Posts Tagged ‘Divorce Strategy’

Every family law case should begin with a strategy. An experienced family law/divorce attorney will listen carefully and work with you to develop and implement a strategy that takes into account  the current situation, your goals and objectives, information about your spouse and the realities of the court in which your case will be heard.  Are you on the offense or defense?  Should you be the first to file or should you let your spouse make the first move? Should you push hard for a negotiated settlement? Or leave matters for the Judge to decide?

Beware of any attorney that has a one size fits all answer – such as “always be the first to file beacuse you  are the plaintiff and present your case first” or that “you should surprise and intimidate the other party”. 

Cases are different and what may be a successful strategy in one situation could be a disaster in the next.  A good family law attorney will move the case in the right direction for you!

Cumulative Share of US Marriages Ending in Divorce - Click for Larger Image The NY Times, along with several other news sources, recently published an article examining, once again, the “50% Myth” of divorce rates in the USA. I commented on this back in June of 2014 (see US Divorce Rate: The 50% Myth). This is of course a very complex issue with multiple levels of interpretation and analysis from an array of viewpoints both statistical and sociological. However, three main trends are evident:

1) Divorce rates surged in the 1970s and 1980s, but since have dropped significantly, first in the 1990s and even more so in the 2000s.

2) Couples are marrying later in life: The median age for marriage in 1890 was 26 for men and 22 for women. By the 1950s, it had dropped to 23 for men and 20 for women. In 2004, it climbed to 27 for men and 26 for women.

3) Fewer couples are getting married per capita: many younger couples are living together prior to or instead of marrying, which reduces the divorce rate for couples in their early twenties.

Of course, this is also a simplified view. Much statistical analysis can be applied to these data. For example, one recurring source of the 50% “rule” is that approximately 2.4 million couples marry in a given year, and 1.2 million divorce. 50%, right? But these divorces are not drawn from the same set as the marriages, or, put another way, half of those married in any given year do not divorce in that same year. More significantly, the number of divorces and marriages are taken as totals from the general population, and not from more definitive samples: the percentage of divorces among second (60-67%) and third (70-73%) marriages is much higher than among marriages that don’t end in divorce, skewing the numbers.

A more accurate approach would be to calculate how many people who ever married subsequently divorced. Calculated in this manner, the US divorce rate has never exceeded 41 percent, and in fact is currently dropping. According to the 2001 survey of the Fertility and Family Branch of the Census Bureau, the rate of divorce for men between 50 and 59 was 41% and for women between 50 and 59 was 39%.

In any case, divorce is a real consideration in marriage, ultimately affecting close to 4 in 10 couples. If you find yourself in the 40 percentile, consider consulting a qualified divorce attorney to examine your situation and the best way forward.

dividing the houseThere is no “one size fits all” answer as to whether you should be the first to file for divorce. There are various reasons why it may or may not be to your strategic advantage to be the first to file. You might even think of it in sports terminology: Do I play offense or defense?

Some of the reasons that you may want to file first include:

1) A likely decision by the Court that is favorable to what you are seeking;

2) A need to finalize the divorce as soon as possible to allow for remarriage;

3) A psychological need to end the marriage as soon as possible in order to move on with your life;

4) A need to send a clear and unequivocal message to your spouse that “the marriage is over and that there is no hope for reconciliation”;

5) A need to force your spouse to vacate the marital domicile;

6) A need to put into place orders to protect marital assets;

7) A need to obtain orders for alimony or child support;

8) A need to obtain an order for child custody or to ask that you be allowed to remove the children from the current state of residence;

9) A need to expedite the sale of a marital home or other marital property.

Conversely, some of the reasons that you may not want to be the first to file for divorce include the following:

1) A likely decision by the Court that would not be favorable to you (and the possibility that you might be able to arrive at an agreement with your spouse that would be signifcantly better for you than what the Court would order in your circumstances);

2) Situations where the current support being provided by your spouse is more than you could reasonably expect the Court to order;

3) When your spouse is gravely ill and you want to preserve an interest in their portion of the marital estate;

4) Situations where your spouse is in a “hurry” to finalize a divorce (either for psychological reasons or for a desire to remarry) and you gain a tactical advantage in negotiating an agreement from their haste to resolve the matter as quickly as possible;

5) When you believe the marriage is still salvageable.

