Questions You Should Ask Your Divorce Lawyer

Thanks to attorney Michael Sherman of the Alabama Family Law Blog for questions to ask your divorce lawyer. I've added my comments in italics .

Picking the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, smart, and who regularly handles family law and divorce cases. You want someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends, family, and coworkers, but in the end, trust your own judgment and instincts. If you do not like the lawyer when you meet him or her, trust your instincts, you need to find someone who matches your style and needs well. You are not doing anyone any favors if you can’t stand your attorney or want their personality to be different than it already is.

Call to schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer's personality compliments yours. Your divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust. Many potential clients want to know if we offer a free consultation. Nope. My staff and I have no problem answering questions about my background, my philosophy, what types of cases do I handle, etc. but a “meet and greet” type meeting always turns into “my situation is this…what should I do?” I need the time to sit down with a potential client and talk about their case. My time and the potential client’s time is valuable.

During the initial consultation with the potential lawyer, you may consider asking her the following questions:

1. Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 50%-75% of their practice, go elsewhere. I agree with this. Family law is such a weird and complicated type of law. I do not believe that clients serve themselves well to go to an attorney who is a generalist rather than someone who primarily handles family law cases.

2. What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask. Do not forget to ask what happens if you have a problem or question about your bill? Do you get billed for that too?

3. What other costs can I expect? In addition to lawyer's fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them. Understand the typical filing fees, how much a transcript of a hearing might cost and how much a typical process server costs.

4. Will you send me monthly itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your trust account balance. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later. Your attorney should be sending you bills each and every month. You should also understand what the bill says. We have gone through two software programs trying to get a billing system that works well.

5. Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have. What websites, brochures, court forms, can you look at or use to reduce your fees?

6. Who else will be working on my case? Other lawyers, paralegals, and/or staff members will often perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for less experienced attorneys and/or paralegals should be lower than that of the primary attorney on the case. I try to introduce clients to my assistant and our receptionist so they know who they are talking to.

7. What efforts will you make to try to settle my case? The vast majority of divorce cases settle. Some are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Others settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse's lawyer (if he or she has one), to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about mediation. Mediation is becoming more prevalent in divorce cases. If you think that it may be helpful in your case, you should ask the lawyer to explain the costs and benefits associated with mediation. Make sure that you talk to your attorney about what settlement measures you are interested in and what they suggest.

8. What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer's office to do it. Man, I wish that clients would do this more. It is so cost inefficient for my staff and I to be running around the city trying to get documents when the client can arrange to order the documents or gather them.

9. Do you survey your clients to measure their satisfaction? You should not let a negative answer to this question preclude your allowing the lawyer to represent you. Because so few lawyers actually do survey their clients, there are many very good competent lawyers who don't do this. However, all other factors being equal, a lawyer that surveys his clients to determine their satisfaction, is likely to render better service to his clients as he is more at tuned to their feedback. As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

• Explain the legal issues involved in your case and the possible outcomes under your fact situation.
• Clearly explain his billing arrangement.
• Copy you with all documents related to your case.
• Provide you with accurate bills on a periodic basis.
• Return your phone calls within 24 hours (often the lawyer may be involved in a trial and be in Court for several days, but he or she should at least make arrangements to have someone from his office call you if he is unavailable).
• Make efforts to settle your case on terms that are fair to you and once it is determined that the case will not settle, competently and vigorously prepare your case and you for trial.

Once you have found a good lawyer, remember that he works for you. Do not be intimidated by him. Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as his recommendations. However, in the end, you are the one who makes the decisions. Ultimately, if you are not satisfied with the lawyer, remember that you have the absolute right to terminate your relationship with him at any time, for any reason. Be careful in doing so, however, if you have a Court date looming. This can cause unnecessary delays or, worse, result in you having to proceed without proper representation. It is true that terminating a lawyer’s relationship just before a big trial or hearing can seriously jeapardize your case. If you have concerns, talk to your lawyer about them or if you feel like you cannot – may be you should look for a new lawyer.

9 Ways to Reduce The Pain & Expense Of Your Divorce

Thanks to attorney Michael Sherman of the Alabama Family Law Blog regarding reducing the pain and expenses of divorce. I've added my comments in italics .

