Trials & Tribulations

Despite all efforts to avoid a trial, including your attorney telling you a gazillion times how expensive it's going to be and how bad it's going to be, you have not settled your case and you are now going to trial. Buckle up, you're in for the most expensive ride of your life.

Months of preparation and information gathering have lead you to this place. It's possible you won't have to try your entire case, often some issues are settled and only the unsettled issues are tried. If this is the case, all the settled issues will be stipulated to first and put on the record. Then the real trial begins. If there are no settled issues, (extremely rare and usually indicates that at least one person involved, if not more, and including the lawyers, is a royal pain in the ass), then you will be forced to try your entire case.

Your lawyer will prepare you for trial. Every lawyer does this differently. I like to go over the questions I will be asking my clients and get them familiar with the exhibits/evidence I will be presenting and asking them about. Some lawyers actually do mini-trials to prepare their clients. I will not tell you what to say as I feel that your credibility will be compromised. I ask my clients to answer honestly.

For informational purposes I will outline a trial in which everything is at issue (being tried). In New Jersey all divorce trials are "bench" trials, which means the Judge hears the case, there are no juries. Keep this in mind as it makes a divorce trial very different from what you may see on TV. Judges do not want to see the theatrics, they want to hear the facts and the law, period. Now for the trial. There may or may not be opening arguments. Unless the case is very complex I skip the opening argument. Usually opening arguments are just a waste of time, the Judge just doesn't need them.

The plaintiff goes first. The first topic will be the grounds for divorce. Then your lawyer will proceed with questioning concerning all the different issues. There will be some type of organization of the issues in your trial. Some of the organization may have to do with the availability of experts and witnesses. Some may have to do with the importance of the issues. Your attorney will decide how to proceed. In general, the organization starts with the major issues and hones down to specifics. For example, I may start with equitable distribution, the specifics may include real estate, vehicles, pensions, investments, etc. Then I may go to issues dealing with children, the specifics may include custody, visitation, support, etc.

For every "specific", all the evidence and testimony has to be organized. Most lawyers will prepare a trial notebook which lays it all out and which they will follow in order to try your case. Your lawyer must present certain elements to the Court. Let's use the marital home as an example. You and your spouse are fighting over it. The elements to be presented will include at a minimum, when the home was acquired, for how much, how much is it worth now, what have each of the parties contributed toward the home both financial and otherwise (blood sweat and tears stuff), has anyone else contributed to the home. Each of these elements will have to be proven either by testimony, evidence or an expert. Testimony alone can prove when the house was bought. Documents, such as bank statements and cancelled checks, may be needed to prove contributions toward the home. An expert and their appraisal will be needed to prove the current value. Your word alone will not cut it, judges want proof.

The opposing attorney gets to cross-examine every witness. The purpose of cross-examination is to elicit more information or shoot holes in testimony. This is why I encourage my clients to be honest and open, there's no recovering from hiding something or being caught in a lie.

Once the plaintiff finishes their case, the defendant puts on their case. Procedure is the same.

Then you may or may not have closing arguments. At any time during the trial you can settle your case and end the torture.

Divorce trials can take anywhere from a couple of hours to days. Once your trial is over, it may be weeks before you get a decision from the Judge. 99.99% of the time, no one will like the judge's decision but at least now you're divorced.

MESP - Last Stop on the Divorce Local

The time has come for your attorney to present your case to the Matrimonial Early Settlement Panel (MESP.) Theoretically, all the discovery needed for your case is in. Realistically, this is rarely the case. MESP is usually scheduled 3 to 4 months after the complaint and answer are filed. Often the parties are still scrambling and scrounging around trying to find credit card statements, copies of cancelled checks or the like. Sometimes we're waiting for an expert's report or appraisal to come in. Regardless, there is usually enough information to get a pretty clear picture of where the case is going and approach true settlement of the case.

Your attorney will prepare a memorandum outlining the basic facts of the case, the disputed issues and your proposed settlement. The more concise the better. Do not expect your attorney to include your full marital biography. Once again, New Jersey is a no-fault State and no one cares. Secondly, the panel does not have time to read your domestic war and peace novel and you run the risk of the actual important issues being ignored or missed amongst all the angst. This is one area where I am a tad sneaky. Because we are always waiting for new and exciting discovery, I always wait until the night before MESP to write my memorandums. This way they are as up to date as possible and fresh in my mind for presentation. The weasely lawyer part comes in because my clients do not get to see it until right before it's presented. I can say that I have never received a complaint from a client concerning my MESP memorandum. Sometimes not knowing is better.