With the exception of the analysis of your particular situation and likely outcomes by the Court, most of the above is fairly straightforward. An experienced divorce attorney that understands the tendencies of the Courts and judges in your particular jurisdiction should be able to study your particular situation, perform this analysis and advise you as to your best course of action.

toughtfulwriterOf course there are any number of things to consider prior to filing for divorce. Here are a few key items to reflect upon.

1) The great majority–perhaps as high as 95%–of all divorce cases are settled before going to trial. Many cases are resolved through mediation or a joint petition for divorce in which both parties agree to all terms.

2) What are your most important long-term goals in the divorce? Before filing, create and understand your goals. This will help you to make better decisions and get where you want to go in the end.

3) Focus on what will be important in five years, not what seems hugely important now but may fade in a few years. Don’t get bogged down in details, money which won’t matter in a few years, or items like the stereo, computer or flatscreen TV.

4) Do you really want to represent yourself? You might think you’ll save big on attorney fees, but you’ll need to get all the relevant information and legal forms, and you may well miss important issues an experienced attorney will be quick to point out. At least consider hiring an attorney on an hourly basis to consult with on special issues.

5) Be Organized! Get your papers in order. Write down questions for your lawyer. Perhaps ask a trusted friend, relative, or your accountant to help you organize.

6) Look (and ask) before you leap: don’t jump to conclusions or rush to a decision. It takes time to build a reasonable, fair and equitable settlement. Because you will live with the results of your divorce for the rest of your life, take your time, talk to your support network, consult with your attorney, and do not rush into things.

High Tech has added an arsenal of technical gear to spy on a spouse suspected of adultery, from GPS tracking of cars and cell phones to video recording and computer spyware. These advances in technology bring up the important issue of the legality and advisability of such spying.

While it may be tempting to use such techniques, or even something as apparently innocuous as logging onto a spouse’s computer to review their Internet history, there are serious legal ramifications since such activity is, generally, illegal in itself. According to Federal law, 18 U.S.C. § 1030, it is a crime to access someone’s computer without authorization, and that includes spouses and children over 18 years of age (parents do have the right to access their underaged children’s computers). Since cell phones are effectively small computers, the law can be extended to include accessing the history of someone’s phone calls, although that is not expressly defined. While this has not been interpreted by Massachusetts court in a divorce setting, the Federal law takes precedence, and someone who spies on a spouse in this manner is violating the law.

Another new technology, GPS tracking, can be used to place a tracker on a spouse’s care, but this may be considered stalking, and in Massachusetts following another person three or more times can be considered stalking. Other states have implemented laws regarding stalking via GPS tracking, and Massachusetts may follow suit.

Massachusetts law defines a right of privacy, defined in G.L. c.214 § 1B. Although the right is privacy is enforced through civil, nto criminal, proceedings, it nonetheless should give one pause before spying on a spouse. Indeed, judges do not want to reward illegal activity of any kind, and such spying may backfire on the spy rather than the one spied upon, denying the admission of any evidence found by illegal surveillance.

Previously we looked at Facebook and Divorce, but there are many other means of connecting via high tech and the Internet today which should be considered as well. Sexting, tweeting, YouTube, Tumblr, and many other channels exist which an aggrieved spouse can exploit to hurt his or her ex or soon-to-be ex. For example, a spouse can post a defamatory video on YouTube, perhaps sharing secretly filmed clips of their partner or tirades where they launch into a litany of grievances, imagined or real. Even if these videos are flagged and pulled down by YouTube, the harm has already been done.

Twitter is an instantaneous means of sharing brief, potentially harmful comments about one’s spouse with whoever follows either the poster or a hashtag such as #divorce or #marriage or #myevilspouse (yes, that’s for real). Again, the harm is shared instantly with the world at large, and therefore can reach the spouse’s friends, family, or employment.

