Top Ten Things to Know When Contemplating Divorce

  By Charles F. Vuotto, Jr., Esq. , 2009

Keep  Emotions in Check:

Remember the following:

1. The cost and length of divorce litigation is directly proportionate to the emotions of the parties; and
2. Courts do not usually consider who was at fault in the break up when dealing with financial issues (except, perhaps, when dealing with alimony in rare cases).

Select the Right Divorce Attorney & Learn Your Rights:

There are certain attributes that you should look for in a divorce attorney.  Of course, these attributes may vary depending on your needs and goals.  However, primarily, you should look for an attorney who has one or more of the following qualifications and/or characteristics:

1. Certified by the Supreme Court of the State of New Jersey as a Matrimonial Attorney;
2. Member of the Executive Committee of the Family Law Section of the New Jersey State Bar Association;
3. Member of the American Academy of Matrimonial Lawyers;
4. Lectures frequently to the bench, bar and public;
5. Routinely publishes scholarly articles on family law;
6. Has practiced for more than ten years and has concentrated his/her practice in family law during that time; and
7. Is organized, detail oriented, and a compassionate advocate who works well with other attorneys.

Protect the Children:

Beyond any other consideration, the children come first.  They should not suffer needlessly due to your (or your spouse’s) decision to divorce.  Here are some of the more common admonitions with regard to children and divorce:

1. Once you’ve decided to divorce, try to speak to your children together and show them a united front so that they can see that, although you and your spouse cannot live together any longer, they still have a mother and father who love and care for them and can work together in their best interests;
2. Do not use the children as pawns;
3. Do not view your children as spoils of your divorce litigation;
4. Do not enlist your children as couriers or messengers;
5. Do not act out in the presence of the children;
6. Do not bad mouth your spouse to the children;
7. Do not discuss spousal disputes with the children;
8. Do not interrogate the children about your spouse.

Prepare a Detailed Marital History:

Essentially, you should try to chronologically summarize all of the salient facts related to your relationship with your spouse.  Although it may seem like a daunting task, you should chronologically address each of the following points:

1. Length of courtship;
2. Timing of engagement;
3. Financial and non-financial contributions to marriage;
4. History of domestic Violence or abuse;
5. Breakdown of marriage;
6. Physical and emotional health of each party;
7. Employment history of each party;
8. Marital lifestyle (see #5 below);
9. “Statutory Factors” related to custody, child support, alimony and equitable distribution. (Your attorney can provide these to you.)

Summarize Marital Lifestyle: How did you live your life?  Did you live a low, middle or upper-class lifestyle?  One of the key issues in a matrimonial dispute is marital lifestyle.  Begin to describe your marital lifestyle for your attorney using the following categories:

1. Marital residence – size, pool, improvements;
2. Vacation homes;
3. Extent of savings in bank or investment accounts;
4. Types of automobiles, boats, planes, motorcycles or other vehicles or   recreational crafts. Frequency of vacations and locations;
5. Furs and jewelry;
6. Nature of stores frequented;
7. Country clubs;
8. Extent of entertainment including, but not limited to: gambling, sports, hobbies, restaurants, theatre, movies and the like;
9. Extent of gifts given and received;
10. Extent of service providers such as household help, gardeners, maintenance personnel and the like;
11. Nature, extent and value of household furniture and furnishings, including collectibles and artwork;
12. Children’s expenses, including, but not limited to, private school, camps, tutoring or extracurricular activities;
13. Available cash;
14. Available free time;
15. Personal expenses run through a business;
16. Pets (In one case, the parties had their dog in “Doggy Day Care”).

Identify Your Issues & List Your Goals (Wish List & Bottom Line):  Once you have summarized your marital history, identify your issues (e.g., custody, time-sharing, alimony, child support, value of a business, hidden assets, personal injuries, etc.).  For example, “I want joint legal custody; to be the parent of primary residence with $X in alimony; $X in child support and half of the assets.”

