Chapter 5 When You Can't Agree: Contested Divorce and Trial

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 5 When You Can't Agree: Contested Divorce and Trial

Finding the Right Lawyer

Where to Look for a Lawyer

Interviewing Lawyers

Paying the Lawyer

The Retainer

The Fee Agreement

What You Can Expect to Pay

Is Fault a Factor?

Getting Started

Getting Your Financial Information Together

Temporary Orders

Going to Court

Gathering Information for Trial: Disclosures, Discovery, and Digging Up Dirt

Mandatory Disclosures

Requesting Information

Is Your Spouse Hiding Assets?

Witness Lists

Evidence of Fault and Other Wrongdoing

Settle, Settle, Settle!

Negotiating Along the Way: Written Settlement Offers

Last-Minute Negotiations: Settlement Conference

Evaluating Settlement Offers

The Pretrial Conference

Anatomy of a Divorce Trial

Opening Statements

Petitioner's Case: Evidence and Testimony

Respondent's Case: Evidence and Testimony

Petitioner's Rebuttal

Respondent's Surrebuttal

Testimony From a Child's Lawyer or Custody Evaluator

Closing Arguments

The Judge's Ruling

After the Trial

Attorneys' Fees

The End Result, in Writing

Appeals

Picking Up the Pieces

A contested divorce is one in which you and your spouse can't agree on the big issues—and most likely, the small ones, either—so you hire lawyers to fight it out for you. You may end up settling, after your lawyers have spent lots of time and lots of your money arguing with each other on your behalf. Or you may end up in front of a judge, going through a divorce trial that ends with the judge making decisions about your family and your future.

Even if you are totally convinced that you and your spouse are going to have a perfectly civil divorce, it's a good idea to review this chapter so that you know what happens when spouses take their personal and financial grievances to court. If nothing else, it will serve as a cautionary tale. Someday, things may look bleak and you'll think you just can't compromise any more, or your ex may be acting like such a jerk that you can't remember why you ever got married in the first place. On that day, knowing what a contested divorce looks like might be the best thing in the world for you. It will help you to take a deep breath (or a break) and return to negotiations with a renewed sense of purpose: to avoid spending the money, wasting the time, and losing the mental and emotional energy that will be sapped out of you in a contested divorce proceeding. Oh, and did we mention the harm to your children and the lifelong bitterness that a court fight can create?

Given the time, expense, and overall awfulness of a divorce trial, why would anyone choose one? Well, maybe neither you nor your spouse is willing to compromise on issues that you both feel strongly about. For example, if each of you is utterly convinced that conceding custody of your kids to the other would be terrible for the kids, you're going to have to let a judge decide. Likewise, if your spouse is the primary income earner in your family, but refuses to pay what you consider a reasonable amount of support or insists on dividing property in a way you think is completely unfair, you may have to try to convince a judge to see your side. If you think that your spouse is hiding assets or lying about their worth, you might need a judge to review the evidence and decide who's telling the truth. And of course, if you can't get your spouse to negotiate with you at all—in other words, it's their way or the highway—you'll have to get a court to step in.

Before you decide to go to trial, though, take a good hard look in the mirror and ask yourself whether it's really necessary. Are you truly concerned about the kids, or just mad at your spouse for leaving you in the first place? This is no time for being vindictive. Punishing your spouse will punish your entire family, now and for a long time to come.

This chapter describes the process of a contested divorce, from the first meeting with an attorney to deciding whether or not to appeal after the trial. It assumes that you are going to have a lawyer, because you'll need one.