Step #1: Choose a lawyer who is a skilled negotiator and a skilled trial attorney. Generally, it is best for both parties to settle their case as soon as possible. Remember only about 10% of divorce cases go to trial. When you settle soon, you and your spouse save time, money and emotional turmoil. So, you need a skilled negotiator who knows when to compromise and when to take a stand. If negotiations are not successful, you need someone with courtroom experience who will present your best case to the Judge for the best outcome possible. If your attorney is not taking cases to trial or hearing, your attorney's threat to "take it to Court" will not mean much. Frankly, in most towns, the lawyers know which attorneys settle everything and never see the inside of a courtroom and which ones are regularly going to Court.

Step #2: Help your lawyer get financial documents and information. Your lawyer can obtain the information through what is called the discovery process. However, if you can obtain it, you can avoid the expense involved by the lawyer handling this aspect of the case. Luckily, in Colorado, many of the Court's forms can be found on the Internet. Don't hesitate to ask your attorney if you can do the first draft of your documents or use a Court form to save time.

Step #3: Don't seek revenge. This only confuses, inflames and delays everything. When both parties use the legal process to obtain retribution, no one wins - except, perhaps, the lawyers. I do not agree that the lawyers win, hey, we're human too, and it takes a toll on everyone, parties, kids, judges, lawyers, when people duke it out just because they want revenge.

Step #4: Communicate with your lawyer. Your lawyer must know all the facts to adequately represent you and protect your interests. Be honest with him. If you don't understand something, tell him so he can explain it to you. I hate, hate, going to trial and being surprised by something my client "forgot" to tell me. If you don't tell me, I can't help you! I would rather have my client tell me something that "they don't think matters" or they are embarrassed about. At least 1/2 the time, what the client did not think was important, was really important.

Step #5: If possible, have both spouses and their lawyers commit to end the divorce quickly. This allows you to get on your feet without delay and not drag out the process. Plus, you save money that you can divide with your spouse, rather than giving it to the lawyers. Colorado also has the concept of collaborative law. In this process, everyone involved, lawyers included, agrees to manage the case outside of Court. So negotiation rather than Court is the tactic used.

Step #6: Look at your divorce as your opportunity to take control of a new chapter in your life. You are not losing your identity. Divorce is the process of handling the emotional, parenting and financial issues involved in two spouses legally parting. Get emotional support from friends and family, and seek professional counseling if appropriate.

Step #7: Aim for a fair settlement. Your goal should not be retribution. If it is, both you and your spouse will "lose" due to increased legal expenses, a drawn-out process, and additional emotional turmoil. On the other hand, don't "give away the farm" in an effort to try to win back your spouse or out of a sense of guilt. Your objective should be to protect your interests through a fair settlement. Make sure that you understand what the settlement means.

Step #8: Consider the tax consequences of your property settlement. This is a mistake made all too often, even by some lawyers. Your property settlement often has many tax implications, such as the division of retirement accounts, capital gains resulting from the sale of a home, and the impact of children's dependency exemptions. Your lawyer should advise you about these issues, and you may also need to consult with an accountant.

Step #9: If minor children are involved, don't use them for your selfish motivations. You should not use them to work out your marital difficulties. Nor should you put them in the middle between you and your spouse. Instead, focus on your children's needs and what is best for them. You will save money, time, energy and aggravation -- and you will help your kids.

How to deal with a Court Appointed Mediator

In Colorado, most judicial districts require that parties attend mediation in divorce or allocation of parental responsibilities cases (unmarried parents) prior to the case being set for trial. What can you expect when the Court orders you to see a Court Appointed Mediator?

Typically the Court will enter an Order for Mediation. You may be given a certain amount of time (usually 7-10 days) to contact the local Office of Dispute Resolution mediators (these are the Court Appointed Mediators in most cases).Hopefully, the contact information for your local Office of Dispute Resolution (ODR) is listed on the Court’s Order.

You may also select a private mediator to mediate your case if both of the parties agree to the same mediator. Usually, the Court will specify that if you cannot decide on the same mediator, you must use the Office of Dispute Resolution. After your mediator is selected (or you use the ODR mediator), you will probably be required to complete an Intake Form. The mediator may ask questions about the parties’ contact information, their attorneys, the next Hearing date, and whether a Protective (Restraining) Order is in place. The mediator may give you a range of dates to choose from or they may assign you a date for mediation.Usually the mediation sessions are scheduled for two (2) hour blocks.