Sexting is another potentially hurtful venue. Sexting is defined as “the act of sending sexually explicit messages or photographs between mobile phones.” This is rampant amongst the younger generation, as 30% or more of people between 18 and 25 have exchanged naked photos. Once sexted, these photos can easily be uploaded to photo sharing sites such as Tumblr or online forums, and once this happens, it is impossible to remove the photos from the Internet as they may have been shared too many times on too many venues. Such photos can be used to inflict harm on a spouse, whether by being found by an employer doing an online search for that person, by children of the spouse who become distressed upon seeing the photos, or by any number of other people in the spouse’s life.

If you have sexted naked photos with your partner, or otherwise know of such sharing through other electronic means, you should discuss this with an experienced divorce attorney, who can assist you by filing an ex-parte motion to restrain the online distribution, posting, transferring by any means, or reproducing such videos or photos.

Everyone knows that divorce is extremely stressful, even in the most amicable of circumstances. In fact, the landmark study by Holmes and Rahe in 1967, which resulted in the now famous original list of 43 life-events called the Social Readjustment Rating Scale (SRRS), lists divorce as the number two most stressful life event after death of a spouse, and marital separation as number three; the top five are listed below:

Life-Event …. Stress Rating
1. Death of spouse …. 100
2. Divorce …. 73
3. Marital separation …. 65
4. Jail term …. 63
5. Death of close family member …. 63

Perhaps this is a bit misleading, in that not getting a divorce when spouses no longer belong together can, over the long haul, be cumulatively more stressful: that is, the divorce itself is stressful for a short time (the divorce proceeding itself and a period of adjustment afterwards), but not getting that divorce when you believe you should can stretch that stress over years or even decades.

So, you’ve decided that divorce is right for your situation. The next step is the most important: choosing a drivorce lawyer to represent you. What do you look for in a divorce attorney? The answers (or qualifications) are many and varied, but here are a few key items to bear in mind.

You need to locate an attorney who is experienced in Family Law, with significant trial experience. You want a lawyer who can speak with you in plain English, not mumbo-jumbo legalese. And you want an attorney you feel comfortable with and can trust, since you will be revealing very personal and private information about yourself, your marriage, your family and your life.

Point-by-Point: Questions to Ask about a Prospective Lawyer:

  • Does he or she make you feel comfortable?
  • Does he or she have extensive courtroom experience in Family Law?
  • Is the lawyer a specialist or a generalist?
  • Is there a potential conflict of interest because this lawyer has worked with both you and your spouse in the past (even on apparently unrelated matters)?
  • Has he or she discussed confidentiality with you?
  • Does he or she talk about other clients in front of you?

These are a few basic considerations to bear in mind.

Often people look at divorce as a bitter, spiteful, angry battle between two uncompromising sides, but this is the extreme case. While two people may have come to realize that they no longer belong together—for whatever reason—the divorce process itself may range from amicably collaborative to viciously combative. Where your divorce falls on this spectrum depends on the answers to several questions.

How easily will you and your spouse settle on key issues like dividing assets, child custody if children are involved, and future payments?

Are you and your spouse separating on good terms or are one or both of you driven by anger, resentment, or bitterness?

Will you and your spouse be able to compromise in divorce negotiations or will one or both of you fight tooth-and-nail for what you think is rightfully yours?

Do you have full information as to your spouse’s financial situation and are you sure that your spouse is not hiding any income, assets or debts?

Do you believe that your spouse also desires to finalize a divorce in an expeditious manner or will the collaborative process be utilized as a delay tactic and pressure you to settle?

Who has selected the collaborative divorce attorney and are they likely to side with one party or the other?

Are you a good negotiator and can you avoid making impulsive, emotional decisions?

Do you understand enough about divorce to be able to compare likely outcomes of the collaborative process with the likely outcome of a contested judicial process?

The difference between a collaborative divorce and a litigated divorce is substantial. The parties in a collaborative divorce, with legal counsel on both sides, make decisions outside of the courtroom, only going to see a judge to get the details signed when the negotiations are concluded. In contrast, in a litigated divorce the courtroom is center of activity, with witnesses, challenges, and evidence presented before the judge. This also inevitably raises the cost of the divorce, both emotionally and financially. In financial terms alone, the difference between a collaborative divorce and a litigated, combative divorce can be thousands or even tens of thousands of dollars.

