Twenty Things You Should Know About Divorce
©2009 by Glen L. Rabenn, CFLS
BIOGRAPHICAL NOTE: Glen L. Rabenn, is a Certified Family Law Specialist, with offices in Seal Beach, California. He was a contributing author to the Encyclopedia of Matrimonial Practice, and has written numerous Family Law articles published in legal newspapers and periodicals. Mr. Rabenn is a past president of the Family Law Section of the Long Beach Bar Association. Mr. Rabenn practices family law in the Superior Courts of Los Angeles and Orange Counties.
For most people, divorce is one of the most excruciating events they will ever experience. In the break up of a marriage, the spouses and their children find themselves adrift in a perfect storm of stressful events: changing relationships, new living arrangements, new schedules confrontations and the expenditure of large sums of money. This vortex of emotions can often make it difficult for spouses to understand the divorce process and impair their ability to make sound decisions.
In the course of my 35-plus years of divorce practice, I have found that couples can do a better job of getting through their divorce if they are educated about the process before it begins. In numerous conversations with divorce veterans, I have heard them say how differently their divorce would have turned out if they had been told about how they should act, what they should expect and what is expected of them. The following is a list of divorce do’s and don’ts that will help guide you through this difficult time.
1. THERE IS NO REAL WINNER IN A DIVORCE
Many people start their divorce hoping to “beat” the other spouse in court. In order to make sure that they are victorious, these spouses often hire attorneys who make glowing promises of how they will aggressively represent them in court. In response, the other spouse hires his or her own legal gladiator, and the battle is then joined.
In fact, there is seldom a winner or loser in a divorce case. The typical divorce involves various issues, such as child custody, child support, spousal support and the division of community property. When a divorce goes before a judge, it is very common for one spouse to feel as is he or she “won” on one issue, yet the other spouse claims victory on another issue. For example, the wife might be awarded primary physical custody of the children, but the amount of spousal support that the husband is ordered to pay might be the low figure proposed by his attorney. This makes it virtually impossible to tell the winner from the loser.
The fact is that setting your sights on being the “winner” in your divorce is pointless. Instead, the focus should be on what you will have to go through, in terms of money, time and stress, to wage a costly court battle. After months of legal maneuverings and a trial, each spouse will have spent many thousands of their hard‑earned dollars. They will likely have made accusations about the other spouse in public documents that can be read by anybody. These are statements that can never be retracted or forgotten. In the end, after this costly battle is over and the dust has also settled, the spouses will soon forget who the “winner” or “loser” was. They will only be left with the costly effects of their hotly contested divorce.
2. DON’T MAKE IMPORTANT DECISIONS WITHOUT THINKING THEM THROUGH
When you are in the middle of your divorce, there will be many occasions when important decisions have to be made. As an example, you may have to decide on the parenting arrangement that you believe would be best for your children. Or, you may have to decide what to do with the family residence.
Making such important decisions can be agonizing and, in the course of your deliberations, you may find yourself tempted to make a quick decision just to get the case over with. This is an impulse that you should resist.
Decisions you make in your divorce case will impact you and your children for years after the case is over. For this reason, it is important that you make decisions in your divorce only after you have thought about the possible repercussions that might occur in the future.
One way to avoid making rash decisions is to select a dispute resolution process that facilitates decision-making in a calm, peaceful environment. Any attorney will tell you that a courthouse is one of the most emotionally charged environments in existence. Walk down the hallway of any courthouse and you will see hundreds of stressed adults and children, some angry and others who are simply scared. In such a conflicted atmosphere, the chance of there being any calm and reflective decision-making is virtually nonexistent.
Mediation and collaborative divorce enable the divorcing couple to discuss and resolve their issues in a calm and relaxed atmosphere. Instead of ending up haggling over community property or the custody of children in a hot and crowded courthouse hallway, these nonadversarial dispute resolution methods give spouses the opportunity to discuss their cases in a private office that can be miles from the nearest courthouse.
