Getta’ loada’ THIS guy!

D-moneyI rarely do this, but – you think your ex (or soon-to-be-ex) is a jerk?  Getta’ loada’ THIS guy!

Mr. and Mrs.  “Michaels” were married while Mr. Michaels was finishing his education at a prominent New York law school.  Mrs. Michaels worked two jobs so they could afford a decent place to live while her husband started his own litigation firm and built a clientele.  After about 10 years of marriage, a decent nest egg accumulated, and a respectable law practice in full-swing, they moved to the suburbs and had a baby.  Mr. Michaels kept working, but moved his practice to the town where they lived.  Mrs. Michaels made child-rearing and house maintenance her new career.

Shortly after their son graduated high school, his father announced that he wanted a divorce.  He told his wife that if she cooperated with him, he would “always take care of her,” so she cooperated.  They sold the marital residence, and split the profit without her ever seeking any legal advice on her own.  She moved into a small apartment and put the rest of her share into a savings account, waiting for her husband to give her half of their retirement accounts and savings.

She took a job working in retail to make ends meet, because he never gave her any money at all and she needed to pay her rent.  When she would ask him about alimony for rent payments he would tell her that since they were still married he could not pay her alimony.  She should just pay her own bills to the best of her ability and he would pay her back once he settled their accounts.

18 months after they separated, Mr. Michaels called his wife and told her that they were “automatically divorced” by the laws of the state because they had been living apart for 18 months.  He further told her that there was no money left in their accounts, he had spent it all on his own needs, and furthermore she was making more than he was on their tax returns, so he would be looking for alimony from her.

I am not making this up. A bright articulate woman in her 50s walked into my office and asked me whether she was automatically divorced, what had happened to all of their money, and whether she would be responsible to pay her ex-husband-the-lawyer alimony from her minimum wage job. The answers are:  there is no such thing as an automatic divorce, I did not know where the money went but I was about to do my best to find out, and the circumstances would have to be pretty extreme for her to have to pay him alimony.

Here is what we found out.  He declares income of about $500 per week, and rent of $750 per week.  His restaurant charges alone are more than $500 per week.  He just doesn’t report any of it as income.  He has no credit cards or other debts, purchased a new motorcycle for himself over the summer, and goes on monthly vacations out of state.

Last time we went to court he told the judge that he could not defend himself against my motion for alimony because he is “indigent” and could not afford an attorney.  The judge looked as if she was about to give him some time to hire a lawyer when I interrupted. “Excuse me you honor, but the Plaintiff himself is an attorney,” I told her.  The courtroom full of people gasped and chuckled at his audacity, and we were given our hearing.

The fact that this woman wants to trust her husband is one thing.  He is a lawyer and she has spent almost 30 years trusting him.  But as soon as she began to understand that he is lying to her, and apparently trying to defraud the court and the IRS into the bargain, she was smart to get her own legal counsel.    There is an old saying, “Trust, but verify.”  It is okay to believe what people tell you, but there is no harm in making sure it is true, and a good lawyer is just the person to verify when things look sketchy.

WHAT WE LOVE:  Divorces have an objective discernible truth, and given the opportunity to look for it most judges will find it.

A Diamond Necklace

D-DiamondI was looking for something in my jewelry box recently, and ran across a piece I had almost completely forgotten.   The diamond necklace from Brad.

Brad and I dated for about two years.  We never lived together, and the relationship never got too serious, but we were “boyfriend” and “girlfriend” in our 30s.  He was a really nice guy, I just could not tolerate a few of his worst habits, and he did not care for my disapproval.  Fair enough.

The end of the relationship began in Hawaii.  We were there on vacation with friends for a week.  While there, our completely disparate natures became increasingly obvious on a daily basis.  There was no dramatic scene or fight, thankfully.  It was just that by the time we got to the airport after the flight home we were ready not to see each other for a while.

To paint the scene, a typical day on our Hawaiian trip went something like this.  We wake up, and it is incredibly beautiful outside.  I jump out of bed, get dressed, run downstairs and have breakfast with our housemates.  After breakfast, I bring a cup of coffee upstairs to Brad.  He rolls over, opens one eye and wants to go back to sleep.

