10 Things You Don’t Know About Divorce: Part 1

If you’re not an attorney, there are a lot of things about the divorce process (or, really, any legal matter) that you just don’t understand. The problem is, you don’t realize you don’t understand until something goes wrong, or something happened that you didn’t expect to understand. Before then, you didn’t know that you should know to ask questions. After that, it’s really too late, because what you wanted to avoid already happened and asking questions now won’t change the way things are going to go for you in the future.

There’s no shame in not knowing. If you’ve never been through the process before, there’s no way you could have known. And it’s hard to know what questions you should be asking, especially when you think you understand perfectly. Think about when you bought your first house. Unless you had some kind of prior experience (like, you have your real estate license, or your dad works as an appraiser, or your grandfather on your mother’s side owns a construction company that builds homes or whatever), you probably didn’t know a whole lot about some part of the transaction. When you saw your first purchase agreement or read over the mortgage paperwork, you were a little baffled. Because you speak English you could read the words, but you just weren’t sure what all the words meant. What counts as closing costs? Or prepayments? Where do all the numbers fit? When I bought my house, I wanted to scream at them, “Just tell me what I have to pay!” But, of course, it’s not that simple. Neither is divorce. There are some things that just don’t make sense until you’ve been through the process, but it’s hard to foresee the problems without the experience.

Lucky for you, the topic of this two part post is “10 things that non-attorneys don’t understand about divorce.” My goal is to help you understand some of the things that are obvious to attorneys (and so we sometimes don’t do too good of a job explaining), but that many of our clients don’t understand.

1. Uncontested versus contested, fault versus no fault

An “uncontested” divorce means that you have resolved all of the outstanding issues. You have resolved all of the outstanding issues if you’ve signed a separation agreement, and you didn’t reserve any issues to be heard by the judge later. A “contested” divorce means that you have not resolved all of your outstanding issues. You may have resolved some, but there are one or more issues left over that the court will ultimately have to decide for you. It is much more expensive to have a contested divorce than an uncontested divorce.

A “fault based” divorce means that you’re using one of the fault based grounds as your basis to file. These include adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion, and abandonment. For more information on the definition of each of these things, click here. LINK! If you choose a fault-based divorce, your divorce will be contested. Your husband cannot agree to a separation agreement that includes a fault-based ground for divorce; you’ll have to go to court, put on evidence, and prove to the judge’s satisfaction that your grounds exist. So, if you have a fault-based divorce, it is automatically contested.

A “no fault” divorce, on the other hand, can be either contested or uncontested, but it means that you’ve made the decision to move forward without regard to fault. Maybe you would have fault based grounds that you could pursue and maybe you don’t, but, either way, you won’t put on evidence regarding them, if you’re in court, and if you’re negotiating a separation agreement, your agreement will simply say that you are moving forward with a no fault, uncontested divorce.

2. The “types” of divorce

Attorneys sometimes talk about the different kinds of divorce: litigation, negotiation, mediation, collaboration, and so on. The reality is that there are really only three ways to get divorced: in court, out of court, and part in court, part out of court.

If you’re getting divorced in court, the judge will make the final decisions for you. This is what is called a “litigated” divorce. Your divorce is therefore contested, but can be either fault based (you’re using one of the fault grounds we discussed earlier as the basis for your divorce action) or no fault (you choose not to move forward with fault based grounds, but you still can’t reach resolution with respect to all your marital assets, liabilities, and responsibilities).

All the other kinds of divorce, including negotiation, mediation, and collaboration, are uncontested, no fault divorces. They all resolve a divorce with a separation agreement. A separation agreement is a legal contract between you and your husband that divides all the assets, liabilities, and responsibilities in your marriage between the two of you. You must both agree to the separation agreement, and show that agreement by signing the agreement. If one party doesn’t agree and refuses to sign, you’ll have to go to court if you want to get divorced.
Negotiation, collaboration, and mediations are different means to the same end. They go about the process a little bit differently, but the end goal is a signed separation agreement. In a negotiated divorce, both you and your husband usually hire attorneys (though you can negotiate an agreement on your own, without attorneys) and send drafts of an agreement back and forth until the agreement is mutually satisfactory. In a collaborated divorce, you hire collaboratively trained attorneys to help you negotiate in a more structured environment. You hire a team of professionals, including divorce coaches, a child specialist, and a financial specialist, to help you reach an agreement that takes both of your interests into account. In a mediated divorce, you hire a mediator (one mediator, shared between the two of you) to help you reach an agreement.