3. COUNT TO 10 BEFORE YOU SAY SOMETHING YOU MIGHT REGRET
A divorce is often the most stressful event a person can experience. This is because a divorce involves multiple changes in your life, all happening at the same time. Moreover, your level of stress might be even higher because you are still residing with your spouse while court case is progressing.
With all of these stressful events occurring simultaneously, there may be times when you will be tempted to say mean or hurtful things to your spouse, often in the presence of your children. Even if you do not really believe them to be true, things that are said in moments of high stress can have a lasting effect on your future and that of your children.
Whenever you come to those moments where you are about to say something potentially hurtful or controversial, you must give yourself some time to contemplate the statement before it is actually made. At these times, a simple rule to follow is that you should count to 10 before you answer a question or make a statement. This cooling off period will give you an opportunity to consider exactly what it is that you want to say and whether your statement will have unintended implications or misinterpreted.
4. YOU ARE GETTING DIVORCED, BUT YOUR CHILDREN AREN’T.
While you are going through your divorce case, it is very easy to get wrapped up in the emotions of the moment. In that state of mind, you might say or do things to your children, or in their presence, that may be hurtful or upsetting.
At all times parents must remember that, even though the marriage is ending, the children are not ending their relationship with the other parent. Often the level of accusations and threats becomes so high that the children feel that they have to choose between their warring parents.
Psychological studies tell us that the more the parents fight in the divorce case the more damaging the whole process is to the children. When they are interviewed about their parents’ divorce, adult children will usually say that the worst part about it was hearing their parents argue and fight. Children of divorce will often talk about the stress that they experience in their parents’ divorce for many years after it is over. In fact, the stress experienced by the children can limit their ability or willingness to be parents themselves.
While you are going through your divorce, at all times you must be aware that whatever you say and do will have a profound and permanent effect on your children. You and your spouse must dedicate yourselves to limiting the stress and dislocation that the children experience as a result of the divorce case. This might mean, for example, that you might want to retain the services of a mental health professional to counsel your children about the divorce. You also may want to obtain your own counseling so that you can be sensitive to the needs and concerns that your children may have during this difficult process.
5. YOU DON’T WEAR A WHITE HAT AND DON’T PUT A BLACK HAT ON YOUR SPOUSE
In the heat of your divorce, you will be tempted to portray yourself as the victim of your spouse’s evil behavior. To make your point in negotiations or in court you will be tempted to portray your spouse as the embodiment of evil.
It is common and natural for the divorce process to polarize spouses to the point where they see attacking each other as an enemy. When people go to court to have their divorce cases heard, they are often counseled by their attorneys to come up with as much “dirt” as they can about their spouse. Just like the classic advertising executive making a pitch, the attorney will justify such a tactic by saying “let’s throw it against the barn door and see what sticks.”
While such a strategy might work in the world of business, it seldom pays off in a divorce. One reason why such a strategy is questionable is that judges are accustomed to hearing negative accusations exchanged like a pingpong ball going back and forth over the net. Only evidence that is highly compromising and dramatic will have an influential effect on the typical divorce judge.
Vilifying your spouse is also not a wise practice because of the emotional scars that can be left when negative statements about a spouse are made in filed documents or open court. Minimizing the impact of negative statements becomes as difficult as unringing the proverbial bell or getting whipped cream back in the can; it simply cannot be done. In the end, you are left with hurt feelings, animosity and anger, which can engulf you, your spouse and your children in a churning sea of accusations.
6. DON’T BELIEVE EVERYTHING OTHER PEOPLE TELL YOU ABOUT THEIR DIVORCE
When you are getting divorce, you can expect your friends and relatives to give you advice about what you should and should not do. These people, many of whom have gone through the process, will draw on their own experiences as if they can be considered to be a template for your divorce. Unfortunately, the information and advice that you get from other people can be misleading and simply wrong.