I grab my shoes, and my friends and I leave for a hike.  We get home after lunch and Brad is sitting up on the bed with the shutters closed so that the glare from the sun doesn’t interfere with the televised basketball game he is watching.

Et cetera…

We had been back from Hawaii for about two weeks, when it suddenly occurred to me that we needed to confirm the fact that we had broken up.  We had not seen each other the whole time and probably only spoke by phone minimally, but after two years it seemed wrong to leave an ellipsis at the end of our story. So I called to ask if he wanted to meet for coffee.  He countered with asking me out to dinner.  I hesitated, not wanting to give a false impression of my intent.  He said, “Don’t worry, just for old time’s sake, one last dinner together.”  I agreed.

He picked me up that Saturday night wearing a suit and tie, drove two towns away to a yacht club, where he had made reservations in their upscale restaurant.  Every word of the prior sentence was a first in our relationship.  I became very nervous that he had misunderstood why we were seeing each other that night.  But, I did not want to insult him or hurt his feelings, so I went along with all of it.

We had, of course, a very lovely meal.  We talked about people we knew in common and what was happening at work for each of us; we had wine, ate delicious food in a romantic setting, and really relaxed and enjoyed ourselves.  It felt much more like the beginning of our relationship, before we had tired of each other’s flaws.

As we waited for dessert, Brad reached into the pocket of his suit jacket and pulled out a wrapped gift box which he handed to me across the table.  I was embarrassed and tried to hand it back.  I felt like a fraud to have let him do all of this when I knew that we were breaking up.  I tried to find a nice way of explaining it to him.  As I stuttered, Brad said something which I can still recall with perfect clarity.  He took the box from me, and as he opened it and revealed a diamond solitaire necklace, he said,

“I want you to have this because it is something I should have done while we were still together.  I was not a good boyfriend to you and I should have been.  You deserve diamonds for being great to me, and I wish I could do more.   But, please, always remember me kindly by taking this necklace.”

Well, it worked.  I have never had a harsh thing to say about him, and we help each other out from time to time when we can.  More than 15 years after our trip to Hawaii, we are still happy to hear each other’s voices on our phones.  If I were to do a hard analysis of what I spent on Brad over the two years versus what he spent on me (not only in monetary terms, but in terms of emotional effort, physical inconvenience, hurt feelings, and all the rest), the diamond necklace was not enough to make it all worthwhile.  But, the sentiment – the acknowledgment of our imbalances, is a gift I have always treasured.

What We Love:  A thoughtful word or gesture, especially as the final part of a relationship, can leave a lasting positive impression.

Finding A Theme In Life

D-NewYearResolutionI don’t know about your house, but in my family, the resolutions have already begun meeting reality.  Diets are hard to maintain in cold weather.  No one is going out for a run in the snow.  With only one day of school under our belts, the backpacks were already in the middle of the living room and “reminders” needed to be repeated.

A wise suggestion I heard in late December was to consider a theme for the year.   Instead of a list of specific, ignorable tasks, give yourself a theme for the changes you want to make in the coming year.  Some of the suggestions were “charity,” “patience,” and “mindfulness.”  It is easier to keep on track with a broad theme, even if there are small missteps and mistakes along the way.

We used the same idea in law school when we were learning about trial preparation techniques, and I frequently encourage my clients to try it in their divorces.   Sometimes the nitty-gritty of sorting out how to divide an entire life gets overwhelming.  Priorities can fall by the wayside as people try to sort out who brought how much money to the marriage, and how that money was spent.   The credit cards are high, and it feels as if the other person ran them up; but does it count if we both use the gaming system with the kids?  Do “loans” taken out from parents and in-laws count as gifts, or are they loans that are expected to be paid back now that we are getting divorced?

Even after the parties have reached general consensus, questions may arise about relocation (how far is too far? How much notice is required?), extra-curricular activities (who decides which lessons, camps, and programs? Who pays for them?), and title to the property (do we buy each other out now? Wait until the market rebounds?).  The details can overwhelm even the most amicable and level headed people.  But, by keeping to a theme answers may become more readily apparent.

