Divorce can be an emotionally charged and legally intricate journey, and when you’re navigating these uncharted waters, it’s only natural to seek guidance from a divorce lawyer. While these legal professionals play a crucial role in helping you through the process, there are certain aspects they may not readily divulge. In this blog, we’ll uncover six essential insights into the world of divorce that divorce lawyers might not openly share, shedding light on some of the lesser-known facets of this often challenging ordeal. Whether you’re contemplating divorce, in the midst of it, or simply curious about the legal nuances, understanding what your divorce lawyer might not tell you can be a valuable step toward achieving a smoother transition into a new chapter of your life.
1. You can control the process of your divorce case
Most people enter the divorce process thinking their case has to be handled a certain way and that the lawyer will dictate the process. Lawyers will tell you the way they want to proceed or how it normally goes, but the truth is that your case does not have to be handled in one particular way. You actually have quite a bit of control over how the process should work.
The more you understand your options, the more control you have. There are several different types of divorces. It is in your best interest to hire an attorney who is experienced in all of them:
- Uncontested divorce—If you and your spouse agree about ending the marriage and agree on how to settle issues such as division of property, custody and child support, you can file for an uncontested divorce. If you do not agree on key issues, your divorce will be “contested.” An uncontested divorce will save you time, money and emotional stress because there are no disputes for a judge to decide, so you will not have to go to court.
- Mediated divorce—With this option, you and your spouse hire the same lawyer, who represents neither of you but rather guides you through a resolution of all issues in your divorce. You will not have to go to court or be involved in litigation. This is your best option, but few attorneys are trained in mediation. Read why in tip number 5, “Mediation is your best divorce option.”
- Collaborative divorce—In this type of divorce, your attorney will address your and your spouse’s financial and emotional needs and goals. This process focuses on helping family members heal from the devastating emotional toll caused by divorce. The goal is to address all issues—not just those related to the division of property and child custody—and to settle the divorce out of court. Sometimes other professionals are brought into the process, such as a financial specialist, a child specialist or a divorce coach.
- Litigated divorce—This is the most expensive, time-consuming and emotionally difficult divorce option. The process involves “discovery” (exchanging financial records), property evaluation, psychological evaluation and motions made to a judge to decide on matters you and your spouse cannot agree on. Litigated divorces often end up going to trial, which requires that you hire an attorney who is experienced in courtroom litigation. After the trial, the process can also include post-trial briefs before the final decree is handed down. If you can avoid a litigated divorce, it will save you a lot of time, money and emotional turmoil.
- Sub-mediation—In many divorce cases, spouses have big disagreements about custody arrangements for their children. When that happens, one lawyer might file a motion to determine custody. Another lawyer might tell the couple they need to hire a custody evaluator to make recommendations to the court. But there is a third option that is much more effective and cheaper. Lawyers usually don’t suggest it because it doesn’t make any money for them. In this process, sometimes called “sub-mediation,” you and/or your spouse would hire a child psychologist on your own. That specialist will meet with you and your spouse, without lawyers, then evaluate your child. The psychologist will mediate a potential custody agreement that is most likely to meet your child’s specific emotional and developmental needs.
This is a good idea for several reasons. First, instead of guessing what your child needs, or asking lawyers for their opinions, you are getting input from a professional who specializes in evaluating children’s well-being. Second, it’s far less expensive than having two lawyers argue over your case.
This option is not for everybody, but it can be extremely effective. Start by creating a clear picture of what you want, based on what is important to you and your children. If your attorney doesn’t offer to have this kind of discussion at the beginning of your case, suggest it.
Your case should begin with you and your spouse deciding what type of divorce you want. You can control the process however you decide, limited only by your creativity.
You can also control your case by making sure your attorney is not requesting more information than is necessary. Some attorneys ask for all kinds of information that isn’t relevant or important to your case, which runs up the legal fees for you and your spouse. When your attorney requests something, ask what its purpose is and how it will help your case move forward.