The truth is that, just as every family is different, so every divorce is different. In every divorce case, there are different dynamics, financial situations, personalities and sources of stress. Your friends or relatives may believe that what happened in their divorce is typical. They often will tell you things about their own divorce cases, not fully understanding why it is that their divorces ended up as they did.
Remembering the saying that “free advice is worth what you pay for it,” you should not base your decisions in your divorce case on the experiences of well‑meaning people who offer their free and unsolicited advice. Instead, you should base your decisions on the advice you get from your attorney, mental health professional and financial consultant, all of whom are familiar with you and your family.
7. BE A “BIG PICTURE” PERSON – LET GO OF THAT OLD SOFA
A divorce requires the spouses to make many decisions over a period of months. Sometimes, in the heat of the battle, every decision appears to be a skirmish that will have a significant effect on the outcome of the war. As a result, you might find yourself devoting much of your attention to relatively small or insignificant matters, such as how the household for church furniture and furnishings will be divided or whether Christmas vacation should start at 10:00 a.m. or noon. This can cause your divorce case to become more protracted and expensive than it needs to be. If you spend too much time focusing on minute details, your spouse might see you as being inflexible and unreasonable.
It is important for you to avoid getting hung up on these relatively small issues. Instead, you should try to be a “big picture” person. This means that you should be ready to make a concession on a small issue. You should be more focused on addressing the important issues, such as how your children’s time will be allocated or what the best financial arrangement will be. In the long term, it is the manner in which these “big” issues are resolved that will have the most profound effect on you and your children.
8. FORGET THE PAST, LIVE IN THE PRESENT AND PREPARE FOR THE FUTURE
Virtually every divorce is preceded by what is often referred to as the “marital battle.” Regardless of the issues over which the battle has been fought, the conflict can last for years. The anger that is generated in the conflict with your spouse can often threaten the peaceful resolution of the issues and inhibit your ability to make sound decisions in your divorce case.
While we certainly can learn from what happened in the past, obsessing about all of the bad things that you feel were done by your spouse will only prevent you from moving on with your life and making decisions that are in the best interests of you and your children. If you continue to dwell on the marital battle, your spouse will become frustrated and will doubt that you have a sincere desire to peacefully resolve the divorce case.
To avoid this from happening, you should commit yourself to forgetting the past and focusing on the future. You should approach the divorce with a positive outlook and a willingness to work with your spouse to achieve the best possible result from you and your children. A positive forward‑thinking attitude will tell to your spouse that you are stepping back from the conflict that precipitated the divorce and are ready to deal with the important decisions that must be made, now that the marriage is ending.
Of course, there are instances in which the past must be considered in making decisions about the future. For example, if your spouse has a substance abuse problem, or where there has been domestic violence in your home, these issues must be considered in determining issues of custody and parenting of the children. However, you should try to avoid dwelling excessively on the many ways in which your spouse hurt or disappointed you.
9. BE HONEST WITH YOUR ATTORNEY
Every divorce lawyer has had the uncomfortable and sometimes embarrassing experience of learning a crucial fact about the case from the other attorney. This can be even more problematic for the attorney if it happens during a trial. Examples of these surprises are almost without limit: the husband who, when being cross-examined by the wife’s attorney, admits that he has two other properties that he failed to disclose to his lawyer. Another is the wife who fails to tell her lawyer about her addiction to prescription medication.
When you hire a lawyer, you are asking him or her to represent you to the best of their ability. You can cripple your attorney’s ability to look out for your interests if you fail to disclose key information that is relevant to the issues in your divorce case. You should always remember that if you fail to disclose an important fact to your attorney, that fact will ultimately come out, but probably in a way the harms your case and limits your ability to obtain a good result, either in settlement or court.
10. THERE ARE ALTERNATIVES TO GOING TO COURT
Most people think that a divorce case has to end up in court in front of the judge. In fact, there are alternative ways to resolve divorce cases that do not involve going to court.
