dec152008

Dispelling the Myths of Expensive Litigation

What Your Lawyer Won’t Tell You: It Takes a Village to Get Divorced

Karen A. Stansbury, Attorney at Law

Founder and Co-Chair, Professional Women’s Alliance of Connecticut, pwa-ct.com

December 15, 2008

I pitched the idea of forming a professional women’s networking group to my co-chair, Elizabeth Cox, over lunch back in August of 2008. By early December we had fourteen professionals on board, a website, and a publicist. The reaction of many women to whom I have spoken since is virtually the same: why wasn’t this resource available when I was getting divorced?

The answer is simple. Lawyers don’t make money by farming out work to other professionals.

Myth number one: Lawyers are experts on tax. The reality is that most attorneys, unless they specialize in tax, don’t have a clue when it comes to dealing with the IRS. They have their own CPAs, so why shouldn’t you? A dear friend of mine has been divorced for about ten years. She was represented by a well known firm in Fairfield County, and she has been paying for it ever since. Her unallocated alimony, after taxes, leaves her in a huge financial hole every month. Why unallocated alimony, rather than child support? It’s a deduction to the person paying it, usually the husband, and taxable income to the recipient, usually the wife. Talk to a CPA and/or a financial planner, before your separation agreement is signed. It may save you thousands in the long run.

Myth number two: Lawyers understand pensions. Again, the reality is that most attorneys don’t have a clue about deferred compensation plans. I attended a Fairfield County Bar seminar on Qualified Domestic Relations Orders (QDRO) last year. The speaker is one of the few attorneys in the state who specializes in drafting QDROs for other lawyers who are representing the parties in their divorce. By the end of this woman’s talk, the fear of malpractice in the audience was unmistakable. Thankfully, I have never drafted a QDRO. Apparently I am among the few. If you or your spouse is an employee of XYZ Corporation, and distribution from a pension is an issue in the divorce, please make sure that the QDRO is drafted by someone who specializes in the area. If your divorce attorney registers disapproval about your decision, s/he is operating on pure ego, and should consider another line of work. You will have to live with the after affects of your divorce judgment for many years; your lawyer won’t.

Myth number three: Lawyers are there to protect you. Ideally this is true. There are still plenty of attorneys, myself included, who take their oaths seriously, and who are committed to serving the public. However, as with every other profession, we do have dead wood members as well. I tell all of my clients a simple rule: take a proactive stance, rather than a reactive stance, with all aspects of life, and especially with divorce. I had a client come to me from a well established old time divorce lawyer. His advice to her? “Don’t worry about alimony, honey. You’re pretty; you’ll just marry another rich guy.” Go with your gut. If an attorney’s advice doesn’t sit well with you, get another opinion.

Myth number four: If one spouse leaves the marital home, s/he won’t get the house in the divorce. I’ve heard attorneys spout this maxim many times over the years, and it is nonsense. Connecticut is a fact pleading state, and every divorce is fact specific. There are no magic formulas, and the statute gives judges wide latitude to determine what is fair and equitable in each specific family scenario. Please look at Connecticut General Statutes section 46b-81. If you can’t find it on line, most public libraries, and all courthouse libraries have copies of all of the Connecticut volumes. CYA is always a good idea. Hire a mental health professional; file the appropriate motions. But if you are miserable, and certainly if you are feeling physically threatened in the marital home, then by all means get out if you can. Have your attorney deal with the facts; that’s his/her job.

Myth number five: The divorce judgment will always be a 50/50 split. Again, judges in Connecticut have broad discretion in divorce court, which is a court of equity. Simply stated, if the judge finds that a fair and equitable division of the marital assets is, for example, 70/30, then this will be the judgment of the court. I recently got into a rather heated discussion with another dear friend. Knowing what I do, and that I’ve been doing it for twenty years, she still argued vehemently that Connecticut is a community property state. Finally, I inquired as to the source of her information. “My husband,” she replied. Connecticut is a separate property state. The judge is going to award each party what is fair and equitable, given the specific facts of the case. If you and your spouse can come to an agreement along those lines without going to court, even better.

