Thinking of Getting a Divorce? Here’s What You Need to Know.

Studies have shown that the experience of separation and divorce are so traumatic as to rank second only to the death of a close loved one in terms of emotional turmoil, pain, and stress. Not only is divorce accompanied by feelings of guilt, rejection, embarrassment, and anger, but the process also causes fear and uncertainty among those who experience it. Reserves of inner strength are often as necessary as external financial reserves in order to get through the process intact.

The first step to conquering fear of the unknown is to learn as much as possible about the process. A good lawyer can often explain the procedures clearly, assist in escalating goals, and propose a positive strategy to achieve those realistic results. Set out below are questions and answers about the process of divorce that will help take the mystery out of it.

What issues can be resolved in a divorce?

The breakup of a marriage often involves four issues: property division, alimony/maintenance, child support, parental decision-making, and parenting time/custody. Some divorces will also involve the issue of attorney’s fees and expert costs. And all of these issues can be resolved by consent (a negotiated settlement) or contested in court. Let’s take a close look at how the process works.

At the outset it should be noted that not all states handle divorce the same. There are two different legal structures for divorce and dissolution that exist in the United States. In some states, including Colorado, the divorce is a “package deal.” All issues must be resolved by the parties (through agreement) or by the court (through trial) before the divorce is granted. In these states, divorce is the end result of the process.

In other states, such as Delaware and North Carolina, the divorce case is not necessarily joined with the other issues and may be heard shortly after the filed lawsuit has been served on the other side. Custody may be contested (or settled) in a different lawsuit or joined in the divorce suit. The same applies to child support, alimony (also called maintenance or spousal support), and property division (or equitable distribution). In these states, divorce is not necessarily the end of the case; it may just as easily be the beginning of the case, to be followed by court decisions (or agreements) as to any issues in the marriage that are brought up by the parties in the lawsuit. Each of these issues can be heard on different timetables—before or after the divorce—by the court.

Where do I start?

Getting the right lawyer is often the first step for a husband or wife. There are many ways to select an attorney if you do not have one in mind already. In some cases, you may have been represented previously by an attorney who could help you in your present situation. Then again, there may be a friend or relative who has been represented by a good lawyer in a case similar to yours. It might be a good idea in either of these cases to see if that lawyer might be able to handle this matter for you. Many bar associations maintain a lawyer referral service. You can also choose a lawyer based on rating services such as Avvo, Super Lawyers or any number of other publications. The important thing is that you choose a lawyer who is able to handle your case and able to work with you. Any way of selecting a lawyer is satisfactory if it achieves these goals, for it is very important for the client to have confidence in his or her attorney.

What you say to your lawyer is “privileged information.” Generally speaking, what you tell your attorney must be held in confidence unless you give permission otherwise. In addition, your attorney has the duty to:

• Let you make the major decisions in your case, such as agreeing to pay $____ in monthly child support or selling the marital residence; and
• Remain open and honest with you in all aspects of your case, including the chances of success, the good and bad sides of your position, the time needed, and the fee required.

How much will all of this cost me?

Lawyers set fees in a number of ways. The major types of fees are flat rates, contingency fees, and hourly billing. Lawyers may use a flat fee in handling certain domestic cases where the work involved is usually straightforward, predictable, and routine. Thus many lawyers use a flat rate or set fee in uncontested divorces, adoptions, and name changes. A flat fee is paid in advance (ordinarily) and does not vary depending on the amount of time or work involved. No refund is due if the work takes less time than expected, and no additional charge is made if the case is longer or more complex than usual.

An hourly rate is most common when the client’s work will be substantial, but it is difficult to estimate how much time it will take. Thus, for example, a lawyer might charge on an hourly rate for a contested custody or alimony case. It is fairly common for the lawyer to require a retainer to be paid before starting on the case. This amounts to a deposit or down payment to make sure that the client is serious about the case and is financially prepared to cover the costs that may be incurred. The size of the retainer and whether any part of it is refundable will vary from case to case and lawyer to lawyer.

In Colorado, the court may order one party to pay some or all of the other ’s legal expenses if there is a difference in the financial resources between the parties. The courts view these awards of attorney’s fees as a way to level the playing field. It is often difficult to retain an attorney from the outset based on the promise or hope of court-awarded attorney’s fees at a later date.

How can I ensure my lawyer will be a good fit?

Here are some tips on the important matters that involve your lawyer and some areas where complaints are common.

