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.
Legal and financial stuff
Other important stuff
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
Your attorney is likely to use formal discovery if
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 baby-sitters, 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
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
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
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 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
Settling disputes at a settlement conference
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 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.