3. A retainer agreement is not a flat fee.

Attorneys in every kind of law handle their practice a little bit differently. For some reason, consumers know the most about personal injury attorneys, and expect family law attorneys to run their practices the same way. The whole “free consultation, and we don’t get paid until you get paid” thing is specific to personal injury attorneys. Family law attorneys don’t work that way.

We usually charge for our consultations, and we charge a retainer fee to get started on your case. A retainer fee is a sum of money that you pay the attorney in order to open up your case. It is put in an escrow account, with your name on it, and it remains your money until we do work on your case. As we do work, we bill against your account, and send you monthly (or bimonthly) account statements to reflect the work that has been done and the remaining balance in your trust account.

This is not a flat fee. It is not a guarantee that this is what your case is going to cost. When your account gets low, your attorney will ask you to replenish. Most firms have something called a “minimum fee security balance” that your account must not fall below. When you reach that number, you’ll be asked to put more money in, especially if you have a court date or settlement conference coming up in the near future.

Ask your attorney how her office handles billing, including what the standard charges are and how the attorney works. Ask about fees for printing and copying. In a lot of firms, older attorneys bring younger attorneys in on the case so that they can get experience while they are being closely supervised. This is usually a benefit to you, because the newer attorney bills at a lower rate, but the more experienced attorney keeps a close eye on any work going out. Ask whether, if another attorney works on your case, you will be double billed. Of course, you will have to pay for the time of both attorneys, when they independently do work on your case, but you don’t want to pay TWO attorneys to sit in the same meeting without good reason.

4. What a retainer for “divorce” means.

When an attorney takes your case, they have a retainer agreement that specifically sets forth what the “scope of representation” is. That means that we say, exactly, what kind of case yours is and what you and your attorney have agreed to handle.

When we fill out a retainer agreement, “divorce” means a litigated divorce. A “separation agreement,” on the other hand, means a negotiated divorce. If you’re hiring a collaboratively trained attorney for a collaborative divorce, your retainer agreement will reflect that.

Obviously, if you’re negotiating a separation agreement, you want to end up divorced at the end of the process. Attorneys typically differentiate between a separation agreement and an uncontested divorce, and we often require an additional retainer agreement before we move forward with an uncontested divorce. This is no big deal; it just means you sign another retainer agreement that says “uncontested divorce” right before you’re ready to file. Any money left over in your trust account is still your money, and can be rolled straight over into the new account. This is just often something that I see that confuses clients.

Sometimes, attorneys write “separation agreement and uncontested divorce” in the retainer agreement. Then, you wouldn’t have to sign a new retainer later, because the uncontested divorce is already contemplated. Just make sure you read your agreement, because what it says matters.

5. Getting him to pay your attorney’s fees.

Almost every client wants her attorneys fees paid for by her husband, whether he initiated the divorce proceedings or not. More often than not, the woman is the party who has fewer resources at her disposal when it comes time to move forward with the divorce, even if she actually earns more money than her husband. In a lot of the cases I see, it is the wives who take responsibility for the marital home and the children, so their money is going in a lot of different directions. Before any official support is ordered, it can be difficult to maintain this lifestyle and think about hiring a divorce attorney. Husbands, on the other hand, tend to move to bachelor pad style apartments and live much more cheaply, so life tends to be a little bit easier.

Although I can understand completely why you hope to get them, I want to tell you early on that it is very, very unlikely that a judge will order your husband to pay any portion of your attorney’s fees. Unless he agrees to something in writing, you probably won’t get any attorney’s fees at all. The way the court sees it, both parties made the decision to hire an attorney, and both parties are responsible for paying their own legal fees.

If he misbehaves, there is a small chance you could get some (but probably not all) of your fees paid. I don’t mean that he’s a jerk to you at home, that he files petitions against you and forces you to go to court when you don’t think court is needed, or even that he uses your children as an intermediary. When I say “misbehave,” I mean that he (or his attorney) has to do something bad, something that disrupts the flow of your case, in the courtroom. If he repeatedly doesn’t supply discovery answers or is deliberately and repeatedly evasive, he can risk you being awarded attorney’s fees. Still, even in these types of situations, judges sometimes refuse to order attorney’s fees, or only order a very, very small portion of your fees be paid. Though attorneys ask for their fees to be paid all the time, it’s actually pretty rare, and it’s best if you know that ahead of time.

Stay tuned for Friday’s post on the next five things you don’t know about the divorce process (but should)!

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