inexpensive free divorces

10 CHAPTER 2 DIVORCE AND THE LEGAL SYSTEM How Do You Want to Conduct Your Divorce? Call the Connecticut Coalition Against Domestic Violence, (860)524-5890, to obtain a free copy of their pamphlet A Guide to Connecticut’s Family Violence Laws. This pamphlet includes clear and useful information about laws designed to protect victims of abuse, including civil and criminal court remedies. It has information about how to apply for restraining orders without an attorney and a comprehensive list of state and community-based assistance programs. Most people want to end their marriage as efficiently as possible and do not want to make difficult matters worse than they already are. At a time when there may not be enough money to support a family in two homes, no one wants to make unnecessary payments to custody evaluators, lawyers, appraisers, tax accountants, career counselors, business consultants, or mediators. However, to get divorced requires taking the steps necessary for making sure your children will be loved and well-parented by both of you, for dividing up your current financial assets and, in many cases, for providing for future support payments. Also, even if you have a completely “friendly” divorce, the only way to divorce is to file a divorce action with the court and comply with the bureaucratic rules and regulations imposed before a judge will “grant” you a divorce. No matter how long you have been married, whether you have children or not, whether you are amicable or fighting, all divorces require that you go through the following stages: 1. Information and Education To make decisions about your children and your finances, you need to have information available to you so that you feel comfortable and informed. When you settle your divorce case your decisions will be final, so you want to feel you have enough information to make good decisions. Chapter 7, Gathering Information and Preparing Financial Affidavits, will help you to understand what information you need to make your divorce decisions. There are also two different ways to get the information you need. The “formal” approach involves requiring the other spouse and/or third parties to provide information and documents under oath using interrogatories, requests for production of documents, and/or depositions. Litigated and adversarial cases usually use these formal approaches. The “informal” approach involves the informal sharing of information. You should consult with an attorney to determine which approach is best for you. No matter what approach you use, Chapter 7 will provide you with an understanding of the type of information you should consider having to make informed decisions. Once you have all the information you need, however, your work has just begun. To interpret the information and use it to make Divorce and the Legal System 11 informed decisions, you will need education so that you can understand your widest range of choices on all the decisions you need to reach. In identifying your choices and assessing their possible outcomes, you can use professionals to test out your own ideas, consider a myriad of real world considerations, and/or get advice about predictions of what a judge might decide in your case. See Chapters 8 through 12 for more information on these matters. When supplemented by professional advice, all of this information and education will help you to make the best decisions you can for yourself and for your family. 2. Making the Deal All divorce cases are as different as each family member. Once you have all of your information and feel like you understand the issues and your options, it’s time to look at your settlement alternatives. No one can look up in a book and tell you how to “solve” the issues in divorce. The standard is whether or not the financial settlement is “equitable” and the parenting provisions are in your children’s “best interest.” A lawyer will give you legal advice about what he or she thinks a judge might do and what he or she considers a “reasonable range” of settlement options given your unique facts and circumstances. But in settling your case and planning the future for your family, you can consider alternatives that a judge might not and apply your own personal and family values. You and your spouse may have different views of what is “equitable,” “fair,” and/or “best.” That is why when you assess the various settlement alternatives, you need to consider your spouse’s goals. About ninety-five percent of divorcing couples reach a settlement—this means that while they have to go to court for the judge to approve the agreement they have reached, they do not need to have a trial for the judge to “decide” what is fair. When you settle the case, the judge has the final say at the divorce hearing to accept or reject your agreement. This is one of the reasons why adequate legal advice is so crucial before you go to court for your final divorce. You can be creative in your settlement but only a lawyer will be able to identify whether or not what you are doing (or more importantly how you are writing it down) will be likely to pass the test of the judge. No matter how “simple” your divorce is, there are many hoops to jump through to get from beginning to end. This book helps you to understand all the different components, but only legal advice and other professional assistance will insure that you are not going off on a wrong direction. 