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Pre-divorce Planning

Divorce professionals are often asked about divorce planning, both before and after the decision to obtain a divorce has been made. One of the first things someone should consider is marriage counseling. Trying to save the marriage, if possible, is easier said than done. Most clients, however, feel more comfortable entering the process knowing that everything was done that could have been done to try to salvage the relationship. Outside of counseling, someone contemplating divorce should be sure to listen to the opinions and advice of persons he or she trusts and respects.

As part of the actual divorce planning, you should definitely consult with an attorney. Read this material. Begin your planning by making strategic financial moves, such as the following:

Maximize cash assets in your individual name.
Run your own credit report and analyze it, looking for previously unknown debt obligations.
Reduce risks to your credit rating, and work to improve your credit rating.
Reduce the risk of your spouse increasing joint debt.
Check with your lawyer before transferring money in and out of accounts. There are no absolute rules in this area. Each case is unique.

There is no way to perfectly handle any divorce situation. With a little bit of planning and consultation, however, some of the most basic and fundamental mistakes can be avoided.

Learning about the effects of stress can also be very beneficial. Stress can lead to very serious depression and poor decision making and judgment. While no stress management program can completely eliminate physical and emotional problems associated with complex legal problems such as divorce, sincere and meaningful attempts to manage stress through nutrition and exercise can have a very positive impact on your emotional and physical distress.

Once the decision to get a divorce has been made, very serious consideration and determination of short-term financial needs and long-term goals must be your focus. After learning about the divorce process and the laws applicable to your situation, you can begin to formulate reasonable expectations about the end result of separation and divorce. The relative success of your divorce will depend upon whether or not those expectations are reasonable and realistic. From that point, you can begin to develop long-term goals to accomplish. Once you have your long-term goals formulated, you need to make sure that you communicate them to your attorney.

Planning for your future, both immediate and long-term, can be a very difficult process. Some divorcing persons find it helpful to seek professional assistance during that process. Most divorce lawyers work with counselors, financial advisors, and accountants on a regular basis. In the long run, planning can help reduce stress and provide objective criteria that will be needed later as settlement negotiations narrow into a range of possibilities between the parties. Having completed effective divorce planning, you can be more confident in decision making at critical points in the future. Also, by determining and ranking your priorities, you can better make decisions in the event that one or more of your goals have to be sacrificed to achieve another, more important goal.

At the same time, keeping an open mind can be very important. Often a client will identify as a goal the need to punish the soon-to-be-former spouse. The need for revenge can be overwhelming. When you hold on to these hostile feelings, however, your spouse can continue his or her control and manipulation of your emotions. Hostile feelings are very real, but these negative emotions will almost always reduce the chance for an amicable, cooperative, and favorable settlement.

Determined planning, keeping an open mind, using effective and serious stress management techniques, allowing your anger to dissipate on its own, thoughtful planning about your future, and making sincere efforts towards your goals every day will help you create the life that you want in the future.

There are two waves of critical importance during your divorce. The first, as discussed above, is the pre-divorce planning, preparing to file the Complaint for Divorce, and making decisions early in the process regarding short-term financial needs. The second wave hits later, as the divorce process attempts to resolve itself. Generally, there are three different ways that the second wave comes into the divorcing party's life.

The first way the second wave can arrive is trial. You and your lawyer will spend a lot of time discussing what could happen at trial. This includes predicting the results. Determining possible outcomes at trial can serve as an important benchmark to which all settlement negotiations should be compared. Interestingly, while the prospect of trial is the first thing that comes to most people’s minds, it is the least likely way that most divorces are resolved.

The second way for a divorce to be resolved is through attorney negotiation. This can be done through an informal process of exchanging settlement proposals, in Tennessee called "Marital Dissolution Agreements," between the attorneys until a final agreement is reached. Another way for attorney negotiations to proceed is through mediation. There is a great deal of material included herein about mediation, how it comes about, and what it entails. If settlement attempts are successful, the parties will complete a binding contract. The terms of the contract can be enforced by either party against the other. This means that if you create a "side deal" not included in the settlement agreement, the court will not enforce it.

Finally, the third way a divorce can be resolved is through direct negotiation between the parties. Generally, attorneys will advise clients to make sure that they never sign anything without consulting with their attorney first. This is because many of the important provisions of divorce settlements can be considered "standard" provisions. Depending on the facts and circumstances of your individual case, what may appear to be a "standard" settlement provision may not be, in fact, standard. For example, in Memphis, Tennessee a divorcing couple agreed to a divorce stating that each party received one-half of the other's property. This provision may appear standard, but one party had inherited a significant amount of land. The land should have been characterized as separate property, but was divided as part of the divorce when it otherwise should not have been. Your attorney will help you to avoid leaving gaps in the settlement framework that could come back to haunt you in the future.

Settlement discussion between the parties themselves can be beneficial towards moving the case to an amicable and favorable resolution. Even if you still trust your spouse, the settlement process is generally not the time to be foolhardy. If you do not know all of your rights and strengths during negotiations, you may be missing very important opportunities. Plus, your spouse could be consulting an attorney without your knowing it. Unfair and unbalanced negotiation can result in devastating financial effects.

Many people will wait before seeing a lawyer. Procrastination in this situation rarely results in positive benefits. Many people cite feeling overwhelmed or denial as reasons for not seeing an attorney as soon as they should. Impending financial difficulties or fear that seeing a lawyer will inflame an already deteriorating situation are common reasons for delay. Another reason for delay is not understanding how an attorney can help their particular situation. While there are some problems no lawyer can help with, in most cases lawyers have important advice to offer. An attorney's specialized knowledge, training, and experience, along with proper timing of his advice, can prevent some serious problems from ever arising. Much of the work performed by lawyers occurs without a lawsuit being filed. Selecting the right lawyer for you is part of the pre-divorce process. Be sure to conduct your own interview of the lawyer. This is the person from who you will be seeking advice to safeguard your rights during a time of great emotional distress for you and your spouse. The settlement structure that you create will have a long-reaching financial and emotional impact on your life. Part of the divorce settlement or ruling at trial will involve a great number of technical issues, such as taxes and health insurance that are critical. Trying to tackle these issues alone could be a serious mistake.

