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 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 will do if the case goes to trial. “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 answering the questions.
One possibility is that the divorce attorney will answer 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 they 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 people are aware of the 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.