There is still much that needs to change, and it has to start with the Bar. The hourly rates for divorce lawyers in Fairfield County are astonishing. We live in possibly the wealthiest county in the US, and unfortunately many of its inhabitants believe that the most expensive attorney equals the best representation. If you are one of those people, ask yourself the following questions: Why is my divorce lawyer worth more money an hour than the best employment attorney, for example? Why is my lawyer always in court? Why have communications with my spouse completely broken down since we started the divorce?

Except for death of a loved one, divorce is the most stressful life transition that a human being must endure. Have you heard the old joke: what’s the difference between a divorce lawyer and a catfish? One’s a scum sucking bottom-dweller, and the other is a fish. A husband claims that his wife is cheating, and he wants revenge. A wife claims that her husband is concealing assets, and she wants him punished. These are the words that divorce lawyers love to hear. They will continue to stir the emotional pot because it generates fees. They will continue to get the exorbitant fees that they are charging, as long as people are willing to pay them.

Tips about interviewing a divorce lawyer: Many matrimonial attorneys practice what I like to call conveyor belt divorce law. They throw you into the mix with all of the other poor souls who they are representing, and they move you along with motions and depositions and conferences until you beg to relocate to Costa Rica just to get away from it all. Above all, a divorce attorney must be compassionate. We are not therapists. We are, however, dealing with people who are experiencing possibly the worst crisis of their lives. If your initial consultation with a lawyer involves attacks on your credit card debt, your employment status, or your love life, run---don’t walk---out his/her office door. I’ve often heard divorce lawyers announce that the best female client has no income and maxed out credit. Again, run as fast as you can. Finally, if your lawyer tells you “don’t worry if the separation agreement doesn’t work, we’ll just file more motions after the divorce,” find another attorney immediately. This person is making strategic decisions that will affect your life for years to come. Make sure that along with experience and professionalism, your lawyer is kind. Your future is in his/her hands.

I’ve been trained in collaborative law and mediation, and I’m a member of three organizations that claim to extol the virtues of settling cases out of court. In principle I could not agree more, but again, there is still much that needs to change. I was involved in a collaborative case last winter; the husband had secretly willed away all of the marital assets to his kids from his former marriage. Collaborative divorce is supposed to be negotiations in a supportive environment. In this case, however, the husband’s attorney announced to the wife: “There, there little lady. If your husband dies before the divorce is final, you’ll still get the elective share.” For those of you who are unaware of the statute, this translates to practically nothing, but includes years of court battles to settle the estate. The wife would have been financially destitute. In this same scenario, the wife had worked for the husband in the family business for the entirety of the marriage. The husband had kept all of the marital assets in his name; he had never paid his wife a salary, nor had he paid into the wife’s social security, or set her up with any kind of savings plan. She had no cash flow other than what her husband dribbled to her, and her credit cards were maxed out. The husband’s attorney saw no problem with any of the aforementioned, and advised the wife not to do any big spending while negotiations were going on. My response: With what? Even the best of intentions can still engender incompetence.

A few final tips: Divorce is horrible, especially if there are kids involved. Get as much help as you can, as soon as you can. Mental health professionals can be a tremendous support system, but financial security is equally important. If you plan to buy a new home after the divorce, talk to a mortgage specialist before you sign the separation agreement. Make sure that you know the current value of your home if you own one. Hire a real estate lawyer if you are selling. If you don’t have a CPA or a financial planner, consult with one or both, before the dissolution. If you need advice regarding health or disability insurance, or even car insurance, call an insurance specialist. If you are concerned about estate planning, find a lawyer whose practice is primarily estate planning and probate. If you haven’t worked in a while, consider speaking to a career coach. It takes a village to get divorced.

Dispelling the Myths of Expensive Litigation: What Your Lawyer Won’t Tell You: It Takes a Village to Get Divorced