The panel is made up of experienced family lawyers. There are usually 2 lawyers on the panel. Only the attorneys present the case. Clients are left in the waiting area. Suggested past times while you are waiting for your attorneys to emerge from MESP are glaring at your spouse, telling the stranger sitting next to you all the terrible things your spouse and/or lawyer have done in the loudest voice possible or crying your eyes out and looking pitiful. These are just a few of the ways my clients have amused themselves, I am sure there are infinite possibilities. I would suggest that you not engage in any self-amusement that will get you arrested. The few times I have had that happen I have found that it does not help your case. For many people, this may be the first time you have seen your spouse in a while. Be prepared for this, like it or not, you will have to deal with your spouse. If you have kids, you will have to deal with your spouse for a long long time. You need to learn how to do this. MESP can be a dress rehearsal.

When all the lawyers go behind closed doors for MESP we aren't actually discussing your case, we're drinking coffee and comparing golf games. Only kidding but I have had people semi-accuse me of that. I understand that my client's often feel lost and confused during the divorce process. Sitting outside a closed room while a bunch of attorneys discuss your case does nothing to dispel your feelings of confusion and helplessness. This is another time where you are going to have to trust your lawyer. Your lawyer is presenting your case in the best way possible in order to achieve the best result for you that they can given the facts. The lawyers try to give the panelists their memorandums prior to being called in in order to give them time to read them. When we go in to present usually they have some idea of what the case is about. The panelists ask us questions that will help them form an opinion. Sometimes the lawyers need to point out various facts for further discussion. Once the panel is satisfied that they have a clear picture they will either give us an opinion on the spot or they will ask the lawyers to leave so they can discuss the case between themselves and then will call us back in when they have come to a conclusion.

The panel provides a recommendation for settlement based on the facts presented and according to what they believe a judge might do and what is fair under the law. Sometimes they recommend creative settlements that are far better for the parties than what a judge might have to order as they are not bound by the strict letter of the law like the judge is. The panel will only provide a proposal concerning the financial issues. They will not deal with issues having to do with children such as custody, parenting time and support. Those are issues that require either a separate, specialized mediation or experts. Mediation on those issues usually takes place early in the divorce process as they are so crucial.

Your attorney will go over the proposal with you and tell you if they think you should accept the proposal. I have found that usually the proposal for settlement is pretty good. Sometimes the proposal needs tweaked a little. Rarely do I tell my clients to flat out reject a proposal. When I do tell them to reject a proposal it's usually because the other side has not provided full and/or accurate disclosure and I don't have enough information to properly advise my client. On rare occasions I advise my clients to reject a proposal because quite frankly, the panelists are not very good attorneys and their recommendation makes no sense. I actually agreed with another lawyer once that neither of us would give the recommendation to our clients because it was so bad. Thankfully, this hardly ever happens, most of the attorneys are good at what they do.

If you accept the panels recommendation you can get divorced that day. Even if you accept the proposal there are usually minor issues to hammer out. This can take some time so be patient. What seems minor now can turn into a huge deal 2 weeks after the divorce. The tighter and more specific your settlement the less chance you have of future disputes. I can't tell you how many times I have tried to talk people into specific visitation schedules and they assure me that free and liberal visitation mutually agreed upon will work just fine. Sure it does, until your spouse won't let you have the kids for Grammy's birthday party because they have to be in bed by 8pm. If your lawyer is anal this is one area in which it's a good thing for you.

Once everything is hammered out, we let the judge know that, hurray!, we are settled. We go in front of the judge, in a real court room and put the divorce through. You will be sworn in. Usually you are allowed to testify from the table instead of the witness stand. First you will be asked questions concerning the agreement itself. There are standard questions the attorneys will ask. I usually prepare a written sheet of all the questions for my client to go over so they are prepared for the hearing. After you are through with the settlement agreement, you will be questioned concerning the divorce complaint and/or counterclaim. Again, standard questions. The judge may ask you a few questions. Do not be alarmed, usually the judge is just trying to cover a point of law for the record. Once all the questions are done, the judge grants the divorce. However, you will not get your signed copy of the divorce that day. The actual final judgment of divorce must be sealed and filed. You will get your copy in a week or two.