Knowing that you are in control of many details of your divorce case can make it less overwhelming.
2. Attorneys Don’t Learn Divorce Law In Law School
Law schools typically do not offer courses on divorce law. So when people graduate from law school, they know nothing, or close to it, about this type of case. The only way a lawyer can gain experience with divorce cases is to join a firm that specializes in divorce and family law and helping with the cases or to take continuing legal education courses.
When you consult with a doctor or surgeon about a medical condition, you can assume that he or she has experience, training, and skills in treating your particular condition. But you cannot assume that lawyers have experience in divorce law just because they have law degrees. It doesn’t matter how good the law school is or how high it is ranked in national polls—divorce law is not part of the required curriculum.
Nor does law school teach the skills needed to be a divorce lawyer, such as sympathetic listening, needs-based negotiation, or helping families in crisis. Law school does not teach people how to run efficient businesses, either.
If you choose an attorney who does not specialize in divorce and family law, you are limiting your options to those that are in the lawyer’s skill set. By selecting an attorney who is experienced in this area, you are more likely to have a wide range of options for your divorce, such as uncontested, mediated and collaborative divorce. You are also more likely to have a favorable outcome in your case.
When you are searching for a divorce attorney, either through people you know or online, consider only those attorneys who specialize in divorce and family law. Then, in your first call to potential attorneys, ask if they handle mediated and collaborative divorces. Ask how much experience they have in various types of divorce cases, especially cases like yours.
3. The Playing Field is Smaller Than You Might Think
Many people think there are dozens of decisions to make in a divorce and that all of the marital assets are “up for grabs” in the divorce process. That is not true. While people picture a 100-yard football field, what we are really dealing with in most divorces is a 10-yard football field. The process is much more narrow and straightforward than most people realize.
First of all, Colorado is a no-fault state. That means you do not need to prove wrongdoing or abuse to file for divorce in a court of law. If you pursue a no-fault divorce, you will need to state that incompatibility is the reason you are filing.
Secondly, Colorado is a community property state, which means any money you and your spouse earned during marriage, and all property bought with that money, are considered community property. You and your spouse own equal parts of it. And any debts you or your spouse took on during marriage are generally considered debts of the couple.
The goal of the legal process is to divide your and your spouse’s assets and debts as evenly as possible. In many cases, this can be done using a simple spreadsheet to add up your assets and debts. This step is fairly simple when both spouses receive regular paychecks from employers. This spreadsheet will give you an idea of what your property settlement should look like. Your attorney should have a good idea of what the settlement will look like early in your case.
Your property settlement is based on facts and numbers. For example, if we divide the equity in your house, we might get two estimates of the home’s value. One estimate might indicate that the home is worth $150,000, and another might say it’s worth $175,000. Right away, we know what the settlement range is for your home.
But regardless of what the property settlement is, if you have children, the court will set child support. That is done by statute. It is based on a formula, and in most cases, you can’t argue about it or negotiate to change it. The court will look at both spouses’ income, as well as day-care and other expenses, to determine how much child support one spouse will pay the other.
Regarding spousal support, your attorney will address this issue if you and your spouse have considerable assets, if you were married for a long period of time or of one of you needs financial help.
If you will be receiving alimony from your spouse, your attorney should be able to give you a pretty good estimate of the amount you will receive, based on both of your incomes and how long you’ve been married.
This isn’t as difficult as many people think. Many lawyers want people to think it’s complicated and difficult and that it takes a lot of time to get through the process. That is sometimes the case, but not always.
Also, most lawyers do a poor job of telling people what is negotiable and what is not. The more time you spend haggling over property and other details, the more you will spend in legal fees. Your attorney’s job is to let you know what you can dispute or negotiate and what you cannot. On those issues that are negotiable, your attorney should help you decide what is worth fighting for and what isn’t.