One such method is mediation, in which a neutral mediator assists the spouses in negotiating a settlement of their case. The mediator, by means of face‑to‑face negotiations, helps the spouses identify the issues in their case and work out mutual agreements as to how these issues are going to be resolved. The mediator will often recommend that each spouse consults with an attorney while the mediation process is proceeding. However, these consulting attorneys do not sit at the mediation table.
Collaborative divorce is in another way in which people can obtain the result of divorce cases without going to court. In a collaborative divorce, each spouse retains the services of their own collaborative attorney. The spouses and their attorneys sign a collaborative agreement in which they agree to resolve the case without going to court. In addition, the agreement has a disqualification clause, which says that if either spouse wants to go to court the collaborative attorneys must withdraw from the case. In that event, the spouses must then retain the services of litigation attorneys.
In a Collaborative Divorce, a team of professionals is assembled to assist in the decision‑making process. Besides the attorneys, the collaboration team will usually include mental health professionals who function as “divorce coaches” and a third mental health professional who serves as a “child specialist.” The team also includes a neutral financial specialist, who may be an accountant or a financial consultant. Using face‑to‑face negotiations, emails and telephone calls, the spouses and their collaborative team addresses each issue in the case. Collaborative Divorce has proven to be highly effective. In fact, more than 90 percent of divorcing couples who go through the Collaborative Divorce process are able to completely resolve their divorce issues without going to court.
11. MEDIATION AND COLLABORATION ENABLE YOU AND YOUR SPOUSE TO CONTROL THE OUTCOME OF YOUR CASE
When spouses decide to have their divorce processed in the courts, they lose control over the ultimate outcome of their case. Instead, the decision‑making process is turned over to a complete stranger – the judge. This judge will have no knowledge of the people, their children, their assets or any of the personal dynamics of their case. All the judge will know will be what is presented in the trial. At the end of the trial, the judge will make a decision based on the evidence that has been received.
In most areas of family law, the judge is provided with a significant amount of “judicial discretion” in making decisions. For example, when the question to be decided is which parent will be awarded custody of the children, the judge can accept the positions of either spouse, or make a decision that is totally different from what either spouse proposed. As a result, divorce attorneys will often say that it is difficult to predict what the judge is going to do with regard to any particular issue.
Mediation and Collaboration enable the spouses to jointly control the outcome of their case. In both processes, the spouses themselves make decisions regarding the important divorce issues. Instead of having a result that is based on a judge’s superficial understanding of the family, these alternatives allow the spouses to jointly determine an outcome that is specifically tailored to them and their family. For example, in deciding how the children’s time is to be allocated, the judge might use a standard schedule that is used in many other cases. In mediation and collaboration, the spouses can structure a parenting plan that is customized to fit their and their children’s needs.
12. COURT IS NOT ALL THAT IT’S CRACKED UP TO BE
When things are not going well in a divorce case, one of the spouses will often threaten to terminate any negotiations that have been in progress and go to court. Such a threat reflects that spouse’s misunderstanding of exactly what happens when people let the judge decide their cases, and how much it will cost.
The road to a divorce trial is long and costly. During the months before a trial takes place, the attorneys conduct “discovery,” which is the process by which the attorneys obtain facts and information they will need to present their cases to the judge. Prior to the trial, the attorneys and the spouses are usually required to attend a “mandatory settlement conference,” which is intended to provide the spouses and their attorneys an opportunity to discuss settlement with a judge or volunteer attorney.
If the case is not settled at the mandatory settlement conference, the attorneys must then start preparing for the trial. When the day for the trial finally arrives, the spouses are often surprised to learn that their case may not get heard on that day. Even if they are able to start the trial, it is very likely that it will not be completed that day, which then requires another court day. Because of the congestion in court calendars, judges often have to schedule trials to take place on nonconsecutive days, over a period of months.
Every step along the way to the trial costs the spouses money in attorneys fees, court fees and other costs associated with the process. This expense can be staggering and can drain the very assets that are often the subject of the dispute. A trial of a relatively simple case can require multiple court days to complete, often at an expense of tens of thousands of dollars.
