Be on Guard

A hard-hitting exposé of what people face when going through a contested divorce

By Stefan Vale
Updated: August 18, 2014
Note to reader: The opinions expressed in the article that follows are not necessarily those of Divorce Magazine and we acknowledge that some readers may not agree with the opinions expressed here but we are committed to letting all voices be heard.

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With the weakening state of the global economy and growing speculation over whether we are indeed headed toward a recession, there will undoubtedly be residual impacts on the American family, which will reach far beyond the everyday financial challenges of paying for the growing cost of basic necessities, while saving for their children’s college education. There is also compelling evidence that this downward economic trend has had an impact on the stability of married relationships, as recent statistics have confirmed a rise in irreconcilable divorces (over a million divorces per year), with the # 1 contributing factor being over financial disputes (2nd only to infidelity). While divorce itself can be a psychologically traumatic and financially gut-wrenching experience for both parties involved, for those in the industry of mediating this process its big business. Although many Americans believe that it is now easier than ever to get a divorce, this may only be true for those involved in uncontested divorces where both parties have come to a mutual agreement based on an equitable distribution of the marital assets (and child custody), without involving separate attorneys. But for those involved in a contested divorce, however, the road to resolution can be a dark and formidable experience.

This ordeal begins with the realization that the relationship is beyond reconciliation and one (or both) sides have decided to irrevocably end the marriage. If unable to agree on the terms of the divorce agreement, where the filing process itself is reasonably inexpensive, the parties will each seek legal representation to broker a deal. The search for an attorney begins by sorting through advertisements and getting referrals from people who have already been through the process. During the initial consultation people are able to interview attorneys and gather some basic information about the process they are about to embark upon.

Although many attorneys will handle divorce cases, and may portray themselves as high-caliber legal professionals, those that specialize in family law are usually better suited to handle contested divorce cases, as they are generally more familiar with the new laws and know the temperament of the judges assigned to hearing divorce cases. This often gives them certain advantages over the stereotypical ambulance-chaser attorneys who are just hungry for a client and may say anything to get hired.

Once an attorney is hired to represent a client, the attorney will ask them to sign a legal retainer agreement and advance them a non-refundable fee, which can average $2,000 to $20,000, depending on how difficult the case appears to be and how much money the attorney believes their time is worth. People are often shocked by the initial price tag but usually justify the expense as a down payment on their dreams for a better life after the divorce. They are also frequently disillusioned by the agonizingly slow pace of litigation, which can take many months (or even years) before they actually reach the light at the end of the tunnel.

Along the way they pass through a mountain of legal paperwork in the form of motions and petitions, financial affidavits, request for production (pertinent evidentiary documents), billing statements and copies of frequent correspondences between the attorneys. In some divorce cases the process may also require the parties having to answer interrogatories (a written questionnaire) and/or having to appear for a deposition (live questioning captured by a court reporter). Both require the respondent to take a legal oath attesting to the truthfulness of the information provided under penalty of perjury. During various points along the way, a good attorney will try to negotiate an equitable out-of-court settlement for their client, but if unsuccessful, the case will take its standard course and will eventually be referred to a judge who, in most states, will order the litigants to attend mediation at least once.

In mediation a designated trained professional (usually an attorney) is chosen to serve as an impartial negotiator to help the parties reach a settlement in their office with both counselors also present. The mediator will listen to both sides and then speculate on how they believe a judge might decide the case based on the facts presented. They will then attempt to pressure the parties into a settlement by telling them that it would be far better for them to come to an agreement on their own than to leave the final decision in the hands of a judge where they would also incur the substantial cost of going to trial (including court costs, attorney’s fees, expert witnesses and other expenses). Litigants may also decide to have their case resolved in arbitration, which is similar to mediation in terms of the venue (an attorney’s office). The arbitrator (or panel of arbitrators who are also attorneys) would hear the case much in the same way that a judge would and then render a final decision to settle the case. Electing to go to arbitration is a voluntary process and although it is generally less expensive than going to trial it can be equally as adversarial.

In situations where the case cannot be resolved by these means, then it may actually go to trial before a judge. In this arena, the anxiety many litigants experience with finally having their day in court can be interrupted by frequent scheduling conflicts, postponements and last minute offers to settle the case out-of-court. Child custody court cases are especially traumatic for both litigants and the drama often depicted on television is a far cry from the reality of the typical courtroom experience. More often this can resemble a judicial claims-processing environment fraught with highly-charged emotions amidst competitive attorneys and apathetic judges burdened by their enormous case calendar, eager to keep the assembly line of divorce cases moving along.

Once the divorce is actually settled, the client will receive a final bill from their attorney for all outstanding expenses incurred. In many cases the legal retainer that they had originally paid the attorney only covered a small portion of the total expenses. The client may then be alarmed to learn that a sizable amount (sometimes triple the cost of the original retainer) is now due, depleting much of the money the litigant received in the actual settlement.

In a contested divorce case, there is really no effective way to avoid spending a great deal of money. Those that chose to forego using an attorney and instead represent themselves (as a pro se litigant) take an enormous risk for without legal training they will be at a competitive disadvantage against an experienced attorney who will know all of the nuances of family law and will usually exploit the situation.