4. Being Aggressive Accomplishes Nothing
TV shows, movies, and books have created the illusion that it is ideal to hire an aggressive lawyer. You do need to hire an attorney who is confident and assertive about asking for what you need, but being aggressive—refusing to back down on the smallest detail and bullying people—helps no one.
In many divorces, the opposing lawyers send vicious letters back and forth to document that a client is unhappy with a proposed decision or to threaten that action if the spouse and his or her lawyer don’t give in on a certain detail.
This is all simply posturing, and it accomplishes nothing. What many people don’t realize is that the spouses and their attorneys are the only people who will ever see those letters. The judges won’t see them, so they will have no influence on his or her decision. People can make as many allegations, accusations or threats as they want, but it won’t get them anywhere. They are simply squandering money on legal costs.
Plus, judges and other attorneys dislike aggressive lawyers, so their obnoxious antics are not helpful in negotiating or communicating about a case. Hiring a highly professional attorney who is well respected and gets along with people will benefit you more than hiring a lawyer who yells at the opposing counsel and judge debates minor details endlessly or obstructs depositions, just for the sake of winning. Aggressive lawyers increase your legal fees, minimize the chances for cooperation between spouses and make the process more hurtful to children involved in the divorce.
5. Mediation Is Your Best Divorce Option
If you and your spouse agree on most of the major aspects of your divorce and can communicate with each other in a civil manner, you can save time, money and anxiety by getting a mediated divorce. In this process, you both use the same attorney, which will cut your and your spouse’s combined legal fees in half. Also, while it often takes months to finalize a litigated divorce, our firm has completed many mediated divorces within 30 days.
The attorney you hire will not represent either of you. Instead, he or she will guide both of you through a process of resolving all issues in your divorce without going to court or being involved in litigation. Your attorney will prepare all documents required to finalize the divorce once you and your spouse reach an agreement.
A lot of divorce and family law firms do not offer divorce mediation. One reason is that it greatly reduces legal fees—and therefore, the firm’s profits. Another reason is that it requires a high degree of training and professional skill. When done correctly with an attorney who is trained, this can be the best option for your divorce.
Here Are Some Facts You Should Know About Mediated Divorce:
- It’s Not For Everyone—Mediation is not a good fit for couples who have a high degree of conflict or who cannot communicate. You and your spouse must be able to communicate and cooperate to some degree because you will need to attend your initial consultation together. Mediation is also not appropriate for cases involving domestic violence or other abusive situations. For most other cases, it is a good idea to at least explore mediation as a first option in your divorce.
- It Can Save You Money—If you participate in a successful mediation, you will undoubtedly save money over a litigated, or contested, divorce, partly because you and your spouse will be working with one attorney, not two. That cuts your costs in half. But if you participate in a lengthy mediation and fail to reach an agreement, then end up going to court, you have essentially lost the benefit of saving money on mediation. This doesn’t happen often, fortunately.
- You should avoid hiring a non-lawyer—You should never hire a non-lawyer to mediate your divorce case. Our firm has seen countless mistakes, errors, omissions and just plain terrible agreements mediated by non-lawyers. We see them because we are the ones hired to clean up these messes. This is definitely a pitfall you need to watch out for.
- You Should Hire A Lawyer Who Has Mediation Experience—Successful divorce mediation requires skills that law schools do not teach. Divorce attorneys who provide mediation often undergo many hours of mediation training after law school. Good mediation attorneys are skilled in mediating issues for the spouses involved. They know how to avoid the traps that can sometimes sink the chances of a successful resolution. A great mediator also understands all aspects of the law that apply to each case and provides creative solutions to help you and your spouse reach an agreement.
If you decide to pursue a mediated divorce, it is important to schedule a joint attorney consultation with your spouse. This avoids creating a possible conflict of interest that can result when one spouse contacts a lawyer on his or her own, then wants that lawyer to become a mediator for both spouses.
6. You Can Take Action To Reduce Your Legal Fees
Going through a divorce can leave you feeling like you are not in control of your life. But by being informed, cooperative and organized, you can actually control the legal expenses related to your divorce case.
