In my last article, I discussed how I came to be made a fugitive by my financial circumstances following my divorce. In this one, I will cover the financial preparations that you should make if you find yourself pursuing a divorce in the family court system.
The Divorce Process
First, let me briefly explain the divorce process. The person who files for the divorce is known as the plaintiff. The other party, who receives the papers, is the defendant.
The plaintiff will file papers that effectively state the judgment that they would like. The plaintiff will also file a statement of net worth. This is a list of all income, assets, debts, and expenses. It's better to be the plaintiff than the defendant. I will explain why shortly.
Serving the Papers
The initial divorce petition and complaint by the plaintiff is required to be personally served on the defendant. This is usually performed by a person known as a process server. However, there are process servers out there who claim and swear under oath that they have personally served papers on a party when that wasn't actually the case. This happened to me. It’s known in the legal trade as “sewer service.”
Once the papers are personally served on the defendant, the defendant is subject to an automatic stay on certain actions. What this means is that the defendant is not allowed to sell assets, change jobs or health insurance, or make other material changes to their financial circumstances without the permission of the court.
The defendant will answer with a copy of their own statement of net worth and either agree to or reject the plaintiff's proposal. If the two parties don't agree, then one of them is likely to file a motion with the court to be awarded “pendente lite” maintenance from the other. This is a presumptive amount of money immediately payable from one side to the other during the length of the proceedings.
Mediation and Discovery
There will be a series of court meetings with a court-appointed referee who will attempt to divine whether it is possible to reach a settlement via mediation.
Given that you will have attorneys present during these meetings, it's unlikely that you will be able to mediate.
So the divorce process will then continue to what is known as the “discovery” phase. At this point, you will not have a trial date.
In the discovery phase, both sides will send lists of questions and demands for information to each other. These requests can be wide-ranging and will contain such demands as requests for pension statements, bank statements for the preceding three to five years, credit card statements, and so forth. Both sides will attempt to obtain financial documents from each other that strengthen their case. This phase is very expensive and can take many months.
Following that, each side will “depose” the other. A deposition is where you sit in a room with your attorney and you are asked questions by the opposing side’s attorney while on the record. Every word is taken down by a court reporter (who will charge you per line for the service). The purpose of the deposition is to obtain further information that the opposing side can use in their case, and to try to limit any responses that you make in a trial.
Finally, when the discovery process has gone on for as long as the attorneys can drag it out, the plaintiff will eventually file notice with the court that it's finished. If needed, they will also request a court date for the trial.
This is why it is better to be the plaintiff than the defendant. The plaintiff sets the speed of the divorce process. If you want to get the process over with as cheaply and quickly as possible, then you’re in a far better position if you’re the plaintiff.
Before the trial, the opposing attorney will file a subpoena with your bank and anyone else related to the case — such as your employer — requesting that certain records be sent to the court as evidence. This means that if you attempted to falsify or lose any documents in discovery, it will come out in the trial because the court and the other side’s attorney will receive the original records.
Once the process moves to trial, you will attend court and undergo a trial with witnesses. (Both sides may take the witness stand.) Again, the process may take days or weeks.
At the conclusion of the trial, you will eventually receive a judgment of divorce, which may also dictate the fees that need to be paid to the attorneys. After that, the court will lose all interest in you. Not so the attorneys, who will be very interested indeed that the bills are paid.
The Cost of the Divorce Process
This process is eye-wateringly expensive. Assume that your attorney bills you $300 to $500 per hour. A day in court (including travel and lunchtime) will cost you $4,000 for one attorney. All the meetings with court referees, emails, reviewing documents, preparing an answer and a statement of net worth will again cost you per hour.
Your bill may easily exceed $5,000 to $10,000 a month. In fact, it may even run into the six-figure territory over the year that the proceedings will likely take.
Since there is the assumption in some states such as New York that the more moneyed spouse pays the fees of the other party’s divorce attorney, you can take the above figure and triple it. The opposing attorney is likely to generate maximum billing in the assumption that the other side will have to pay it.
Let me give you some concrete figures. In my contentious divorce, where there were no real assets to squabble over, my legal bill cost about $140,000. My ex-wife’s legal bill was $250,000. I had to pay both bills — in addition to paying her 75 percent of my take-home income. To make matters worse, attorney fees generated as a result of divorce litigation are not dischargeable by bankruptcy.
Your attorney will not advise you on how to save money. Or if he does, he will omit certain important details. There are certain things that your attorney is simply not allowed to advise you about.
How to Survive Divorce: Some Final Tips
The divorce process is very draining. You will constantly be on your guard. You should say as little as possible in writing to your estranged spouse and be extremely careful about what you say. This is very important.
If you receive an email with a statement in it that you don't like, remember that you don't have to answer it directly. Such emails are often written by an attorney and sent to annoy you and make you commit an email blunder. I recommend that you respond to such emails with the following:
“Thank you for your note. It is not accurate. I am happy to discuss with you in person. However, I do not wish to discuss further via email at this time. Thank you.”
*Name has been changed for privacy