After the mediation is scheduled, you may receive additional documents from the Mediator to review before your mediation. You may receive a list of questions about your particular dispute (what issues are disputed? How do you think the issues can be resolved?, etc.) and answers to frequently asked questions about mediation.

When the mediation begins, the mediator usually explains that he or she is not your attorney and is not supposed to give you legal advice. The mediator will usually explain that whatever happens in mediation is confidential with two exceptions.If the mediator hears evidence of child abuse or that someone is going to hurt themselves, the mediator must report it to the police or authorities.The mediator may also explain that he or she cannot be called as a witness in a later hearing and you cannot subpoena (legally request) their notes or their case file.The mediator should also ask your permission to disclose something to the other side if you have discussed it in confidence.The mediator may also ask that you treat each other nicely in the mediation, as you would a professional colleague.You may be required to sign an Agreement to Mediate.

The mediator will usually require that you pay for the mediation session at the time of the session.You may need to ask whether you need to bring cash, check or credit card.The mediator may give you a receipt for your payment.If you do not pay for the mediation or your check bounces, the mediator may send you to collections.After the mediator goes over the preliminaries, the mediator may ask each side what the disputed issues are.It is helpful if you can come with a list of issues or at least have some notes.The mediator may ask each side how they see that each issue should be resolved.Be prepared to briefly discuss your position -- the mediator may not want to hear your life story right then.Think about what you want and why.For example, I want to pick up and drop off the children at 5PM at grandmother’s house because he/she always barges into the house without being invited.

During the discussions, the mediator may ask questions to understand what the problem is or discuss possible solutions.Try to be open to different ideas.The mediator may ask for some time alone with each party and their attorney.The mediator may use this time to figure out whether a settlement is possible or what one side is willing to accept.Remember that you do not have to come to an agreement and nothing is binding upon you until it is put in writing and signed off by the Court.

Some other helpful hints are:

During the mediation, you may experience some of the dynamics of the relationship.Try to stay focused and productive.Try not to get drawn into the old relationship issues, anger, “water under the bridge” etc.Now is not necessarily the time to start an argument and throw everything in except the kitchen sink.

Try to be patient. If you threaten to leave the mediation, that may not be helpful and may further break down your chances of getting further to trying to resolve the issues.

Now is the time to be creative. Sometimes it is helpful to look at what really is the issue for your spouse/partner.Are they fighting over the ATV etc. because they want it or because you do? Why are they demanding that the children be returned at a certain time? Be willing to look at ways to satisfy your partner’s/ spouse’s needs. Allow yourself the space to “brainstorm” over possible solutions. You need to pay attention to what is happening.

Do not be afraid to take notes. Issues at mediation can be hard to keep track of.

If you feel either unwanted pressure or tiredness, take a break.This mediation session may be your best chance to resolve the issues and you want to make sure that you are thinking clearly.

What happens if I leave the family home/marital residence?

Clients often ask me what happens if they decide to move out before a divorce petition is filed or while the divorce is pending.

Abandonment. Some states have the concept of "abandonment." Clients worry sometimes that if they move out of the marital residence that it will appear that they are guilty of abandonment. Whether abandonment is physical or emotional, the concept does not affect a divorce in Colorado. Since Colorado is a no-fault divorce state, whether someone "abandoned" the marriage does not matter. Frankly, even if a party leaves the family home and begins a relationship with someone new, however unsavory that may be, it does not affect the divorce or the division of property. The only way it can affect things is if the new boyfriend/girlfriend is a danger to the children. Although someone may say you have "abandoned" the family, you should not worry about moving out affecting your divorce -- legally.

Children. Some clients are concerned if they move out of the house that they will not be able to get "primary custody" of the children. Colorado does not have "primary custody" only a division of decision making responsibilities and parenting time. If you do move out of the marital home, you want to be careful about what the parenting time schedule becomes. Having frequent parenting time with the children may become more difficult if you are not in the marital home. If you move out and happen to have less parenting time with the children as a result, that may be a disadvantage if you later want to increase your parenting time. At a temporary orders hearing, the Court may look at the "status quo" when trying to decide what parenting time arrangement would be best or less stressful for the children.