• Be sure to insist that your lawyer explain specifically (1) what will be done in your case and (2) how much it will cost. If you wish, you can ask the lawyer to put this in writing. This includes the contract that binds you and the attorney—make sure you get a written contract, and then read it.
• Ask for an estimate of the total charges and ask what services are included in this estimate. Ask what your attorney expects to be the steps you go through and how much time (or expense) they might involve—if you hire an experienced lawyer, he or she should be able to at least “outline” the process for you with a fair degree of accuracy. At the same time, please be aware that it is hard to tell what might happen or how long something might take in a legal dispute. It’s impossible to predict with any degree of accuracy what will happen
• Clients should receive frequent case updates and regular communications from their attorney. You may want to ask if the attorney how typically communicates — in-person meetings, phone, email or text. If you have a preference, let your attorney know and confirm that they will communicate with you in that manner.
• You should also get copies of  “pleadings” —petitions, motions, notices, sworn financial statements, etc. —that have been filed in your case, as well as any order or judgment that the judge signs.
• The lawyer should release your file to you upon request and with reasonable notice.
• Do not tolerate unreturned phone calls; nothing makes a client angrier (and justifiably so) than a lawyer who won’t answer a phone call or an email from a client requesting information.
• Hire a lawyer who specializes in your particular kind of case. A lawyer specializing in high-asset divorces will know the applicable law and likely be more effective compared to an attorney who is a “general practitioner.”
• Consider whether a Collaborative Divorce is an option for your situation

When you first meet with your lawyer, make sure you go over the important facts of your case and outline for him or her the goals you have. While we all have hopes, desires, and dreams, it is vital to keep those goals realistic and achievable; don’t expect your case to go anywhere if your goals are to embarrass the other side, bring him to his knees, or “break him” financially. Your lawyer has a duty to be open and honest with you, explaining the “pros and cons” of your case, the strengths and weaknesses. Make sure your lawyer is not going to get into a personality conflict with the other attorney; your money will be wasted on an unproductive “spitting contest.” Consider your finances to decide “how much case you can afford.”

What is involved in “going to court?”

If you must go into litigation, you need to know something about the process—you can’t play ball if you do not know the rules. Litigation always starts with the filing of a petition, which states what the facts of the case are and what relief is requested, along with a summons, which states that the other side has been sued and has a certain period to respond. The other side usually files a response following the service of these papers on him or her.

In Colorado, both parties will file financial statements, which state the incomes and expenses of each party, or property inventories, which show what each party claims to be marital or separate property, as well as the value placed on each item. Under Rule 16.2 to the Colorado Rules of Civil Procedure, parties must also exchange a copy of tax returns, pay stubs, bank statements and other backup documentation with these financial statements.

How Long Will My Divorce Take?

Contested domestic cases can take a long time to resolve. While the entire case is still pending, the next stage in some cases is sometimes one involving temporary, interim, or emergency hearings. A party may need the court to make an emergency ruling on issues of visitation, especially where there is a “tug of war” going on between the parents or something occurs that is a serious danger to the children. The court often considers the need for interim spousal support or child support at a temporary hearing in the weeks or months after the case is filed; if the court didn’t do this in some cases, the other party might be brought to her knees quickly without financial help. Some courts use the time after filing to conduct a hearing on attorneys fees and expert costs. This ensures each party has sufficient means to pay the lawyers, psychologists, or accountants that may be necessary to assist in resolving the case or preparing for trial.

I think my husband is hiding information. How can I find this out?

You might find the answer in the “discovery” stage of litigation. Discovery is a word that means “finding out information that the other side has.” Generally speaking, discovery in Colorado goes on in the first 60–120 days after the lawsuit is filed, or even longer in complex cases. This is probably the most important part of trial preparation—finding out what the case is all about, from the other side’s perspective.

There’s always “informal discovery,” which usually means obtaining things yourself from the other side without formal notices or requests. This can be done surreptitiously, as when Mrs. Smith makes a copy of her husband’s bank statements and then returns them to their file before leaving the home. It can also be done openly by the attorney’s simply asking the other side for a copy of certain papers, receipts, titles, or deeds; if the adversaries are friendly and the marital dispute is under control, which often depends on the personalities of the attorneys and the level of animosity of the parties, it is possible to save thousands of dollars by simply agreeing on a “discovery plan” to allow each party, within reason, to obtain relevant documents from the other side by requesting them in a letter. While there are no penalties or sanctions for failure to produce or reply, as exist with formal discovery, the savings in time and money can be substantial if the parties and their lawyers are willing to cooperate.

Formal or traditional discovery, on the other hand, has structures, deadlines, definitions, and rules that must be obeyed.

