Whatever the reason is for why a marriage failed, the decision to divorce is typically a complicated and emotionally difficult time. Starting the divorce process without being fully prepared for what lies ahead can lead to critical and costly mistakes which can be avoided with the right preparation. To avoid making a mistake that you pay for in the future, we have provided a list of 4 things you should never do at the beginning of a divorce.
1. Choosing The Wrong Divorce Process For You
There is more than one way for you to get a divorce. Most individuals are familiar with divorcing spouses going to court and having a trial. This is the process most often presented in television shows and other media. Going to court and having a trial to resolve disputed issues means handing the decision on how to divide your family at divorce over to a judge rather than participating yourself in a mutually agreed resolution. Sometimes this is the best resolution for a divorcing spouse. For example, if there is abuse in your marriage, whether it’s emotional abuse, financial abuse, or physical abuse, that can be an appropriate case to take to trial because you want to be heard and the court can enter orders to protect you and your family. However, leaving it to a judge to decide what is best for your family at divorce is not the result you want if you can avoid it. A trial should be viewed as the last process to be used unless you are a victim of abuse and need to be heard to be protected.
However, if your divorce is mostly financial and you are arguing over real estate, securities accounts, retirement accounts, and debts, then a trial should be avoided if possible. Instead of focusing on a trial as the means to end your marriage, you can focus on the filing of the divorce as simply being the gateway to negotiating a settlement. Each spouse can hire an attorney to represent their interests in the divorce process but have the goal to reach an out-of-court settlement. This way you are using the litigation process to assist you in the discovery process of the divorce case to make sure you know all that is necessary to divide marital property and debt; however, you are allowing your attorney to do the investigation, negotiation, and resolution to settle out of court.
However, if your divorce involves children or you (rather than your attorney) want to be the negotiator then mediation would be a better process. Mediation consists of you and your spouse working with a mutually selected impartial and neutral person who assists in the negotiation of their differences to reach an agreement on all aspects of the divorce. Mediation leaves the decision power totally and strictly with the divorcing spouses. The mediator does not decide what is “fair” or “right,” does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a facilitator between the interests of divorcing spouses to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will typically seek concessions from each spouse during the mediation process to facilitate an agreement.
Basically, the mediatory is helping the divorcing spouses reach a decision by providing information along the way and helping them reach a compromise on each issue pending in the divorce.
2. Failing To Get Organized
There is a significant reason to get organized before starting the divorce process. If you fail to do so, it can be and usually is unnecessarily costly. This is true for the cost of attorney’s fees, your time, and the potential result achieved in the case. As we have written about previously in our blog posts, one of the most important and valuable things you can do for yourself is to prepare in advance for your first attorney meeting.
That means not only getting your emotions in check but also collecting all of your financial information and organizing those documents for the attorney to review. Take a financial accounting of your household. Gather all of your account statements – bank accounts, retirement accounts, mortgage statements, credit card bills – so you will have accurate information regarding your assets and liabilities.
This information is necessary so your attorney can begin to answer the following questions at intake — What assets were accumulated during the marriage? What assets are separate property? What assets may be separate property but have a marital component due to commingling? Is this a maintenance case? If there are children involved, what will be the monthly child support obligation? If the financial picture is fuzzy, or if all assets are unknown or some are hidden, this process can become difficult, frustrating, and unnecessarily expensive.
3. Failing To Confront Indecision
Divorce is not a snap decision where you wake up one morning and decide to file. For most people, the pathway to reach the decision to file for divorce is a much more gradual process. Yet many individuals hire a lawyer to file for divorce without fully moving through the period of indecision. Basically, one thinks they can start the divorce process and continue mulling over the decision to divorce as the case proceeds. However, filing for divorce will cause an emotional response from your spouse. It will also cause both of you to follow court-ordered deadlines, complete discovery requests, and attend mandatory court appearances. All of this causes both spouses to incur attorney’s fees and costs while the indecisive spouse considers whether divorce is the result he or she is really wanting.
Before filing, you should ask yourself the following questions — Is my marriage irretrievably broken? Am I ready to move on in my life without my spouse? What will my life look like post-divorce? Is this post-divorce life what I want? Filing for divorce is a commitment. It is not something to think over and second-guess once the case has been filed and proceeded through the court system. Your divorce case can be withdrawn if both spouses agree to reconcile; however, you may have spent a lot of time, emotion, and money to reach that point. Confront any indecision up front before filing.
4. Hiring The Wrong Person
Hiring the right attorney and/or mediator is crucial to your divorce process. Having the right individual(s) and procedure to help you through the divorce can make the process much easier. When you are hiring an attorney, it’s not just that the attorney was recommended by your friends and family, or how many years he or she has been in practice, or the hourly rate charged that matters. Instead, you must also consider the following — Are you comfortable talking to this person? Do you feel like he or she understands your needs and your goals for the case? Will he or she support your decision-making during this process in the best way possible? Or do you see yourself arguing with this person, fighting your own attorney the whole process? Having a personality fit with your attorney is just as important, if not more important, than the name of the law firm on the door.
Starting the divorce process can be a complex undertaking, filled with mixed emotions and high anxiety. Before making the decision to divorce consider the four tips discussed in this blog post to avoid early mistakes that will make your divorce process easier, faster, and less expensive.
Should you need the advice of an experienced divorce attorney or have questions or concerns about your situation, know that we are here to help and ready to discuss those issues with you.