The Top 5 Questions by New Clients — Divorce & Dissolution
1. What do I need to assemble for my case?
Short answer: Here’s a list to start.
Discovery is the formal process where attorneys gather information about your case. The process includes Requests for Production of Documents, Requests for Admissions, Interrogatories, and Subpoenas to third parties such as employers, health care providers and credit card companies. Discovery can be very expensive and can delay the completion of your case. Montgomery County has a local rule requiring both parties to do what is called “Mandatory Disclosure.” This is an attempt to avoid the expense and delay of formal discovery and requires both parties to exchange most relevant documents prior to trial.
Discovery may still be necessary depending upon the complexity of your case. I ask that clients seeking to terminate their marriages begin to assemble the following documents for me as soon as I am retained:
1. All pension and profit-sharing plans including the most recent plan summary
2. All COBRA benefits to which the other party may be entitled
3. Copies of all real estate deeds, vehicle titles and registration
4. All appraisals of real estate or personal property or any business property in which the party holds an interest
5. Copies of the last three (3) years individual federal, state and local tax returns, including all schedules and attachments
6. Documentary proof of current incomes from all sources, including a three year break down for overtime, commissions and bonuses
7. Copies of the most recent statements on all bank accounts, IRA’s, stock accounts, mortgages, credit card accounts, and other debts.
8. Closing documents on all real estate purchases prior to marriage
9. Closing documents on any refinancing on real estate during the marriage
10. Account statements for any debts or assets greater than $500 owned immediately prior to the marriage
11. Any prenuptial agreements
12. Proof of the source of any inheritances or gifts, including the disposition of all such funds
13. Copies of any bankruptcy filings
14. A recent credit report from one of the three major credit reporting companies
Discovery is necessary in “Post-Decree” cases as well. These cases include custody changes, child support modifications, and spousal support issues. For these cases, I ask that clients begin to assemble the following documents for me as soon as I am retained:
1. Proof of all income for the past three years, including a three year break down for overtime, commissions and bonuses
2. A current affidavit of financial disclosure, according to jurisdiction
3. A listing of all mental health professionals and physicians seen by the parties and any children
4. A child’s school records, awards and disciplinary actions by a school authority
5. All journals, diaries and calendars relating to parenting time events and disputes
6. A listing of all police or government involvement with the parties or their children
7. Proof of all claimed living expenses
2. May I leave the marital home?
Short answer: If you can afford it.
This is really several questions in one. The real concern behind this question is “what will happen if I move out?” The stress of divorce is always heavy, but it can be unbearable when parties are trying to live in the same house while the case is pending.
In general, neither party can be forced to leave the marital residence–meaning the abode where the parties live together–unless he or she is voluntarily absent for 30 consecutive days or commits an act of domestic violence. I may recommend that you leave the marital residence to avoid a spurious domestic violence charge. These are issues usually covered in the initial consultation.
The related legal issue is what used to be called “abandonment.” Leaving the marital residence does not mean that you will receive less of a settlement in your case. The practical realities are that, if you leave the marital residence alone, and leave the children with the other spouse, you may jeopardize your chances of obtaining “temporary custody” of those children during the divorce. The children may later express feelings of abandonment. The other practical reality is that if you leave valuables and other personal items behind, you may have a very difficult time retrieving them at a later date.
3. Who pays the bills during the divorce?
Short answer: Probably the party with the highest salary.
This is a matter covered by what are called “Temporary Orders.” These orders are issued at the beginning of a divorce case and may be changed during the case, depending upon a change in circumstances. There are no temporary orders in dissolution cases, so who pays what until the case is over is just another area that must be agreed upon.
Most courts issue temporary orders based upon the financial affidavits of both parties. Some jurisdictions will issue a temporary order based upon the affidavit of only one party, and it is then up to the other party to request a hearing.
Most courts will preserve the circumstances existing at the time of the divorce. If a minor child is living with one party and not the other, that party will likely wind-up with temporary custody of the child.
Depending upon the disparity of income between the parties, the higher earner may be required to pay some or all of the other person’s basics living expenses, including rent or the mortgage, utilities and basic phone service. If children are involved, one party is normally ordered to pay temporary child support. Most courts do not deal with individual credit card bills, car payments and other various bills absent a specific request with a hearing.
4. Does my overtime count?
Short answer: Probably. The longer answer involves an analysis of the history of overtime, commissions and bonuses.
By statute, income includes the lesser of the past three year average of overtime, commissions and bonuses or the current year. For the cases where overtime is abruptly ended, there is an equitable provision in the statute allowing the court to order what is in the best interest of the minor child to alleviate cash flow issues and other problems.
5. Why should I hire you out of all the attorneys practicing DR law?
Short answer: Not everyone should hire me. I have a direct manner that most clients love but some people hate. One of the reasons for an initial consultation is to determine if rapport and trust can be established.
Otherwise, my representation offers the following advantages:
1. As of 2009, I am an OSBA Certified Specialist in the field of Family Relations Law. This means that I completed a longer vetting process and I am in this for the long-haul. I want your case to succeed.
2. I excel at cross-examination. This originates from my earlier work as a criminal defense lawyer.
3. I do my own work. Absent an extreme emergency, I do not have other lawyers covering for me in the office or in court. The lawyer you hire is the lawyer you’ll get.
4. I will have lots of opinions about your case which I will share with you. However, I work for you, so the ultimate decisions are yours.
5. I keep in touch with my clients and the courts and do what I say I will do.