The 12 Mistakes to Avoid Before You Begin Your Divorce

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Divorce is a sad but common occurrence in our society. In fact, over 50% of marriages end in divorce. For remarriages, the rate is even higher. Just when you are being hit with an avalanche of emotional issues, you will need to navigate through legal, financial and perhaps “custody” ones. You must settle questions such as: how the marital assets and debts are divided, and whether there is maintenance (alimony). If you have children, you will need to decide where the children will stay, the amount of child support, and decision-making.

It is understandable that in the midst of all these, people make mistakes. So common, in fact, that the mistakes boil down to 12 common ones. I like to call them the “dirty divorce dozen.” Unfortunately, the consequences of these mistakes can last a lifetime. Luckily, with guidance, it is possible to avoid these mistakes.

1) AVOIDING COURT AND ATTORNEYS AT ALL COSTS: Will this be costly in the long run?

While it might feel less stressful to “get the whole thing over with quickly” without going to Court or involving lawyers, the negative consequences of doing so may be life-long.

Clients often want to avoid attorneys because of the expense and the possible escalation of conflict. In Boulder County, where I live, about 80% of divorce cases in are “pro se” – but this may be “penny wise and pound foolish.” While you will find a “Family Court Facilitator” at the courthouse to give you the appropriate forms, she does not give legal advice.

It’s important to understand that while child support is based on a simple formula in the statute, maintenance is discretionary and therefore unpredictable. That is, a good lawyer may help you get a maintenance ruling that is fair and advantageous. Clients often negotiate a disadvantageous deal because they do not know how the law affects their case or because they are negotiating out of fear or guilt. In addition, there are little known tax consequences that can have large financial impacts.

2) CHOOSING THE “WRONG” ATTORNEY: Choosing an attorney is a crucial step. The right choice can save a tremendous amount of stress and fees.

People often choose attorneys based on an ad, the availability of a free consultation, bedside manner, or a referral from a friend. Instead, it’s better to get referrals from trusted professional sources! Although you may be hoping for your knight in shining armor, the attorney has his or her own interests at heart.

Assess the attorney for skills such as: 1) rapport; 2) cost, 3) knowledge and skill, 4) experience, 5) orientation towards negotiation, 6) organization, 7) timeliness, 8) availability, 9) courtroom skills, 10) relationship with opposing counsel, 11) sub-specialties, 12) therapeutic hand-holding if needed, 13) ability to share power with the client, 14) how well they explain things etc.

Why it is hard for the client to fully assess the attorney. A great “bedside manner” may be misleading. It’s also important to consider what sub-specialties your case requires. These might include: 1) domestic violence, 2) medical issues, 3) business/finance, 4) parenting issues.

It’s good practice to interview three attorneys. Many attorneys have free or reduced fee consultations available.

3) GOING STRAIGHT TO AN ATTORNEY: Less effective, more expensive

Having a consultation with me before going straight to an attorney saves you time and money. There are many pathways through divorce: negotiation, mediation, litigation, arbitration, collaborative divorce, cooperative divorce, as well as combinations of these. It’s wise to consider which pathway is appropriate for you. This is a complex question because it depends on a variety of factors.

Before you see an attorney, it helps to gather the standard information the attorney will need. You might want to check out the Court’s website to download the most commonly used forms: the Financial Affidavit, the Separation Agreement, the Child Support Worksheet, and the Parenting Plan. The website address is:

http://www.courts.state.co.us/chs/court/forms/domestic/domestic.html

In addition, before you see an attorney, it’s a good idea to understand something about how the legal system works, and to have a clear idea of your goals. Of course, after speaking with your attorney and getting legal advice, you might want to modify your goals. Avoid using the attorney to process your emotions, he or she is probably not trained and most likely charges two or three times what a good therapist or consultant would.

I encourage my clients to have a brief but comprehensive Client Report about the financial and parenting aspects of the case to make the attorney’s job easier. The attorney appointment can be more efficient and less expensive by better utilizing attorney expertise. It helps make the attorney appointment less stressful and allows you to compare the advice of different attorneys, knowing that they all had the same information.

4) NOT BEING PROACTIVE: Why not taking action can result in more stress and less effectiveness

In divorce, people often experience an “avalanche of issues” including: loss of time with children, selling the marital home, moving, new career, chance in financial circumstances, loss of vision of the future, self-doubt, challenge to self-esteem, change in quality of relationship with children, legal issues, loss of friendships, loss of in-laws, etc. It’s tempting to just want to put your head in the sand!

By being proactive, you have more control over the timing and can get your ducks in a row. For example, you can take the time to carefully choose an attorney. When an attorney is retained, they will ask for a retainer (often over $3,000). Being proactive gives you a chance to save or borrow this money. There are many other issues to consider and research that needs to be done. Being proactive and getting guidance early in the process allows you to avoid mistakes.

5) GOING STRAIGHT TO MEDIATION: You need to know what you are negotiating for.

There are many advantages to mediation. It is more peaceful and less expensive than litigation, allows you to maintain more control, and allows for more creative problem-solving. Although it is a voluntary process, the Court requires two hours of mediation in contested cases.

A mediator cannot give legal advice, even if he/she is an attorney. It’s often useful to have an independent attorney review the case and advise you on a “settlement range” and a reality check before mediation begins. The attorney should always review any agreement before you sign. Some attorneys offer “unbundled” services, that is, they meet with you briefly, offer advice without taking the whole case, and do not require a retainer. If it is not possible in mediation to negotiate a settlement within the range, you may consider going to Court.

Mediation is not appropriate in cases of severe domestic violence. In some cases of minor domestic violence, mediation may be appropriate. Mediating from separate rooms is an option.