If you are unable to settle your case on MESP day, your attorneys will inform the judge of this. The judge will then schedule a trial. The trial can be scheduled anywhere from within a few weeks to over a month away. You can settle your case any time up to and including the date of trial. If there are settled issues, you can try only the disputed issues. In any event, in most cases you do not want to go to trial. They are a nightmare. I can count on one hand the cases that I truly felt needed to go to trial. These are rare instances based on rare cases. Although we all want to be special, chances are your case is not one of them. Accept it now, you are going to have to compromise. Having a judge forcing you to compromise after a trial is an expensive and painful way to learn that lesson. Settling is not giving in or giving up your principles, it's just smart.

Next, the trial of a trial.

Pendente Lite-Less Filling, Tastes Great

The Pendente Lite Motion. Don't even try pronouncing it. I have heard it pronounced all different ways by both lawyers and judges. Personally, I pronounce it pen-dent-ay-leet-ay. Oh, my gosh, I just realized that it's actually pig Latin! Who da thunk!?

Your complaint or answer is filed, but alas, the children are eating ramen noodles every meal because there's no money since your deadbeat spouse has left you high and dry and is spending all their money on their new corvette. Must you wait until the divorce is finalized? Will you be living at the mission? No, hope is just around the corner in the form of a Pendente Lite Motion.

Literally, Pendente Lite means "pending the litigation." There are certain issues which can be addressed fairly quickly with a temporary order that will be in effect until another order is issued or the final judgment of divorce is entered. The most common issues addressed are custody, parenting time, child support and spousal support. Other issues which may be addressed are medical insurance, payment of specific debts or extraordinary expenses, funding the litigation, disposing of assets or restraining some one from disposing of assets. In general, you can only address issues with the Pendente Lite Motion if waiting for the issue to be resolved will be harmful in some way.

Some of the issues are fairly routine. The court will not question these. The court will not expect you to wait for child support, the kids need sneakers now! The Court will not permit your spouse to keep you away from the kids until the divorce is final, (as long as you're not an ax murderer and even then you'll probably get supervised visitation.)

Some may be more complex and you may have to convince the Court that you just have to have the issue decided now and not later. For instance, if you want to sell the coin collection to pay for your lawyer's fees, you will have to convince the Court that you don't have any other way to pay. If you want to sell the house, you have to show the Court why it has to be sold now and what exactly you plan to do with any proceeds from the sale. The Pendente Lite Motion is not a mini-divorce, it deals only with imminent issues. Your attorney will advise you as to what issues should be in your Motion.

The Pendente Lite Motion consists of several documents. The Notice of Motion: a lawyerly document which sets out the return date (the date the motion is scheduled for,) where it's going to be heard and the relief you are asking for (what do you want?) The Certification: the meat of the Motion which is written by your lawyer as if they were you, it sets out all your reasons and arguments for why you should get what you're asking for. The Notice to Litigants: another lawyerly document which states what are you are filing and what the other side can do about it legally. The Proof of Mailing: the document that certifies that the Motion has in fact been mailed to the other party. And finally, a proposed Order which, hopefully, the judge will sign. All this get filed with the court and mailed to the other side.

Your lawyer will actually pick the date the Motion is to be heard, the return date. In New Jersey, motions are heard on Fridays unless the judge specifically orders another date, which is unusual. A Pendente Lite Motion is considered a 16 day Motion which means that it must be mailed 19 days before the return date. (Don't you love it!? Actually this is because the other side has to have 16 days notice and they tack on 3 days for mailing time.) The other side will respond with a certification and also possibly a cross-motion. It is a cross-motion because they were really mad when they got your motion. A cross-motion simply means that they are also asking the judge for some things. After the other side files, you get to file a certification to respond to them. They then get one more shot at responding to your response. That is it for filing, a piece of cake, right? You are not allowed to respond ad infinitum. Here's where it gets really exciting, the cross-motion or response must be filed 8 days before the return date (mailed 11 days before.) If you have a response coming to you, you only have 4 days to get it to the Court and the other side. The last bite at the apple has virtually no time to file. Generally, you don't see people using all their response privileges, it's just not necessary most of the time. However, if your lawyer calls and tells you they need you to sign something today, get your butt to their office pronto. To get on my soap box, the time lines are regularly ignored by lawyers. If your response is going to be late you are supposed to get the judge's permission after contacting the other side to let them know and see if they will be gracious and say it's ok with them. Not to pat myself on the back, but I am the only lawyer I know who does this. I believe that the Rules of Court are there for a reason and follow them as best I can. Additionally, I think it's rude and sneaky to file your paperwork late in hopes of a postponement or to ambush the other side. Getting off soapbox now.

