The Secrets to “Winning” Your Divorce: Realistic Expectations Get You Across the Finish Line
The following are typical misconceptions about “winning your divorce” that family lawyers often hear from clients, and explanations to help clients understand and set realistic expectations for the process.
As a family law attorney, my job is to help guide clients through the heartbreaking, time-consuming, taxing process that is the termination of their marriage. As if the ordeal wasn’t painful enough, the divorce process is rife with misconceptions and misunderstandings – which only serve to compound the stressfulness of the situation. Therefore, ensuring that the client understands the process and manages his / her expectations accordingly is a paramount concern. The following are typical misconceptions that family law attorneys hear from their clients at the outset of their case, and the responses that help clients understand the process and realistic expectations of the outcome of "winning" their divorce.
Here are 4 strategies that won't help with winning your divorce.
1. Insisting on Airing Your Grievances in Court.“The judge needs to hear how much of a jerk my spouse is! The judge needs to know that I’m the better person!” Your once happy union has irrevocably broken down – and for good reason. You’ve put up with so much over the years. Your spouse is a jerk, a loser, an abuser, a cheater, a drunk, a deadbeat, a spendthrift, and the list goes on. You’ve been mistreated for too long. Now you finally have your chance to publicly admonish your soon-to-be-ex in a court of law. Your spouse will finally be held accountable for all of his / her transgressions. You will finally have your justice. Or, so you think. One of the most difficult concepts for clients to understand – both logically and emotionally – is that the court is not a moral arbiter. The divorce laws of your state are (generally) designed to accomplish three things:
- allocate assets and debts,
- establish future support and
- determine child custody.
2. Demanding an All-Out Victory.“I need to defeat my husband/wife!” Litigants are more personally and emotionally invested in “winning” divorces than in any other type of legal proceeding. Unlike typical civil lawsuits, the opposing parties in a divorce have a personal ax to grind with one another. The resulting desire to win is deeply personal and can be a driving force in many divorce cases. However, to the chagrin of many divorce litigants, an outright victory simply does not happen in divorces. Unlike other areas of law, divorce law is specifically designed to prevent an outcome that results in a “winner” and a “loser.” Your court will most likely favor an equal (50/50) division of all assets and debts accrued during the marriage – the specifics will depend on your jurisdiction. At the end of your divorce, each party will generally be left on equal footing. The court will decide the issue of child custody based upon what is in the children's best interests – not yours. In this sense, the court is interested in the children “winning” – not Mom or Dad. "Yeah, but in my cousin’s friend’s neighbor’s dermatologist’s sister’s divorce, she got X and Y and Z." You understand that you aren’t going to “win” your entire divorce, but you have heard about other people’s divorces, so you know what individual victories to expect in yours. “My sister got to keep the house and all of her retirement account!” “My friend doesn’t have to pay any child support!” “My neighbor got full custody!” Divorce cases are extremely fact-intensive. Each divorce has its own distinct history and set of circumstances and unique personalities involved. Even if two separate divorce cases have a very similar set of circumstances, the attorneys, magistrates and judges involved in those cases may have different interpretations of how the case should be resolved. Some divorcing couples are more amenable to settlement discussions than others. Some litigants are more willing to compromise than others. There are a million different factors in play in each and every individual divorce case. Comparing two different divorce cases is like comparing apples and oranges. Just because someone you know got a particular outcome in his / her divorce does not mean that you can expect the same outcome in yours.
3. The "Quick and Easy" Spouse-Negotiated Divorce“My divorce will be simple. There’s nothing to fight about!” The sound you just heard was a thousand family law attorneys groaning in unison. This is a common sentiment – the client believes that their divorce will be quick and easy and there are no real issues to argue about. While there are the occasional “quick and easy” divorces with zero disputed issues, these cases are few and far between. When a new client proclaims his / her divorce to be “simple,” it typically takes only a few minutes of digging into the issues for the new client to proclaim, “Oh, I guess I didn’t consider that.” Think of it like this – there aren’t dozens of high-rise casinos, flashing lights, and thousands of hotel rooms on the Las Vegas Strip because tourists are good at winning money. Likewise, there aren’t thousands of attorneys, legal support staff, magistrates, judges, and court administrators throughout the U.S. dedicated to family law because divorces are routinely “quick and easy.” While at first glance you may think your divorce is going to be simple (“we’ve already agreed on child custody!”), there are many precise details that must be included in a divorce decree that go beyond the very general, “big picture” stuff that most non-lawyers typically emphasize when discussing the terms of the end of their marriage. Often, one of these previously unconsidered specifics can have a ripple effect and completely change the complexion of the settlement negotiations. In a divorce, the devil is always in the details. “No, no, you don’t understand! My spouse and I have already discussed all the details! There really is nothing to argue about!” Occasionally a client walks into the office with a full settlement agreement. He and his wife have worked out all of the details between themselves - the client simply needs me to put the agreement into a legally acceptable form and send off to his soon-to-be-ex for signatures. A week or so later, the client is shocked when I give him a call and tell him that his wife has rejected the settlement offer (or vice-versa). The client is even more shocked to learn that I didn’t get notified of the rejection from his wife: I got notified by his wife’s newly-hired attorney. Wait – what happened? There are usually a few reasons why things don’t go smoothly with spouse-negotiated settlement agreements:
- Communication. While the client and the spouse may *think* they reached an agreement, their subjective interpretations of the “agreement” vary significantly. (Are you surprised to learn that divorcing couples don’t always communicate adequately?)
