Providing Your Attorney with Essential Information
In order to represent you well in your divorce and to get at all the facts involved, your attorney needs a lot of information, including basic information about your family, marriage, finances, reason(s) for divorce, and so on. Although you probably shared some of this information with your attorney during your initial get-acquainted meeting, when you’re actually working together, he or she will need much more.
You provide your attorney with much of the necessary information through one-on-one interviews, by filling out forms, and by providing your attorney with as much backup documentation as you can — tax returns, credit card statements, titles to property, insurance policies, lease agreements, phone bills, loan applications, business profit-and-loss statements and balance sheets, records of investments, household budgets, and so on.
Warning: Don’t second-guess whether or not your attorney really needs the information that he or she requests. Try to provide everything your attorney asks for, and don’t withhold anything because you think the information is unimportant or irrelevant. You can derail your attorney’s negotiating strategy or complicate your divorce in other ways by failing to share that information. For example, if you withhold information from your attorney and your spouse’s attorney introduces it into evidence during a hearing related to your divorce, you may damage your case. Also, your attorney probably won’t be very happy with you.
If you’re not familiar with the details of your family’s finances and don’t know where your family’s legal and financial information is kept — maybe because pulling it together and reviewing it sounded oh-so-tedious and time-consuming (which it is), you have a lot of work ahead of you. That information is essential to negotiating the terms of your divorce and, if you’re unable to provide it to your attorney, he or she will have to use the discovery process to get it, which means that your divorce will cost more.
The following sections provide a rundown of some of the things that your attorney needs to know.
To help develop a strategy for ending your marriage and to determine what you may be entitled to in your divorce, your attorney needs information on your personal history, your marriage, and your minor children. For those reasons, among others, expect your attorney to question you about
- Why you’re getting a divorce
- Whether you and your spouse are separated
- The history of your marriage, including the number of years you’ve been married, whether any violence occurred in your marriage, and so on
- Biographical information about you and your spouse
- Your individual health histories, including whether either of you has a history of serious medical or emotional problems
- Your minor children, including their ages, where they’re living, whether they have special needs (educational, physical, emotional), whether they attend public or private school, and so on
Legal and financial stuff
Your attorney will also spend time studying the details of your finances and reviewing any legal agreements that you and your spouse may have entered into during your marriage. Your attorney will want to know
- Whether you have a separation agreement. If you have one, your attorney will want to read the agreement.
- Whether you and your spouse own any real estate, including homes, buildings, or land. Be prepared to provide your attorney with the deeds of record to this property and any loan documents related to the property if you owe money on any of it.
- Whether you signed a prenuptial or postnuptial agreement.
- Whether you or your spouse have done any estate planning, such as writing wills, buying life insurance, or setting up living trusts.
- Whether you and your spouse own a closely held business together, have other shared business interests, or own separate businesses.
- What assets and debts you and your spouse have from your marriage as well as where you got the money to pay for any of the real property you may own. Real property includes your home and any other homes, buildings, or land that you own.
- How much each of you earns annually from all income sources, including salaries, commissions, bonuses, and other employment-related income as well as from trusts, annuities, royalties, rents, and so on.
- Whether either of you made any special contributions to one another’s career or business. For example, you may have helped finance your spouse’s business or worked in the business without pay; your spouse may have supported you through college or graduate school; or you may have used your separate funds to purchase assets for your marriage or to help pay your family’s living expenses.
- Whether either of you has wasted marital assets by gambling; engaging in phone sex or extramarital affairs; or through an addiction to drugs, alcohol, or even the Internet.
- Your current and post-divorce household budgets. In addition, if you filed a fault divorce, the attorney will want you to provide proof of the fault. Conversely, if your spouse filed a fault divorce against you, the attorney will want proof of your innocence.
Other important stuff
Your attorney will ask you questions in order to understand what you expect from your divorce and what you’re willing to do or not do to get what you want. Your attorney needs this information not just to help you get a divorce agreement that meets your needs, but also to be certain that your expectations for what you may get from your divorce are realistic. So, you can expect your lawyer to ask you about
- Your divorce goals and priorities
- Your expectations for your divorce
- Why you feel you should receive spousal support, if that’s something you want from your divorce
- Why you feel the custody arrangement you want is reasonable and why your spouse’s desired custody arrangement isn’t reasonable, assuming that you and your spouse don’t see eye to eye on how to handle the custody of your minor children
- Under what, if any, circumstances you are willing to go to trial to get what you want
Using Discovery to Get at the Facts of Your Divorce
Attorneys use the discovery process to help them determine the facts of a case. This process can be informal or formal. If it’s informal, you and your spouse, working through your individual attorneys, willingly provide one another the documents and information each of you needs to work out the terms of your divorce. If it’s a formal process, depending on what you or the opposing side wants to learn through discovery, the attorneys may use a variety of legal tools (most of which we describe in this section) to get the information they need. These tools include subpoenas, depositions, interrogatories, and motions to produce documents.
