jump to navigation

Top 10 list: Top 10 things to NOT do during your divorce. December 14, 2007

Posted by csstephens in Dissolution, Property Division, settlement, Top 10 List.

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.

2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.

3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.

4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.

5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.

6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.

7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult cases settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.

8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.

9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.

10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

The easy divorce – the “Settlement Package.” December 8, 2007

Posted by csstephens in Dissolution, settlement.
add a comment

Divorce can be a long, emotionally difficult and challenging process. It can also be relatively easy if you have a complete understanding of your finances, have a semi-cooperative spouse, and are willing to invest some money and effort early on. Document drafting usually occurs twice in a case, first when you file for divorce (the petition and other filing documents to start the case), and again when the case is complete (the general judgment and other documents to finalize the case). Usually many months separate the filing of the petition and the completion of the case.

It doesn’t have to be that way. We have had good luck wrapping up some cases quickly by preparing a “settlement package” that contains the filing documents AND a proposed final judgment. If you have a full understanding and knowledge of the marital finances, and you anticipate agreement on property and child issues, this tool may work for you. Your spouse gets the package, and if they agree, all they have to do is sign. The incentive for your spouse to sign is that YOU have done all the work. The spouse may only need to consult with an attorney, rather than retain one. (We blogged about the difference in an earlier post) While it doesn’t always work, and it is not appropriate for all cases, some potentially lengthy cases can settle quickly with the technique. Some lawyers, including our office, will prepare a settlement package for a flat or fixed fee. If you have a full understanding of your finances, and you and your spouse are close, ask your lawyer about the wisdom of serving a proposed general judgment along with the petition in a “settlement package.”

Divorce Myths: Divorce always takes a long time. December 8, 2007

Posted by csstephens in Myths.

Some divorces do take many months, or over a year, but this is a result of the process and conflicts and not mandated by the divorce statutes. The length of your case usually depends on how your case resolves. Many counties in Oregon have policies about how long a case may take (for example, some counties say 90% of cases should resolve within 9 months.) Cases that resolve by a trial may take 9 months, or potentially longer. Cases that resolve by default take less time than cases that are litigated. For cases that end in a default judgment, there is a 90 day waiting period from the date of service until the court can enter a final judgment. (ORS 107.065) However, if the parties agree, or “stipulate” to a divorce, the court can and usually does waive the 90 day waiting period, meaning there is NO waiting period. If you don’t have kids, and you live in a county where the court will sign a divorce judgment on the spot, a same day divorce is possible (maybe not desirable, but possible.) Many people express suprise (hence the myth) when they learn a same day divorce is possible.  In the right circumstances,  (remarriage, relocation, etc.) a same day divorce may be worth pursuing.

New Case Law: Bankruptcy and divorce don’t mix well. December 8, 2007

Posted by csstephens in Dissolution, Legal Developments, Property Division.
add a comment

bankruptcy_714eace06a_m1.jpgOn December 5, 2007, the Oregon Court of Appeals in Cam and Cam, _____ Or App _____ (2007) upheld a trial court’s ruling setting aside a divorce judgment, but said the court got the result right but the reasons wrong. The case explores the tension between bankruptcy and divorce law.

Mr. Cam and Ms. Cam were trying to settle their divorce. Mr. Cam thought there was a complete deal, but Ms. Cam did not. Mr. Cam’s lawyer drafted and submitted a judgment, which the court then signed. The judgment awarded Ms. Cam real estate and a money award ( a judgment for money.) Less than a month prior to filing the judgment, Mr. Cam filed for bankruptcy, but did not submit all the necessary paperwork to the bankruptcy court, and his petition was dismissed. Unknown to the divorce court (and probably Mr. Cam’s divorce lawyer), the bankruptcy case was active when the judgment was entered.

Ms. Cam then moved to set aside the judgment, and the court granted her motion on the basis that there was no a complete agreement, and that Mr. Cam had concealed assets.