- Apprehension. Upon receiving the paperwork in written, official legal form, the reality and seriousness of the situation sets in. Rather than simply signing his / her name to legal documents prepared by someone else’s attorney, the opposing spouse makes the (wise) decision to hire an attorney to review the settlement agreement. Opposing spouse’s attorney inevitably finds some points of contention in the settlement proposal and, well, you can imagine where things go from there.
- Sham Agreement. There never actually was an agreement. The opposing spouse never had any intention of honoring the agreement. Maybe the opposing spouse is dishonest, maybe he/she originally “accepted” the proposal just to get his / her spouse to leave them alone. In any event, the original “agreement” was only an illusion.
The Divorce with a Shot Clock“It’s very important that my divorce be completed by [certain date, season, or milestone.]” Early in December one year, a new client came into my office. She and her husband had made the decision to terminate their marriage. They had mutually decided that the best course of action was to complete the divorce process in a tight window that wouldn’t overlap the holidays. By starting the process after Thanksgiving and finishing before Christmas, the wife, her husband and their two children would be able to fully enjoy the holidays without the stress of an impending divorce looming over their heads. Not a bad idea. As I began to temper her expectations by explaining how deceptively lengthy divorce negotiations can be, she cut me off. Can you guess what came next? “No, no, we’ve already agreed on everything. There’s nothing to argue about!” “Oh boy, here we go again,” I thought. However, as our discussion progressed, I realized that she was telling me the truth - this was one of the rare circumstances in which there really was nothing to fight about. The wife and her husband were still on excellent terms and had covered every detail of their split. The agreement was equitable on both sides – I would have most likely approved this settlement regardless of which spouse I was representing. This was a truly amicable, “quick and easy” divorce. Great news! So, the wife and her husband were able to accomplish their goal and get divorced before Christmas, right? Wrong! Nearly every jurisdiction in the United States has a “waiting period” before a couple can get divorced. In Ohio, that period is 30 days after filing, in Colorado it is 90 days after filing, and in California it is six months after the opposing spouse is served. In some jurisdictions, like Michigan and Oklahoma, the length of the waiting period varies depending on whether or not the parties have children. While the specific waiting period can differ substantially between jurisdictions (and even within jurisdictions sometimes), the point remains the same: even in the absolute, best-case scenario of a completely amicable divorce with “nothing to fight about,” the divorce process still takes time. In a contested divorce, the timeframe for divorce is obviously much longer. In Ohio, for example, we have 12 months to finish a divorce without children and 18 months to finish a divorce with children (and the courts can extend those deadlines in certain instances). Even if you believe that the contested issues in your case are very narrow and should resolve much quicker than a full-length contested divorce would, keep in mind that there are many variables that neither you nor your attorney can control – including your spouse, the opposing counsel, the court’s availability and any unforeseeable life events that may pop up and prolong the process. If your divorce is going forward on a contested basis, your attorney cannot promise you that your case will be wrapped up by a certain date. You spent years (maybe even decades) building your marriage – it isn’t realistic to expect it to be torn down within weeks or a couple of months. When it comes to a divorce, the old adage applies: Hope for the best but prepare for the worst. There is no magic secret for winning your divorce – but having realisting expectations from the outset will help you through the process. Your divorce will be stressful enough as it is – the last thing you need is a self-inflicted wound in the form of unrealistic or misguided hopes and expectations. At the end of the day, you will get through this – even if it means keeping your dirty laundry in the bag, or requires a little more will-power, time, and effort than you originally had envisioned to complete the process.
Matthew Rinear, attorney at Isaac Wiles, understands that going through a divorce or a custody issue is an intimidating and stressful process. To that end, he believes his job is more than drafting documents and showing up to court proceedings, it’s about guiding each client through his/her unique situation by explaining the process and setting expectations. www.isaacwiles.com