By Ronald M. Zakarin
So, you’re getting a divorce. It seems like only yesterday you were madly in love, getting married to your soulmate, and the furthest thing from your mind was a divorce. Yet here you are, emotionally drained, angry and confused. What will happen next?
If you find yourself in this situation it would be appropriate to schedule a consultation with a qualified matrimonial attorney. He or she will provide you with valuable advice which will hopefully alleviate some of the turmoil you are facing.
It has historically been my practice when providing a consultation to a potential client facing divorce, to take some of the pressure off of him/her by initially taking down a history. After going through the basics, (ie. date of marriage, place of marriage, children, employment etc.) it=s time to determine if the relationship is worth saving. In some instances, one partner may assume that his/her spouse would be adverse to counseling or any attempt to work through the issues. In these cases, it is suggested that before taking legal action, it would be appropriate to have this conversation to ascertain if the marriage is truly irretrievably broken. While in many instances the response may be that there is no point in attempting to salvage the marriage, over the years there have been many other cases where the parties have in fact gone for some counseling, and they remain happily married to this day.
For those that respond that the marriage is irretrievably broken, and there is no possibility of reconciliation, in most instances, whether dealing with clients with large estates or small, high income or modest, it is suggested that if possible the parties sit down and attempt to amicably resolve issues pertaining to a division of assets, liabilities, time sharing and support. In that instance, the clients may minimize what could potentially be a huge expense affiliated with attorneys fees, forensic accounting fees, vocational assessments and the like. When the clients are successful in negotiating a settlement between themselves, a Marital Settlement Agreement is drafted which reduces the agreement to writing, and the parties may proceed with an uncontested divorce.
In some cases due to heated emotions, parties cannot communicate with one another to reach a negotiated settlement. When this occurs, the parties may be compelled to commence a contested action. Unfortunately, in these instances much of what the client will encounter may be dictated by the adversary attorney. While I encourage the clients to attempt to salvage as much of their assets as possible and not unnecessarily expend money on litigation, there are instances where the opposing counsel may advise his/her client that without engaging in intensive discovery a case cannot amicably be resolved. While in some situations this may be accurate, there are other circumstances where this may be unnecessary. Clients are encouraged, therefore, to rationally think through the issues and determine whether he/she actually has full knowledge of the finances, assets and liabilities and whether intense discovery is required.
Notwithstanding the filing of a contested action for dissolution of marriage, the clients are encouraged to keep an open mind. In that vein, after engaging in some discovery (ie. exchange of financial information, obtaining documents etc.), there is an opportunity to mediate the case. This involves retaining a retired judge or attorney with expertise in negotiating settlements. In essence, the mediator engages in Ashuttle diplomacy@ where he/she will place the parties in separate rooms and endeavor to go back and forth trying to narrow the issues. If successful, the parties may then reach an agreement which will be reduced to writing and the case may then proceed to final hearing on an uncontested basis.
Finally, if all else fails, the matter will be presented to the court for resolution. Over the course of the litigation, documents are exchanged, depositions may be taken, experts retained and the resolution of the case is in the hands of the Judge. While this may be the least favorable alternative, in some circumstances it cannot be avoided. For those cases, it is recommended that the client be comfortable with the attorney he/she selects to advocate their case.