Divorce Advice from Divorce Lawyers
Divorce lawyers and attorneys across North America offer their help on how to ease the divorce process…
Fully Disclosing Financial Information
“A lawyer going through a divorce asked me if he needed to disclose his separate-property assets and debts, as they had nothing to do with his spouse. The answer is yes. Both you and your spouse have an obligation to make full disclosure of all of your assets and debts, whether they are in both of your names or just in one person’s name. In addition, you must also disclose your income and expenses. This should be done at the beginning of the divorce process to facilitate information gathering and possible settlement.”
“Both spouses have a continuing duty to make immediate, full, and accurate updates to each other regarding material changes, business opportunities, etc. You must provide equal access to all information, records, and books that pertain to those assets and debts, upon request by the other spouse. The court may order severe penalties, including monetary sanctions, against a spouse who breaches their fiduciary duty.”
Communications in Custody Disputes
“If you are in a custody dispute with your former husband/wife/partner, pay particular attention to the way you communicate with the other parent. Always assume that the other parent saves your e-mails, letters, and voice-mail messages and shares them with his/her attorney. If your custody dispute ever comes before the court, the judge may see these communications. You should come across as a cordial, reasonable, and concerned parent. Keep your communications brief, but provide all necessary information to the other parent. Do not attack the other parent or discuss extraneous subjects; keep your communications child-centered. Always make sure to advise the other parent about your child’s health issues, school events, and scheduling matters, in a timely fashion. Judges want to see that parents are able to communicate, and they will be more likely to view you as the parent best able to share.”
Consultation Preparation
“Come prepared to a consultation appointment with a lawyer. Come in with a typed or neatly printed paper with the basic information — your name and contact information, the name of the other party, the names and birthdates of the children, dates of marriage and separation — along with the basic financial information, including income, assets, and debts for each of you. It is also helpful if you write down your major concerns. This allows the consultation time to be more focused. If you realize that you are missing important information — for example, if you can’t remember the date of marriage or don’t have a copy of a court order or Separation Agreement — try to obtain this before the appointment if you can.”
The Kinder and Gentler Approach
“Your decision to divorce will have long-range effects on your future, as well as the future of your family and loved ones, for years to come. How you initially approach the beginning of your divorce case will set the stage for everything else that follows. I suggest that whenever possible, you do not have a process server serve your spouse with divorce papers, but instead have your lawyer write a ‘nice’ letter telling your spouse that he or she has been retained to represent you in your divorce and that the spouse should have his or her lawyer contact yours to begin the process amicably. A kinder and gentler approach in the beginning sets the tone for a kinder and gentler divorce in the end. Of course, seeking alternative dispute resolutions, such as mediation or Collaborative Divorce, is the ideal way to pave your future road with good intentions and good will at this difficult time.”
Stay Informed about Finances
“It is important to stay informed about your finances. Knowing the accounts and debts of both you and your spouse, as well as the rough balance of each account and debt, will empower you by giving you a realistic view of your estate and can help focus and expedite the divorce process.”
Providing Your Lawyer with Info
“You can provide invaluable assistance to your lawyer by staying involved and providing information and paperwork whenever possible. The lawyer never knows the case as well as you do. You will always have better working knowledge regarding financial and child-custody issues. You must constantly share the information so your lawyer is aware of everything that can help (or possibly hurt) your case. Remember, you can never send too much.”
Lawyers Are Advisors, Not Friends
“Many people come to me expecting what amounts to a combined therapist and lawyer. Lawyers are not therapists or friends. In fact, no lawyer should assume these combined roles for their clients, even if trained as both a lawyer and therapist. I almost always suggest that a client get a therapist, as the effects of divorce are so all-pervasive (emotionally, financially, intellectually, and socially) and the overall effect can be devastating…
“A lawyer is not a friend. A lawyer is there to give blunt advice that it often hurts to hear, whereas a friend is there to make you feel good. A therapist is not an advocate and legal advisor; that’s why anyone going through a divorce needs both a therapist and a lawyer. People also need their friends, but the roles do not mix.”
Think of the Children
“As a lawyer and mediator, I have seen first-hand how children are abused in this traditionally adversarial process. Once, I took a risk and asked divorcing parents in a mediation session to place pictures of their children on the table before them. I reminded them that there were empty chairs in the room and that their children were in those chairs. The change of attitude in the room was palpable. If divorcing parents would visualize their children always next to them, divorces might be less brutal. People can also use processes like collaborative law for less adversarial divorces.”
Work with Your Lawyer as a Team
“It is important that you and your lawyer work together as a team. When you are making financial decisions, such as how much support you should be sending when there is no court order, don’t make changes without putting the question to your attorney. Decisions like that can have an impact on the case in ways you may not envision, but an experienced lawyer would alert you and help you decide what to do.”
Common Law in California
“California doesn’t recognize common-law marriages. However, California’s palimony law provides that cohabitants can sue to enforce agreements or promises — if they rise to the level of an enforceable written contract — made by cohabitants as if they were married. However, a cohabitant cannot bring a palimony action based only on providing sexual services. While it is not absolutely necessary that the parties have lived together, it would be difficult to bring a successful claim if this wasn’t the case. Palimony actions can be brought after a marriage so that if two people live together, make promises, get married, and then divorce, a palimony action can be brought after the divorce based on the premarital promises.”
Common Law in Canada
“In Canada, common-law couples have some of the same rights as married couples, especially in support obligations and custody of children, but in a number of key areas, couples are considered as ‘singles’. Examples:
a. There is no right to equalization of property if the couple separates;
b. There is no concept of ‘matrimonial home’ as in the case of married couples, so that the home could be sold or mortgaged by one of the pair if it is solely in that person’s name;
c. There are no automatic inheritance rights. If one of the couple dies, the survivor is not entitled by right to any of the deceased’s property.
“There are solutions to these issues, short of actually getting married, but it’s best if you act before an unfortunate event occurs.”
Think Win-Win, Not Win-Lose
“Take the ‘win-loss’ out of divorce. Divorce is not a game. The process is not a competition for victories. To solve the civil dispute of divorce, it is essential for all parties to act civilly. Divorce is handled in courts of ‘equity’. Family-law judges consider themselves bound not by law or procedure but by fairness. If you come into the process with a mindset of winning, you will be open to continued disappointment. The court’s job is not to declare a winner or loser, but to achieve what is equitable for both parties.”