Your attorney is apt to rely on informal discovery if
- The two attorneys agree in writing to willingly exchange all the information they need to work out the terms of your divorce
- Your divorce is amicable
Your attorney is likely to use formal discovery if
- Your divorce is contentious
- Your attorney has to force your spouse’s attorney to provide certain information related to your divorce
- Either attorney needs to formally acquire additional information related to your divorce from other sources
The discovery process may take just a short amount of time, especially if the facts of your divorce are clear and undisputed and most of the discovery is informal. However, if your attorney (or your spouse’s attorney) uses formal discovery to get at the facts of your case, the discovery process can last many months. The process can last many months because obtaining information through the formal discovery process is time-consuming, and reviewing the requested information can take time. Also, court hearings related to your attorney’s discovery requests or the requests of your spouse’s attorney may occur as well as other potential complications that may slow down the process.
State By State: In some states, the amount of formal discovery is limited. For example, your attorney may be able to use discovery to get at only the financial facts of your divorce.
Depending on the issues that have to be resolved before your divorce can be finalized, any number of individuals may be involved in the discovery process: you, your spouse, your financial advisors, your business associates, appraisers, your children’s teachers and babysitters, mental-health professionals, your friends, relatives, and neighbors — basically, anyone who may be able to provide information about your marriage, your children, your finances, and so on.
Uncovering the facts with informal discovery
Informal discovery occurs when your attorney asks your spouse’s attorney (or vice versa) for financial, legal, medical, or other information and the opposing attorney provides that information voluntarily. The particular types of information your attorney asks for depend on the issues involved in your divorce.
Ideally, most of the discovery in your divorce will be informal because the more frequently either side uses formal discovery, the longer your divorce will take and the more it will cost. For example, in formal discovery, your attorney or your spouse’s attorney may have to complete extra paperwork, formulate questions to ask your spouse or others, conduct interviews, and then review and analyze all the information. More hearings take place as well.
Using formal discovery to dig for the details
Formal discovery is most common in divorces involving spouses who are unwilling to cooperate with one another. Depositions, interrogatories, formal requests for the production of documents, and subpoenas are all formal discovery tools. The following list tells you what each of these terms means:
- Subpoena: A legal document requiring someone to provide testimony about something or someone at a court hearing or a trial. Anyone who ignores a subpoena faces legal penalties.
- Deposition: A statement by a witness, taken out of court and recorded by a court reporter. The witness is under oath. Your spouse’s attorney may ask you to be a witness as part of the formal discovery process in your divorce. Others with knowledge related to an issue in your divorce may also be deposed. Although you may wish you didn’t have to give a deposition, unless you want to risk being held in contempt of court, you must comply with the request. Your attorney will be by your side during the deposition.
- Interrogatories: Written questions prepared by the plaintiff’s attorney for the defendant or vice versa in order to obtain information related to an issue that’s in dispute in your divorce. Other individuals, such as your family’s financial advisor, friends or family members, a business associate of your spouse’s, and so on, may also have to respond to an interrogatory.
- Notices to produce documents and other information: Your attorney may use these notices to obtain such things as the deed to your home, financial information related to your spouse’s business, your spouse’s cell-phone records, and so on.
A notice to produce documents is also known as a “request for production of documents and other tangible things.”
Even if your divorce is amicable, your attorney may do a limited amount of formal discovery in order to
- Narrow the scope of your negotiations by identifying exactly where you and your spouse agree or disagree and the particulars of your agreements and disagreements. The more that you agree on, the less the attorneys have to negotiate or litigate later and the less your divorce costs.
- Assess the strengths and weaknesses of your position versus your spouse’s.
- Assess how well your spouse is likely to perform on the stand if your case goes to trial and your spouse must testify.
- Get your spouse to admit to certain facts. If your divorce goes to trial and your spouse provides testimony while on the stand that differs from what he or she said during discovery, your attorney can use the discrepancy to undermine your spouse’s credibility.