- Know Your Options—Knowing which type of divorce (uncontested, mediated, collaborative or litigated) is ideal for your situation will reduce the amount of time your attorney spends on your case. A mediated divorce is always going to be cheaper than a litigated divorce, and an uncontested divorce will be cheaper than a mediated divorce. The option you and your spouse choose is going to have a drastic impact on your legal fees.
- Be Informed And Cooperative—Knowing what you can and should negotiate and what you should just let go will save time and money. The more you and your spouse cooperate with each other, the less time and money you will spend getting the divorce finalized. Be realistic about your settlement, and be willing to compromise on details that aren’t that important.
- Organize Your Documents—Providing documents to your attorney in an organized way will save time and money, too. If your attorney asks for tax returns, bank statements, pay stubs, credit card bills or other documentation of assets and debts, organize the information. Put everything in a file, label it and make it easy to use. The more time your attorney and his or her paralegal spend going through documents or trying to find things, the more money it will cost you. Everyone who touches your file is going to bill you for their time.
Be Careful With Online Forms
A lot of people think they can save money by using online forms and pursuing their divorce without an attorney. If you and your spouse have few assets and no children and you agree on all aspects of your divorce, you might be able to use the online forms successfully. But people rarely have successful outcomes using this method.
The problem isn’t with the forms themselves; the problems are related to the information that isn’t in the forms or templates you can buy online. These forms are not tailored to your individual case. We often see significant problems with taxes and equal division of debts and assets.
Let’s say you buy an online divorce template and begin filling it in. You could tell your spouse, “I’ll keep the house, and you can have half of my 401(k) plan. I’ll pay off the two cars, and you pay off the credit card debt.” It looks like everything has been split right down the middle.
But what happens if your spouse doesn’t or isn’t able to refinance your home in only his or her name, as is required? And what happens if he or she agrees to pay off the credit card debt but doesn’t? Then your credit will be ruined, too. Or what if he or she files bankruptcy and gets out of paying that debt off? All of a sudden, it’s not so fair and straightforward anymore.
Settling a divorce case is not just a matter of reaching an agreement. A lot of underlying legal issues have to be addressed.
Don’t Fall For The Low-Retainer Gimmick
The Two Biggest Mistakes To Avoid In Your Divorce Case Are:
- Hiring an attorney who does not handle uncontested, mediated or collaborative divorces and
- Hiring an attorney because he or she offers to handle your divorce for a low retainer fee up front.
Because most people seeking a divorce want to save money, a lot of lawyers offer low retainer fees to lure clients into their practices for their divorce cases. It might seem like you are going to save a lot of money because the initial retainer is reasonable, but that isn’t what happens at all.
Let’s say a lawyer asks for a $1,500 retainer fee up front to get started in your divorce case. This sounds like a good deal because another lawyer was asking for $5,000. So the attorney starts your case. He files your petition for divorce, files a motion for an interim division and sends a letter to your spouse’s attorney. If he charges $300 per hour, your retainer will pay for only 16.6 hours of his time. At that point, he tells you he needs more money. You tell him you don’t have it, so he withdraws from your case. Then you are left in the middle of your case without legal counsel—a pro se divorce client in the middle of a litigated divorce.
We see this scenario play out all too often. This tactic is so common among lawyers, in fact, that it’s almost a business model that some firms use to attract new clients.
Be aware of this common practice when you interview lawyers. Ask questions to help determine what the total cost of your divorce will be and how much flexibility the attorney can give you in your payment options.
Get a Free Divorce Case Evaluation in Colorado
Our law firm offers a free case evaluation (by telephone), free of charge. This offers a chance for individuals dealing with divorce, legal separation, or custody matters to gain insight into their available choices and gain clarity on the potential path to a successful resolution of their case. It also allows our firm to assess the specific challenges faced by the individual and determine if we can be of assistance in their case. From there, our firm would then schedule a longer, more in-depth paid consultation with one of our talented family attorneys.