CONSIDERING DIVORCE – WHAT AWAITS?
By: John E. Finnerty, Jr., Esq.
The divorce process has its own protocol that will not always seem logical or fair and experiences in the system sometimes seem Kafkaesque.
In most jurisdictions, there are no rules or mathematical formulas that are utilized to determine financial outcomes. You should not be surprised if the lawyer you consult cannot tell you with any degree of precision what will happen. The most a competent lawyer can do for you at the inception of the case is to explain how the process in the jurisdiction in which you reside works, and what factors the courts consider when making alimony, equitable distribution and parenting decisions. Even the most competent professional cannot predict precisely what is going to happen, particularly at the inception of the case when little is known and facts and evidence are being gathered.
Most divorce principles and criteria are general and amorphous. Implementation of these criteria varies case to case based upon reaction of individual judges, each one of whom brings their own biases and personal values to the cases they judge. There just is no way of telling how a particular judge is going to react to people in the case. Their reactions are a function, not just of what the law is, but who they are.
Family law is created by state legislatures, not the United States Congress, so procedures, entitlements, and protocol vary from state to state. Do not rely upon the advise of a lawyer not admitted to practice in your state. Only rely upon someone who is admitted and experienced in your jurisdiction and has developed relationships among other professionals, one of whom will represent your spouse. Beware of anybody who tells you specifically how it is going to work out and what the results will be. Beware of anybody who guarantees results. Look for a professional who honestly answers your questions and tells you what he thinks, even if it may not be what you want to hear.
There are practical limitations on what can be accomplished and obtained financially in a divorce. No one gets everything that they want; it is foolish to attempt to obtain emotional retribution or to try to even the score. Courts are not about righting years of perceived injustices. In most states, fault is not even a factor when awarding alimony or equitable distribution. Litigants should approach the end of their marriage as a business proposition, which requires an equitable sharing of assets and liabilities and assessment of support rights and obligations based upon whatever legal criteria are recognized in assessing those issues in the jurisdiction in which you live and whatever the provable facts are.
You also must also recognize that - - unless there are extraordinary reasons - - each parent is entitled to continue a relationship with the children and, most importantly, that the children need both parents. Court's decide parenting issues based solely upon what's best for the children, not what is best for the parents. There is a severe "proof" burden placed on the parent that believes the other parent should have minimal time with the children since the laws in most states presume that children have a right to the care and companionship of both parents.
You can expect, during your case, that you will have to justify, prove and demonstrate every common sensible assumption upon which you based your life. With the assistance of counsel, you will have to reconstruct your life to present how you lived. That means that things you took for granted - going to the supermarket and spending money without counting it; going to the cleaners and paying for shirts without knowing specific costs from week to week; and assorted other minor details of living that people take for granted - must be recreated and presented.
The process of preparing your case requires you to be able to communicate effectively with your lawyer. You need to feel that he/she is listening to you and they need to understand, by your actions, that you listen to them. This is, after all, about your life and your lawyer must understand the facts of your life that he tells you are legally significant in order to present them effectively on your behalf. You and your lawyer (and any experts he recommends you hire) need to become a lawyer-client presentation team. In effect, your relationships with your divorce professionals, during the time of your case, should become part of your new 'extended' family so long as the case lasts.
Pick a lawyer who seems to make sense and with whom you have good communication. You both need to understand each other and, in order to do that, you must openly communicate your thoughts, feelings and questions. You cannot always expect precise answers and you must be willing to accept that predictions are difficult and that, only as you get closer to the end with everything on the table, does it become more realistically possible to start to assess how a case may turn out.
At the end of the day, you will have to make a business decision about resolution. No one knows how a judge is going to react to the cast of characters involved, until he or she reacts. That reaction may come in a pre-trial conference following discovery. If the judge trying the case does not have such conferences, then you will only know his personal inclination after the trial begins. You must develop a trusting relationship with your attorney to help you assess what is occurring and to decide strategic moves.
At the end of the day, the decision to divorce is extremely personal. No one can make it for you. Such decisions (and the experience of the divorce process) engender strong emotions: anger, grief, sadness, hostility and denial. They are the regular ingredients of every divorce and of course, the more contentious the divorce, the more extreme the emotions that are engendered.
I have been practicing in this field for more than 35 years – a little bit longer than my marriage, which will reach 30 years if I get to this August. During this time, I have always thought that decisions on how to resolve cases are personal and that my job is to give opinions to the people who repose trust in me as to how best to proceed, consistent with their objectives. It is not my job to make decisions about those issues, but it is my job to process the case and marshal proofs consistent with the issues my client wishes to raise. It is also important that I talk issues through with my client and make clear the proofs that exist about each side of each issue so that the client can make informed decisions.
No one can ever tell ahead of time whether the outcome of a divorce is better than remaining in a marriage. People decide to get divorced for different reasons, but all decisions to divorce have economic and personal consequences. Only you can make that decision. You need a wise legal guide to help you decide and then to navigate and survive the process - - one that you trust and can speak with so you understand - - but a skilled lawyer who can fight a war if it becomes that.
John E. Finnerty, Jr., Esq., is the Chairman of Finnerty, Canda & Concannon. He has practiced Family Law for thirty-five years and has been the architect of many reported judicial decisions that have impacted the development of Family Law in New Jersey and around the country.
John E. Finnerty, Esq.
Finnerty, Canda & Concannon, P.C.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
(201) 845-4000 (phone)