12 CHAPTER 2 How to Win in Court—Not! 3. Implement the Agreement Once you come to terms on your settlement, you are not done with the process. All of the terms of your agreement must be put in writing in a legal document known as a Divorce Agreement, Separation Agreement, or Settlement Agreement. It is important that you get adequate legal advice before signing the final agreement as it is absolutely final in most instances and there is no looking back. The court has many forms and procedures to follow to actually get divorced, including a court hearing that you must attend in person. Chapter 6 describes all of these procedures. Finally, to the extent that you and you spouse have a “marital economy” (commonly owned property, joint bank accounts, joint credit cards, etc.) you have to separate these things out (changing car titles, insurance beneficiaries, etc.) so you can each go on with your individual single lives. Chapter 13 will help you to understand the various things that you need to get done. To go through these steps, most people need professional assistance. The problem is determining the level of assistance appropriate to your needs and the procedures you want to follow to go through the divorce stages. How do you want to conduct your divorce? Here are some examples of how a divorce can be done, from the simple to the complex, from the friendly to the more adversarial, as well as from the less expensive to the costly. DIVORCE PROCESS OPTIONS 1. Do-It-Yourself Divorce Some couples are able to sit down together and work out all of the details of their divorce. These “kitchen table” conversations may be the most attractive to you, but you should be cautious. First, as you will learn by reading this book, the various issues you need to address are complex. You may want to simply talk directly with your spouse about these issues without paying for professional assistance; however, you may find yourself bogged down in the process or in need of someone to structure your conversations and give you information about how your decisions connect together. The emotional and communication issues that are causing the divorce may also be an impediment to handling the divorce yourself. Some of these issues may make it difficult to have productive face-to-face conversations despite your best intentions. At its core, divorce is not “friendly” and you may find that you need professional help to make sure that your interpersonal issues don’t sabotage your mutual desire to resolve the case in a nonadversarial manner. Since this guidebook is about friendly and cooperative divorce, it offers no advice or tips about how to “win” in court. If you and your spouse can’t reach agreements, get legal advice and/or assistance from the court on how to obtain temporary and/or permanent orders. Divorce and the Legal System 13 You must also negotiate and prepare a divorce agreement for the court to review at the time of your divorce hearing. If you have no children and little property or debts, you may have a divorce agreement of only a few lines or paragraphs that you can include on the Divorce Agreement Form (JD-FM-172). See Chapter 6 for cautions on using this form without legal advice. There are some legal services offices that provide free legal divorce assistance if you qualify. (http://www.larcc.org/common/network. htm). Other-wise, you need to find a private attorney who will help you to fill out the forms and/or review your agreement to see that it is complete and in a form acceptable to the court. Generally, these fees include consultation with you and preparation and filing of the forms but not the negotiation of your agreement. 2. Divorce Mediation You can hire a divorce mediator to work with both of you as a neutral third party right from the beginning of your decision to separate. The divorce mediator can help you decide what process is appropriate for you both, help you work out all the issues surrounding your separation and divorce, and summarize those decisions in a written outline or agreement. Divorce mediation is a process where the mediator facilitates the spouses working with each other to promote their voluntary agreements, sometimes called “self determination.” Divorce mediation allows you to make your own decisions rather than having decisions imposed on your family by a judge. The mediator facilitates communication, promotes understanding, focuses the family members on the interests of all the members—including the children—and helps spouses arrive at creative solutions to financial and parenting issues. Successful divorce mediation requires that each spouse consider the position of the other, be willing to compromise, and not expect a win-or-lose outcome. The mediator may suggest ways of resolving disputes but does not impose his or her own judgment. The mediator uses legal, financial, and emotional knowledge, supplemented by mediation skills, to help the spouses identify areas of agreement and disagreement. It is not the mediator’s role to serve as a therapist or marital counselor or to give legal or financial advice. The mediator does not act as an advocate, representative, or lawyer for either party. The mediator does not act as a judge or arbitrator or in any way impose a settlement in the case. Working together with a mediator allows you both to have direct participation in all of the stages of your divorce as opposed to having someone else “handle” it for you. To feel that you have an agreement uniquely suited to you and your family to which you There is a list of all the forms you might need in Chapter 6. W W You can pick up the forms at the clerk’s office at the Superior Court or find them on the Web at www.jud.state.ct.us/external/super/for ms.htm#family. You must fill the forms out correctly, file them in the correct sequence, and pay the correct filing fee. W Mediation: Mediation is a process in which an impartial third party—a mediator—facilitates the resolution of a dispute by promoting voluntary agreement (or “self determination”) by the parties to the dispute. A mediator facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement. 