This month’s article is designed to highlight common divorce “myths.” So often in our practice a client will mention at least one of these misperceptions. Accordingly, we wanted to debunk the ten most common misunderstandings in family law to empower our readers.
Myth Number 1: Do not move out of the marital home until the divorce is final. Eventually, one spouse will have to leave the marital home, whether on a temporary or a permanent basis. In almost all cases, this comes by agreement of the parties. It is far better to leave as part of a stipulation rather than pursuant to Court Order or a restraining Order. Staying in the residence just for the sake of staking a claim is not necessary for appropriate custody orders, for deciding who will be awarded the home, and/or for defending against an allegation that a party has abandoned the family. If you determine that it is no longer possible to live in the same home due to the level of dysfunction or domestic tension, it is best to have a planned exit. This means that parties need to agree upon an arrangement that works for everyone, most importantly the children, on a short-term basis. Long-term arrangements generally fall into place when the parties understand that the Court is not going to decide custody or allocation of property based on who is living in the former marital residence. Finally, parents who are at a stalemate as to who will leave the home create a high-stress environment for their children. Do not be duped by men’s or women’s rights attorneys who advise against moving out. There generally is not a home-court advantage.
Myth Number 2: Consultation with an attorney means hiring an attorney. Almost every family law attorney will state that knowledge is power. Never forego an initial consultation with an attorney, because you believe this will result in tens of thousands of dollars of attorney’s fees. While you should be assisted by an experienced family law attorney, that assistance can occur on different levels. For example, attorneys in Colorado can now provide services “unbundled.” Under this arrangement, the attorneys is not of record with the Court but is advising the client and assisting with drafting documents. Attorneys in this role must disclose their involvement (so the attorney is not “ghost-writing pleadings for the Court). Unbundled services are appropriate for lower asset cases or for cases where the parties are generally in agreement. However, this type of service is not appropriate for more complex or high conflict divorces. In complex or high conflict cases, a seasoned family law attorney knows the nuances of all the legal issues as well as can guide clients through the conflict and Court appearances which go hand-in-hand with such cases. Finally, always consider that a good family law attorney is not motivated by the fees that he or she can charge on a case but rather the desire to help his/her clients. In general, this practitioner can tailor fees agreements to provide representation for a client on a budget that the client can afford.
Myth Number 3: Courts favor the mother; therefore, men require a special men’s rights attorney to protect their interests. Do not fall for the men’s rights attorney gimmick. These law firms tend to represent only men (the occasional woman will hire them, but this is seldom), and they are out of touch with the wife’s/mother’s point of view. Our clients are generally split fairly equally between men and women. Accordingly, we know the normal triggers for each side. This assists our clients in negotiations as well as presentation at trial. A Court is required to enter equitable final orders without consideration to marital fault or sex. Colorado law specifically states that neither parent is deemed to be a more fit parent, because of sex. More and more, we see the Father having the majority parenting time or equal parenting time with former stay-at-home Mothers.
Myth Number 4: Identifying and Valuing Assets is the easy part of the case. This is not easy for a lay person if one party has a third party (such as a paramour) who has been holding assets for that party. This is not easy for the lay person if the parties have high net worth with a varied portfolio. This is not easy if either party asserts a separate property claim. This is especially not easy for a lay person if a party is self-employed or is the beneficiary of a large trust. Even what we consider to be a fairly straight-forward marital balance sheet can become complicated if there is a marital business, which must be appraised. Other complicating factors are setting aside separate property of a party (gift, inheritance, or excluded by a valid contract – see next month’s article, No. 7), valuing an asset or defining contribution of separate property by a party. Division of pensions and PERA also add spice to the marital property mix and require special Court dividing Orders that comply with the Internal Revenue Code and are often time sensitive. One of my saddest cases as a younger practitioner was learning well after the fact in post-Decree litigation (see No. 10 in next month’s article) that my client, when representing herself on the underlying divorce case, had given up her portion of the family insurance business for no consideration. We could not fix her mistake after the fact.
Myth Number 5: Every family law case has a winner and a loser. The goal of a successful dissolution is arriving at a win-win solution for both parties. Therefore, be skeptical about the statement that the definition of a good settlement is that each party is dissatisfied. Success is possible for both parties, because each party has his/her own unique objectives. For example, the stay-at-home Father may wish to try to stay at home for a couple of more years, because this has been extremely beneficial for the children. The more career-oriented Mother may be in agreement with this arrangement, because it allows her to focus on work while continuing to provide for the family. Where parties get askew is when they apply unreasonable expectations or attachments to the outcome that were not present when the parties were functioning as a marital unit. If parties can recall when they were both working toward the same goal, the plan going forward in dissolution (at least over the short term) will resemble what they defined as their family goals while the marriage was intact. The true measure of a successful case is achieving realistic objectives for both Husband and Wife – not “crushing” the other side. After all, the other side and you entered into marriage vows in the not so distant past.
Please stay tuned for next month’s article, where we will discuss myths 6 – 10.
Jolein A. Harro, P.C. has been serving the mountain and metro communities for almost 30 years, specializing in family law, estate planning, real estate, criminal matters, and bankruptcy. Please contact us with your legal questions/needs at (970) 439-3065.