Any time up to and including the return date, the parties can come to an agreement and submit a Consent Order which will resolve the issues. A Consent Order will be prepared by one of the lawyers, signed by the lawyers and/or the parties and submitted to the judge who will sign it and make it official.

Assuming you can't agree, the return date is upon us. This does not necessarily mean that you will go to court. In some Counties in New Jersey the judges issues tentative orders. They fax these out to the attorneys the day before the return date. If you accept the order, it gets signed and no one goes to Court. If you don't, you end up arguing your motion. In other Counties, the judges decide whether they want oral argument, ie. to hear from the parties, or if they will decide the motion "on the papers" which means they will make their decision on what is submitted. Unfortunately, and one of my great annoyances, you may not get notification as to whether you have to be in Court until late the afternoon before. I always schedule a motion for oral argument but it is often difficult for my clients due to their work schedules and kids.

If there is oral argument, you will go to Court and your attorney will present your case to the judge. This is usually directed and controlled by the judge. The judge will ask the lawyers specific questions that they have in order to obtain the information they need to make a decision. Some tips for your conduct: do not speak unless the judge asks you a direct question. Do not make noises or funny faces when the other side says something you don't like. Do not talk to your lawyer during oral argument, they are either trying to talk or trying to listen and they will not be able to if you are talking to them, write down anything you need them to know and show it to them when there is a break in the action. Do not expect your lawyer to bring up every little thing you can think of, the judge has already read your papers and you're only going to piss him off if you repeat everything in them. Do not expect your lawyer to continue arguing when it is clear the judge has made up their mind, another sure way to piss off the judge. Trust your lawyer to know what to include and what to omit. I argued a motion the other day, when it was done, my client asked me why I did not bring up modifying the visitation schedule, I patiently, with gritted teeth, explained that I felt the judge's statement at the beginning that he was not going to modify the parenting arrangement was a pretty good indication that he did not want me to press the issue. Additionally, the judge will probably be addressing the visitation issue in round 2, a month from now. Unfortunately, your lawyer can not explain everything to you that's going on in the court room and in all fairness, you are in the dark about many of the finer points, because of this you will have to trust your lawyer.

The end result will be an order that will be binding and enforceable until there is another order or final judgment of divorce to replace it. Your kids will miss their ramen noodles now that you have money to buy healthy food like spinach. They will like their new sneakers though.

Next, nearing the finishing line-Matrimonial Early Settlement Panel.

Negotiations - The Art of Getting All the Stuff

Now that the discovery process is underway, negotiations should be starting. I like to ask my clients for a settlement proposal as early as possible. Not that I'm going to give it to the other side, it's more so I can see where my client's at and where they're going. These proposals give me all sorts of clues. When my client asks for the house, every single possession and their spouse's pay check, I know that I'm going to have a lot of splainin' to do to my client. I stock up on aspirin at that point. Other proposals are more reasonable and they tell me what is important to my client. Some focus on the children. Some focus on houses. Some focus on support. Whatever the proposal focuses on is what is most important to my client and/or is creating the most anxiety for them. Knowing this makes it far easier to negotiate for my client and also to make my client happy, (if there is such an animal in family court.)

Settlements do not have to be fair in any sense of the word, neither legally nor morally. If you and spouse agree to something that's okey-dokey with the Court even if it is totally one-sided. Once in a while I get a case where the parties do what's right, not what's the law. By that I mean, even though by law the house should probably get sold and the equity split, the parties agree to let the custodial parent live in the home for the sake of the kids. Those cases renew my faith in humanity. Ain't too many of them.

Even during the litigation I encourage my clients to negotiate with their spouse if they are still able to communicate civilly. Not only will you save a lot of money in fees, but you and your spouse know better than your lawyers what is good for you and your family. Once again my mantra: if you can do it yourself, don't pay me to do it.