14 CHAPTER 2 “If we don’t work everything out in mediation, the mediator will decide for us.” A mediator does not make any decisions for you. Rather, he or she works with both of you to help you come to agreement. You keep your power to decide in mediation. You do not have to settle for anything you do not agree to. will commit with your whole heart, you must feel that YOU negotiated it. Satisfaction with your agreement—as well as with yourself—and compliance with it are more likely if you BOTH walk through each stage and negotiate each issue. A trained, skilled mediator can help to keep conflict from escalating out of control—allowing you to make good decisions in moments of stress. Working with a mediator right from the beginning increases the likelihood of the evolution of a communication process that you will use long after the entry of the divorce judgment. Mediation allows all professionals involved in the case—lawyers, therapists, and CPAs—to serve clients in an efficient, nonadversarial atmosphere. This results in a greater degree of client satisfaction, a stronger commitment to follow through on the terms of the agreement, and much less emotional and financial strain on the parties. Mediation can be a win-win situation for everyone. Factor Mediation Litigation Mediation Advantages Avoids delays Participants can “get on with their lives” Higher degree of satisfaction Less financial stress on participants Avoids negative publicity Greater commitment to follow-through Greater sense of “fairness” by participants Time Short Lengthy Cost Confidentiality Decisionmaking Inexpensive Confidential In the hands of the participants Expensive Public record Left to the courts Communication Direct Set by parties Primarily through Greater clarity attorneys May actually improve long-term relationship Set by court Participants feel greater sense of control Agenda Emotional needs Control of process Decree compliance Considered Often ignored By attorneys and the court Greater satisfaction with result Participants may end mediation at any time Participants feel empowered By participants High Unknown Less chance of relitigation Chart courtesy of Attorney Ingrid Slezak, Portland, Oregon Divorce and the Legal System 15 A professional mediator will help you reach and/or write your own settlement based on your unique needs. A mediator can help you identify issues and options, give your ideas form and context, assist you in resolving differences, and help you and your spouse to learn to bargain collaboratively. There are several different kinds of mediators with different kinds of backgrounds. As you choose your mediator, think about who you are and what you want to accomplish in your process. A divorce mediator can help you decide how you are going to approach and process your separation and divorce. A divorce mediator who is an experienced divorce lawyer can give you legal information to help you understand various settlement options and help coordinate the divorce process. A divorce mediator can help you resolve specific issues for your divorce agreement. A divorce mediator can help you throughout your process to develop a cooperative bargaining process that you can use well into the future. The basis of this guidebook is this mediation model. It focuses on problem solving. Some mediation styles have more structure. They focus more on reaching specific agreements rather than on problem solving. This type of mediation often begins by asking what solutions you want for specific problems. Some divorce mediation models focus on reaching an agreement based on what might happen if your case went to court, i.e., the case law or possible legal outcomes of your particular problem. This is called “evaluative” mediation and is usually used when people have been unable to settle and are looking for professional assistance to break their impasse. The mediator is not an expert to tell you the “right” answer or give you legal advice. There are probably a number of possible solutions, many of which would work for both of you, and the mediator can help you identify your options. There are many styles of divorce mediation. You need to be very clear about which approach will work for you. Select a mediator who has experience in the areas which you are discussing, such as the law of property division, alimony, parenting plans and their relation to child development, divorce taxation, financial plan- “What is great about the mediation approach, aside from its effectiveness in dealing with the immediate issues at hand, is that it teaches couples a cooperative process. They’ll be able to use what they learn to cope with the new issues that will, in the future, inevitably arise.” Dr. Constance Ahrons, The Good Divorce, 1994 16 CHAPTER 2 ning, and business or pension valuation and division. The more expertise the mediator has in the areas you are negotiating—especially those areas where you are unsure—the more efficient and less expensive your mediation is likely to be. Working with a mediator does not preclude legal advice from or representation by a lawyer. In fact, mediators recommend legal advice as a part of the mediation process and many judges are skeptical of agreements not reviewed by individual lawyers for each spouse. Family Services Office: The office in the courthouse that helps spouses settle disputes