INDUSTRY INSIGHT
FAMILY LAW
DIVORCE: PROTECT YOURSELF AND
YOUR CHILDREN – Part 3
I
n previous articles I discussed choosing your legal advocate
(attorney), the importance of effective communications with your
lawyer, and the initial sets of documents you shall want to complete
for your lawyer. In this article, I discuss the importance of negotiations.
You and your spouse can come to an agreement before, during,
or after the divorce. You usually achieve the optimal result (blend of
outcome, emotional strain and costs) by reaching agreement with
your spouse through negotiations. If mutual agreement between
spouses cannot be achieved, with your respective lawyers advising
you while you are actively involved in the negotiation process, the
only other alternative is to go before a judge. If a trial is needed, the
judge will resolve the disputes and you will be required to live with his
or her decisions.
Let’s talk about judges for a moment. Your judge may not be the
understanding person you imagine or desire. You nor your lawyer can
choose the judge. Your judge may not be someone who will see that
you have suffered emotional pain because of your spouse’s conduct.
Judges may be impartial, but they are extremely busy and they are
human.
Like any human, your judge has his or her own problems. The day
your case is scheduled for trial may be one of your judge’s “bad days,”
and you could be a victim of his/her humanity, failings and limitations.
In any case, undoubtedly the judge will be wading through a docket
full of cases. Some of them may not even be used to ruling on divorce
cases, which can happen with newly elected judges who did not
practice in the family law area.
No-Drama Divorce!
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Former mediator for the Allegheny County Child Custody
Program, the US Post Office and the US Bankruptcy Court.
Trained & Practicing Mediator & Collaborative Lawyer
Current Forensic Accountant, Former CPA
Expert Witness for Business Appraisals
Fellow of the American Bar Foundation
Chair of the Taxation Division
of the Family Law Section
of the American Bar Association
Divorce Survivor
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Since they are under pressure to clear their dockets, judges usually
take a realistic approach to divorce — meaning, they are more
inclined to say, “Your marriage is over. Neither of you will have to
live with each other anymore. That is your reward for your spouse’s
conduct. Now let’s divide the assets fairly so we can all move on.”
Divorce is not about revenge, especially for a judge who sees
hundreds, if not thousands, of cases per year. For your judge, it
is about overseeing the way you get on with your life. Once the
judgment is rendered and the gavel pounds, you are stuck with the
ruling, so trial should be the last resort.
Everyone has different goals for post-divorce life. For some it means
receiving a fair portion of the assets accumulated during the marriage.
If that is your goal, the most important ally in obtaining that goal is
yourself. Therefore, you should try your best to reach an amicable
agreement without going to trial.
You should include any provisions you and your spouse can agree
upon in your settlement agreement. There is a caveat however for
children. The best interests of the child must be considered. Your
settlement agreement may include provisions that divide your
savings, your debts, and property. It may even includ