Domestic Violence. If domestic violence is an issue, for safety, you probably do not want to be living in the same house. If you are the victim of domestic violence, you want to make a safety plan with a domestic violence agency. Sometimes you see people attempt to get a restraining order to force someone out of the house without really having the level of danger that is needed with a protection order. It seems like the protection order forcing someone out of the house is done more as a strategic move. However, if mere annoyance or bad behavior is happening, you want to think carefully about whether to try to obtain a restraining order/protection order to force someone out and use as "leverage" regarding the children -- the Courts do not look on this fondly and it often backfires.

Finances. Some couples cannot afford to keep up two households until the marital property and debts are divided. You may be better off moving into the basement or a spare bedroom rather than incurring the responsibility and debt of a 2nd house or an apartment. You should think carefully about whether you can afford to move out right now.

The Mortgage. The other problem with moving out of the house is that it is harder to control whether the mortgage is being paid, and if the utilities are paid and kept on. While you can ask in a temporary orders hearing that certain monthly bills get paid, you may not find out whether they are being paid until too late. Until the mortgage is refinanced and the bills are placed only in one person's name, any joint debt is still joint debt. The mortgage company can still foreclose and ruin your credit even if your spouse is supposed to be paying the bills. Do not forget that the divorce court cannot affect the contract relationship that you have with the creditors. So even though a debt may be ordered to be the responsibility of one person, that does not mean that the creditor cannot come after you if your name is still on the debt. You may want to work out certain times that you can inspect the house (if your divorce is going to be pending for a long time) or just visit occasionally (assuming that your spouse was not given exclusive possession of the house). If one spouse has exclusive possession, you still can be invited over but I would caution you from just dropping by and using your spare key to snoop around.

Possession. One of the biggest problems in moving out of the house is what I call the "9/10ths rule" that possession is 9/10ths of the law. If you have moved out, the Court is less likely to order that you move back into the house while the divorce is pending if you have already moved out. Generally the Court likes to keep the status quo and is more likely to keep the parties in the locations that they are at the time that they come before the Court.

Divorce Preparation: Step 13 - Be Good

Here is the last step in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce. I will wrap up the series with two more posts to conclude and summarize the series. But, first, the final step which may seem a bit silly.

It is simply this: Be Good.

Here is the principle: you are about to be under a microscope. You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible. Unfortunately, that is not always possible. Your spouse may not share that objective for some reason. They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly. That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?). Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer. I do not necessarily agree that people should not date during the divorce. Sometimes you meet someone who seems fabulous or you are finally open to meeting someone different. However, I would strongly advise against going on the date-tilt-a-whirl and trying to date as many people as possible. That behavior looks like you cannot put the needs of the children first. I would also be careful about dating someone who has a shady past. Now is not the time to start dating someone who just got out of prison, has domestic violence charges, is on parole or probation, has an alcohol or drug problem. You would be bringing that person around the children and it would only make things more complicated and less favorable to you.

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday. This sounds harmless enough. But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct? Are you having a romantic relationship with Joe/Jane who was also at the party? How many drinks did you have that night? This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point. This is a silly example, but why even open yourself up to this line of questioning. Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach. Be Good. Come to think of it, Its not bad advice whether you are facing divorce or not. I agree that now is the time to take care of yourself. Get therapy, go for a run, talk to friends, join a support group, play with your kids. Do whatever you need to do to keep yourself sane during this process.

Divorce Preparation: Step 12 - Consider a Private Investigator

Here is the twelfth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

We continue our series on practical steps to consider when you are facing an imminent divorce. We are now on to Step 12 - Consider hiring a private investigator.

Alabama law does consider “fault” when deciding how to divide property in a divorce. Additionally, depending on the facts, adultery can affect custody determinations. Colorado is a no-fault divorce state. The only grounds for divorce is irretrievable breakdown of the marriage. Fault does not matter to the division of property, debts or parenting issues in Colorado.

If your spouse is committing adultery, then you are better off having proof of it then not. This is the case even where you fully intend to settle your case. In fact, often having proof of an affair is what gets the case settled at terms that are fair to you. Again, not the case in Colorado but if knowing your spouse is cheating makes it easier on you, investigate away!