through mediation. If the parties can’t agree, the judge may direct the family relations officer to do a custody/visitation study and make a recommendation. Although mediation is about cooperating to work out financial and parenting issues in an efficient, nonadversarial manner, each spouse has individual concerns, legal rights, and responsibilities. Mediators are neutral parties and do not give legal advice to either spouse. All mediators recommend (or should recommend) that you get your own individual legal advice as part of the divorce mediation process. You may ask why this is necessary since you perhaps are mediating your divorce, in part, to “avoid divorce lawyers.” Working with your own attorney protects you and achieves your mediation goals by: Helping you to understand the law and identify legal issues Providing a private place to discuss your concerns and weigh your options Getting support from a legal professional who is “in your corner” Helping you anticipate how much information is necessary for settlement decisions Giving practical feedback on your settlement ideas and offering creative suggestions about difficult issues Providing review of the final settlement before you sign it Despite what many people believe, mediation is not just for “friendly” divorces. Most divorcing couples experience extreme emotional distress. Yet, angry, fighting, emotional people can still share common goals: to avoid the adversarial process and insulate their children from the conflict. The more grounded you are with private legal information and advice, the less likely you will be to question your final settlement, no matter how friendly or hostile you and your spouse are. Consider work with your Divorce and the Legal System 17 attorney as an investment in some of the most important decisions you will make in your life. When Should I Work With My Attorney? Imagine that you are the coach of a baseball team. But, instead of being in the ballpark watching the action and working with the players, you are sitting in the parking lot on the team bus. Players run out to the bus, describe and discuss the action, get your coaching tips, then run back to the field to tell the players what the coach said and try to act accordingly. Not only would this be incredibly inefficient, but you would have to rely on what the player told you (rather than your own observation) and trust that the player understood and could execute your recommendations—not the best way of working with the members of your team! Your attorney may feel this way as he or she helps you mediate your divorce. Attorneys for each spouse generally are not present during mediation sessions. They rely on clients to explain what developed during each session and hope that the client can implement their advice at an upcoming session. Although this “floating lawyer” concept can be a problem, it is not insurmountable. Too often mediators and spouses view attorneys as enemies of the process. But, the right lawyer can integrate into the process to preserve the control you want while increasing efficiency. Working With Your Attorney Through the Stages of Mediation An attorney who works with a mediating spouse is commonly called “review counsel.” This reflects the fact that many spouses hire attorneys at the end of the mediation for the limited purpose of reviewing the final written agreement. However, delaying attorney involvement too late in the process can result in significant problems. By the end of the mediation spouses can be so financially and emotionally invested in the agreement that they may not listen to their attorneys’ objections. In some cases, when the attorney points out problems with the agreement at this late stage, the result can be the collapse of the entire agreement. The attorneys’ roles should be broader than simply reviewing the agreement. Early attorney involvement may prevent a last minute crisis over an unraveling settlement agreement. For this reason, “consulting counsel” is a better label for the attorney, reflecting input at all stages of the mediation—the earlier the better! Working with an attorney before beginning the mediation may prevent difficulties during the process. Your decisions must be based on informed consent, which requires information and education. Consulting counsel is your best teacher, answering ques- 18 CHAPTER 2 tions, addressing concerns, and providing a solid foundation before you begin. Consulting counsel can also help you gather and analyze information and documentation. In some marriages, spouses share financial information whereas in others, only one spouse manages the money. If you are the less financially knowledgeable spouse, your consulting counsel will tell you what you need to know and make sure you understand information when you get it. Financial documents can be complex. Your attorney may recommend hiring a divorce financial planner to help in the process. If you have managed the marital money, you probably have a thorough understanding of your family’s finances. Be proactive. Rather than waiting for your spouse and/or the mediator to ask for information, put together a complete picture of the family finances. An easy-to-follow notebook of financial summaries with comprehensive backup material demonstrates a commitment to full and complete informal disclosure, and you will jump start the process. A divorce financial planner can help you and your attorney put this package together. Involving your attorney is critical as you consider options and make settlement decisions in mediation. Your attorney can help you to put together a comprehensive settlement proposal and