Gather Information & Documents: You can avoid many months of litigation and thousands of dollars by gathering and copying key financial records in advance:

1. Tax returns (personal and business);
2. Spending records (checking account statements, registers, canceled checks   and credit card statements);
3. Personal financial statements;
4. Loan applications;
5. Business records;
6. Insurance policies and riders;
7. Bank and brokerage account statements;
8. Retirement account statements;
9. Wills and trust documents;
10. Real or personal property appraisals;
11. Deeds and mortgages.

List Assets & Liabilities: A major part of the case will be the “equitable distribution” of marital property.  There are three main steps in the process of distributing marital property in a divorce case:  (1) identify; (2) value; and (3) distribute the parties’ assets and liabilities.  This process, therefore, starts with identifying all assets and liabilities.  Consider using an Excel chart or similar program to list your assets and liabilities, how they are titled, their values and any exempt portions (i.e., amounts that are pre-marital, gifted to just you, or inherited by you).  Make sure to include the following assets:

1. Real estate;
2. Bank and brokerage accounts;
3. Vehicles;
4. Personal property;
5. Retirement accounts;
6. Businesses;
7. Custodial accounts;
8. Other assets;
9. Mortgages;
10. Home equity loans;
11. Credit cards;
12. Tax liabilities;
13. Other debts;
14. Sole proprietorships;
15. Tax losses;
16. Stock options;
17. Term life cash value insurance on a terminally ill person;
18. Deferred compensation (Phantom Stock Awards, Top-Hat Plans, etc.);
19. Frequent flyer Miles.

Summarize Your Education/Earnings & Employment Histories:  There are many factors that are considered when establishing alimony and child support.  These factors include, but are not limited to, the length of marriage, contributions to the marriage, age, health, as well as a myriad of other factors.  Chief among these factors is the earning ability of each party.  Therefore, for both you and your spouse, summarize the following:

1. Post high school education, degrees, certifications and licenses earned;
2. Employment History including but not limited to: employers, dates of employment, positions held, earnings, and employment benefits received       (i.e., promotions, deferred compensation, stock options, bonuses, over-time, etc.);
3. If unemployed, intentions regarding re-employment, rehabilitation plans (i.e., education and time needed to acquire work experience) and child care;
4. Your plans for employment in the future;
5. Your plans for retirement.

Learn About the Tools of Discovery: Very often, one spouse does not have complete knowledge of the other party’s assets, liabilities, income or activities.  That is when “discovery” comes into play.  Essentially, “discovery” is organized information gathering.  It can encompass that which is permitted by the Rules of Court or other methods.  Some of the more prevalent avenues of discovery are:

1. Private investigators can do things you cannot;
2. Beware of costs.Internet:
3. 411locate.com (locate individuals);
4. Wnjpin.net (NJ Dept. of Labor -Employment and Wage data);
5. Artbrokerage.com (art values);
6. Njrealestate.com (cost of Living in certain areas);
7. quickquote.com (insurance quotes).

Recordings

1. If your spouse leaves messages, save them.
2. Beware of Federal and State Wire Tap Laws.

Litigation Methods

1. Interrogatories;
2. Document demands;
3. Notice to produce;
4. Demand for admissions;
5. Depositions.

Forensic Experts: Very often, there are many issues that arise in a divorce that require outside experts.  Your attorney cannot assess mental health issues, value a business or decide on the employability of a party.  Experts such as the following are necessary:

1. Business valuations;
2. Lifestyle analysis;
3. If your spouse is not reporting all of his/her income, you may need an expert to evaluate his/her books and records;
4. Custody evaluations;
5. Employment evaluations.

Conclusion

Keep your emotions in check.  Select the right lawyer and learn your rights.  Protect your children from the divorce by insulating them as best you can.  Gather as much information and documentation as you can.  Identify your main issues and how you would like to resolve them.  Most importantly, develop a strategy with your attorney to meet your goals and pursue that strategy diligently.  However, periodically perform a “cost-benefit analysis” to determine if your strategy makes fiscal sense.

In the end, a well thought out consensual settlement is almost always preferable to a result after trial.  Keep in mind the words of President Lincoln:

“Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often really a loser — in fees, expenses and waste of time.  As a peacemaker, the lawyer has a superior opportunity at being a good man.  There will still be business enough.”