Fathers seeking equal custody of their children often face an especially challenging legal ordeal for although there have been numerous changes in the law, there still exists a prevailing system of gender discrimination lurking in the underbelly of the family court system. Known as the maternal presumption this philosophy contends that women should always be granted preferential treatment in child custody cases due to their traditional role in childrearing. Men who are faced with this bias often feel disenfranchised by the legal system when confronted with the prospects of their parental role becoming diminished and potentially being systematically alienated from their children. In the debate of competing perspectives over what is truly in the best interest of the children, critics who oppose both parents sharing equal custody argue that this is disruptive to the children who need the stability of one primary home. While supporters of shared parenthood present the opposing view that all children need to have equal interaction with both parents in order to maintain a balanced relationship from the early years until they develop into adulthood.

Numerous studies conducted by child psychology professionals have concluded that an equally balanced child visitation arrangement cooperatively facilitated by both parents is, in fact, the ideal arrangement for meeting the fundamental needs of the children. National public opinion polls overwhelmingly support the concepts of shared parenthood as well as the belief that although parenting styles may vary between genders, both men and women are equally capable of providing competent childrearing in all aspects of the child’s development.

Nevertheless, some defiant judges (and attorneys) simply cannot embrace these concepts, believing instead that men, in general, are incapable or disinterested in handling the rigors associated with childcare. Fathers who choose to fight for their legal rights in this arena face an expensive uphill battle and many sacrifices in order to remain an integral part of their children’s lives.

Men who defy the odds and receive an equal share of the child custody are still (in many cases) responsible for paying child support, especially when their income exceeds their former spouse. Additionally, they are solely responsible for their own childcare related living expenses, during their time-sharing, which is not factored into the child support equation. This often creates a disproportionate financial burden, as they are effectively supporting both households.

After the divorce, some people may experience an unsettling transitional period before accepting the terms of their settlement agreement and moving on with their lives. But for some, the legal battles are far from over. Requests for modifications to the original settlement agreement can be made at any time, although in some states there is a required 2-3 year grace period and justification based on substantial circumstances. Grievances also do result from either party failing to abide by the original settlement agreement. In either case, this litigation can be even nastier, more costly and sometimes last longer than the original divorce (or even the marriage itself). In the very worst of cases, post judgment divorce litigation can last all the way up until the children become legal adults or until their parent’s money runs out (whichever comes first). As long as there are people seeking to use the legal system to resolve their disputes there will always be hired guns (attorneys) that will profit from the conflict.

Although there are many fine attorneys in the business of helping people through this arduous process, Buyer Beware, for there are also a plethora of unscrupulous attorneys who frequently capitalize on vulnerable divorcees, making the experience even worse than it has to be. In legal circles, they are commonly referred to as bombers. Their modus operandi is to aggressively litigate with reckless abandon by escalating tensions between the litigants using the mastered art of systematically fueling the fire of litigation while tap dancing on the fine line of ethics with perceived impunity.

These carnivorous legal mercenaries benefit from the carnage much in the same way that an opportunistic black market firearms dealer profits in a war zone while accepting no culpability for the aftermath of casualties left behind. Often masquerading themselves as honorable officers of the court, once retained, they will arm themselves with an arsenal of cleverly fabricated mischaracterizations of people and events, intimidation and stalling tactics, tit-for-tat cheap shots and legal loop-holes in order to gain a competitive advantage.

Their bully tactics may even include filing motions based on grossly unsubstantiated allegations, using the innocent children as a bargaining chip and attempting to defame the opposing parent’s character by portraying them as an unfit parent (no matter how much evidence exists to the contrary). Feeding off of their client’s desperation, they devilishly lore them down a dark path into an elaborate web of deception, enticing them with a host of false expectations for what to expect from their style of litigation. This can include promises of winning the lion’s share of the marital financial assets, full custody of the children and even reimbursement for their legal fees from the former spouse. While some believe that by hiring a stereotypical blood-sucking attorney they will force the other side into submission, the reality is that these attorneys wield an unrelenting double-edged sword that can greatly impact the magnitude, cost and duration of the case itself for both sides involved. This can also adversely impact the entire family who will be suffering enough from the breakup.

Ruthless attorney tactics also tarnish the reputation of the entire legal profession, which goes virtually unregulated outside of the courtroom due in great part to some of these tactics being so commonplace in the industry. As a result, the war of litigation is often prolonged and tensions among the litigants are escalated to the point that their relationship is permanently damaged, creating future conflict between them long after the divorce is over.

Bound only by the limits of their imagination and their overall audaciousness, the guardian of deception is also quite capable of extorting money out of their own client by lying to them and purposely keeping the frivolous litigation alive while their client remains entrapped in their perpetual billing system. And should the client’s patience (or money) run out, they will simply encourage them to settle, abandon their core objectives or face funding the war indefinitely; knowing that it is often easier to manipulate their own client than to force the opposition out of the trenches.

When the case is finally resolved, the litigants will usually be faced with the realization that justice was not absolute and victory was won by the party most willing to fund the war of attrition. Both parties are frequently rendered emotionally wounded and financially bankrupt from the prolonged legal campaign that could have been avoided had they only focused their energies on agreeing to a fair and equitable settlement where neither party was adversely disadvantaged. For when the dust finally settles in the aftermath of a contested divorce, the attorneys are the only true winners and the former litigants are left behind to pick up the pieces of their shattered family portrait. .

Article written by Stefan Vale, Author & Freelance Writer

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August 05, 2009
Categories:  Coping with Divorce

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