Using Your Attorney to Work Out the Details of Your Divorce Agreement
After your attorney briefs you on key points and legal issues in your divorce, he or she may suggest that you and your spouse work out the terms of your divorce on your own instead of having him or her and your spouse’s attorney do that for you (assuming that you and your spouse are communicating with each other). Nailing down the terms of your divorce on your own will save you a considerable amount of money. After you and your spouse complete your negotiations, you draw up your own written divorce agreement and have your attorneys review it. After you have a final divorce agreement, the attorney working for the spouse who initiated the divorce files the agreement with the court so that the court can issue a final divorce judgment, which gives your agreement the force of law. After that task is done, you’re officially divorced.
If you and your spouse put your attorneys in charge of drawing up your divorce agreement, your attorneys work together to negotiate the terms of your divorce in consultation with you and your spouse. After they’ve worked out all the terms of your agreement, the attorney for the spouse who initiated the divorce drafts a final divorce agreement and files it with the court.
Working out an agreement with the help of your attorney
If you’re the spouse who filed for divorce, your attorney contacts your spouse’s attorney to begin discussing the terms of your divorce. When the attorneys come to an agreement on an issue in your divorce, your attorney sends the other attorney a letter stating what they agreed to; assuming that your spouse’s attorney feels that the letter accurately reflects their agreement, the attorneys put that issue aside and move on to another issue.
If your spouse’s attorney wants to change anything, he or she calls your attorney to convey the change. Your attorney consults with you by phone before offering anything to your spouse’s attorney or accepting anything he or she may offer to you. This back-and-forth process continues until all the issues in your divorce are worked out or until you and your spouse reach a stalemate on one or more issues. If that happens, you and your spouse may agree to use mediation to try to resolve your differences or, worst-case scenario, you have to go to court to resolve the sticking points
Remember: Expect your attorney to consult you throughout his or her negotiations with your spouse’s attorney. Do not agree to anything that makes you feel uncomfortable, that you don’t understand, or that you don’t think you can live up to. You’re not obligated to agree to anything that you don’t like. You can accept or reject something that your spouse’s attorney may offer to you through his or her attorney, or you can use the offer as the basis for additional negotiations.
Warning: You may be tempted to threaten your spouse with taking your divorce to trial in order to pressure him or her to give in on certain points that are important to you. But, before you try this tactic, consider which scenario is more likely: You holding your ground and your spouse agreeing to a compromise, or your spouse holding his or her ground and calling your bluff.
After you and your spouse feel that you’re close to a final agreement, the attorney representing the spouse who filed for divorce drafts a formal divorce agreement that reflects everything you and your spouse have agreed on for your approval and your spouse’s approval.
Evaluating an offer or counteroffer from your spouse
Whenever you receive an offer or counter-offer from your spouse proposing how to resolve one of the issues in your divorce, you must decide whether or not you like it. When you do your evaluating, ask yourself the following questions:
- How close is the agreement to what I’m asking for?
- Does the offer reflect most, if not all, of my divorce priorities?
- Is anything missing from the agreement that’s worth the cost and the time involved in continued negotiations?
- Is the agreement fair? Is the agreement in my children’s best interest?
- Can I afford the agreement?
- Given what I know now about my legal rights and responsibilities, the value of the marital property that my spouse and I own, and how my divorce is affecting my children, am I likely to get more if I reject the proposal?
- Is my spouse likely to make any additional concessions if we continue negotiating?
- How much have I already spent on my case, and can I afford to spend any more?
- Am I willing to take the offer just to end this protracted and expensive legal process?
- Given what I know about the judge and his or her past rulings, am I likely to do better if I go all the way to trial than if I were to accept what my spouse is offering? What is the worst that could happen? (Your attorney should be able to give you a strong sense of how a judge would be likely to rule on your case given your state’s laws and guidelines and the past decisions of the judge who’s likely to preside over your divorce trial.)
- If I really push for whatever is missing, what may I have to give up in order to get it? Is it worth it to me? What are the risks of not settling now?
- If I don’t settle now, how long will it take for this case to come to trial and how long is the trial likely to last?
- Do I not want to settle yet because I’m unhappy with the agreement, because I’m not sure that I can live up to the agreement, or because my emotions are getting in the way?