Representing Yourself in a Contested Divorce (Not) In a contested divorce, the stakes are high, and there's a lot of animosity and not much spirit of compromise. In other words, it's the type of situation for which lawyers were invented. Can you represent yourself? Well, if your spouse doesn't have a lawyer and the two of you want to slug it out in the courtroom without the benefit of legal counsel, go for it. At least you'll be on equal footing. There are certain advantages, besides the cost saving, to representing yourself—for example, you maintain control over how your case is handled, which can reduce your anxiety. With the increase in unbundled legal services (having a lawyer help you with only part of your case) and self-help centers, it's becoming easier to get help and support for some parts of your case without hiring a lawyer to take care of everything.
However, in many contested cases, especially in locations where self-representation isn't very common, you're probably better off hiring a lawyer. Courtroom procedures can be complex, and the law is not always as accessible as you would like. If you're going all the way to trial, you probably feel that there's a lot at stake—so make sure you have as much help as you need.
If you are considering representing yourself in a contested divorce, look for do-it-yourself materials from your local court (check the list of websites in Chapter 16). Chapter 3 has basic information about filing papers and dealing with courts in uncontested divorces; you'll have to find more help if you're going it alone in a contested case. For example, check out Represent Yourself in Court, by Paul Bergman and Sara Berman (Nolo).
One divorced dad who represented himself in a custody trial said ...
" I think a person who can think rationally and has the emotional wherewithal can do self-representation, especially with some help from a coach. It's like house painting—90% is preparation. I didn't end up using my legal coach much after she first helped me with the petition to modify custody. I relied a lot on books like Represent Yourself in Court, and on Bender's legal forms in the law library. The hardest thing is to keep your equanimity, not get too up or down about the things that happen. It can be really hard on a partner, too, so you have to make sure it doesn't take over your life."

TIP

Consider arbitration as an option. You may want to consider arbitration instead of court. Ask your lawyer about it after you read up on the basics in Chapter 1.

Finding the Right Lawyer

If it is your spouse, not you, who is making an expensive and nasty divorce trial necessary, keep in mind that you don't have to get nasty yourself. You still can, and should, take the high road. This begins with your choice of a lawyer. Try to find a lawyer who will do everything possible to resolve the case before it gets to a trial and will respect your desire to spare your family a bitter fight.

Don't think that just because your spouse hired an aggressive lawyer, you have to do the same. There's more than one way to represent a client, and the best lawyers are versatile. They begin by doing everything possible to settle, and if that's not possible, they work as aggressively as is required to protect their clients' interests.

Dos and Don'ts When You're Shopping for a Lawyer Don't:

• Go around asking your friends for the most cutthroat, litigation-happy, no-holds-barred divorce attorney they've ever heard of.
• Hire a lawyer who badmouths your spouse even before their first meeting.
• Choose a lawyer who tells you that you can get whatever you want out of your spouse if you just fight hard enough.
• Rely on a lawyer's statements that your spouse will have to pay all of your attorneys' fees, so it doesn't matter if you litigate like crazy. You might get your fees back, but then again, you might not.

Do:

• Look for a lawyer who will represent your interests whether that means fighting it out in court or making sure you get into mediation.
• Ask your divorced friends and family whether they liked their attorneys, and find out why.
• Meet with more than one lawyer to get a sense of what personal style works for you.
• Find a lawyer who will treat both you and your spouse with respect and who considers the welfare of your kids the top priority.

Where to Look for a Lawyer

There are a lot of places to go looking for a lawyer. The best one, though, always is a recommendation from someone who knows the lawyer and the lawyer's work in cases like yours. If you've ever used a lawyer for any other type of case or services, ask that lawyer for a referral to a divorce lawyer or for help checking out the reputation of lawyers whose names you get from others. If you have a marriage counselor or an individual therapist, ask for referrals. Ask family members, friends, and acquaintances. If the same name pops up more than once, pay attention—but don't choose your lawyer just on that basis.

If you can't find a personal referral, try professional associations of family law attorneys. The American Academy of Matrimonial Lawyers (AAML) is a national organization with admission standards that require members to be experienced and skilled practitioners. It shouldn't be a deal-breaker if the lawyer isn't a member, but membership is a good indication that the lawyer is reputable and competent. The AAML has an online directory (www.aaml.org) that lists members.

Your state may have an association of divorce lawyers, and your local bar association surely does. They very often have referral services. The downside to these services is that the lawyers who place themselves on the referral panels sometimes do so because they are inexperienced or are having difficulty getting clients. But this is not always the case, and at the very least you can be assured that the bar association will have made sure that the lawyers are licensed to practice law and have...