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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The dissolution of a business partnership can easily become rancorous. The dissolution of a marriage can also become rancorous. Put them together and you find problems that are unique for both partnership and marital dissolution. I do not know how common the situation is but I suspect it is more common than we think. Eighty to ninety percent of all businesses in the USA are family owned and more than a few of these involve husband/wife teams running the business. When the spouses decide to divorce the economic issues of the divorce are complicated by the issues of the business. Generally, the problems arise because the business is the livelihood of both partners. This presents some difficult choices. Assuming that this is not a wealthy couple, in which either or both has sufficient wealth to retire, both will continue to need the income generated by the business. There is a limited universe of choice.
It is in the field of divorce that the image of lawyers finds its most odious expression and where legal training is most disabling and counterproductive. Divorce lawyers have a terrible reputation among the lay public for being cynical, indifferent to suffering and greedy for ever-larger legal fees. There are, of course, divorce lawyers who do not fit this stereotype. But, in over thirty years in the field I have met more who do fit it than ones who do not. It is not that divorce law attracts amoral people. In fact, some of the most sensitive of students I met in law school were attracted to “family law” where they thought they could help families.
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.
To understand the differences between good divorce and bad divorce requires a distinction between the two things: the fact of the divorce and the way of the divorce. The first refers to the losses that usually accompany the end of a marriage. There are inevitable dislocations as some or all of the family have to adapt to new homes, changed economic circumstances, new parent-child arrangements and all the feelings that come with major change, feelings of loss, anger, humiliation, failure, insecurity and fear for the future of oneself and one’s children. At its best, divorce is a painful and stressful experience for all whether done well or poorly. The second factor is the way or the how of divorce. This refers to the manner in which the couple gets divorced. Do they negotiate a settlement of child-related and financial issues that both regard as fair or is it a war of attrition to see who can bludgeon the other into submission? Do they retain the capacity for civil and cooperative communication around the children or do they forfeit this to bitterness and recrimination? Do they retain control over the negotiation process or do they give that control up to contending lawyers and the judicial system?
The fact that some couples have ugly divorces and others have decent divorces is not explained by chance alone. We know that there are steps that couples can take that dramatically reduce the level of conflict in divorce. And we know that reducing that level of conflict also reduces the impact of the divorce on both the couple and their children. For the past twenty years mental health counselors have been encouraging divorcing clients to use mediation rather than adversarial divorce as a way to negotiate settlement agreements. We know that most couples who mediate do so successfully. About 80% of those who try, succeed. We also know that those couples conclude their agreements in much less time, at far lower cost and have a much higher rate of compliance with agreements than do couples who settle their divorces through traditional methods.
In mediation the focus is on keeping the divorcing couple in control of the process. A mediator helps the couple to have discussions and negotiations that they are unable to have on their own because of the deteriorated state of their relationship. Issues related to parenting, support and division of property are all explored and resolved by the couple facilitated by the mediator. The role of lawyers is changed, in this system, from surrogates to advisors and consultants.
Contact 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.
- You can achieve a “good” divorce (sammargulies.com)
- How you manage the beginning shapes the entire divorce (sammargulies.com)
- Divorce Doesn’t Have to Mean Going Broke (sammargulies.com)