The Oregon Court of Appeals upheld the trial court’s ruling, but said that the trial court was “right for the wrong reason.” When someone files for bankruptcy, an “automatic stay,” or prohibition on all creditor activity goes into effect. The court upheld the trial court ruling because the entry of the divorce judgment dealing with property violated the “automatic stay,” not because Mr. Cam may have hidden assets or the settlement was not complete. The trial court had the right result, but for the wrong legal reason. The court further ruled that the trial court did not err in setting aside the non-void (or non-stayed) portions of the judgment because of the court’s broad authority under ORS 107.105.

The moral of the story? If you are filing for bankruptcy, TELL YOUR DIVORCE LAWYER! The federal filing trumps most state court legal actions, and you may make your expensive, hard won judgment moot.

10 things to do if you are going to get divorced. December 3, 2007

Posted by csstephens in Dissolution, Top 10 List.

There is no substitute for planning, and planning for your divorce can make the process go smother, lower your lawyers fees, and help ensure you emerge on the other end of the case ready to move forward, and with the least amount of emotional and financial damage. We put together the following “Top 10 list” for those considering divorce.

  1. Consider your other options: While not appropriate in every case, consider if you really want to be divorced. If not, talk to a marriage counselor or other professional who can explore saving your marriage. If the process works, great! If the process does not work, you can at least get help discovering what went wrong, how to cope, and how best to move on.
  2. Consult with and retain a family law attorney: Clients often make strategic mistakes prior to filing. For example, moving out of the family home, even briefly, can impact a custody and parenting time case. We blogged about the difference between consulting a lawyer and retaining a lawyer before. Make sure you at least consult so you know your rights, and how to avoid shooting yourself in the foot.
  3. Copy documents: Your case will be smoother and your fees lower if you have a copy of all essential documents to provide to your lawyer. Obtain copies of pay stubs, tax returns, retirement account statements, bank statements, car and boat titles, real estate documents, insurance polices, etc. If you or your spouse uses financial software to track expenses, save a copy of the file.
  4. Inventory your personal property: Go room to room and make a list of major items of value. You do not need to inventory every muffin tin, but you may end up out of the house for a period of months while the case progresses, and you may forget what is there.
  5. Get a copy of your credit reports: Getting a credit report is very useful in identifying debt, accounts, and what accounts are open and closed. Pull a copy of your report from each of the three credit bureaus or a tri-merge report and your lawyer will thank you.
  6. Establish your own credit and source of funds: If you do not have credit in your own name, apply for them and get several. You will need to establish your own separate credit history, and do not want to be in the position of having your access to funds cut off. If there is a joint cash account, consider splitting it and transferring ½ to a separate account in your sole name.
  7. Keep the kids out of it: Getting ready for a divorce can take lots of time and energy. Make sure the kids don’t suffer any more than necessary by making them the first priority. Do not put them in the middle. Do not argue in front of them. Do not badmouth your spouse in front of the kids. Keep their routines as normal as you can. Stay connected (or get connected) to their activities at school and after school. Courts take a dim view parents that put kids in the middle of the conflict. Just don’t do it.
  8. Know your finances: Make sure you know what you make and are capable of making, what your spouse makes and is capable of making, and where the money goes each month. What are the credit cards? How much is owed? Where are the retirement accounts? Can you earn enough in your current job or will you need your spouse to support you for a period of time? If your job involves travel, will you need a different job without travel if you don’t have a spouse to watch the kids while you are gone? The more you know about the finances the easier it will be to communicate with your lawyer. Knowing the finances and having a plan helps put you in the best position after the divorce is over.
  9. Manage debt: This could be the worst time to increase your debt level. Unless your lawyer tells you otherwise, don’t make major purchases. Don’t go on shopping sprees. Some lawyers advise their clients to contact joint creditors and have accounts closed, or limits reduced to prevent the accumulation of new debt during the divorce.
  10. Take care of yourself: Divorce can be a very stressful experience. Take care of yourself, even before anyone files. Work out. Find a support group, either through your friends or a formal divorce support group. Consider getting counseling. Many clients choose to get into counseling to help with the process, and report back that it was helpful.