“We learn from the valleys, not from the hills.” — Miakoda in Shadowheart

You start a divorce with a Complaint.  The other party files an Answer and may also file a Counter-Complaint.  You then have to file an Answer to the Counter-Complaint.

The person who files the Complaint is called the Plaintiff.  The person who files the Answer is the Defendant.  But when the Counter-Complaint is filed, the Plaintiff also becomes the Counter-Defendant and the Defendant also becomes the Counter-Plaintiff.

This all makes for cumbersome and confusing writing and speaking.  A judge once interrupted me in court with “We just have two parties in this case.  The Plaintiff and Defendant.  Let’s keep it like that.”

In another case I filed a Motion.  Opposing counsel filed an Opposition.  I filed a Reply to the Opposition.  Opposing counsel filed a Sur-Reply to my Reply.  When we got to the hearing, the judge told us, “ We only have Motions, Oppositions and Replies in my courtroom.  There are no such things as Sur-Replies.”

Good advice.  Like everything in life, it pays to keep it simple in divorce court.

There is no easy way to bring up this conversation.  Some people just can’t do it, and pay their lawyers to send a letter to their spouse asking for a divorce or separation agreement.

But when clients ask me how to do it themselves, I give them this advice.  Use questions.  Here are some of the questions I suggest to get the discussions started.

Are you happy with our marriage?
Do you think I’m happy?
What should we do about it?
Do you think we would be happier if we separated?
When you look at our future together, what does it look like?
Do you want a divorce?
Do you think one of us ought to see a lawyer?

by Michael F. Callahan

Jean and Joe had been married a long time but they did not spend much time together.  Jean was the high earner and she spent lots of her time on the road for business. The clearest event establishing the separation was Jean’s purchase of a home in Virginia in her own name seven years ago.  Husband lived in Maryland.

Because the date for determining whether property is marital is separation in Virginia and the trial date in Maryland, Jean’s lawyer decided to file the case in Virginia rather than Maryland. Otherwise Jean might have to divide everything she had acquired over the seven year period that the spouses had lived apart and had completely separate finances.

Joe’s lawyer filed an Answer submitting Joe to the Virginia Court’s jurisdiction and never raised the lack of personal jurisdiction.  If Joe’s lawyer had gotten Jean’s Virginia case dismissed for lack of personal jurisdiction and filed Joe’s complaint in Maryland, everything Jean had accumulated during the seven years of separation up to the date of divorce or would have been marital property.  The case settled on favorable terms to Jean.

Pray for You
by
Jaron & The Long Road to Love

I haven’t been to church since I don’t remember when
Things were going great til they fell apart again
So I listened to the preacher as he told me what to do
He said you can’t go hatin’ others who have done wrong to you
Sometimes we get angry but we must not condemn
Let the good Lord do his job, you just pray for them

I pray your brakes go out runnin’ down a hill
I pray a flower pot falls from a window sill
And knocks you in the head like I’d like to
I pray your birthday comes and nobody calls
I pray you’re flyin’ high when your engine stalls
I pray all your dreams never come true
Just know wherever you are, honey, I pray for you

Tipper Gore and Al Gore announced in an email to friends that they are separating after 40 years of marriage.  They said they labored over the decision for a long time and reached a mutual agreement to live separately.  The reason given was that they had grown apart.

My wife and I have different pursuits.  She stays home with our children.  She is the president of the PTA.  She is working on a local political campaign.

I manage a busy law office and spend most days puzzling out how to untangle complex financial relationships between divorcing spouses.  Sometimes, while I am in the middle of a million dollar deal, and trying hard to concentrate on some troublesome aspect, my wife will call me.  The fish died, my son made the swim team, what was in that salad we had last week, and oh by the way we need milk.

Do I stop what I’m doing, take a deep breath and redirect my mind to her world?  You bet.

We are different, but we respect the differences, sometimes even finding humor in them.   We have different worlds but they intersect at home, family and raising our children.  We interact, communicate and participate.  Growing apart is a decision you make.  The opposite decision is staying together.

Sometimes I draft a Separation Agreement, send it to the other side, and receive a response that says “My client rejects your proposal.”

Or the other side will send me a proposal and my client says, “It’s ridiculous.  I don’t like anything about it.”

Both responses leave something to be desired in moving the case forward.  So my reply is always, “What, specifically, don’t you like about it?”

This simple question seems to disengage emotion and engage logic.  Once I get the other side, or my client, going through the document item by item, we can discuss options, concessions and counterproposals.  I put these in a letter to the other side and we can then focus only on the objections, which narrows the issues to be negotiated.

by Jill H. Breslau

Substance

When clients talk to me about divorce, their focus is usually on the substance, that is, the decisions that have to be made on issues like legal and physical custody of their children, child support, alimony, and how to divide their property.  It is, of course, critically important to make thoughtful and reasonable decisions on these topics.  If both parties can make them together, a judge won’t have to make them instead.  But what is the process for making these reasonable and thoughtful decisions?

Processes

• Litigation. If you go to a lawyer, the idea may naturally be that you will litigate your divorce.  This means filing a complaint in court, going through all the procedures for discovery to find out what your spouse earns, spends, owns, and owes, and finally providing all that information to a judge, who makes the decisions.  However, there are other processes that people don’t always consider.
• Mediation. Mediation is a process in which both parties sit down with a neutral mediator who facilitates their discussion.  If they reach an agreement, the mediator may draft an agreement for them, or they may ask one lawyer to draft the agreement and one to review it.  Then their agreement forms the basic guidelines that they will be governed by post-divorce.
• Collaborative Law. Another process is collaborative law, in which both parties have lawyers and everyone agrees to engage in problem-solving, rather than in litigation.  They may also choose to have a financial neutral, who helps figure out the best financial options for the family, or psychologists who act as coaches to help them manage their emotions during a trying time, or a child specialist to assist them in making decisions for their children.

Values

These three processes, litigation, mediation, and collaboration, are all accepted by the legal system.  How do you choose?  Well, your choice will depend on several factors.  Your spouse’s willingness to engage in mediation or collaboration is fundamental, so if your spouse is determined to litigate, you can’t force another process.  Your finances may impact your decision.  But one element that influences your decision, often without being explicitly stated, is your own value system.  Are you naturally a fighter, and do you believe that divorce is a battle to be won?  Are you naturally a peacemaker, and do you believe in the possibility of cooperation and healing?  And if you are a little bit of both, what process will best help you build a foundation for your future?  Thinking about your values and hopes is important in divorce.  You can’t control how your spouse feels, but you can stay aware of the values that drive your own decisions and try to have a divorce that is consistent with who you are.

CHAPTER FIVE – GIVE AWARDS

“Bought dollar-store motivational stickers (”Great!” “Super Work”) to adorn the best of tonight’s pile of graded homework. Actually got the idea from my graduate school professor, who proved that one is never too old to get excited about a colorful “Awesome Job!” sticker.”  – Dr. Sara Romeyn

Hey, I want a sticker, too!  We all do.  Our inner child never tires of approval and a gold star.  Doesn’t it make you feel good to be acknowledged for something you did?

All to often we get criticism instead.  For some reason, it is easier to criticize than to praise.  Criticism comes naturally when we are upset or angry.  Praise has to be planned and takes some extra energy.

Make a decision to give your significant other an award today.  It can be a flower, a compliment or even an Awesome Job sticker.  Let him or her know how much you appreciate them.