analyze your spouse’s proposal. Critics of divorce mediation believe that the “less empowered spouse” is at a disadvantage in mediation. Although mediation is not right for everyone, power imbalance can be an issue in any divorce, whether in mediation or the adversarial process. The adversarial process offers the protections of formal discovery, court enforcement, and legal advocacy. But the adversarial process can also involve personal intimidation, fear of the court system, lack of control over the process and unpredictability of the outcome, and a significant drain of the family’s finances and emotions. Most adversarial cases settle, but too often those settlements are “on the courthouse steps” before trial—a terrible position for an unempowered spouse. The answer to a serious power imbalance is not necessarily to reject mediation. A competent divorce mediator specially trained to work with power imbalance issues can be the best option for the less empowered spouse. The mediator may slow the process to give that person time to digest the information and negotiate from an improved power position. The success of this strategy hinges on the support and advice of consulting counsel with time for reflection and supportive decision making. Divorce and the Legal System 19 Reaching an impasse (the failure to settle one or more issues) rarely means that the spouses call it quits and go to trial. Mediators use a variety of techniques to get past an impasse. Most involve integrating consulting counsel into the process: If you don’t have a consulting counsel at this point, you need to hire one. Straight talk from an attorney frequently will provide enough legal information, advice, and just plain brainstorming to help you settle. The mediator may convene a session that includes consulting counsel. If necessary, he or she can meet with the attorneys to discuss the impasse. The mediator may also use “shuttle diplomacy” which involves the mediator moving back and forth between meetings with each spouse and his or her individual consulting counsel. The mediator may recommend an experienced divorce attorney to serve as co-mediator or expert consultant. This attorney can evaluate the unresolved issues and make settlement recommendations. Integrating consulting counsel usually makes this approach more efficient. Occasionally, an impasse cannot be overcome and mediation comes to an end. If this happens, keep in mind that a divorce settlement is like a mosaic of lots of small agreements that build to a comprehensive settlement of all issues. Most impasses come on the heels of substantial agreement on a number of issues. Although all issues are interrelated, it is a waste of mediation resources (financial and emotional) for your trial attorneys to start over from the beginning “reinventing the wheel.” Even when you are headed for trial on your unsettled issues, you may be able to arrive at a negotiated settlement. If you can’t settle a few remaining issues, a “limited” trial will allow a judge to accept the agreements you do have and decide the remaining issues. Issues to Discuss With a Prospective Divorce Mediator Ask the following questions of any mediator you are considering: Are you trained and experienced in family matters? How many family cases have you handled? How long have you been a mediator? How much do you charge? Do you charge per couple, per hour, or a flat fee? Do you meet with the parties together or 20 W CHAPTER 2 For more information about mediation in Connecticut visit W W the Web site of the Connecticut Council for Divorce Mediation at www.ctmediators.org. separately? How long does the average divorce mediation take in your practice? How available are you? How long does it take to schedule an appointment? Do you mediate within the legal context of the outcome in court? How important is it to you that the results in mediation be similar to the probable results in court? How to Find a Divorce Mediator Ask friends or professionals whom you trust for a personal recommendation or referral. Look in the Yellow Pages under “Mediation Services” and “Divorce Lawyers” 3. Adversarial/Conventional Representation by an Attorney You can hire an attorney to handle your divorce right from the beginning or at any time that you feel you need legal assistance. An attorney can relieve you of having to meet face to face with your soon-to-be-ex, work to legally protect you if you feel you need it, and/or handle the contested trial if there is no settlement and you need the judge to decide your parenting and/or financial issues. The information you learn in this book about divorce agreements and procedures will help you help your attorney work for you. Having basic, general knowledge about many of the issues in advance will save your attorney time in explaining things to you, and that will save money on hourly fees. Many times you can’t reach the best agreement because one of the parties does not understand it. Thoroughly reviewing the chapters in this guidebook can put you in a position to understand and contribute to the negotiations. There are many different ways to use a lawyer in your divorce case. Here are some of the things he or she can do: Give you legal advice about the issues in your divorce Explain the procedures for getting a divorce Help you fill out your own court documents Prepare court documents, file them for you, and go with you to court for the final hearing Help you negotiate a fair settlement Negotiate for you Give you opinions about the likely outcome of the issues in your divorce if a judge decides your issues Should I Hire an Attorney? In Connecticut, whether and