Your theme might be something like “Any price for freedom,” in which case the questions about who keeps the record collection, the dog, and the dining room set won’t need a second thought.  Or you might be most concerned about keeping a college savings account for the kids, no matter what.

A theme like “keep the costs low and the savings high,” makes it easier to walk away from a battle about what time visitation should end on weekends.  Fighting costs money. Also, we had a dispute once in which the Husband didn’t want to give the Wife a percentage of his annual bonus, saying she did not need the extra money.  The wife agreed that she did not need it; but that there was no safety net for the kids.  They agreed that a percentage of the husband’s annual bonus would go into the kids’ college savings account.  Neither parent increased their own income, but both were satisfied with the outcome.

One client had been separated for over a year from her husband, but they had not been able to work out the details of the divorce, until the wife realized she was expecting her boyfriend’s child.  The theme of that divorce became “I’m planning my next wedding.”   One of the stumbling blocks, the question of alimony, disappeared pretty quickly with the new theme.

What We Love:   Finding your own theme can help you keep perspective when the details of a divorce threaten to derail your sanity.

Holidays and Who to Have Over

D-to_do_listThe holiday guest lists are being written.  I love asking people whom they are going to see over the holidays because there are so often fun surprises tucked inside the “usual” family list.

A few of my favorite answers I have heard include:

*   My husband and our kids, my 2 sisters, their husbands and kids, my oldest sister’s ex-husband and his fiancé, my parents and my Aunt Sally from Wisconsin.  (We love her ex-husband. He made the funniest speech at her second wedding!)

*   My kids, my ex-wife, her husband and his kids, his ex-wife and her mother.  (My kids call her “Grandma Trudy.”)

*   My husband and I are going to Massachusetts to see his sister, her wife, and their new baby.  I’m sure while we are there we’ll visit my college boyfriend and his family.  (One year they had us over for Thanksgiving dinner including my sister-in-law, but that was before anyone had kids, now it’s easier to see them on Friday.)

*   I’m bringing my mother to her sister’s house.  All of my cousins will be there including kids, wives, ex-wives, and one uncle who just got home from serving in Afghanistan.  (We are all so happy to have him home; it would be a sin to leave anyone out.)

Of course, a common answer is “I have them for Christmas this year; and their Dad has them on Thanksgiving, so I won’t be seeing them at all that day.”  It’s understandable, and reasonable.  Sometimes it is good for a parent to have a little break from the kids and the ex-spouse.

There was one answer that I have to admit galled me.  A woman I knew opened her home to her sister’s ex-husband, kids, and new wife, which was nice.  But, she knew there would be tension between her sister and the new wife (the pre-divorce affair being part of the problem), so she chose not to invite her own sister.  Personally, as ingratiating as this may be amongst the adults, I think it sends an awful message to the children.  Let alone the long-term damage between sisters!

My sister-in-law Ruth likes to say, “the people make the time.” Meaning that whom you invite to your holidays is what makes the holidays special.  I think she is right, and that who we exclude makes its own kind of time, too.

People get divorced for a reason (or, usually, for several reasons).  If you are involved in a contested divorce (or just finishing or starting one), it is probably a good year to give each other breathing room, and maybe having a less amount of people at the table can be a good thing.  But, once the dust has settled and you are thinking about the time you want to have, you might want to consider the possibility of mending old fences and bringing a wider circle to your table.  It might just turn out to be one of the best holidays you ever have.

WHAT WE LOVE: The people make the time – who we include and how we include them is what makes the holidays meaningful.

-Sharon Oberst DeFala

Home for the Holidays

Even though this post was originally made 2 years ago, for the holidays in 2011, what we love still rings true today.

My friend, whom I will call Bill, is divorced with two teenaged sons. The boys live in the marital home with their mom.  Bill still lives in the same town and sees the boys as often as his work & visitation schedules will allow. He misses them a lot.  Unlike some of the families I am fortunate to know, Bill and his ex-wife are not friends.  They can barely stand each other, and after a pretty bitterly contested divorce, blame each other for a lot of what is wrong in each of their lives.