Negotiations between lawyers is a whole different ballgame. A lot depends on the lawyers themselves. I deal with many lawyers who are absolutely wonderful to work with. Their goal is to settle the case as quickly as possible with the best deal for their client. I know other lawyers who are a nightmare. They ignore their client's wishes, they won't deal or compromise at all, they seem to feel the need to churn the wheels of justice even when unnecessary. Your lawyer may be doing a stupendous job for you but isn't getting anywhere because of the other lawyer. To illustrate: the house is not an issue, it's a pre-marital asset by 10 years and the parties have only been married for 2 years. The attorney from hell insists on an appraisal and won't discuss any settlement until the appraisal is done. A judge will not typically deny the request for an appraisal as the distribution of the house is an issue left for trial. Shoot me now. If the opposing attorney is this type of lawyer, don't blame your poor beleaguered attorney, they are more than likely doing everything they can.

To negotiate a deal which is good for you does require you to decide what is important to you and what you are willing to compromise on. Do you really want the house and are willing to give up your share in the pension to get it? It also requires you to be reasonable. Are you really willing to put your family through a custody evaluation and battle just because your spouse smoked pot 30 years ago? It is often difficult for litigants to negotiate unemotionally, this is why you have a lawyer. I'm not mad because your spouse insisted on buying a car last year that you couldn't afford. Let your lawyer guide you through negotiations as someone who is not only knowledgeable about the law, but is an unbiased third party. I have dealt with people who turn into 2 year olds when it comes to negotiations. I suggest the spouse get the kids for tax purposes since you don't work and they're paying alimony and support-No! I suggest that since you have 3 TV's that the spouse get one-No! I suggest that the spouse have the kids while you're working to save on daycare costs-No! This type of negotiation tactic is only going to get you a time out, not a decent settlement.

Some issues can not be settled until all the information is in. Be patient. I am not going to suggest you swap your slice of the pension pie for the house without knowing what the value of each is. That's just plain stupid and probably malpractice too. Also, don't ask me to propose that to the other side, it's a waste of time. I recently had a client who absolutely insisted, against everything I said, that I propose the most one-sided settlement as a final offer. This person actually meant it too. I told the other attorney I was faxing him a proposal, he asked if it was a good one, I flat out told him no. I couldn't lie, the proposal was worse than bad, my client was demanding every asset the parties had, I would have looked like a dimwit if I had said I thought it was a good fair proposal. After reading the proposal, the other attorney was laughing so hard when he called me that he could hardly talk. I told my client the offer was rejected and he fired me. Yahoo! Clients like that are just not worth their billable hours.

One of the basic principles of negotiation is "good faith." You must negotiate in good faith. Don't propose a deal that you have no intention of honoring. Don't propose nor accept a deal unless you fully understand that it will be binding and enforceable (ooh, sound like some legal s&m). I actually get people who accept deals and then later tell me that their spouse will never make them sell the house. On what planet do these people reside? I also deal with the opposite. I get a settlement involving support and it becomes apparent real quick that the other party has no intention of paying support. Guess what, just because your case is over doesn't mean that you'll never see your favorite judge again. Entering into a deal and not following it is a sure way to spend leisure time in Court arguing Motions for Enforcement.

There's lots of things to weigh when you're negotiating a settlement. Your attorney will know and advise you of the legal side. Only you can judge the personal side. If a settlement is better for you personally than financially there's nothing wrong with that. Unlike a lot of the world, I don't judge success with dollar signs, your happiness is far more valuable then your portfolio. Reason and compromise are are crucial. Most cases should settle. I can count on one hand the cases where I really felt there was an issue which needed to be decided by a Judge. Don't make me use my other hand.


If you are able to come to a settlement agreement, all the turmoil stops then and there. One of the attorney's will write up the agreement. Everyone will sign it. Some joyous attorney will inform the judge who will schedule a date for the hearing and voila!, you will be divorced. Makes my heart sing just to think about it.

Parting shot: if you have a lawyer who will not listen to what you want and insists that you need to wring every last cent cent out of your spouse, find a new lawyer. A lawyer who ignores their client's personal needs is only doing half their job. A good lawyer will advise you of the law and what you are entitled to and will follow your wishes even if you end up a little behind in the plus column.

Stay tuned: The Pendente Lite Motion. Lawyers proving they know Latin.

Discovery - There's a House in the Bahamas!!!?

To continue with Divorce 101. The Complaint and Answer are filed. Now it's time for discovery.

The judge will enter a Case Management Order. The Order will be developed through either a hearing, a conference or submission of a Consent Order by the attorneys. In most cases the Order is entered into by consent as there really isn't anything to fight over.