- What kind of financial and emotional toll is not settling likely to take on my children and me? Discuss the pros and cons of whatever agreement you’re evaluating with your attorney. Share your thoughts and concerns with him or her and find out what your attorney thinks. Your attorney may tell you that what your spouse has offered is about as good as you’re going to get, that you can probably get a few more concessions if you keep negotiating, or that you should not accept what your spouse is offering because it’s not in your best interest. In the end, however, it’s your call whether to accept the offer or not.
Settling disputes at a settlement conference
If your divorce is very complicated and contentious and you and your spouse both feel as if you have at least the beginnings of an agreement, your attorneys may schedule a settlement conference to try to work out the issues that are unresolved. The settlement conference usually takes place at one of the attorneys’ offices and usually occurs after the discovery process is complete. However, the conference can take place whenever you and your spouse are ready to make a deal.
The settlement conference offers your attorneys an opportunity to sit down face to face to hammer out the final specific details of your divorce agreement. You and your spouse may or may not participate. Before the settlement conference, you should talk with your attorney about whether you should attend. It may or may not be in your best interest if your divorce is contentious or if you have a hard time keeping your emotions under control. But you may want to be there so that you can hear everything that’s said at the settlement conference and so that you can provide your attorney with immediate feedback.
A successful settlement conference involves some old-fashioned horse-trading. So, if you haven’t been clear with your attorney about your divorce priorities and what you’re willing to give up to get them, your attorney will not be able to bargain effectively for you.
Don’t get impatient with all the back-and-forth negotiations. Getting all the terms of your divorce agreement just right is essential because, after you and your spouse sign it and file it with the court, the agreement becomes a legally binding contract, which means that you must live up to what it says, like it or not.
If you and your spouse simply cannot agree on something, no matter how hard your attorneys try to craft a mutually acceptable compromise, they may recommend mediation or even arbitration. If you don’t want to give these options a try and you don’t want to keep negotiating, either, your only other option — assuming that you and your spouse still want to get divorced — is to have your case tried in court.
Making a deal: The final settlement
After you and your spouse have a final divorce agreement (or final settlement agreement) detailing the terms of your divorce, your lawyer or your spouse’s lawyer drafts a formal document stating everything you agreed to. The final agreement includes a lot of standard provisions and boilerplate language — stuff that’s in every settlement agreement. Whichever attorney does the drafting submits the agreement to the other attorney for review. The other attorney may make some minor tweaks to the agreement but, at this point, no substantive changes should occur.
After you sign the settlement agreement, depending on your state, you and your spouse (or just one of you) may have to appear at a court hearing in order to have a judge officially dissolve your marriage. In other states, a hearing takes place only if your divorce is a fault divorce. If a hearing is scheduled, it’s more of a formality than anything else, and it won’t last long. Your attorney will attend the hearing with you.
Concluding Your Divorce: Filing the Divorce Decree
After your attorney (or your spouse’s attorney) submits your final divorce settlement agreement to the judge, the court reviews its terms. Then, the judge signs your divorce decree (a final judgment of divorce).
State by State: Some states allow judges to modify negotiated settlement agreements. Others allow judges to only accept or reject an agreement. If the judge rejects your agreement, you can go back to the drawing board to work out a new, more acceptable one. A judge may reject your agreement because he or she doesn’t think it’s fair to one or both of you, because it’s unenforceable or violates your state’s laws, or because it isn’t in the best interests of your minor children, among other reasons.
After the judge approves or modifies your settlement, he or she returns your divorce decree to your attorney who, in turn, forwards the decree to your spouse’s attorney. At that point, you and your spouse have a certain amount of time to review and, if necessary, appeal the court’s judgment (usually ten days).
Realistically, unless you have a last-minute change of heart or unless the judge makes changes to your divorce agreement that you don’t like, an immediate appeal is unlikely. However, you or your spouse may try to get something changed later after you’ve had a chance to live with the agreement and have identified problems with it or if changes occur that merit a modification.
You and your spouse become officially divorced when the judge signs your divorce decree or judgment of divorce and enters it together with your final settlement agreement into the court records.
Tip: Keep a copy of your final settlement agreement and your divorce decree in a safe place. You may need it if you have to prove that you’re divorced, if any questions arise about what you and your spouse agreed to, or if you want to change something in your divorce agreement later.
John Ventura is a bestselling author, attorney, and a national authority on consumer financial and legal problems. Mary Reed is the founder of Mary Reed Public Relations. This article has been edited and excerpted from their book Divorce for Dummies (Second Edition, Wiley Publishing, @ 2005). This material is used by permission of John Wiley & Sons, Inc. The book is available at Amazon.com or www.wiley.com.