I saw Bill just before Thanksgiving and was thinking that he probably has some schedule where the kids spend half of Thanksgiving with Mom & the other half with Dad, or someone has Thanksgiving on Thursday and then the other family has it on Friday.  And, in my experience, as bifurcated as Thanksgiving may be, Christmas would only be more so.

Imagine my happy surprise when Bill told me he would be eating Thanksgiving dinner with his children his ex-wife and his ex-mother-in-law all at the ex-mother-in-law’s house!  The secret to how he received this invitation floored me.  After what he has been through, and the money he has spent on lawyers, court hearings, alimony, child support, and maintenance on a house where he does not live; Bill said the last thing I ever expected to hear.

He was paying for a full catered holiday meal to be sent over to the mother-in-law’s house, at his own offer, for the family.  He didn’t even do it in anticipation of an invitation (how could he have anticipated a gracious response?).  He just knew that it would make the women’s lives easier if they didn’t have to cook, so he offered to have it catered for them.

No Judge ordered Bill to feed his angry ex-wife a feast. No court order makes the ex-wife graciously insist that Bill join them.  The truth is that Bill and his ex, as little else as they may have in common, both really want their sons to have a happy childhood.  So, they put their egos to one side for the annual family holidays and come up with creative solutions for reducing conflict and stress.

What We Love:  It is never too late to have a civilized divorce. Any one can still make decisions that reduce conflict and increase happiness.

– Sharon Oberst DeFala

Trust Issues and Moving Forward

D-Moving-Forward-PeopleWhen a love affair goes bad a jilted party often wants to reduce his or her feelings to writing as a way of processing the experience.  Some people then burn these letters, or file them away.  Of course, there are those who drop them in the mail or hit “send” once they are written.  Occasionally, the recipient is the unsuspecting spouse of one of the lovers.  When that letter finds its mark the whole affair and its dramatic aftermath tend to take on a new level of intensity, as you can imagine.

Plenty of my clients have kept the angry letters from their spouse’s aggrieved paramours.  The letters read something along the general lines of, “you would not believe what a terrible person your husband/wife is.  After telling me s/he loves me and that we would leave this crummy city for a better life, s/he dumped me to get back together with you (or – for a younger model).  I know what a horrible person you are, and all of your personal dirty laundry, which I would use against you if I could think of a way to make it hurt you.”

Most people only need to receive such a letter one time to look for a way out of their marriage.  Mostly, my clients save the letter as a reminder of why they need to get out of the marriage; no matter how convincing any apologies may seem at the time.  Sometimes, though an apology is earnest enough that a few years may go by before my client receives a second letter from a different love interest.  The second letter is almost always sufficient to get people to divorce court.

Except for my client “Elaine.”  She has an alphabetical file of the women her husband has fallen for and then dropped.  They write to her with complaints about his lack of fidelity, his lack of honesty, his lack of integrity, his selfishness, and his general state of being obtuse.  Of course, it begs the question – what do these women think they themselves are, if not all of those things?

Elaine may have ignored 7 distinct affairs, to the best of my accounting.  She does not really like to talk about the affairs in too much detail.   Her husband has strengths and weaknesses, like all humans, and she was able to compartmentalize his weakness for women as disconnected from their marriage.  She wanted to see their children grown and settled and her retirement portfolio filled-out before upsetting the apple cart by filing for divorce.  So, she waited, and collected the letters, and turned a blind eye, and went about her business.

And now here we are.  She has filed for divorce.  Her children have careers.  The portfolio is substantial enough for her to buy a small retirement home without a mortgage and still have a little income stream and some money in the bank.  Maybe she played her cards right, and it was not a bad trade-off, after all.

Except, understandably, Elaine has completely lost her ability to trust.  As we were reviewing a proposed settlement last week, she looked up at me and said, “I think I might have trust issues.”  I had to tell her, there would be something wrong with her if she did not, based on how she has lived for the past several years.  Every time her husband left the house he was probably lying to her.  That is a lot of non-truth per day to mess up one’s ability to trust your own instincts, or anyone else’s.