It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know. But, you should think carefully before making that decision. Talk to your lawyer. Assuming you’ve chosen a good one, listen to their advice. If you are going to get proof of it, now is the time. Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.

In family law and divorce cases, private investigators are used to observe bad or negative behavior that may affect one's parenting (alcohol abuse, drug use, late night partying, etc.). Investigators are also used to locate and interview witnesses and obtain information about abuse and neglect.

Divorce Preparation: Step 11 - Keep a diary

Here is the eleventh post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

This post continues are series on practical steps to take when a divorce is imminent. We are now on Step 11: Keep a diary/calendar

It is important to documents all of the major events that occur until the divorce is final. Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce. Additionally, you should begin keeping careful records of new events and incidents as they occur. Simply note the date, what happened and any witnesses that may have observed it. In the unfortunate event that your case drags on, events will begin running together and your memory may fail you. Don't rely on it.

Instead, keep an ongoing diary. Then provide this to your lawyer periodically so he is aware of any significant facts in your case. I do not usually want a copy of the client's diary/calendar. However, I do recommend, especially in contested/difficult parenting time cases that the client keep a diary of problems with the kids, drop offs/pick ups, coordination, etc. It helps immensely when we are preparing a motion or for a hearing and we have dates and details rather than trying to rely on memory about what happened.

I should note that you really should discuss this recommendation with your lawyer before implementing it. Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case). Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer. These are technical legal issues beyond the scope of this blog. Suffice it to say that you need to talk this over with your lawyer first. In my experience, the Courts do not want a copy of your diary, so attorneys are not asking for it in discovery. The Court wants to hear from you, on the stand, what happened. The diary/calendar helps you to remember what happened when and most importantly details about what happened.

Divorce Preparation: Step 10 - Stay Put (until further notice)

Here is the tenth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce. We have reached Step 10 - Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house. In most cases my answer to them is to stay put. It is not the answer most of my clients want.

I know that things are stressful. I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1. It could jeopardize your custody claim. If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody. If the case becomes contested, it could drag out for many months (even a year or two). If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody. Although Colorado does not have "primary custody", if you do move out of the marital home and happen to have less parenting time with the children as a result, the Court may look at the "status quo" when trying to decide what parenting time arrangement would be best or less stressful for the children.

2. It could affect your property interests. You’ve moved out. Your spouse pays the mortgage the entire time the case is pending. Some judges may factor that in when making the property division. In Colorado, marital property and marital debts are divided equitably (fairly) although generally most of the time that means equally (50/50). I disagree that it could affect your property interests in the way that Mr. Jeffries describes. However, if you are not in the house, you do not know if you are getting foreclosure notices, if the plumbing breaks, or the house is being maintained.

3. You will lose leverage in the negotiations. This is big. You want the divorce. Your spouse doesn’t. You decide you have to get out of the house. You move to an apartment and are paying your rent and the home mortgage. Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending. You have just given your spouse a major incentive to drag out the litigation. I see it happen all the time. Eventually you decide to settle for much worse terms because you can’t keep paying for two households. Do not make this mistake. Some couples cannot afford to keep up two households until the marital property and debts are provided. Think carefully about whether you can afford to move out right now. I also see that possession is 9/10ths of the law -- the Court is less likely to order that you move back into the house while the divorce is pending if you have already moved out.

Moving out of the house can have dramatic effects on the case. Do not do it without discussing it with your lawyer and giving it a great deal of thought. You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial. This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer. In Colorado, generally Parties either go to a hearing on Temporary Orders or reach agreements about the temporary orders. Temporary Orders can include who has temporary possession of the house while the case is pending and who is responsible for paying the mortgage, utilities, etc.

It goes without saying that if domestic violence is an issue, then all of this is moot. You will need to take whatever steps you must to protect yourself. Just make sure you let your lawyer know what is going on. In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house. If domestic violence is an issue, this is serious and you need to have a discussion with your attorney and/or domestic violence agency about a safety plan. If mere annoyance or bad behavior is happening, you want to think carefully about whether to try to obtain a protection order to force someone out and use as "leverage" regarding the children -- the Courts do not look on this fondly and it often backfires.

