information provided herein is a guide only. Our readers and members should seek professional help from counselors, financial experts and attorneys as needed.