The Order sets out the time lines for the case, what discovery the parties will swap, and experts if needed. Discovery is all the information needed for the case. Be prepared, this can be massive and involve a lot of leg work. Both parties may have to swap 5 years of bank records. Assets may need to be appraised. Credit card records for years may have to be produced including exactly what was purchased. You may have to get a social security statement and/or pension statement. If there's a small business, years of business records may have to be coughed up. Courts make decisions based on proof, if you are making a claim or defending against one, you have to have the proof. It's not good enough to get on the stand and tell the judge you're wife ran up the credit card bills buying thong underwear for her boyfriend. You have to show the court the receipts or credit card statements showing the purchase and then you have to prove that the shorts weren't for you, you sexy devil.

Discovery may also include interrogatories, depositions and notices to produce. Interrogatories are sets of questions for the other party to answer. Generally interrogatories are incredibly lengthy and comprehensive, 40+ questions, 20+ pages. Usually half of the questions are already answered or don't apply so they're not as difficult to complete as you may think on first glance. Get them done as soon as possible. The notice to produce is usually sent with the interrogatories. It is a demand for certain records. Most of the time disclosure of the records is already ordered in the Case Management Order. The notice to produce puts the other party on notice that you are serious about getting these records and gives you an additionally zing if you don't get the records and have to file a motion to get them. Depositions are when the other attorney gets to question you about anything pertinent to the case their little heart desires. It is not like a hearing, there's a lot of latitude as to what they can ask. Just because they ask it doesn't mean it will be admissible in Court. Depositions are not real common in divorces but you will see them when someone is refusing to cooperate with discovery or there are complex and/or fuzzy issues.

In New Jersey you will have to file a Case Information Statement. This sets out basic information about yourself and pretty detailed information about your finances. Income, assets, debts and your budget are all included. The Case Information Statement is a royal pain to fill out but you must fill it out and file it with the Court. It is the basic document from which flows the river of divorce.

You must cooperate with discovery. I will get a request for someone's bank statement. My client will tell me it's none of their business. Wrong! It is their business and if they have to get the Court to make you give it to them, you will now be paying your ex-to-be's legal fees for the motion too. Full financial disclosure is a requirement. If someone refuses or evades disclosing something it can come back to bite you later when your settlement or judgment is overturned. Hiding assets or information is a sure way to get yourself in trouble and possibly even find yourself with a really bad judgment.

Cooperating with discovery also keeps the cost of your divorce down. If both parties are swapping all the information voluntarily it makes the lawyers' jobs easier and the billable hours less. If you can get the information yourself, do it. I'll ask people to get a pension statement. Their attitude is that's what they're paying me for. OK, have it your way. Charge for you to call human resources and get them to send it to you-$0. Charge for me to get a release from you, mail it with a cover letter to human resources requesting your pension information-your first born. If you want to pay me to do something you can easily do, you're just stupid and deserve to pay for it.

As stated earlier, even in family court, proof is needed. My clients really have trouble grasping this concept. This applies to every issue, not just the financial ones. If you want to claim that your spouse is a bad parent you will have to prove it. Your say so isn't enough. You may need an expert to complete a custody evaluation. If you want to bring up specific incidents you may need to call witnesses to the incidents or have medical reports. If you want to claim that your spouse didn't contribute financially to the marriage you have to prove it. You will need to show the paper trail of the finances. You may also have to prove that there wasn't a good reason for your slacker spouse to not fork out any money during the marriage. If you supported your doctor husband-who-has-now-run-off-with-nurse-Nancy through med school, you will have to show the paper trail of your finances during that time. You may be awfully cute and sincere, but that ain't enough for the judge to rule in your favor.

Discovery is the foundation of your case and is actually fair too complex to fully explain in this crash course. Bottom line, if your lawyer asks for something, there's a reason, give it up with a smile on your face and a song in your heart.

Next up, settlement negotiations: theirs, mine and mine.

Great Expectations

Time off from the crash course on divorce to take a field trip to expectation land. What to expect when you're expecting a divorce.