Mediation may be useful even if it only resolves some of the issues. When both spouses come to an agreement and file it with the Court, it is called a “stipulated agreement.” Normally the Court approves the agreement and makes it an Order of the Court, unless the Court believes the agreement is inequitable.

6) INFORMAL ARRANGEMENTS: Unintended consequences

Some clients often make informal agreements with his/her spouse. Verbal agreements sometimes lead to differences of opinion. Unwritten agreements can also be problematic because they are usually not detailed and do not provide for contingencies.

In addition, when a parent agrees to a parenting time arrangement on a temporary basis, the Court may see this as evidence of what the parent sees as appropriate. The Court seeks stability for the children. Thus the agreement has momentum. This could have a financial impact because the number of overnights has a substantial effect on child support. It shifts after 92 overnights.

Here’s another example of how an informal arrangement can backfire. You may agree to a parenting time arrangement without filing paperwork with the Court. Suppose the higher wage earning parent does not pay the full amount of child support. Retroactive child support before a motion is filed is not recoverable.

7) “CUSTODY” EVALUATIONS (now called C.F.I. EVALUATIONS): May be effective or may be expensive and unnecessary, or may backfire

When the parents cannot agree on parenting time and/or decision-making, whether through negotiation or mediation, either one can ask the Court to appoint an evaluator.

While this is an expensive option, some people may see the evaluation as a way to get to the truth or equalize a power imbalance between them.

Sometimes, evaluators do a hasty and superficial job and miss important underlying dynamics. Sometimes they get their facts wrong. Sometimes they have incorrect judgment.

It’s important to get a reality check before setting down this path regarding both how the client is likely to fare and whether their goals are realistic. It also helps to know how to present information to the C.F.I.

8) NEGOTIATING WITHOUT A STRATEGY OR WITHOUT ASSISTANCE: Using negotiation theory to your advantage

Whatever you can accomplish in negotiation, whether on your own, in the mediation context, or through an attorney, is worth its weight in gold. With guidance, you can develop your negotiating strategy in reference to the following negotiation principles:

Look for ways to find win/win solutions

If your spouse saves face, it helps him/her come to resolution

You may have children together whom you will co-parent for years to come, making preserving the relationship important

It helps to be a “peaceful warrior,” holding both the olive branch and the arrow

Doing careful research can give you important information for the negotiations

If you can find areas of unequal importance, these become bargaining chips

Whoever is under more time pressure is at a disadvantage. This is why it helps to be proactive and gain more control of the timetable.

The therapist or mediator can help you explore the underlying needs of both spouses.

It’s important to define in detail the goals and contingencies.

Don’t get distracted by “red herrings,” issues designed to distract.

Remember the “call girl principle.” The value of services (and concessions) diminishes rapidly after the services have been rendered.

You will negotiate more effectively if they have “walk away power.”

It’s helpful for to assess your degree of risk tolerance.

9) FINANCIAL PITFALLS: It may take sophisticated expertise to assess the financial implications of the settlement, even when the marital estate is modest.

Some people need help budgeting for their new single life or help in making unilateral decisions about investments.

It’s important to assess the proposed financial settlement projected over time. Some deals look great in the short run and terrible in the long run.

You may need support and assistance in assessing whether to stay in the marital residence.

Settlements have tax implications that may or may not be readily apparent to the client.

10) MIXING EMOTIONS AND THE LEGAL PROCESS: “I’ll make the $%&#* pay for the affair.”

Colorado is a “no fault” state, so events like affairs are legally irrelevant, though emotionally charged. It’s okay to have intense emotional feelings during a divorce, but it’s always expensive to use the legal process to address them. And it’s usually less effective to use the attorney as a therapist. Strong emotions may color your perception of the goals and the probable legal outcomes. Taking the correct amount of responsibility is important for healing. It may also affect how you negotiate with your spouse.

It’s damaging to the children for the parent to act from unresolved emotions. “S(he) can’t see the children if they don’t pay child support.” is not an option. When a parent creates a campaign to turn the children against a parent it is called “Parental alienation syndrome.” The degree of conflict between the parents is the strongest predictor of the adjustment of the children.

This is the time to make sure you have adequate emotional support. Family members may or may not help fill this role. With the “avalanche of issues” that often occurs in a divorce, sequencing the challenges becomes important. It may be a tall order, but forgiveness frees the one who forgives.

11) GETTING INTO A NEW RELATIONSHIP “TOO SOON”: Relationship Readiness Review

It’s common to seek out new relationship(s) as a balm for the pain of divorce, or to enjoy new found freedom. However, it’s essential to resolve divorce issues as a prerequisite for moving on to a healthy relationship. You might find it fascinating to define the qualities of the person you hope to meet.

Another common mistake is to introduce the new significant other to the children too early. If the relationship doesn’t work out, and the children have bonded with the new person, they will likely experience another loss.

I recommend a book called, “Are you the One for Me?” by Barbara De Angelis as well as my book, “Divorce Survival and Recovery.”

12) MISSING OUT ON A PERSONAL/SPIRITUAL OPPORTUNITY: Divorce as emotional housecleaning

In divorce, all the personal and interpersonal issues that were swept under the rug have risen to the surface. There’s no more denial. It’s a great time to start to deal with them therapeutically (pain is the most powerful impetus for self-examination!). Divorce is a great time to renew your spiritual practices. These issues might include:

Attachment v. detachment

Loneliness v. self-sufficiency

Anger v. forgiveness

Recreating your future

Self-esteem

Finding what really fulfills you

Copyright 2007: Sat Tara Kaur Khalsa, M.S., L.P.C.

(303) 530-7080 divorce-success.com