IT'S SPLITSVILLE: SURVIVING YOUR DIVORCE

295 Pages·2013·1.736 MB·English

by  James J Gross (auth.)

For your convenience Apress has placed some of the front
matter material after the index. Please use the Bookmarks
and Contents at a Glance links to access them.
Contents
About the Author                                             ix
Acknowledgments                                             xi
Introduction                                                 xiii
Part I: Facing the Prospects of Divorce              1
Chapter 1: Timing                                           3
Chapter 2: Things to Do Now                                  15
Chapter 3: Research and Documents                           27
Chapter 4: Can You Do It Yourself ?                             35
Chapter 5: Finding a Lawyer                                   45
Chapter 6: First Meeting with Lawyer and Beyond                57
Chapter 7: Custody in General                                 67
Part II: Children                                 73
Chapter 8: Physical Custody                                   75
Chapter 9: Timesharing                                      83
Chapter 10: Child Support                                     91
Part III: Finances                                101
Chapter 11: Alimony                                         103
Chapter 12: Property and Debt                                113
Chapter 13: The House: A Play in Three Acts                     123
Chapter 14: Pensions, Retirement Plans, Deferred Pay,
and Social Security                                131
Chapter 15: Business Investments                              143
Chapter 16: Bank Accounts, Stock, and Other Assets              153
Chapter 17: Taxes                                           163
Chapter 18: Prenuptial Agreements                            175
viii Contents
Part IV: Settlement                             185
Chapter 19: Separation Agreements                            187
Chapter 20: Different Ways to Get a Separation Agreement        197
Chapter 21: Tactics and Strategies for Negotiating Your
Own Separation Agreement                        205
Chapter 22: Pleadings                                        215
Part V: Trial                                   223
Chapter 23: Evidence: Proving Your Case                        225
Chapter 24: Trial Procedure                                   237
Chapter 25: Same-Sex Marriage and Divorce                     245
Chapter 26: Postdivorce                                      253
Part VI: Appendix                                263
Appendix: Sample Forms                                    265
Glossary: Glossary                                         281
Index                                                       289
Introduction
There are better things ahead than any we leave behind.
—C. s. lewis
As a divorce lawyer, I’ve heard a thousand stories from people like you, in
the process of separation or divorce or thinking about it, sitting in the client
chairs in my law office across from my desk. they are looking for answers to
one of the most difficult personal growth experiences in life. I’ve made up the
characters in the stories in this book, but they provide fair representations
of what people are going through.
tom and emily
“tom, we have to talk,” said emily at the breakfast table of their sunny
suburban home. she was 39-years-old, tall, and trim. she was a registered
nurse working part time.
tom put down his newspaper with a sigh. He was 44, an engineer, and in
shape from jogging every morning. “OK, let’s talk.”
“Are you happy with our marriage?” said emily.
“Well, I guess I’m not unhappy.”
“I am,” said emily. “You’re never home. All you do is work. You go to work
before I get up and you come home after I’m asleep.”
“that’s ridiculous, emily. I work hard so I can provide for you and the kids.
Where do you think the money comes from to pay for this house, the food,
and your car?”
“I work hard, too, tom,” said emily. “What’s the point,” she thinks.
“He never listens to me anyway. But I’ve got to try.”
“I have a job,” she says. “I take care of the house. I take care of the
children. Who helps them with their homework, bandages their knees,
and gives them their baths? Who picks up after them and feeds them and
does their laundry?”
xiv Introduction
tom replies, his voice rising in anger, “I work full time. I take care of the cars
and the lawn. I take the children to baseball practice and swimming practice.”
emily sighs. “You’re not emotionally available.”
“What are you talking about?” said tom. “I don’t even know what that means.”
“tom, I haven’t smiled for years. Haven’t you noticed? I’m so unhappy,”
said emily.
“emily, you just like to complain.”
emily is in tears now. “there’s no intimacy. It’s like we’re roommates. We’re
living in parallel universes that don’t connect.”
“so what are you trying to say, emily? Do you want to get divorced?”
“I don’t know, tom. What should we do? What about the kids? What about
the house? I’ve never been in this situation. I don’t know where to turn for
help. What do you think we ought to do?”
there is a long silence as tom tries to think of the right thing to say.
“I don’t know, emily. I don’t know what to do. I don’t want to tear this family
apart. I want the kids to have their dad. I’m as confused as you are. I’m late
for work.”
