Common Myths Regarding Divorce Cases
Jul 13, 2016 | Written by: Share|
Myth #1: My Lawyer Cannot Properly Represent Me If He/She is Friendly with the Other Lawyer
Many of the attorneys who focus their practice on family law in New Jersey are likely to know each other. Especially when attorneys practice primarily in counties close to their own offices, they get to know many of the other local attorneys by having cases with them, seeing them in court, and seeing them at Bar Association events and seminars. A client who sees his/her lawyer being friendly with the other party’s attorney should not think the lawyer is not properly representing him/her, or that the attorney is somehow in favor of the other side’s position. To properly do their jobs, lawyers do not need to carry animosity toward each other. In fact, the contrary is true. A lawyer showing animosity toward the other lawyer will not help to settle or litigate the case. Lawyers who dislike each other tend to get distracted with personal attacks on one another, rather than focusing on their clients’ best interests. While sports analogies are over-utilized (including by me), practicing law in a divorce case is similar to a sports competition. Athletes can compete against each other at high levels and still be friendly toward each other, both before and after the competition. It does not impact their level of competition. The same is true for lawyers.
Myth #2: Only I Have Compromised My Position, the Other Side Has Not Compromised at All
It is common in divorce cases for both sides to believe they have done all the compromising and the other side has not compromised at all. While there are occasional cases where one side may compromise more than the other side, it is very rare that one side has done all the compromising and the other side has not compromised their respective position in trying to settle the case. What is more important to consider is whether an agreement is fair to both parties, rather than who may have compromised more in getting to the agreement.
Myth #3: The Other Parent Is Trying to Take My Parenting Time
Many times married or unmarried parents going through litigation regarding parenting time have the mistaken belief that the other parent is trying to take their parenting time away. In the far majority of cases, both parents want to spend as much time as possible with the child or children. They are focused on their own parenting time and are not specifically seeking to take away the other parent’s time or to limit the other parent’s involvement with the child. However, parents must always realize that children need both parents actively involved in their lives with an appropriate amount of parenting time. I recently heard a Judge mention that “a child has enough love for both parents” and “it should never be a competition about who the child loves more.” That is an important point that parents must consider.
Myth #4: I am Entitled to Keep “My Assets” That I Obtained During Our Marriage
Many times parties in a divorce action mistakenly believe that they are entitled to keep their retirement accounts that were acquired during the marriage, or other assets that were acquired during the marriage simply because the assets came from their income. Typically, assets acquired during the marriage are considered marital and are subject to distribution in a divorce case, regardless of whose name they are in or whose income was used to purchase them. Entering into a divorce, parties should be aware that any assets acquired during the marriage are not “mine” or “yours,” but “ours.” As part of the divorce, all of “our” assets are divided.
Myth #5: I Will Convince the Judge to Rule in My Favor by Telling the Judge “My Story”
The Judge hearing the case must analyze the facts based upon the statutes and case law. The Judge will hear both sides of “the story” and the focus will be on all the relevant factors. The Judge will do what is fair and equitable for both parties based on an analysis of the facts, setting aside many of the things people want to tell the Judge that are irrelevant. “My story” usually contains many irrelevant facts and does not sway the Judge in “my” favor.
Myth #6: My Spouse Wanted the Divorce, So I Should Receive More
In New Jersey, it does not matter who files for divorce, and in the majority of cases the grounds for the divorce do not matter, which is why most parties file under “irreconcilable differences.” Except in very limited circumstances, fault in a New Jersey divorce is irrelevant. As I have heard a Judge tell respective parties, “there is no cause of action for lack of appreciation during a marriage,” so do not expect to receive more because your spouse wanted the divorce or you believe they were at fault during the marriage.
Myth #7: My Children and I Are Fine, No One Needs Counseling
While many times children hold in their emotions and do not show outward signs of the emotional issues they are dealing with during a divorce, the majority of children going through the process could benefit from some counseling. Whether it be with a school counselor, a therapist or even a family member, children need to be able to express their feelings in order to get through the process and move forward to become healthy adults. When they keep everything in, it tends to come out later in their life and can impact their relationships, their employment and their ability to properly function as an adult. Similarly, parties going through a divorce process need emotional support. They need to be able to express themselves and receive feedback from others. Whether it be through co-parenting counseling, individual counseling, being part of a support group, confiding in a close friend or family member, or meeting with a leader in a religious organization, it is important for individuals to get support so they can deal with the difficult emotions they will experience going through the divorce process.
Myth #8: Litigating the Case Rather Than Settling Will Bring Finality
A settlement is just as binding and enforceable as a Judge’s decision in a litigated case. In addition, statistics have demonstrated that the far majority of post-judgment applications to the court (applications to the court after the case is over) come from cases that were litigated and decided by the court, rather than cases that were settled by the parties. In settling cases, the parties are able to craft an agreement that specifically relates to the facts of their case. While each party does not get everything he or she wants in a settlement, they can tailor an agreement to try to address each of their concerns. Parties who settle their case are less likely to file motions with the court after the divorce is over and are more likely to follow the terms of their agreement and also try to work out any issues that arise after the divorce.
Myth #9: My Case Can be Completed Quickly
Parties going through a divorce often underestimate the time their case will take. Certainly if they are going to litigate the issues in the case, it is likely the case will take more than one (1) year from the date the complaint is filed, possibly two (2) or even three (3) years. Parties also often underestimate how long it will take to settle their case. Even cases that may seem straightforward can often bog down in settlement negotiations and take longer than anticipated to settle. Every case will continue on until both parties reach an agreement as to settlement or the court decides the issues. Very few cases settle within a short period of time, and unless the parties have already reached a settlement when they come to meet with attorneys, they should not expect the case will settle quickly.
Myth #10: The Retainer Amount is an Estimate of the Costs for the Divorce
The retainer is a fixed amount that does not relate to the actual cost of the divorce. The retainer is simply a deposit toward attorney’s fees, and parties are expected to replenish retainers when those retainers are exhausted. Some cases will settle prior to the initial retainer being exhausted and the balance of the funds will be returned to the client. However, that is not common and it is more often the case that the attorney’s fees will exceed the initial retainer. While one of the most common questions from clients is how much will my divorce cost, unfortunately, attorneys cannot answer that question without knowing how long the divorce will take and how much attorney time will be involved in bringing the case to a resolution.