Divorce Preparation: Step 9 - Avoid additional debt or major purchases

Here is the ninth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

We continue our series on practical steps to take when you are about to face divorce. We are now to step 9 which is simple, but important:

Avoid additional debt or major purchases

This suggestion goes hand in hand with assessing how to handle the credit accounts, but deserves its own separate mention. If a divorce is going to happen, you want to be conservative with the finances. It is not time to be putting in a pool, buying a new car, or buying new furniture on credit. You want to simplify the financial situation not make it more complex.

When the divorce occurs, one of the primary things that has to happen is for the divorce court to allocate who will be responsible for what debts. Generally speaking, the less complex the debt situation, the easier task that will be. Especially with joint credit, the Court's decisions do not affect the creditor's relationship (credit card company, etc) with the debtors (you). The agreement/application that you signed is a separate contract. So even if the Court "awards" certain marital debt to one party, the creditor does not have to remove the other party's name from the account.

I should note again, all of this is general information. Your own specific situation may cause you to need to vary from it. For example, there are times when you may have to get an automobile and it would be better to do it before the divorce because you won't have sufficient credit on your own after the divorce. You may need to incur debt for reasonable and necessary living expenses. Be careful about running up lots of unnecessary debt. Not only with that make your situation more difficult, the Court may not look kindly upon an effort to bleed a company or the family dry.

So, obviously you will want to get specific advice from your own lawyer - which is why Step 1 was find a wise guide (an experienced, competent divorce law specialist)!

Divorce Preparation: Step 8 - Assess the Credit Accounts

Here is the eighth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

We pick up with Step 8 in our series on practical steps to take when a divorce is imminent. Step 8 is Assess how to handle the credit accounts.

If a divorce is imminent you do not want to be liable on any accounts on which your spouse has charging privileges. It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree. Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending or to charge a large amount in lawyer’s fees on to joint cards. I do not advise clients to take out whopping cash advances. In an ideal world, clients would have some cash reserves. In Colorado, the Court does not balk at people charging for their attorneys' fees on their credit cards. Of course, if you charged $30K on a credit card unless you have a massive marital estate that needs lots of experts.

You will want to consider canceling such joint accounts or at least reducing the spending limits. If they are an authorized user on charge cards in your name, see what steps the credit card companies require to remove them as an authorized user. You may not be able to remove your spouse from cards while the divorce is pending but you can at least secure or get rid of the Sears/Victoria's Secret/Brookstone credit cards that you stuffed in the glove compartment of the car.

Also consider home equity lines of credit. You may need to consider whether you should close it or restrict access pending the resolution of the divorce.

Whatever you do, do not neglect thinking seriously about how to handle this issue, and discuss it with your lawyer before making a final decision.

Divorce Preparation: Step 7 - Assess the Financial Accounts

Here is the seventh post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics.

We continue with our series on steps to take when divorce is imminent. We are on to Step 7 which is Assess the Financial Accounts.

If you’ve completed the prior steps in this series, then you already know what accounts exist and what the balances are. You need to make a decision about what to do with them.

It is an unfortunate reality that one of the first things that some spouses do when they learn/decide a divorce is imminent is to raid the accounts. This is typically done after receiving particularly bad advice from an adversarial lawyer or a well meaning, but poorly informed friend. There often is a difference of opinion between attorneys about whether you can take money out of the accounts or not. Once the divorce petition is filed, there is an injunction that is part of the summons that states that neither party may dispose of marital property or take on additional debt. There is an exception -- you may use marital property or incur marital debt for reasonable and necessary living expenses. If you were not allowed to use any of the "marital" money (from a joint bank account for instance), the utility payments could not be paid. I always tell clients you cannot buy any diamonds, extravagant vacations or any thing that is not in the normal usual course of business or your life.

In a perfect world neither party would touch the financial accounts except to pay normal household bills until after the divorce is over. However, if this was a perfect world, you would not be reading this blog, and I would be in another line of work because divorce lawyers would be unnecessary.

That being said I do not recommend that you clean out the accounts. Doing so immediately escalates the conflict and stress of divorce. It also will not be well received by the divorce judge.

