I have 27 years of experience in the area of Family Law, and at this stage of my career have handled hundreds of divorces. Usually a divorce is emotionally draining and difficult for all involved but in many cases the parties realize that they want a divorce and to settle as easily as possible with as little conflict as possible. Which path is taken is the choice of the parties and their attorneys. Sometimes a quick settlement is destroyed by an opposing counsel that wants to create or increase conflict so as to increase the legal fees. Sometimes a party drags things out in an attempt to inflict pain on their spouse. In some cases both sides are being reasonable but simply cannot agree on a fair outcome.
Divorces that drag on are expensive for all involved. One needs to picture two farmers fighting over a cow while the lawyers milk the cow. My job is to get as fair a settlement as possible as quickly as possible. Too often I have seen the legal fees be increased to an unreasonable number because the parties cannot agree on simple items. There is no reason to fight over sofas and televisions when both sides are paying attorneys to fight. On the other hand if one is fighting over a pension with considerable value which was accumulated during the marriage and one side is being difficult then it is worth spending money. The long and short of it is that one has to do a risk and reward analysis to determine the cost effectiveness of continuing the case.
If one takes out the emotion the splitting of property and debt is quite frequently easy to the extent that if one views it as a business partnership that has gone bad and acts in a fair manner then a quick settlement can occur if both parties and their attorneys are being realistic. If parties are splitting up property and do not have minor children then a divorce can result in a complete end to a relationship. This is not true if the parties have minor children. Divorces with minor children can be much more difficult. Sometimes parents realize who has done what in the past and act in a manner which is best for the children regardless of the financial implications. It is sad to see a situation where it is apparent a person who has suspect parenting skills insists on more parenting time than is warranted based on economic factors.
There are many rules on the division of property but generally speaking each side keeps what they had prior to the marriage and any property accumulated by the parties during the marriage is split. This rule can vary based on the length of the marriage and sometimes on the income of the parties. Depending on certain factors increases in value of property owned prior to a marriage can also be split in various circumstances. Any debt accumulated during a marriage is usually split so long as it was incurred on marital expenses. Debt incurred as a result of recent gambling losses or incurred on spending for a boyfriend or girlfriend are examples of debt that would not be split.
Many times a case will call for an award of spousal support. Generally speaking the first three things that are reviewed are the length of the marriage, the income of the parties, and the health of the parties. If a party is asking for support the court evaluates various legally mandated factors. Quite frequently the payment of spousal support is a contentious issue. Many people are offended at the thought of paying support on mid-length marriages, and this becomes more true when one of the parties has been reluctant to work or lazy. On some sad occasions I have seen people hang in a bad marriage and end up paying higher support when the most prudent thing to do was to get divorced earlier. People need to realize that the longer a bad marriage goes on the worse things will be as to property settlement if one person is working hard and the other is taking advantage of the situation. Long term marriages where one party took care of the children and did not work almost always result in an award of spousal support. It is imperative that you consult with an attorney regarding support rights and to determine whether you have exposure for the payment of support or are likely to be awarded support.
Over the years I have found that it is best if the parents can agree on custody and parenting time. Unfortunately money sometime clouds the judgment of what is best for the children. Child support is set per computer guidelines and there are very few exceptions to the rules. The biggest factors by far are the income of the parties and the number of overnights. Sometimes the guidelines are not fair, and this is easy to see if one does an evaluation of how much the support goes up when the non-custodial parent has a fairly substantial increase in income and how little it goes down when the custodial parent has the same increase in income.
Most parents end up with joint legal custody. Joint legal custody involves mainly the making of health and educational decisions and the ability to interact with educators and health care professionals. Physical custody is important because quite frequently it controls where the children go to school. Note that in many instances a custodial parent can move up to 100 miles without a court order so it is imperative that your judgment be negotiated in such a fashion that the future residence of the children be in a location which makes the facilitation of the parenting time to be practical. It is imperative that one consults with an attorney prior to entering into an agreement as it is much harder to make changes after the initial agreement.
Over the years the issue of using one attorney has arisen on many occasions. An attorney can only represent one party. I like to explain it using the analogy of the Genie in the bottle who has only one master. Any judgment drafted by one attorney should be reviewed by your own attorney if the attorney is not representing you. An attorney is ethically bound to have only one client and must instruct the non-client party that he or she has the right to have the judgment reviewed by their own attorney. Sometimes things seem basic and they are not. For example one party might have a car in the opposite parties’ name and agree to pay the payment in the judgment. A few months later the party obligated to pay goes into bankruptcy. Under this scenario the party who had good enough credit to get the car ends up paying the bank. This is a perfect reason why it is best to have an attorney review your facts prior to settlement.
If you ever have a question regarding your rights in a divorce or other family law issue take the time to call me so you can make an informed decision on how to proceed. An ounce of prevention is worth a pound of cure. Once you enter into a judgment your rights are very limited and it is very difficult to undue a bad deal. There is no sense in making a bad decision or entering into a horrible agreement that will hinder your ability to be successful and happy in the future. I can be reached at my office at 248.380.8787 or on my cell at 258.672.6112.