She does not know when someone is telling her the truth; even when she reads bank account statements, she does not know if they are doctored or legitimate.  She doubts the word of professionals when they speak to her, and she finds several hidden motives in almost every conversation.

I am not saying she is wrong. I don’t know if she is or not.  I cannot read minds, and I can only investigate financial holdings to the extent allowed by law.  It might be that her lack of trust is her greatest strength at this point in her life.  Either way, she is working hard to move herself into a position where no one has to lie to her every day, and she is excited for that prospect.

WHAT WE LOVE:  Whatever compromises you made within your marriage are free to stay behind once you decide to move forward.

– Sharon Oberst DeFala

How All the Pieces Fit

puzzle-piecesWhat is a successful divorce?  In my opinion, it has nothing to do with accumulated assets, properties, alimony, or support payments.  It has everything to do with an ability to carry forward the best parts of the person you married while being able to walk away from the parts that don’t work for you.  When I think of the term “successful divorce,” three examples immediately come to mind, their pseudonyms are Sandy, Francine, and Veronica and their situations work as part of the larger whole.

Veronica had a daughter named Tara with her first husband, Ned.  Veronica’s second husband, Tim, moved in by the time Tara was 4, and has been a second dad to her for the past 28 years.  Ned never remarried, and has always been friendly with Veronica and Tim. The three of them respect and appreciate each other as parents and have always done their best to work together on Tara’s behalf.   They all helped pay for braces, private high school, college, and eventually Tara’s wedding.  It is easy to see that they figured out how to keep their child’s needs above their own, as most good parents would do.

But to me, the most telling part of the success of their divorce happened about three years ago.  Around 4 am on a weeknight Veronica and Tim were awakened by a phone call from the hospital.  There had been a heart attack, and Veronica was listed as next of kin – for Ned.  Tim drove her to the hospital in the middle of the night, and they took care of everything for Ned.  Including calling Ned’s sisters to tell them what had happened.  Luckily, Ned is okay now, and has been following Veronica’s advice on how to stay that way.

30 years after their divorce, Veronica is still the person Ned most trusts to take care of him in an emergency.  But what’s more amazing is that he is right.

Francine’s first Husband was named Harry.  They met through Harry’s sister Martha, who happened to be Francine’s best friend.  When the marriage was over, Francine was concerned that she might lose not only her home and her husband, but also her sister-in-law.  The divorce was inevitable; she and Harry had grown apart and needed to be able to move on with their own lives.

So they went to court, got divorced and hoped for the best.  A few months later, Francine was invited to a friend’s wedding. She knew Harry and his sister would be there, but she couldn’t let that stop her from going.  She had begun dating Todd by then, and asked him to join her.  Once they got to the wedding, Harry and Todd realized that they had similar taste in music, and couldn’t be separated for most of the evening, just talking and enjoying each other’s company.  This left plenty of time for Francine and Martha to catch up with each other.  Most family events since then have included Francine and Martha in one room and Harry and Todd in another. Everyone is always invited, and everyone always looks forward to going.

Sandy moved from New York to Connecticut and bought a condo with her boyfriend Paul.  Paul had a 5-year-old son named Paul, Jr. who lived with his mom in Connecticut. Sandy had never lived outside of New York, had never lived far away from her family, and had never met little Paulie’s mom Tracey.  But, she was in a relationship that mattered to her, so she decided to make the best of it.  Imagine Sandy’s surprise when she did meet Tracey and the two of them could pass as sisters – beautiful blondes who pay attention to how they dress.  Imagine everyone else’s surprise in town that almost every single one of Paulie’s baseball, football, and basketball games had three fixtures on the sidelines – his mom, his dad, and his dad’s wife.  The part that was so surprising though was that most people thought that either his mom or his step-mom must have been his aunt, because Sandy and Tracey not only look like sisters but act like best friends.

What We Love:  Divorce can open just as many doors as it closes.  Each new person in your life has the chance to be an integral of what was already there.