He gets up and leaves without saying goodbye.
About this Book
I wrote this book for people like tom and emily, and anyone else who is
in the process of separation or divorce, or even thinking about it. No one
gets married expecting to get divorced. In fact, if you had drawn a timeline
for yourself from birth to death, you might have put down getting married,
having children, buying a house, buying a vacation home, starting a business,
making a million dollars, and retirement. But, unless you had been divorced
before, I bet you wouldn’t have put divorce on that timeline.
Yet the odds are pretty high that you will be one of the people who gets
divorced. You probably already know many people that have been divorced.
sometimes, divorce is necessary. It may be forced upon you, unwillingly,
because it has been initiated by your spouse, and you have no control over
the decision. Or you may find you need to correct a mistake and move on
with your life.
the decision to separate or divorce is not one that should be taken lightly.
there are many things for you to consider first, and it may take a long time
to become clear about whether you should stay or go.
Introduction xv
If you do decide to go, divorce can be devastating, both financially and
emotionally. this is true whether you are the one who is leaving or the one
who is being left. It can also seem overwhelmingly complex.
You may be feeling lots of different emotions. Anger, sadness, depression, rage,
revenge, grief, and jealousy are normal emotions for someone going through
a divorce. In fact, I would be more worried if you weren’t feeling anything.
But emotion can lead to paralysis. You need to be an active participant in
your divorce. You can help yourself and your divorce lawyer if you are making
decisions based on operating out of positive emotions like courage, clarity,
tranquility, serenity, and peace. there is much to do and many decisions that
need to be made with a clear head. this book will help you get control of
your emotions and start taking action about your divorce.
■ Tip This book will help you gain control of your emotions and start taking positive actions steps
regarding your divorce.
In these pages, we will break all the issues down into separate components
that are easier to understand. the main issues that need to be resolved can
be counted on one hand:
1. Children (custody and timesharing)
2. Alimony and child support
3. property distribution
4. legal fees
5. taxes
We will drill down into each of these topics together and keep breaking
them into smaller and smaller pieces so that you can understand them.
We will also discuss the process of divorce that takes place during both the
settlement and the trial.
structure of the Book
there are five parts to the book.
part I deals with preliminary matters. It discusses the factors that go into
deciding whether you should stay or whether you should go. We’ll take a
look at timing factors and certain personality types. there will be some
pointers on how to talk about divorce with your spouse. We’ll discuss what
you need to do now and things you have to research. We’ll talk about how
to find a lawyer and tell you what you can expect from your first meeting.
xvi Introduction
We’ll also help you to determine whether you have the type of divorce that
you can handle yourself or whether you need a lawyer.
part II is about the children. You can skip it if you do not have children. But if
you do, you know that children represent the highest stakes for the parents
in a divorce. First, we’ll talk about custody and break that down into the
separate discussions of legal custody and residential custody. We’ll also talk
about dividing time with the children and various parenting schedules. then,
we’ll discuss child support.
part III deals with financial matters. these include alimony, property division,
and taxes. Will talk about how different assets, such as the house, a business,
or a pension, can be divided.
part Iv is about marital settlements. We’ll discuss the advantages of settlement
agreements and why it’s almost always better to settle out of court. We’ll
take a look at prenuptial and postnuptial agreements and the different ways
that are available to help you reach an agreement. We’ll also give you some
tips and tricks for negotiating an agreement with your spouse.
part v is about the contested divorce trial. If you cannot settle with your
spouse, you will have to have your case tried. We’ll go over the rules of
evidence, pleadings, courtroom procedures, same-sex divorces, appeals,
and modifications after trial.
Divorce can make you feel helpless and hopeless, like it’s the end of the world.
Why is this happening to me? you may ask. When the future is uncertain, it
feels like you are walking off a cliff into an abyss. But many people have sat
in the client chairs across from my desk, and I have guided them all safely
through their divorces. they all survived. Many found happiness and success.
It does get better. Just not right away.
Why Do people Get a Divorce?
“I don’t know why tom and I fight all the time,” emily told her psychiatrist,
Dr. Dory.
“In any group of people, there will be different agendas,” said Dr. Dory.
“And a group consists of two or more people.”
so you and your spouse have different agendas. It’s no wonder there are
so many divorces. It’s a wonder that so many people can stay together in
a marriage.