So, you don’t want to clean out the accounts, but you want to be protected from your spouse cleaning them out. If you have a reasonable fear that your spouse will raid the accounts, the only reasonable solution that I know is to remove one half of the funds from the accounts and put them in a new account in your own name. Do not hide, dispose, or waste the money. Document carefully where every penny is spent because you will likely need to make an accounting of it later in negotiations or at trial. Make sure that you keep careful track of what bills and expenses are paid from the joint monies. Generally, the Court considers money spent or credit card debt incurred to pay for attorneys' fees as reasonable. So you often see parties taking a couple of thousand dollars out to pay for attorneys. Paying your $40K CD to an attorney so they could hold it would probably be looked at as suspect unless you have lots and lots of marital property and businesses to value.

Additionally, you should not do this for the regular checking account out of which the household expenses are paid unless there is a substantial balance in the account over and above the amount needed for paying the current month’s bills. You do not want to take action that would cause checks to bounce. Putting any joint monies into a "separate" account in your own name does not magically make it a separate asset. It just means that your spouse is unable to spend any money that they do not have access to. Be careful that the half that your spouse gets from the account is not spent while you save your portion. The Court may see your half as the only part left to divide -- in half again.

I don’t make this as a blanket suggestion. If the money can be kept there and neither party remove it, that is preferred. Another option for certain types of accounts is to put a freeze on the account. Obviously that is only practical for accounts that are not regularly needed to pay bills and regular expenses.

Before you decide how to handle your financial accounts, consult with your lawyer. If they are suggesting you go take all of the money out without a good reason, I would seriously reevaluate the whether that lawyer shares your desire for a civilized divorce.

Preparing for Divorce - Establishing Your Own Credit

Here is the sixth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics.

We are now on to the sixth step in our series on preparing for divorce. The sixth step is: Make sure you have your own credit established.

If you do not have your own credit history, you should begin the process of establishing it now. Obtain a gas card and a credit card. You will need to have your own credit established after the divorce. And, the sooner you begin the process the better. So, don't wait until after the divorce. You can start this immediately. You want to get a credit card, make small purchases often, pay bills on time, and pay off the balance every month.

Once you've obtained the accounts, you can improve your credit by using the cards and then paying them off each month. At this point, it is important that you use these cards only to the degree that you can pay them off each month. Your goal is to establish a favorable credit history, not to run up a bunch of debt. You want to make sure that all payments for the mortgage, rent, utilities, loans, and credit cards are made on time. Any accounts that are delinquent will affect your credit. Call all accounts and request to be notified of any missed payments. You do need to be careful about freezing or close joint credit accounts since that may violate the automatic injunction in the divorce case. You may want to see if you and your soon to be ex can agree to ask the creditor to convert them to individual accounts in the name of the person who will ultimately be responsible for the debt.

Preparing for Divorce - Safeguard Personal Property

Here is the fifth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics.

Preparing for Divorce: Step 5 - Document and Safeguard Personal Property

Inventory and photograph your household furniture, art, jewelry and other items of value. Inventory and photograph the contents of any safe deposit box or family safe your family may own. Also, photocopy any important documents in the safe or safe deposit box (if you did not already do so when collecting the financial records).

It is unfortunate, but often these documents and property will “disappear” once the divorce process starts so get your proof in place now. I recently had a client that had noticed several boxes in the house prior to the divorce relating to a family business. After advising the client to take the boxes to Kinko's to make copies before the boxes disappeared, the client waited (hoping things would go well in the divorce) and guess what, things took a turn for the worse and -- the boxes disappeared.

Additionally, you may want to consider safeguarding any items of particular value (either monetary or sentimental) which are small in size. I am referring primarily to things like the jewelry your mother passed down to you, your father’s fountain pen, your high school year book, your childhood photo albums, etc. Your spouse may not share your desire to divorce with dignity. Better to safeguard those items that are particularly difficult to replace.

Note that I am not suggesting you empty the house of its contents. That is a sure way to escalate the divorce and guarantee that you will not have a civilized divorce. Things like dvd players, camcorders and laptops can be replaced. Just document those on your inventory and photograph them for proof in the event it is ever needed. Whether you take photos with a Polaroid, digital camera, or cell phone, do not forget to keep the photos that you have taken in a safe place. If you are concerned about things disappearing, start making a list of the items in the house. If you are not so concerned about items disappearing, start making a list of the personal property items that you want or the personal property that is in the possession of the other party that you want to have.

