Legal Questions about Divorce

Factual Questions
1

No, not mine.

My parents are getting a divorce after 20 years. And apparently it’s not enough for my dad to simply leave, he must make life as difficult as possible for my mom.

I gathered the following details from my mom tonight, and as she talked, I got the gut feeling that something was wrong. I’ll give you the gist of what she told me.

[ul]
[li]That he didn’t want her to hire an attorney because it would “cost too much”. He would talk to a paralegal for both of them[/li][li]He would not pay her alimony because she already has a job. She makes 26,000/yr, he makes 56,000/yr (if that’s relevent)[/li][li]She MUST sell the house. She does not have a choice in the matter[/li][li]He’s going to file for joint custody, even though, truth be told, he is NOT a good father. [/li][li]He moved out this weekend, but he will not give her any money for this months house payment. The problem is, all the consumer debt is tied up in the house payment. Therefore, mom will be responsible for basically ALL the bills, including his (expensive) truck[/li][/ul]

I told her she must retain a lawyer, no matter what he says. She cannot protect herself in the proceedings, and get the divorce settlement she deserves if she does not. But she’s still unsure, so I told her that I would do some research on it tonight, and send her an email tomorrow with some advice.

IANAL, so I thought I’d come here first to see what you brilliant and wise people can tell me. I’m also doing an internet search in the mean time.
Thanks in advance.

2

get your mom to a lawyer asap your dad is wrong on all points

3

Hiring a lawyer generally won’t cost as much as not hiring one will. Most lawyers (here anyway) will at at least consult with your mom for free and tell her what they think her best options are. Tell your mom to ask around and find someone decent to at least talk to.

4

Your dad may be a bastard but it often helps to look at the situation dispassionately in order to determine the best course of action. In the end divorce is mostly a battle over resources and depending on whether the contending parties play it smart or stupid this can be win-win or lose-lose. It’s rarely win-lose or lose-win in real life terms unless one of the partners is wealthy and the other is not.

1: Re an attorney he is right to an extent, in that , if the process becomes extremely adversarial legally the “household” dollars will go directly to the lawyers. Sometimes, however, people need to go through the process.

2: Given the described situation and the relative incomes of your mother and father, in most states in the union, it is highly unlikely (in real world terms), that she would get any kind of alimony though laywers like to wave this stick around before giving it away.

3: This is negotiable. Assuming the house is community property if he was bound and determined he could probably, ultimately force a sale of the house as a marital asset to be divided although most of the time this is negotiated so that one partner or the other retains the house and you can avoid the expense of selling the house.

The divorce process can go a lot of different ways. Women are the ones that file for divorce most of the time so you initally have a very pissed off man. Once this pissed off man talks to his lawyer and gets the facts of life a lot of the bluster goes away and they tend to try to make the best deal they can unless they are extremely vindictive.

From a woman’s point of view you need to understand the process as a process. If a middle class woman (or man for that matter) hires a hard core “attack” divorce attorney a HUGE amount of money is likely going to be spent in churning out of expensive, posturing motions that the other attorney is going to laugh at. Often a lot of noises about big payouts are made initially by lawyers that bind the client to the atty in the hopes that he or she can deliver. In most cases these promises eventually get trimmed down to the real world. However, women often feel that this is only way they are going to get their “fair share” and so it goes.

Interestingly most competent divorce attorneys can look at the respective couples tax returns, financial statements and number and ages of the children and tell you in 15 minutes almost precisely where the deal is going to wind up in the end. The couples then spend thousands upon thousands of dollars they could have retained otherwise if they were willing to be resonable, proving that equation and sending the attorney’s children through an Ivy League University.

Bottom line ,she will probably want an attorney but she needs to have her eyes open about the process and have real world expectations about the outcome.

5

Adversarial system.

Two opponents.

Different desired outcomes (opponent A wants best for opponent A, etc.).

Follow an old Chess maxim: “Never take advice from your opponent.”

Tell Mom to hie to a real lawyer. If Dad doesn’t want to foot the bill for a lawyer for himself, no problem. But you might want to tell Mom, “Don’t let him make that life decision for you when he doesn’t want to be part of your life.”

IMHO.

6

She really needs to see a lawyer to determine what her rights are before she contemplates any negotiations. While it is certainly in both their interests to conclude a settlement with as little going to the lawyers as possible nothing complicates negotiations like not having a clear idea of rights at the outset.

In my jurisdiction what he is suggesting is probably far less than a fair settlement.

The custody issue suggests there are minor children which raises the issue of child support. If they wish to reside with the mother there may be a case for delaying the sale of the family home for a set period.

Pensions, other assets and division of debt needs to be considered. His unilateral action in abandoning his financial responsibility isn’t the sort of thing that will impress a judge.

Don’t be too hard on the guy, men tend to get a bit deluded when they sit down to figure out how to deal with the financial aspects of a divorce. In his mind he has probably convinced himself that he is being reasonable. He needs to get a clear lawyers letter outlining his responsibilities with a realistic settlement proposal to give him a smack in the head and bring him back to reality.

7

She needs to speak to a lawyer. The idea that one person can adequately represent both husband and wife, when the interests of husband and wife are at least somewhat adversarial, is wrong.

From your dad’s point of view, he’s given some excellent advice. From your mom’s, following it is the worst thing she could do.

  • Rick
8

Your mother should absolutely retain a lawyer, imo. Your father’s proposed settlement sounds extremely unfair to me though, IANAL and all disclaimers apply.
I am also going through a divorce though our situation is a little different and states’ laws vary.
At the very least, she should consult with one and get an idea of what her options and rights are.

9

Thanks everybody for the responses. I C&Ped a few of them to my mom in an email I sent her, so she could see that I’m not the only one who thinks she needs a lawyer.

I’m hoping that this won’t be a huge, legal, messy, complicated divorce. Dad is coming down here on Friday. I told her that while he is out of town, she should go at least talk to a lawyer. Now of course, I have to figure out how I’m going to handle dad. I love him, but I’m really angry at him right now.

10

California lawyer checking in…

All things being equal, I would say that it is possible for two people to resolve their differences without getting one of my kind involved. But all things don’t sound equal. If he is instructing her, rather than she making the informed, intelligent choice to forego legal representation, it’s probly gonna go bad for her, and this is a decision that will affect her life for many years to come. As the wise man said, “better to have one and not need one, than to need one and not have one.”

-Redhawke

11

I echo everyone else. She needs a lawyer, to know exactly what her rights are, going into this divorce.

12

Well, since no one else has said it, I will–get a lawyer. :slight_smile:

FWIW, although I’ve never been involved in a divorce, I’ve had business, criminal, and work-labor-insurance problems and in every case lawyers have been willing to talk to me for free. At the very least she needs to call around and visit one or two people and get some information.