The recent financial crisis has made going to court even more daunting than it already had become. Throughout California, every Superior Court is now closed for business on the third Wednesday of every month – and that is just the beginning. Already we are seeing the Orange County Superior Court decide that, in order to conserve its resources, they will be closing at 3:00 p.m. every Friday. As a result, the Orange County Superior Courts are now closed the equivalent of two court days every month.
Even after spending many thousands of dollars in the discovery, mandatory settlement conference, trial preparation and trial process, the spouses and their attorneys are left with the total uncertainty of how the judge will rule on the case. The law gives the judge considerable “judicial discretion” in deciding issues such as child custody, spousal support and division of assets. This discretion can be so wide that many attorneys compare a divorce trial to gambling.
13. UNDERSTAND THAT THERE ARE TIMES WHEN YOU HAVE TO GO TO COURT
As much as you would like to avoid court and all that it involves, there are situations in which going to court is both necessary and inevitable. If you have such a case, accept the fact that you need the assistance of the judge to resolve the dispute that exists between you and your spouse.
It is perfectly natural for people to be reluctant to engage in a courtroom battle. Litigation is expensive, time-consuming and unnerving. Most people prefer to avoid confrontation, and a court hearing is, by its very nature, confrontational. So, if you find yourself dreading the prospect of going to court, do not think of yourself as unusual. You are simply a normal, reasonable person who would prefer to work things out, but who is being forced to resolve a dispute before the judge.
You should also be aware that your spouse, knowing of your aversion to confrontation, might use your reluctance to go to court to his or her strategic advantage. Just as in any other form of competition, your adversary will exploit any weakness that is perceived in your defenses. With this in mind, you should never let your spouse know that you have any aversion to going to court. Instead, you should make your spouse know that you would like to resolve your case without having to go to court, but you will have no hesitation to do so if you believe that a reasonable and fair resolution of the case is not possible.
There might be some issues that come up in your case that can only be resolved by a judge’s ruling. For example, if your spouse subjects you or your child to domestic violence, you will most likely have to file a request for an appropriate protective order or a request that your spouse be excluded from your home. Or, if you urgently require financial assistance from your spouse, it might be necessary to file an Order to Show Cause to request temporary child support and/or spousal support orders.
14. BE AWARE OF YOUR FIDUCIARY DUTY OF DISCLOSURE
The California Family Code imposes fiduciary disclosure duties on spouses who are dissolving their marriage. All persons involved in dissolution of marriage, legal separation or modification cases must be aware of the fiduciary duties that have been established in the law. These duties require each party to disclose information and documents that are material to the case – without being requested.
In transactions between themselves, spouses are required to comply with the rules governing fiduciary relationships, which control the actions of persons occupying confidential relations with each other. These rules impose a duty of the highest good faith and fair dealing on each spouse, and prohibit spouses from taking any unfair advantage on the other.
The fiduciary duty of disclosure requires you and your spouse to provide each other with complete information and documents regarding your income, expenses, assets and debts. In addition, the law requires spouses to update that information as new facts come to light. For example, if you are operating the family business and receive an offer to purchase it, you are required to inform your spouse about that offer.
The law is serious about requiring spouses to make complete and timely disclosures and permits judges to impose severe penalties on spouses who fail to comply with their fiduciary duties of disclosure. In one noted case, for example, the wife concealed from the husband the fact that she had won $1,5 million in the California Lottery. When the judge was informed about that concealment, he awarded all – not just half – of the lottery winnings to the husband.
15. MAKE AN INVENTORY OF YOUR HOUSEHOLD FURNITURE AND FURNISHINGS
Household furniture and furnishings and personal effects have a tendency to get “lost” when a divorce is filed. Wives will frequently report that they cannot find a treasured piece of heirloom jewelry. Husbands, on the other hand, will often find that a costly woodworking tool has mysteriously vanished from the garage. The other spouse will vigorously deny taking the item in question, and the aggrieved spouse will not be able to prove that there was any actual theft or concealment.
