“To love and to cherish, till death us do part.” Well, the reality is that more than half of the time, divorce dissolves the marriage bonds long before the grim reaper. During this most emotional and stressful transition, it’s important to know what to do, and how to best be prepared. We consulted family attorney Jaime Wallace about what to expect, and how to make the difficult divorce process as straightforward as possible.
To learn more about the Terms and the Dos & Don’ts of Divorce, click here.
ON THE SENSITIVE SUBJECT OF DIVORCE, HOW DO YOU ENSURE THAT YOUR CLIENTS ARE MAKING A DECISION IN THEIR BEST INTERESTS?
“An important process for any lawyer practicing in the area of family law is to thoroughly educate their client on the issues that have to be determined in any divorce. A client needs to be fully informed of what the law is in respect to those issues, so the client can then make an informed decision. “Of course, divorce is a very emotional event for most people, and so it is very challenging to work with some clients to get them to the point where he/she can make an objective decision. Key to making a decision in a client’s best interest is making sure, from my perspective, that I have obtained all of the facts, and that I have thoroughly reviewed all of the financial information and been able to present that information to my client in the way that he/she can understand.
“Sometimes clients are very sophisticated in terms of understanding finances, but many are not. Often a client is the spouse who has never been informed of the financial circumstances of the marriage, and so they are totally dependent on the lawyer’s ability to be thorough in obtaining the information, analyzing it for them, and being able to evaluate what is a reasonable and fair outcome.
“Most people find the divorce process very stressful. For that reason, it is not uncommon for clients to want to just ‘do anything’ to ‘get it over with.’ This is when it’s really important for the lawyer to work with the client to try to help them understand that making a quick decision, just to get it over with, is probably not in their best interest.”
WHAT IS THE DIFFERENCE BETWEEN A LEGAL SEPARATION AND A DIVORCE?
“In a legal separation, the marriage is still intact. The judge has no ability to order a legal separation. It has to be done by mutual consent of the parties who enter into an agreement setting forth the terms of any support obligations during separation, responsibilities for ongoing debt obligations, and often a division of their assets as well. Not so much in current times, but in the past, it would not be uncommon for some couples to simply do a full written agreement in respect to support, assets, and liabilities, but not legally divorce because of religious reasons or coverage of health insurance.”
WHAT PROCESS DO YOU GO THROUGH WITH YOUR CLIENT IF SHE INITIATED THE DIVORCE? HOW IS IT DIFFERENT IF INITIATED BY THE SPOUSE?
“Mediation is an important part of virtually every divorce process. Almost every case eventually ends up in a mediated settlement conference, which we call mediation. An important factor for a divorce lawyer is assessing when is the best time to mediate the case. It is a waste of time, in most cases, to have mediation unless both sides are thoroughly prepared and each side has already obtained all of the information he/she needs for the lawyer to evaluate the case and advise their client accordingly. In my practice, upwards of 90% of my cases get resolved through the mediation process. Laypersons seem to have the misconception that mediation involves everyone sitting in the room together and trying to hash it out. In most cases, this never happens. The mediator usually goes back-and-forth between two separate rooms, with each spouse in a separate room with his/her lawyer. Most mediation conferences take a full day, and the goal is to have drafted and signed a full written agreement resolving the issues in the case at the conclusion of the conference.”
HOW SHOULD A CLIENT PREPARE IF SHE IS CONSIDERING FILING FOR DIVORCE? ARE THERE ANY IMPORTANT STEPS TO TAKE BEFORE HIRING AN ATTORNEY?
“I would advise anyone considering a divorce to start with a consultation with an attorney who will educate you about your legal rights and the things you may be entitled to depending on the duration of your marriage, the assets and liabilities incurred during your marriage, etc. In addition, I would suggest making copies of any financial paperwork that is available to you such as tax returns, paystubs, bank statements, and credit card statements. These documents will be exchanged once the divorce proceeding is initiated but it always helps to have copies of any records that you have access to. Having these documents will also be beneficial during your consultation with an attorney.”
DO ALL CASES REQUIRE AN APPEARANCE IN COURT? WHAT DETERMINES THE NECESSITY OF A TRIAL?
“Not all cases require an appearance in court. In Sarasota County, if we are able to resolve the case and work out a settlement agreement, we can actually do a ‘mail in’ to have the judge enter a final judgment, which dissolves the marriage and incorporates the terms of the agreement. During a divorce case, there may be hearings on some issues before the final ‘trial’ of the case. Some examples would be a hearing to determine whether one party gets to solely occupy the marital home, a hearing to set the amount of child support to be paid while the case is being worked on, and hearings to obtain compliance with requests for documents or information needed from the other party to get necessary information on the case.
“At some point you have to have a trial if there are issues that the parties are not willing to compromise on and resolve by a mutual agreement. Sometimes one or both parties just take an unreasonable position on a particular issue or many issues, but there are also cases where one or both parties are simply willing to ‘roll the dice’ to see if the judge will give them a better result than their spouse was willing to agree to. I would say that the most common reasons people go to trial are disagreements over alimony, child time-sharing and contact issues, or the valuation of a business enterprise involved in the divorce.”
WHAT FACTORS, SUCH AS INFIDELITY, COULD AFFECT DIVORCE PROCEEDINGS? HOW CAN THESE FACTORS INFLUENCE THE PROCESS AND THE OUTCOME?
“Infidelity does not affect the outcome of a divorce, except if a party has wasted or dissipated marital assets or funds on the extramarital relationship.”
HOW ARE ALIMONY AND CHILD SUPPORT CONTRIBUTIONS CALCULATED? HOW DO YOU COUNSEL A CLIENT TO SET FAIR AND REALISTIC EXPECTATIONS?
“There is no set formula to calculate the appropriate amount of alimony. Experienced practitioners know that first you must determine the recipient spouse’s ‘needs’ based on the lifestyle the parties enjoyed during the bulk of the marriage. After one determines what the monthly need is of the recipient spouse, then you have to determine what that spouse can realistically contribute to his or her own needs through employment income or income they receive from other sources, such as income derived from assets they will be retaining in the divorce. The next question then is whether the potential payor spouse has sufficient income to pay any deficit in their spouse’s needs that are not met by that spouse’s sources of income. Many times, the payor spouse is not making enough income to be able to pay support/alimony to the other party and still maintain a comparable lifestyle for himself or herself.
“Child-support is calculated according to a specific chart and formula set forth in the Florida Statutes. In order to do the calculation, a lawyer has to first determine each party’s monthly after-tax income, the cost of the coverage for the children’s health insurance, any daycare expenses that will be incurred to maintain employment, and the percentage of time that the children are going to spend with each parent.”