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Divorce is Not Just About Law

One of the most pervasive and unfortunate myths about divorce is that it is essentially a legal matter. For most people considering divorce the first step appears to be to find a lawyer to tell you about “your rights.” So the first stop is for a consult with a lawyer typically recommended by some friend who says this is a good and aggressive lawyer. The happenstance of that consult often determines whether you will have a decent or a horrifying divorce.

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Divorce, Settlement, and Predictability

Does your divorce attorney already know what your settlement is going to look like?  Some straight talk.

When couples separate, there are three primary issues that must be resolved before the court will grant a divorce: custody of the minor children, support issues including alimony and child support, and the division of marital property. Most people start by seeking the advice of a divorce attorney to find out what are their “rights.” They want to know what the law says they get in each of these areas. More specifically, they want to know what the judge would do if the case goes to trial and all these issues are decided by the judge. “Will I get custody?” “Will he have to pay me alimony and how much will he pay?” “How much child support do I get?” “How much of the property do I receive?” How confused they are when they leave the lawyer’s office will largely depend on the style of the lawyer in answering the questions.

One possibility is that the divorce attorney answers all the questions on the assumption that the case will be tried and the judge will decide. Here the lawyer tells the client about the law. In the matter of custody the judge will inquire about what custody arrangement will be “in the best interests of the children.” So the outcome will depend on how the judge will perceive the evidence presented. The lawyer may, for example, tell the client that because she is the mother, is psychologically closer to the child and has a work schedule that leaves her more available for the children, she will probably be awarded primary custody. He may also tell her that because of the large disparity of the income between her and her husband, she will probably get alimony and will describe the many criteria the law requires the judge to apply. But the lawyer cannot tell her how much alimony she will get or how long she will get it because it is up to the judge.  The same applies to property division. Most states are “equitable distribution” states in which the judge is supposed to apply numerous criteria when distributing the marital property. But the application is so complex it is impossible to predict exactly how a particular judge will interpret the statute and case law.

The second style is that of a lawyer who tells you the truth which is that almost 99% of all divorces are settled sometime prior to trial. That means that there is very little chance that your case will go to trial and that you will not appear before a judge who will decide the case. Although many divorce lawyers claim that they can predict what the judge will do the prediction is largely a conceit and it is common to have two experienced lawyers predict very opposite outcomes if the case goes to trial. So the prognostications of the lawyers about what a judge would do at trial should be taken with several grains of salt. What the lawyers actually do is to fall back on what they believe are the settlement norms that apply in a particular state. The norms have very little to do with the statutes. For example, because the equitable distribution laws are so complex most lawyers and most judges default by dividing the property equally between the spouses.

In most states there is an operating presumption that property will be divided equally and the burden of persuasion is generally on the person who argues that he/she should get more than half.  So in the great majority of cases the property is divided equally even though that is not what the law requires.

Norms also apply to support issues. All states are required to have minimum child support guidelines, so it is possible to look up the exact child support for people with any particular income. Child support may be completely inadequate in a particular state but there is a very high probability that the guidelines child support will be applied. There are no similar guidelines for alimony, but there are norms that most lawyers will apply. For example, in the North Carolina county where I practice there appears to be an accepted norm that alimony will be paid for a period equal to half the duration of the marriage unless it is a very long marriage in which case it will be paid permanently. There are also local norms that determine how much alimony will be paid depending on the income disparity between the parties with alimony ranging between 15% and 33% of the payer’s gross income.  Generally, no man will be asked to pay more than half his income in alimony and child support though exceptions are possible.

The important thing to note is that these settlement norms are not based on statutes and case law but on the conventional settlements reached over time by negotiating lawyers.  The implications are important because so few lay people are aware of influence of such norms. Ultimately what it means is that in most cases any experienced divorce lawyer can predict pretty closely what the settlement will look like for any particular couple before the case even gets started.  If most lawyers told their prospective clients the truth, most divorces could be resolved in a few weeks, because client expectations would be shaped by reality very early in the process. Unfortunately, most clients are allowed to believe that their cases might go to trial and because of that, spend large sums on legal fees to prepare for trials that will never happen.

