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Tag Archives: separation
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.
I have long been convinced that with a few scalpels and clamps I could remove my own appendix in a pinch. But that conviction does not mean that it would be a good idea to attempt nor does it mean I would survive the operation. And so it goes with many of life’s tasks that don’t seem so difficult that we couldn’t do it ourselves. I am frequently asked this about divorce.
“We don’t have much money and we don’t have kids and we’re in agreement on everything. Why not just download the forms from the web. Do it ourselves and save the bundle that the lawyers will charge us?”
With that frequently asked question in mind I thought I would outline under what conditions couples should or should not try it themselves.
The simplest divorce is one in which there has been a short marriage with no significant property accumulated during the marriage, no children and two employed and self sufficient spouses. No children means no parenting or child support issues. Two economically self-sufficient spouses means no alimony issue. And little or no property means no need to detail how the property is to be divided. Under these conditions there is really no need for a written settlement agreement. The couple separates and after the statutory required waiting period files for divorce using forms and directions easily available on the Internet. In some states you don’t even need to go to court; you just do it by mail. In other states a court appearance is required but the court personnel will usually talk you through the pro forma hearing. Feel free to contact me personally for specifics on North Carolina divorce law.
Recognize that there are two parts of a divorce. The first part requires that you agree on the issues of children and custody, financial support and division of property. The settlement agreement is an enforceable contract that permanently resolves all the child related and economic issues. If you need a settlement agreement and you are not very experienced in drafting contracts you probably need a little help from a lawyer, mediator or at least a knowledgeable paralegal. Once you have a drafted settlement agreement it is relatively easy to do your own paper work and get yourselves divorced. But even in a seeming simple divorce there may be issues that if not written down may result in anger and economic loss.
Consider Pam and Tom who have been married two years and have no children. Tom is self-employed as a contractor and Pam is an assistant professor at a local college. At first glance the couple felt they had nothing to negotiate. They had always kept separate bank accounts and just assumed that each would keep everything in his or her name. This is fine, but they have to recognize that they may each have rights and needs that are provided by law.
For example, during the marriage Pam has increased her retirement account by $10,000. Tom is entitled to a share of it. More complicated yet, during the marriage Tom’s business has doubled, he has earned a lot of money and used it to buy a lot of equipment. According to law, Pam is entitled to a share of the increase in value of the business including both hard assets like the bulldozer and the accounts receivable but also the goodwill value that has increased during the marriage. Finally, Tom, who has high blood pressure, needs to stay on Pam’s health insurance plan for the eighteen months their state requires before it will grant a divorce.
If Tom and Pam just assume that each keeps his/her own assets all will be well unless one of them has second thoughts later. After the divorce when Pam finds out that Tom has been dating her best friend she may decide that she acted too hastily in not pursuing Tom’s business assets. In many states she would have no trouble reopening the case because there was never a legal finding with respect to these assets. And when, out of anger, she cancels Tom’s medical insurance without telling him and he has an emergency appendectomy two weeks after the coverage disappears, there is going to be trouble and both may wish they had attended to these issues in a proper document.
What Pam and Tom should have done was to obtain a few hours of professional help to understand their choices. Property distribution law is very complicated. You may have all sorts of claims on each other’s property. But even if you both are clear and adamant that each should keep his /her own assets you need a simple contact in which your waiver of these claims is clearly stated in writing and signed before a notary public. It will also help if the contract states that you are each aware of your claims to the other’s property and that you are knowingly waiving your claims. While you are at it a mutual waiver of alimony will preempt a subsequent claim if one of you gets laid off or a business collapses.
A written separation agreement is necessary if there are any economic issues or any potential economic issues. And if your situation is more complex than Pam and Tom then you certainly need a separation agreement and it is very unlikely that you know enough about divorce to do it yourselves.
This does not mean that you are doomed to the greedy clutches of adversary lawyers eager to make a fight. There are plenty of mediators around who can help you through at minimal cost and there are some decent lawyers who minimize conflict and help you make practical choices. You can obtain the actual divorce yourself but you take a terrible risk when you do it without a professionally assisted separation agreement.
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.