Preparing for Divorce - Prepare a Budget (or two)

Here is the fourth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics.

Preparing for Divorce: Step 4 - Prepare a budget (or two)

The next step in preparing for divorce is to make two budgets (one that shows the situation in the house before the divorce filing, and one that is your estimated budget for after the divorce).

Most folks don't like to prepare one monthly budget, so I know I'm asking a lot to suggest that it is helpful to prepare two of them. There is a method to the madness though. It is important to know what it costs to run your household currently. Equally important is to have an understanding of what your costs of living will be after the divorce. Let’s take each in turn. Do not forget that you are probably transitioning from a two adult household (with both incomes) to a one adult household (with possibly a lower income). Some things that you considered part of your life as a married couple may need to be cut back. The Court understands that it is not appropriate for you to live a dramatically reduced standard of living but the Court does believe that some cutbacks are necessary.

A. Know your current monthly budget

Knowing the monthly budget is important for the following:

1. In an alimony (we call this maintenance in Colorado) case, it is critical to show the standard of living and the financial need.
2. It is helpful in assessing specific needs of the children that may not be covered in basic child support (e.g. particular medical needs or private school expenses). Private school expenses may not be considered if (1) the parents disagree on the necessity or (2) the private school is not specifically needed for the educational needs of your child (for example, child with learning disabilities needs smaller case size -- not just a "better" education).
3. It will help you in planning your post-divorce budget.
4. If your spouse is self employed and under reporting his income, showing that monthly expenses exceed what they claim they make can show they are attempting to hide their true income.
5. A judge may utilize this information to determine temporary support while the case is pending.
6. You should know this stuff in order to properly manage your finances whether you are getting a divorce or not!

B. Make an estimated budget of post-divorce expenses.

This is important for your personal planning and will likely influence your objectives in the divorce negotiations. You need to know what you will need financially in order to evaluate your settlement options or what you will ask the judge for in a trial.

This will undoubtedly take some estimating on your part. But, that is why it is called an estimated budget. It will be a work in progress. The point is to give some forethought to what your living expenses will be as you start the new chapter in your life.

C. How to make your monthly budgets.

If you already maintain your checking account records on a software program like Quicken then the process is easy. You can simply print out a monthly budget report. If you don’t then you will need to sit down and look through your check register and/or your spouse’s check register for the past three months. This will reveal the expenses you may monthly and quarterly (divide the quarterly expenses by three and enter them in the budget as a monthly expense).

You will then want to think about any annual or semi-annual expenses you may have such as for life insurance, homeowner’s insurance, etc. and convert those to a monthly figure and enter it on the budgets also.

In setting out your budget, try to be as realistic as possible. You should be conservative in your budget (meaning don’t understate the expenses and end up stating a budget that doesn’t realistically meet your needs) without grossly overstating the budget (which a judge would frown on should the case go to court). It is admittedly a fine line. The best advice is to base it on as real numbers as possible.

The Financial Planning Association has a good article about making a budget. Another neat tool for managing your budget is Mvelopes, which is an online home budgeting system that easily create an online home budget, track all your spending, and always know exactly how much you have left to spend. The cost to join mvelopes ranges from $7.90-$13.20 per month. Although it seems ironic to spend money on a monthly membership to save money, I guess if you need the tools you have to start somewhere.

Preparing for Divorce Step 3 Making Copies

Here is the third post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics.

Continuing our series on practical steps to take when it becomes obvious that divorce is imminent, we are now on to step 3. Step 3 is simple, but important.

Step 3 is to make photocopies of all of the pertinent financial documents.

As you gather the important financial documents, you should make two copies of each of them. One is for you and one if for your lawyer. Keep your copy in your divorce notebook or file folder. It is important to keep a list of what documents you have, what documents you still need, and which of them you have given to your lawyer. I really appreciate it when clients gather copies for us. It saves us time and it saves the client money.

Each case and each lawyer may require a unique set of documents. But, some of the common ones will include at least the following basic ones:

• Income tax returns for at least 3 years;
• Most recent pay stub showing year to date income;
• 12 months statements on every financial account (including retirement accounts);
• 12 months statements on every credit card or line of credit; and
• Deeds for all real estate owned by either party individually or jointly.

See our post on the new Financial Rules for more information about the documents you will need.