I am available any time to answer questions you have about North Carolina divorce law, custody issues, or separation and settlement agreements. You are under no obligation and remember: Divorce doesn’t have to be adversarial. You can achieve a good divorce.

Sam Margulies, Ph.D., J.D.
(336) 669-3141

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You can achieve a “good” divorce

Because divorce is generally regarded as regrettable and socially undesirable, we tend to think of all divorce as bad and destructive. Certainly, most of us have known people who have had bad divorces. These are the ones in which couples do so much damage during the divorce that they are left unable to cooperate, still angry at each other and unable to adapt to post-divorce life because they are still destructively engaged with each other. For these unfortunate people the divorce has been a failure because neither is free of the other and they continue to interfere with each other’s contentment.

So is there such a thing as “good” divorce? As in any human endeavor there is a range of performance and a range of possible outcomes. Just as there is bad divorce characterized by mutual self defeat, there is also successful divorce in which a couple has successfully negotiated a post-divorce arrangement that leaves both partners as well a s their children able to adapt to their new lives. The key to understanding good or successful divorce is an understanding that almost all divorces (99%) are resolved prior to trial by a negotiated settlement agreement. The negotiation of the agreement, also called the settlement agreement or the divorce agreement, can be regarded as the final task of the marriage. A settlement agreement resolves all economic issues between the parties and describes their mutual rights and responsibilities as parents. It describes how their property is to be divided .and resolves issues of child support and spousal support. Done well, the settlement agreement becomes the economic blueprint for the family’s future. Done well, the document represents the genuine agreement of the partners so that both view it with a sense of justice and goodwill.

There are seven characteristics of a good divorce.

  1. Emotional closure for both partners. This means that there is no unfinished emotional business and they have both disengaged from the relationship and the conflict.
  2. A successful post-divorce social life. Each has achieved a place in the community, or has developed a network of friends. If they are interested in a new relationship, each has begun to date or has found a new mate.
  3. A sense of economic justice. Both have a sense that the settlement was fair. This does not mean that one or both does not feel strapped from time to time, but that the disparity between them is not glaring or dramatic and neither feels victimized by the other, or by the divorce process.
  4. Basic trust. This means that neither has demonized the other and gives the other the benefit of the doubt when disputes arise.
  5. Communication skills. They can communicate effectively, and their style is conducive to cooperative parenting.
  6. Mutual goodwill. Each can wish the other well and support the children in accepting, if not liking, the other’s new mate or lifestyle.
  7. Conflict resolution skills and a mediation clause. Both came out of the divorce process with a reasonable capacity to settle differences themselves, or with the occasional assistance of a mediator.

Although some may think that this notion of a good divorce is unrealistic or naïve, I think it is within reach of the majority of divorcing couples. Bitterness is not a necessary part of the process of divorce. Sadness, anger, fear of loss and loneliness are, perhaps, inevitable. But the bitterness that poisons post divorce communication is more often the product not of the decision to divorce, but of the adversarial process still used by most people to get divorced. When divorcing couples feel humiliated and terrorized by each other’s lawyers they invariably hold each other responsible for the things each other’s lawyers have said and done. That anger so poisons the relationship between the parties, that it precludes cordial communication and mutual trust.

Good divorce is more likely for those couples that keep their contact with divorce lawyers and the court system to a minimum. Couples who insist on maintaining control rather that surrendering control to an adversary system are those who have the best prognosis for successful divorce. They are the ones who manage their strong feelings and don’t allow their own acting out to sabotage their futures. They approach the tasks of the divorce with a firm resolve to treat each other respectfully and to solve problems as efficiently as possible. Some couples can do this themselves. Others will need the help of a mediator. But most couples, when informed about the alternatives, can negotiate fair and lasting settlements.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.


Sam Margulies
(336) 669-3141

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