how you use a lawyer in your divorce is up to you. The law allows you to conduct your divorce pro se—the Latin phrase for “for yourself.” The question of whether to hire an attorney is not, in and of itself, the same as whether you are going to be friendly or adversarial or whether you are going to keep control through the divorce process. These are determined by which lawyer you hire and what you ask your lawyer to do for you. For example: You can work out an agreement on your own or in mediation and hire an attorney to do the paperwork. This may or may not include translating your agreement into legal language. You can do the paperwork yourselves, including your agreement, and run it by a lawyer before you finalize it. You can also hire a lawyer to direct operations right from the beginning and to conduct negotiations for you. Divorce and the Legal System 21 Draft your divorce agreement Litigate, as your advocate, for your rights and interests and maximize your outcome if you are unable to negotiate an agreement You can classify these different ways to use a lawyer into two fundamental categories: lawyer as consultant and lawyer as representative. In mediation and do-it-yourself-divorce, your lawyer is your consultant, giving you information, education, and opinions on the terms of your divorce settlement—whether it is sound, legal, fair, and equitable or whether you could do better—and providing suggestions and advice about the likely outcome if you ask the court to decide. As your representative, your lawyer will speak to your spouse’s lawyer on your behalf, prepare and sign court documents, and even argue in court on your behalf. Not all lawyers are willing to act in a “limited consulting” function so you need to be clear what level of legal advice and representation you want and/or need. Which functions do you want your lawyer to fill for you? How much control do you want to have over your divorce and your role in it? Before you begin interviewing attorneys, clarify what you want and expect from a legal professional. Also, be aware that most divorce attorneys charge for all of their consulting time, including the initial appointment. Issues to Discuss With a Prospective Lawyer Ask the following questions of any lawyer you are considering: Are you trained and experienced in family law? How many family law cases have you handled? How long have you been a lawyer? How much do you charge? Is it hourly? Do you charge a retainer? Is there an additional rate for paralegal, associate, or clerical staff? How available are you? How long does it take to schedule an appointment? How adversarial or non-adversarial are you? Are you supportive of the mediation process? How much experience do you have assisting clients in finding solutions in a non-adversarial way? How to Find a Lawyer for a Family Matter Ask everybody you know who has hired a family law lawyer recently if they recommend anyone. The best recommendation is still word of mouth from a person you trust. Ask your marriage counselor, mediator, therapist, or pastor to make a recommendation. In the Yellow Pages look under “Attorneys.” At the end of the “Attorneys” section is the “Guide for Attorneys.” Here you will find a subheading: “Divorce and Family Law.” You may qualify for free legal services if you meet income requirements. Call Statewide Legal Services at (800)453-3320. 22 CHAPTER 2 Are you willing to work with me as a consultant rather than a representative? Will you represent me if I want to negotiate directly with my spouse? Will you support our efforts to develop our own agreement? 4. Collaborative Divorce “That’s just my lawyer talking.” Don’t kid yourself. If you hire an attorney, he or she becomes your representative. You are responsible for the conduct of your divorce, including what your lawyer says and how, when, and where it is said. Your lawyer works for you; this is your life. Another alternative approach to divorce is known as “collaborative law” or “collaborative divorce.” In collaborative law, each spouse retains a trained collaborative lawyer for legal advice and assistance in negotiating an agreement on all issues. You may also work collaboratively with a divorce financial planning professional and/or a mental health professional to help you with parenting and/or communication issues. The collaborative process includes: 1. Four-way settlement meetings (both spouses with their respective lawyers) as the primary format for communication and negotiation 2. Disqualification of all lawyers and experts from participation in any legal proceeding between the parties outside of the collaborative process 3. Avoidance of litigation techniques and even the threat of litigation 4. Full, voluntary, and early disclosure of all relevant information 5. The use of joint experts (financial professionals, mental health professionals, CPAs, appraisers, etc.) 6. Settlement as the lawyers’ and spouses’ primary goal 7. Economy of efficiency 8. Respectful and fully participatory process In the collaborative process, if the lawyers do not help the clients to resolve the issues, the lawyers are out of a job and can’t represent their clients in the adversarial process. Everyone in a collaborative process (lawyers, spouses, and other experts) work together in good faith and honesty to work toward a “win-win” solution that meets the legitimate needs of the family. While there are many similarities between mediation and collaborative law, there are significant differences. Instead of a neutral mediator who cannot give legal advice or help to advocate a position, collaborative lawyers are present during all joint discussions