Here are some examples:

• Interrogatories are written questions that must be answered by the other side under oath within a certain number of days (usually around 30) from when they are served by mail on opposing counsel.
• Document requests require the other side to produce documents at a specified place and time for inspection and copying.
• A deposition is oral testimony given under oath in front of a court reporter. There is no judge present, and it’s usually done in a lawyer ’s office. It results in a typed transcript of the testimony, and it can be very useful in exploring what facts or data the other side has, what accusations will be made, and how the other side is thinking about the case. It costs more, of course, than the use of interrogatories, but it usually produces better responses from the other side—answers that are more complete and more spontaneous, as well as the ability for your lawyer to ask “follow-up questions.”

What will happen if we go to court?

Going to trial doesn’t just happen. It’s the end-point of a long process that includes getting the client ready (rehearsal for the hearing, overview of questions that will be asked and may be asked, and reviewing documents that will be introduced as evidence), getting the client’s witnesses ready, preparing exhibits for introduction, and setting the case on the calendar for weeks, or even months, in the future. Lawyers frequently prepare written briefs for the trial, which summarize and explain points of law that may be involved in the case.

The trial usually consists of several sections:

• The petitioner’s case involves his or her testimony, immediately followed by cross-examination by the other side’s lawyer. Here is where the petitioner’s exhibits and documents are often introduced. Then the witnesses for the petitioner testify (and are cross-examined by the other side also), and they likewise may offer documents into evidence.
• The respondent has the same opportunity—to give testimony and present evidence, and to offer witnesses. The same opportunity for cross-examination by petitioner’s attorney exists.
• Domestic cases in Colorado are heard in front of a judge — there is no jury present. Courtrooms are generally open to the public so there may be other lawyers or people watching.
• After the presentation of both sides, the petitioner is given the opportunity for rebuttal, which is testimony that denies or contradicts what the other side has presented.
• The lawyers will have the opportunity for final argument or “closing statement,” which allows them to summarize their evidence and argue for the results they seek.
• Then comes the decision by the court. This is sometimes is right after closing statement, and sometimes occurs weeks or months after the trial has concluded (if the judge takes the case “under advisement”).
• Entry of the order, judgment, or decree is the next stage. Sometimes this is done by the court; other times the attorneys to write up a decision for the judge to sign. This often means that they have to meet with each other or with the judge when they are preparing findings of fact for the judge on contested issues. This process alone can take days, weeks, or even months in a complex or hotly contested case.

Is there an alternative to a long trial process?

Why would anyone go through this, you might ask—aren’t there any alternatives? The answer is yes. There are three alternatives: mediation, arbitration, and negotiation. These options are usually less expensive than going to trial and, if handled correctly, less time-consuming.

Arbitration

Arbitration is process by which a neutral third party renders a binding decision on the issue or issues presented— spousal maintenance, property division, child support, etc. The arbitrator acts in much the same fashion as a judge in a civil trial, but he or she is usually paid by the parties (in equal or unequal shares), and the proceedings are usually faster and less formal than a trial. Both parties must agree to use an arbitrator and ask for the appointment of a private judge.

Mediation

Mediation is an informal dispute resolution where a neutral third party, a trained mediator, helps you and your spouse reach an agreement satisfactory to both of you. The mediator ’s role is to help the parties resolve their conflicts. Choosing sides or giving legal advice is not a mediator ’s duty. The mediator does not make any decisions for you, but rather encourages both parties to work together to make their own decisions. In Colorado, judges almost always order mediation take place before the case proceeds to trial.

Settlement

A negotiated settlement, involving the parties and their lawyers, is a third option to trial. This can be a productive way to settle some or all of the issues on the table. If all of the issues cannot be settled, a meeting like this is a good way to decide a majority of the issues and reserve the issues in controversy for trial. Taking some of the issues off the table will likely make trial shorter and the process less expensive and stressful. It is also a good way to bargain through the items on the table and see if there is room for negotiation.

Mediation and negotiation are give-and-take situations. Nothing can be demanded from the other side, and usually a good deal of compromise is necessary. It is important to examine exactly what you want to happen in your case and to be aware of your “bottom line.” Fair negotiations and an open mind between the parties are essential to the success of these alternate resolutions. Bringing your anger over past events into the ring will ensure the failure of any settlement possibilities.

When will these alternatives to trial work? When both parties are willing to work together to form an amicable agreement in the best interest of all concerned, these alternatives will be a success. When are these three options to trial not a good idea? When a case involves physical abuse, substance abuse, or severe depression and anger, trying one of these settlement options may be a waste of time and money for both parties.

Kalamaya | Goscha is a Colorado law firm founded by Ryan Kalamaya and Amy Goscha. The boutique mountain law practice specializes in divorce, child custody, and family law. Kalamaya | Goscha has law offices in Edwards, Aspen, and Glenwood Springs. To speak to an attorney call (970) 315-2365. (This post is based on materials originally published by Mark Sullivan.)