– Sharon Oberst DeFala

Being the Best You In a Divorce

ImageI met a policeman last week.  He has been divorced 8 years and his youngest child just turned 18 after graduating high school.  His child support orders are through, over!

He spent a little time discussing the divorce process with me.  He and his wife each had their own lawyers, and they each spent quite a lot of money going through the paces that their lawyers advised. He’s a cop and she’s a teacher, so a lot of money to them has long-term implications.  It doesn’t get replaced in the next bonus cycle.  But, neither of them knew anything about divorce, so they did what they were told to do, and fought when they were told to fight, and let the Judges rule about how they would divide their parenting time and their retirement accounts, and their personal belongings.   Even talking about it this many years after the fact, he seemed sad and remorseful about the way he and his wife had spent that year of their lives.

But, not bitter. Not angry.  Just like someone who had gone down the wrong road in a maze, and was now out the maze and on with his life.  We talked a little about his kids, where they go to college; what they study, how often he sees them.

On the topic of visiting days and holidays, there was a lot of the word “we.”  As in, “we have them all home every year for Thanksgiving.”   I imagined his new wife or current girlfriend was the other half of that “we” and that she was probably a good person to embrace, and be embraced by this man’s children from a former relationship.  But, as he kept talking, it became apparent that the “we” with whom these kids spend their school vacations are their parents.   Both of them, Mom and Dad; long divorced Mom and Dad.

“Oh,” he assured me, “we don’t see each other every day, or anything like that.  We each gotta’ have our own lives.”

“Every week,” I asked.  He stopped and thought. No, probably not.

“Every month?”  He did not have to stop and think. He just said “Of course.”

I had to ask, “Why do you ‘of course’ see each other every month?”

Then he got a little sheepish, as he admitted that he still goes by her place on the first week of the month and pays her child support.  There are no children and the court order had ended, but he knows that she relies on that money to pay her bills and make ends meet.  And he couldn’t face himself if he cut her off just because the last kid was out of the house. “What kind of dad, what kind of man, would I be?” he asked me.

I told him he is a good man.  He knows he is.  I don’t know how long he intends to go on giving his ex-wife money.  Maybe she knows enough to be saving some of it for when he no longer has the ability just to help her because he wants to.  All I know is this: for now, he gets to be part of the Mom and Dad who spend every holiday and visiting day with his kids, he is welcomed in his ex-wife’s house whenever they feel like seeing each other, and – the most important part of all – he can look himself in the mirror and like what kind of man he is.

WHAT WE LOVE:   Bad marriages and bad divorces all end, one way or another, but good people are always good people.

– Sharon Oberst DeFala

Successful Divorces

measuring success in divorceI have written before what a successful divorce is not.  It is not accumulated assets, properties, alimony, or support payments.  I am always trying to pinpoint what does define a successful divorce, so I can help my clients keep that as the goal in their minds.

It begins with taking an inventory of the best parts of your life.  Not the most financially valuable – like a house or a 401(k); but the parts that are priceless.  Think of things that make you smile; like seeing your mom, your wife, and your daughter all baking cookies together; or watching your kids playing flag football with a yard full of cousins.  Maybe the best part of your marriage is the annual ski trip, just the four of you, even though the drive there and back always includes a fight.  Maybe you and your husband get along best when the kids are asleep and you share a glass of wine before doing the dishes.

As bad as your overall relationship might have gotten; there are still small moments within your dynamic that have a life all their own. The parts that refuse to give way to the pressures of too much or too little work/social life/children/attention.  These precious little organic moments that might crop up on a daily basis, or only annually, contribute to why you have stayed together this long.  And are probably vestiges of what attracted you to each other in the first place, all those years ago.

I recommend that my clients try to make a point of noticing them.  Even, and especially, as their marriages draw to a close.  I have even suggested keeping a list.  These might be the most sacred moments of your entire shared experience, and if there is any way to capture them. Or even continue to create them it could be worth a try.