Many people have bizarre and unreasonable expectations of their lawyer. Forget what you've seen on TV. A good family lawyer knows the law, has good organizational skills and has good writing skills. In general, they are boring and businesslike. Family law is not dramatic, your lawyer is not going to pull a surprise witness out of the audience and yell "AHA!" There are no juries in family law and a melodramatic lawyer is more likely to tick off the judge than help your case. You will obtain a far better divorce from a dull nerdy lawyer who presents the facts and the law coherently to the judge than you will with the lawyer who puts on a show for the judge that has no legal meat to it. On many many occasions I have argued motions in which I say hardly anything. My clients accuse me of being too passive or not bringing up this or that until the judge's order comes back in their favor. Understand that it is the substance of your case that will get you the results you want, not your lawyer's theatrical abilities.

Your lawyer is not your therapist. I am one of the few lawyers around that will listen sympathetically and at length to your horror stories, but I have an extensive professional background in that area. Even so, I will direct you back to the business at hand. I do feel that people need to get out some of these feelings but keep in mind that your lawyer will not be able to provide you with therapy and will be charging you far more by the hour than a therapist would to listen to your stories. Do not expect your lawyer, or the judge, to be outraged by your matrimonial horrors. For every story you can tell me, I can tell you 10 worse. We've heard it all and are pretty hard to shock.

Your lawyer has no police powers nor any magical powers. If your spouse denies you visitation I can not magically make them hand the kids over, nor can I make the police do it. I can not storm the bank to demand your half of the tax refund check which your spouse has deposited into their own account. There are legal ways to handle these problems but they take time and paperwork. Again, boring drudge work. Do not expect your lawyer to immediately fix every problem or crisis that occurs.

Know from the start that your divorce is going to take time and money. The length of time and the amount of money your divorce will cost are in direct proportion to the level of hostilities. The more hostile the divorce the longer and more expensive it's going to be. If you and your spouse are going to be fighting over custody and visitation expect to spend thousands on an expert. House and pension appraisals are hundreds of dollars. Don't get me wrong, sometimes this is all a necessary evil, just be prepared for it. Don't tell me after refusing to settle a custody issue that you have no money for an expert because if you don't, stick a fork in you, you're done. Also, divorces take time, a contested divorce will usually take from 6 months to a year. Despite your impatience, there is absolutely no way for your lawyer to speed this up. Expect and be prepared to weigh the financial and emotional costs of fighting. Is it really worth spending $500 in lawyer fees so that you get the crock pot? Is it worth all the emotional anguish to insure that your spouse will bring the kids back at 7:30 and not 8:00? Believe me, the supposed principles that you are clinging to so feverishly are going to look pretty silly a year later.

Expect to lose all privacy. Due to the nature of divorce the disclosure between the parties is extensive and often private. Unless there is a really good reason to withhold the information, your spouse is entitled to know most, if not all, of your financial and personal information. I routinely get people who don't want to cough up information because "it's none of their business." I have news for you, it is their business and if you don't hand it over voluntarily, the judge will make you hand it over. Furthermore, if you hide information and it is discovered later, you are in for a very good spanking from the court not to mention your credibility is now shot.

Expect the court to make decisions based on the facts and the law, period. You will not get a sympathy judgment. Your idea of fair is probably not even close to what the law actually is. The judge will not punish your spouse for being a jerk. The judge can not make your spouse be a good person or parent. The judge can order your spouse to stop telling the kids about the divorce but if your spouse ignores this there is no magical way to enforce the order without a motion and even then, it may be impossible to stop. If your spouse refuses to comply with an order it is not your lawyer's nor the judge's fault. When the judge divides the stocks that you and your spouse have purchased and you each get half, don't be surprised that just because you were the one who picked the stocks doesn't mean that you get them all. Don't expect the judge to scold your spouse for all the mean things they did to you during the marriage, ain't gonna happen. The judge's role is to listen to your case, examine the documents and make decisions based on the facts of your case, statutes, rules of court and case law. The law is not fair, it's the law.

As a lawyer I have some expectations for you. I expect you to be honest and open with me. I need all the available information to do my job. I expect you to listen to my advice, if your friend Manny the bartender has better advice, hire him. I don't always expect you to agree or even follow my advice, but at least weigh it seriously and discuss it with me. Do not compare your case to other people's divorces. I get tired of explaining that you get $50 a week support because you have 1 child and your spouse is a Walmart greeter and your friend gets $1000 a week because they have 5 kids and their spouse is a brain surgeon. Every case is different.

Have realistic expectations. Unrealistic expectations will only make an already difficult situation even worse. If you need a crazy, dramatic divorce fix, rent the War of the Roses.

Kicking Off Your Divorce

Lesson 2 on the ABC's of Divorce in New Jersey.