Men and women are different. people are different. Can you respect and
even admire the differences between you and your spouse? Or do you want
your spouse to be exactly like you?
Introduction xvii
that would be boring. Differences make life interesting. It’s only natural for
people to have different agendas, interests, and ideas. Once you realize that,
then it is a matter of reconciling your differences.
some people find it easy to reconcile huge differences. some people find it
difficult to resolve even the smallest of differences. If you have no mechanism
for resolving conflicts, then the same disputes keep coming up over and over
again. the situation makes people unhappy and frustrated, and they begin to
think about leaving the conflict and the relationship behind.
specific Reasons for Divorce
let’s look at some of the specific reasons people get divorced:
Relationship Breakdown Do you trust your spouse? Is your spouse
reliable and honest in your relationship? Is your relationship one of mutual
trust and respect? Or are you indifferent or even contemptuous of your
spouse’s interests and ideas?
A relationship is damaged over time by small discourtesies and unkindnesses.
Conversely, it takes time and effort to restore a damaged relationship.
Imagine a big clock. Imagine that at one o’clock, there are the words “business
relationship.” every relationship begins by establishing a business relationship
at one o’clock. In a business relationship, you have no assumptions and no
expectations about the other person.
eventually, if you see this person often enough, you might suggest a
lunch or a coffee. After a while, a business relationship can evolve into
a friendship. “Friendship” is at four o’clock on our imaginary timepiece.
You have expectations of a friend. You assume they will be available for
lunch or dinner. You may ask them to jump-start your car, give you a lift,
or help you move.
A friendship can become more intimate. “Intimacy” is at eight o’clock on our
imaginary timepiece. Now, you can expect more from an intimate partner
than you would from a friend or a business acquaintance. An intimate partner
will visit you in the hospital or give you money when you’re broke.
When there is a breakdown in an intimate relationship, like a breach of trust,
you would like to go back from intimacy to friendship, counterclockwise
from eight o’clock to four o’clock.
But this clock only goes one way—clockwise. You cannot move counterclockwise
back to friendship. the only way to regain the trust needed for a friendship
is to go clockwise to one o’clock and start over by establishing a business
relationship with no assumptions and no expectations.
xviii Introduction
Begin by making clear agreements and keep them, like, “I’ll meet you at
starbucks at a certain time.” or “I’ll take the kids to church sunday.”
Making and keeping agreements is the path to restoring trust and repairing
a broken relationship.
Communication Problems sometimes couples just stop communicating
with one another. One or both give up trying to communicate because they
think, What’s the use? We believe that if we just talk enough, sooner or later
the other party will smack themselves on the head with their hand and say,
Of course, you’re right, I see it now! But it doesn’t work that way. Maybe you
want to avoid conflict. so you don’t ask for what you want or try to negotiate
a compromise.
Parallel Lives Usually, you will have a different career than your spouse.
You will have different interests and different hobbies. But that doesn’t mean
you can’t be interested in your spouse’s life. But some couples are just not
that engaged in their marriage. so, it is an annoyance if a spouse calls them at
work in the middle of a big deal to tell them their son lost a tooth. You might
be married but living parallel lives that don’t intersect or connect at home.
You may enjoy staying at home on the weekends, but your spouse likes to
take bicycle trips.
Adultery Affairs are one of the major factors contributing to divorce.
sometimes affairs are more the symptom of a troubled marriage than the
cause of a divorce. Marriages can survive infidelity. But if you are involved
with a man or a woman other than your spouse, then you are not in a
committed relationship.
Desertion You can leave the house. that’s called abandonment or desertion.
You can even have desertion while still living in the same house if one spouse
deserts the marriage and the couple no longer acts as husband and wife. If
you are forced to leave by your spouse, that is called constructive desertion
by the spouse who stays in the house.
Finances Arguments about finances can torpedo a marriage. people fight
about finances in goods times and bad times. When times are good, they
argue about how their money should be spent. When times are bad, they fight
about not having enough money to pay their bills. Donald trump talks about
financial infidelity. that’s when one spouse intentionally hides information
about purchases from the other spouse. this happens in more marriages
than you might think.
Parenting Styles Conflict may arise from different parenting styles. You
may think your spouse is too strict with the children. Your spouse may think
you are too soft on them. An inability to compromise and work together
leads to strife in the marriage.