An experienced divorce attorney can advise as you as to whether a collaborative divorce is a good option for your particular situation. There are many times when a collaborative divorce is not a good option and a litigated divorce is your best option. In such a case, you want a lawyer with substantial court experience, who can be appropriately aggressive when needed, who knows the judges, and who can best look to your interests.

So you’ve decided to proceed with your divorce, to get out from under a situation that has prevented you from fully living your life as is best for you. But now, facing a future without a spouse, you may feel very alone and isolated. You may benefit from some kind of support system to handle your new life alone. There are several places you can turn, from your network of family and friends to more organized support groups specifically tailored to recent divorcees. How do you find such a support group? Your attorney may well know of a group in your area that would work for you. Or you may talk with friends or business associates who have been divorced to see if they can refer a group to you.

Support group notices are often posted on church bulletin boards, in newspapers, or your local library. An advantage to a support group is such groups offer an environment where you can unburden yourself of your situation, without burdening your friends and family members with complaining that they don’t want to hear and that you don’t want to weaken your relationships.

Yes, your friends and family will be part of your wider support group, as opposed to a specific group that meets regularly to share experiences. But they may not welcome what they may perceive as an excess of whining or self-indulgence. Also remember that those friends who you have in common with your ex may or may not choose to continue as your friends. Some may, which you will welcome, but others may feel divided loyalities between you and your ex and side with him or her. It is also good to keep in mind that “mutual” friends may serve as a conduit of information to your soon-to-be ex-spouse, so discretion should be exercised when sharing information with them.

Be wary of advice such as always file first, always get a restraining order – or – you always should try to have an amicable divorce. Advice which may make perfect sense in one situation may be a disaster in another. As you are working toward that amicable divorce, your spouse might be quietly hiding assets – or – that restraining order might unnecessarily jeopardize the employment of your spouse. In short, each situation should be analyzed on its own merit. What has been your spouse’s history? Does your spouse usually follow rules? Is your spouse someone who has real violent tendencies – or – Is this a situation where your spouse is temporarily stressed? What is your spouse’s relationship with your children?

What are your goals and objectives? Given the particular circumstances of your individual case, what strategy makes sense for you? Discuss your options in detail with your divorce attorney.

As the American economy has spun through major changes and debt has mounted for many American families, the issues involved in debt and divorce are escalating and taking an ever bigger role in divorce proceedings. Divorcing clients often face short sales or foreclosure of their homes; educational loans, credit card debt, and mortgages; and sometimes even bankruptcy.

What are some of the key issues in a Massachusetts divorce case regarding joint liabilities? Generally, debts and liabilities fall under the larger umbrella of property distribution. And in Massachusetts, property division must be equitable, but not necessarily equal: that is, fair to both parties, given differences in each party’s debt load and property value.

Although it may sound overly simplistic, there are only a few main options:

1. Pay It Off
Where possible, paying off joint debt prior to finalizing the divorce may provide closure and making a fresh, clean start after the divorce, as well as protect the credit ratings of both spouses. While the economics of the situation may seem insurrmountable, possible means of paying off joint debt could include sale of proceeds from the marital home, sale of other assets such as a second home or other valuables, or with liquid savings. Doing so allows both parties to leave the marriage with less debt, making a clean start minus that financial entanglement with your ex.

2. Split Debt
For debt which cannot be paid off as above, the next best option is to split the debt equitably, with one spouse taking responsibility for some debt and the other spouse for other debt. For example, one spouse could take responsibility for VISA debt and the other for MasterCard. However, an important caveat is that, if the two spouses were originally mutually responsible for the debt, if one defaults, then while that spouse may be in contempt of court for violating the terms of the divorce, the creditors could still legally go after the other spouse for payment.

3. Ongoing Joint Responsibility
In this case, both parties remain responsible for the debt, and the debt load is shared between them after the divorce. Again, in this case each ex-spouse may still be legally responsible for debt payment if the other defaults.

4. Bankruptcy and Credit Consolidation/Counseling
An experienced divorce attorney should have some basic understanding as to whether bankruptcy or credit consolidation/counseling are possibilities in your particular situation. Bankruptcy is a major event and should not be entered into lightly. Discuss these options with your attorney to see if they apply to your case.

5. Other Creative Options
Depending upon your individual circumstance, there also may be other viable alternatives which an experienced attorney can identify.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262