You've decided that the thought of dating people with more baggage than you is a better life than staying married, you want a divorce. You've hired yourself a lawyer and you're ready to go.
Your lawyer will start with information gathering. Most of the info is financial. Assets, debts, budgets, income, insurance, investments, etc. Basically everything you have amassed and are now going to share with your undeserving spouse. Be ready for this. Before you see your lawyer, gather all this stuff together and take it with you.

Some of the info is personal, date of marriage, kids, reason for divorce. Also have this ready.
When you see your lawyer, try to stick to the facts. Your lawyer will charge you a hefty amount to sit and listen to what a low-life your spouse is but it won't help your case for the most part. If you really need to blow off steam and trash your spouse, I suggest you grab your best friend and buy them drinks all night for the privilege of being an amateur therapist. Plus they already know the situation and will agree with you.

The first step in the divorce is the filing of a Complaint. Filing fees are $250 unless you have kids, then it's $275 because you get to pay for the parenting class. The complaint sets out all the basic facts including the grounds for your divorce. There are numerous grounds under which you can file and you can file multiple grounds if you're really pissed off. Except when custody is an issue, the grounds don't matter. No-fault means no fault. If you're filing under extreme cruelty you will need specific incidents including dates. For example, on January 1, 2005 my spouse hid my lucky underpants so that I would have a bad year. If you want to use adultery you need names, dates and places. The alduteree also has to be served with a Notice to Correspondent. This does not mean that you spouse has to cheat on you with a television reporter, the adulteree is the correspondent regardless of their profession. Separation is 18 months in New Jersey, please give your lawyer a separation date that is at least 18 months past. If you have the old "spouse in the basement" case you can still file for separation if you have not slept in the same room. Lesser seen grounds are desertion for 12 months, deviant sexual conduct, addiction/alcoholism, being in the funny farm for 2 years and being in the hoosegow for 18 months. Your lawyer will guide you as to the best ground(s) to use in your case.

A summons is filed with the complaint. It tells the defendant, (your spouse who is now the defendant because what they have done to you is criminal), that oyeh, oyeh you are being sued for divorce. In New Jersey, an affidavit of insurance which outlines every single insurance you and/or your spouse has is also filed. This includes, medical, car, life, house, etc. DO NOT mess with any insurance, it is illegal in NJ to drop your spouse from any insurance within 90 days of filing for divorce and thereafter. It may make you happy now to know that your spouse will receive huge doctor bills after you dump them off your insurance but it won't when the judge makes you pay those bills and reinstate the insurance at your cost. A confidential litigant information statement is also filed which gives all your basic info.

Once all this is prepared the defendant must be served. Although there are several way to serve the defendant, I prefer service by sheriff. This is personal service and the sheriff provides an affidavit of service to the court. Plus, isn't it fun to imagine the neighbor's reaction when the sheriff knocks on your spouse's door? It usually costs between $20-$30 dollars. I have on occasion personally served the defendant myself but I can't say I like it, a little awkward. In certain cases you can serve the defendant by mail. If you don't know where your spouse is living, there are substitute ways to effect service which your attorney will explain to you.

If you have children or have not worked for quite a while, you will probably also file a pendente lite motion, a motion pending the litigation of the divorce. In this motion you can ask for custody or visitation, child support and alimony. Depending on your situation, there are other things you can ask for, such as selling assets to fund your divorce or prohibiting your spouse to sell any assets, but these are case by case. Again, rely on your lawyer for this, that's why you're paying them your life savings.

Be prepared for your spouse's response, both in their documents and in court. Although you weren't aware of it, you are a crack head whore. Divorce is like death, right before you are divorced, your life will flash before you but this time it is at the courtesy of your spouse. The fact that you farted during the wedding ceremony will be brought to the court's attention if it will help the case. I suggest that mud-slinging be kept to a minimum unless it really will impact your case, most of my clients disagree with me. Again, use your best friend for this purpose, not your divorce case.

Your spouse has beat you to the court house and you have been served already. You will have to file an answer and/or a counterclaim or an appearance. This will cost you $135 unless you have kids and then it's $160. Your lawyer will also tell you the best route to take here. You will have 35 days from when you were served so don't drag your heels or you may find yourself divorced without any participation on your part. Your spouse does not need your cooperation to get a divorce.

Congratulations, you are the proud owner of a docket number. Next lesson, the discovery period.