These types of disputes can easily be avoided by taking a complete inventory of your home. The following steps should be followed in creating such an inventory:
- Take photographs of every item.
- Sets of small items, such as dinnerware, should be photographed as a set.
- Have the front page of that day’s newspaper in every photograph. This creates a “time stamp,” which avoids any claims that the photo was taken at an earlier date.
- Keep your photos in a safe, protected place.
- Secure any appraisals or insurance inventories of the items in your inventory.
16. CONSIDER CLOSING JOINT BANK AND CREDIT CARD ACCOUNTS
Even though the law says that any debts incurred by a spouse after the date of separation, that does not actually prevent your spouse from charging on a joint account. Everyone has heard stories of the husband who charges a trip for himself and his new girlfriend or the wife who charges for a hyper-expensive designer purse. In the divorce, the spouse who made the charge will ultimately be responsible for the payment. However, the bank or charge card company will still have recourse against the other spouse, who had nothing to do with the charge.
To avoid problems such as these, it is usually wise to close all existing credit card accounts and joint bank accounts. If you elect to do so, you should inform your spouse immediately so that he/she will not incur any further credit card charges or write any bad checks.
17. CHANGE YOUR WILL OR YOUR ESTATE PLAN
Even if you are filing for a divorce, the terms of your will or estate plan will remain in effect until you modify them. This means that, if your spouse is a beneficiary of your estate plan at the time of your death, he/she will be entitled to whatever is provided in the plan, even if a divorce has started.
18. MAKE COPIES OF IMPORTANT DOCUMENTS
When a divorce case is about to be filed, important documents have a way of disappearing. Even though there are strict rules requiring full disclosure, there are still spouses who see it in their interest to hide or destroy key documents, such as agreements, bank records and correspondence. Documents such as those can make a big difference in proving important issues in your case. This can be avoided by simply making copies of important documents as soon as you decide to file your divorce or when you learn that your spouse is planning on doing so.
19. HAVE REASONABLE EXPECTATIONS
Many people enter the divorce process with definite goals that they would like to achieve. At times, these goals might not be consistent with the law. This attitude is often fueled by a spouse’s conviction that he/she is the innocent party in the breakup of the marriage. Often with self-righteous indignation and the conviction that the other spouse is the cause of the divorce, the spouse will insist on a certain outcome, even if it is unattainable.
For example, the mother who was left behind for another woman, might demand sole legal custody, even though Courts almost always award the parents equal decision-making powers. Then, there is the husband who feels he has a right to all of his pension benefits because he worked the long hours that generated the income that paid for those benefits.
People who have unreasonable expectations often have a difficult time engaging in settlement discussions to avoid going to court. Believing that there should be a particular outcome on an issue, these people resist appeals to reason and, as a result, tend to prolong cases and make them more difficult to resolve amicably.
If you want your divorce case resolved quickly and with as little expense as possible, you need to understand how the law applies to your case. This is one reason why it is usually advisable to be represented by a qualified family law attorney.
20. DO NOT ALLOW YOURSELF TO BE A VICTIM OF DOMESTIC VIOLENCE
Domestic violence comes in various forms. It can be a punch in the stomach, a scratch on the face or a threat of physical punishment. Besides the obvious threat to the welfare of a spouse or a child, domestic violence also robs the victim of his or her ability to make the important decisions that must be made in the course of a divorce case. A victim of domestic violence is more likely to be concerned with his or her safety, or that of the children, than the specifics of the divorce settlement.
If your spouse is subjecting you or your children to physical or verbal abuse, you must take immediate action. You should consider leaving your home and seeking temporary residence in a women’s shelter. You can also go to your local courthouse, where court personnel will assist you in filling out the forms that are necessary to obtain appropriate restraining orders. The law gives the judge the power to order the offending spouse to vacate and stay away from the family residence and the other family members.