The purpose of this article is to describe expectations after you have selected an attorney to file for divorce. This is not intended as a comprehensive study but rather as a general guide which raises some issues that you may encounter and hopefully to help you understand the process better. Nor should this writing be used by you as a self-help manual. More so in divorce than in any other circumstance is the saying appropriate that: “the person who represents himself has a fool for a client”.
Once you have come to the emotional and intellectual conclusion that your marriage is over you will need to select an attorney to represent you. Depending upon the complexity of your case and the issues that it presents, you may be best served by retaining the services of an attorney that specializes in divorce. The area of divorce has become so complex over the years, that the lawyer who does a smattering of different things in his/her practice may or may not have the experience to provide the best representation.
Following your retaining an attorney, you will need to explore different options available to you about how best to proceed. You should discuss with your lawyer: 1. If you should file a complaint for divorce immediately; 2. If you should authorize the lawyer to send a letter of representation to your spouse that requests a response within a short interval; or 3. a combination thereof. Each client that I represent comes in with a unique set of facts that describes his/her life during the marriage. The facts might disclose a couple who have become alienated over the years into a loveless marriage where there is little communication and no history of physical abuse. The facts might disclose a marital relationship where the spouse is a drug/alcohol abuser who is self medicating, has significant emotional problems, and there is a history of physical/emotional abuse.
In the first described fact pattern, a letter to the other spouse may make the most sense, particularly if the couple has discontinued intimacy for a long period of time, and there is little to no future commitment to the marriage. The desired response to your lawyer’s letter is another attorney who is able to provide and receive pertinent financial information regarding your spouse, and who will participate with your attorney in providing an analysis through what is known as a “four-way meeting”. Under the best of circumstances, where the parties are emotionally and intellectually ready to divorce and put aside the bitterness and hostility, a four way meeting allows for a forum for the discussion of all issues concerning both spouses. At such a meeting, the services of lawyers who have the knowledge and experience can often bring even a very complicated divorce to a conclusion through agreement.
In those first types of cases as described above, even if there are issues that your negotiations cannot solve, the lawyers can agree to disagree and come up with some ways of breaking the impasse. Alternative dispute resolution offers programs of mediation and arbitration. Another way for you to proceed is to negotiate the terms of an agreement as far as possible, while at the same time during the negotiations, your filing a complaint for divorce and having your spouse served or accept service. Ultimately, in this type of case, the unresolved issues can be presented to the judge who will be assigned to your case, in hopes that the judge may be able to offer some guidance to solve the unresolved issues. I favor this latter methodology: that is, filing the complaint for divorce and at the same time working with your client and opposing counsel to try to come up with a settlement. Failing to come up with answers to some issues thus leaves you with the option of getting third-party intervention via the judge, a mediator, an arbitrator, or a mediator, depending upon what county your case is in.
The second described set of facts which involve a history of abuse present me with the problem of protecting my client from the potential of physical violence or emotional abuse. Therefore, initially I would tend to err on the side of our going to court immediately. For instance, where there has been abuse in the past, and there is fear of future abuse if the spouse learns that my client is filing for divorce, for the protection of my client I will want to prepare documents to be filed with the probate court and present motions, without notice in the first instance, to obtain an order for the other spouse to vacate the marital home. This action is a surgical strike that may be required to keep you and possibly your children safe. The problems that stem from taking this aggressive approach are that it sets the tempo and climate of the case to one of aggressiveness and hostility. It becomes that much more difficult to negotiate a settlement in that emotional climate. For those reasons, if a letter is sent to the abusive spouse requesting a meeting, the reaction of your spouse who is explosive to begin with may leave you exposed to his/her hostilities . It is a tough call, but one that can only be made after you and your attorney have had the opportunity to discuss your options.
Ultimately you should have the final word regarding how to proceed in your divorce. Notwithstanding, you should listen to the advice your lawyer is providing to you. This is perhaps your first divorce. For a highly skilled practitioner, these issues are not nouveau, and the advice should be given a lot of weight in your own deliberations.
PhilipJByers
Philip J. Byers, Attorney 