One couple I worked with added a monthly “family dinner” to their divorce agreement.  The concept they had was that no matter what else was going on in their lives, one meal per month, probably on a Friday night, the two parents and the two kids would sit down together and have a nice dinner, because that was when they always got along the best.  When the work week was over, and the house smelled of home-cooked food and the adults could sit and finish a sentence without the kids needing something in another room. Even after the divorce, when they had other partners and other priorities, there still would need to be time for them to communicate with each other.  It opens an unpressured  forum where they can talk about the kids’ school or extra-curricular events, about their own plans and directions, about their extended families, and just about the state of the world in general.

One of my very first divorces took place in 1992 between a young husband and wife with a two year old son.  The adult son now likes to pick rock concerts in the area and buy three tickets, so he and his parents can go together.  If the dad is planning to have a few beers, the mom will drive, and vice versa.  Each of the parents has current relationships, but sometimes they just say, “I need to go spend time with my son and his mom/dad,” and off they go.  Back to the rock music that brought them together in the first place.  Back to the spark that eventually became the light of both their lives – their son.

What we Love:  Measure the success in your life by what makes you happy, then pursue that success no matter what the obstacles may be.

– Sharon Oberst DeFala

What is Discovery and when is it necessary?

DiscoveryMost of my divorce practice is uncontested and amicable.  I help two consenting adults conduct the equivalent of a business transaction, so that both can move on with their lives and keep as much of their assets and dignity intact as possible.   In many of these cases the couple knows their own and each other’s financial situation.  They have a comfortable familiarity with who earns how much and where the money goes after it is earned.   They can both recite with confidence and accuracy the couple’s earning ability and expenses. Sometimes these are people with two jobs (or more); they might have debts or no debts; they might have one job, one mortgage; or several mortgages and a looming foreclosure.  The financial situation is not what dictates who knows what about their finances.  The people themselves are what determine their level of knowledge.

Spouses who go into a divorce with eyes wide open and all financial information already on the table are more comfortable negotiating with each other and mapping their individual futures.

But let’s face it between day-jobs, taking care of kids, and getting to and from work/school/chores/errands, there isn’t always time to stop and analyze your financial situation.  And, when times are tough and you’re trying to save your marriage, it might feel like it makes more sense to “forget it all,” and have a nice dinner date in a restaurant than to stay home and see if you can balance the checkbook.

It is perfectly human and understandable to get to the moment of meeting your divorce attorney and realizing that you cannot answer simple questions like, “How much debt do the two of you have?”  “How much equity is in your house?”  “If you were to move out, how much rent could you afford to pay?”

Luckily, there is a legal process available for those people who want to reach a fair agreement, but don’t feel well informed about the family money.  This process is called “Discovery.”

Discovery can be the undoing of an amicable divorce, or a useful tool in getting to the bottom line.  If both parties cooperate fully, they just bring all of their bank statements, credit and debit cards, retirement accounts, pay stubs, tax returns and mortgages to the table, giving each other, the mediator, the lawyers, or any financial advisors free reign.  It is then a somewhat black and white picture of who can afford how much and when.

Reluctant parties however, may find themselves faced with having to answer questions, called “Interrogatories” about their spending habits, such as when and where they shop, when and where they eat, when and where they vacation, and with whom, names and addresses of employers, bosses, business associates, and friends. They may also be ordered to hand over every pertinent document (“Requests for Production”) including credit card records, phone records, medical records, bank statements, contracts, stock options, golf club by-laws, family Wills and Trust documents and more.

Finally, and maybe the most invasive form of Discovery is the “Deposition,” in which a lawyer interrogates a witness (who might be one of the divorcing parties, or any of their friends, family, employers, work associates, or anyone else reasonably likely to know about the couple’s situation) in front of a court stenographer who captures every word the witness says and creates a written manuscript of the entire proceeding.

The more time lawyers spend seeking Discovery, the more money it costs the parties.  This might cause people to want to skip Discovery and get right to the negotiations.  But a divorce agreement written without a full and truthful accounting of all finances can end up costing everyone much more in the end.

What We Love:  Divorce is one of the few types of law in which the parties themselves can help control their legal bills just by being forthcoming with their own information.

– Sharon Oberst DeFala

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