While you may or may not feel friendly with the lawyer you choose, you should expect to develop a rapport. If the lawyer is not attentive to your questions during the initial interview or after you have retained him or her, consider consulting another person. Not understanding what the lawyer says or finding that the lawyer is disorganized is a sign that you may not be speaking with a lawyer who is right for you.

You should expect to be given a clear picture of that attorney's billing and collection policies. The lawyer should explain the hourly rates of everyone in the office who will work on your case. You should learn how the lawyer charges for expenses, such as photocopies, long distance telephone charges, court reporters, and postage. Learn whether or not you are supposed to pay these expenses in advance. Different lawyers have different definitions of the word "retainer." Be concerned with the detailed nature of the billing statements or invoices. You should be able to clearly understand what work was performed and the length of time that it took to complete the tasks undertaken.

While some aspects of the contractual nature of the relationship with your lawyer may not seem as important at first, if you do not completely understand these aspects and they are not clearly communicated to you by your lawyer, your relationship with your lawyer could be poisoned later on down the line, possibly at a very important time in the case. Such misunderstandings are not unusual and can become very stressful if they are not cleared up immediately after they arise. Never settle for vague answers to any of your billing questions. Do not, however, expect your lawyer to know how much the fees will be. But every lawyer can give you some helpful information about how expensive your case could be if it resolves itself easily or if it becomes highly contested.

Look for a firm that can be flexible enough to handle your situation. Every divorce case is different. So is every law firm. Some portions of every case can be handled by a highly competent paralegal under supervision of an attorney. Different individuals have different expectations. Some clients may wish to spend most of their time with their attorney directly, seeking firm strategic planning and full discussion of all issues. Other clients would rather keep billing to a minimum, spending most of their time with a paralegal. Be sure to discuss your preference with your lawyer during the interview process. Listen to what the lawyer has to say. Determine if your goals are consistent with the setup of your prospective attorney's practice. Be wary of the lawyer who tells you what you want without listening you.

Make sure you hire an attorney who has enough time to handle your case. For important discussions, you will most definitely want to spend time with your lawyer, not a paralegal. If your lawyer is too busy to return your phone calls or spend quality time engaged in extensive settlement discussions or strategic planning, you may need to consider hiring another attorney. While your case may not require a great deal of time with the attorney, being unable to schedule an appointment with that attorney or to get that attorney on the telephone within 24 hours of your call can be very, very frustrating. It will make a big difference at some point. Some attorneys handle as many as a hundred cases at a time, making it difficult for any single client to have quality exposure with the lawyer. Others will limit their practice for the specific reason of making sure that their clients have the required time. Not biting off more than the attorney can chew is a very real concern among all competent, experienced, and popular divorce practitioners. A lawyer imparts time and advice to clients. Do not underestimate the importance of being able to schedule time to obtain that advice.

If the relationship with your lawyer is effective, many positive benefits can result. In most cases, goals of the attorney-client relationship include a favorable settlement. If a favorable settlement cannot be reached, then a series of court appearances will ultimately lead to trial. Communication is the key. A lawyer knows what can be done, but often a client does not know how to direct the lawyer towards a specific goal. Time together talking about the history leading to the case, seriously discussing your future plans, and clarifying your goals can all help communicate to your lawyer the results you want from your case. The outcome of your case following a professional and cooperative relationship with your lawyer will most certainly be better than the outcome following a relationship that suffers from a lack of productive exchange of information and ideas.

If you ask an experienced divorce lawyer why divorces cost so much, the most common honest answers will likely include revenge, pride, and fear. In some cases, an aggrieved spouse may seek revenge by directing the attorney to make the process as painful and expensive as possible. In other cases, a high price tag is reasonable because one party has been denied access to the other's accounts, causing the party denied access to initiate costly discovery and motion practice, or because the assets of one or both parties are complicated and difficult to value, as with a closely-held business or professional practice. You have a right to learn about and understand your spouse's complete financial picture before determining your settlement position.

If you are worried about the cost of your divorce, discuss the issue with your attorney. Tell the lawyer what you can and cannot afford to pay. There are opportunities in every case to reduce expenses. If you feel you cannot afford the lawyer you have hired, say so and ask for names of other lawyers who can handle your case. You should agree to receive legal services only if you will be able to pay for them.

Additional strategic considerations about the divorce process. In most situations, it does not matter whether or not a particular party files first. Discuss this with your lawyer. In certain cases, there are strategic advantages to filing first, depending on the relative negotiating strengths and weaknesses of the parties. In general, unlike fine wine, legal problems do not improve with age.

Keep in mind that the Complaint for Divorce and accompanying requests for relief generally ask for everything possible under the sun. A legal reason for this is that a court cannot grant relief that is not requested. A Complaint for Divorce that asks for everything does not necessarily mean that there is going to be a full-scale war.

Most cases settle. Experienced family law attorneys will advise their clients to prepare for trial but always allow for a settlement opportunity when it arises.

Most attorneys will advise against dating during the divorce process. This advice does not change even if the other spouse has already left the marital residence and is living with another person. It is commonly believed that most judges will overlook the first person's infidelity in these situations, under the heading of two wrongs don't make a right. In any event, dating will almost certainly reduce the strength of your perceived relative negotiating position with respect to fault, which is a factor in determining alimony.

Memphis - 901.683.1850 Nashville - 615.369.0640