Saturday, February 5, 2011

Filing For Divorce

The purpose of this article is to raise a number of questions about a very stressful step – filing for divorce – and give some basic answers.

The process is different in each state and country.  You can find more specifics by looking online for how things work where you live.




Is it important who files first?

In most US states, it makes no difference who files for divorce.  One party files, and the other party can respond;  the only way things are different is if the second party fails to respond, so the party who filed gets what they want by default.

In a few US states, there are some advantages to filing first.  You can find out by looking online or calling an attorney.



Where should I file?

Usually, you can file in the country, state, and county where you live, unless you moved there very recently.  States have different residency requirements;  most common in the US is six months.  And some states have different rules if one or both parties are in the US military.

You can look up the residency requirements for your state here:

http://www.divorcesource.com/info/divorcelawsreq/states.shtml.



What forms do I need?

Usually you can get the forms at your local courthouse.

Some counties have the forms available online, or you can call your local courthouse.



Do I need an attorney?

In most US locations you can file for divorce without an attorney.

There may be a fee to file the papers – usually between $20 and $200.

The people who work at the courthouse may answer simple questions, but can’t give you legal advice.

You might consider filing without an attorney if your marriage was short;  and if there are no kids from the marriage;  and if you don’t have a lot of money to fight over.

You probably need an attorney if there is a lot of money at stake;  or if you have children and don’t agree on custody;  or if the marriage was more than a few years, so there might be a significant alimony issue.



How do I find an attorney?


In most places you can find attorneys online – search “Family law attorney Chicago” if you live in the Chicago area, for example – or in the phone book.

Talk to more than one before choosing.  You can ask for a free initial consultation, or the attorney may require a fee – usually less than $200 for a half hour.  The attorney may ask for a retainer – commonly $1,000 to $5,000 – but you don’t have to give that until you are sure you want this attorney to represent you.

You also don’t have to decide whether you want to file for divorce before talking to an attorney; you can put off that decision until you are sure it’s what you want to do.



Which attorney is best?

•   Choose an attorney who can show you, through examples – like “war stories” – that she has experience in cases where the other party has a mental illness or behavioral disorder.  “Can you give me an example of how you dealt with someone who did not behave rationally a lot of the time?”  Judge whether the attorney is talking from experience – does she give specifics, like when the case was?  Or only generalities?  (But you don’t need to hear real names that would violate someone's confidentiality.)

•   If you can find an attorney who knows about BPD that will be a big advantage.

•   If you read “Splitting” by William A. Eddy, you will be more prepared to evaluate whether an attorney understands your situation;  you can compare her approach with what the author recommends and decide if this attorney’s approach is what you need.

•   Tell the attorney a little about your spouse’s behavior and see if she seems to believe you.  If she is sceptical, that may mean she has never encountered someone like your spouse and won’t know how to deal with your spouse’s behavior.

•   Ask how the divorce process works in your location and see if you get a clear answer.

•   Are you able to communicate well with her – does she understand what you tell her and do you understand what she tells you?  Do you feel heard and believed?  Do you get clear answers or “blah-blah-blah”?

•   Does she seem to make clear plans or “wing it”?

•   People with BPD often cause delays.  Some attorneys cooperate with this in order to maintain good relationships with the other party’s lawyer – “professional courtesy”.  Ask if she would be willing to consult you before agreeing to delays proposed by the other side.  (But sometimes the delays are caused by the court and nothing can be done about it.)

•   Ask about the likely cost of the case and see if you get an answer you can live with.

•   Some attorneys respond quickly to clients’ questions and some don’t.  It can add to your stress if you don’t get answers, as the case goes forward over many months. Ask if you can expect an answer to your phone calls and e-mails within 24 hours.

•   It’s important that you have confidence in your attorney.  Give your “gut feel” some attention – which attorney do you believe you can work closely with and trust?

Here are some more tips:  http://www.ehow.com/how_5922881_choose-right-family-law-attorney.html
.



What should I tell the attorney?

Before talking with the attorney, consider what your objectives are, and be ready to explain them clearly.

For example, if you want to finish the divorce quickly, you can ask what is realistic if the other party is cooperative, and how long it might take if not.

Your objectives might also include the cost of the divorce – legal fees and other costs – “I need this to be done within a year and to cost less than $10,000” for example.

You may have an objective related to custody, like “I am OK with joint legal custody but I want primary residential custody.”

You may have objectives related to how assets are split:  “I want to keep the house and have at least $10,000 in cash.”

You may have an objective related to child support and/or alimony (often called “spousal maintenance”):  “I need to get at least $1,000 a month, for at least four years, so I can finish my degree.” or “I am willing to pay child support up to $400 a month til the kids are 18 but not alimony.” for example.

Stay away from objectives that are emotional – “I need closure!” – or that will look like you are meddling in the other party’s business – “I want him to get the help he needs!”  These may be valid, but the courts don’t view it as their job.

If you clearly state your objectives to each attorney, you can get feedback about whether they are realistic or not – “Based on your income and your husband’s income, you can expect child support but not alimony” or “Your divorce can be finished within a year if the other side cooperates but if they drag their heels it could take up to two years.”

Many attorneys work hard to lower clients’ expectations, right from the start, so they will be able to meet those expectations later.  By talking with a few lawyers, you can judge who is giving you realistic feedback about your goals, and who is focusing too much on lowering your expectations instead of meeting them.



What do I need to include when I file?

This varies a lot from state to state and even from county to county.  In some places, you just fill out the form with information about yourself, your spouse, and any children involved;  most places also require some basic financial information.  There may be one or more questions about domestic violence.  If there are children involved, there may be questions about custody, such as whether the children have been abused by either party.

It is important to understand that your petition for divorce is a sworn document, and there can be penalties for false statements.  If you are not sure what to include, consult an attorney to make sure you are doing it correctly.  For example, you may be required to say if there has been any violence or abuse of the kids, but be careful not to make accusations that are unfair.

Read carefully the instructions provided by the court, and attach all the documents required.  It may be OK to say you can’t find them all, or to provide estimates if you don’t have exact information.



Should I tell my spouse I’m going to file for divorce?

If your spouse has BPD or a similar problem, he may react badly if he even suspects you might file for divorce.  People with BPD are often afraid of abandonment.  That may lead to violence or threats, or some other form of attack against you, like telling others bad things about you.

Consider how to protect yourself before telling your spouse you are going to file for divorce.  For example, it may be best to stay with someone during this time, or to be prepared to leave home quickly if your spouse gets upset.  You may want to have an adult third party present, or to do it in a public place, in case he reacts badly or makes false accusations.

Find out when and how your spouse will be informed by the court – whether the papers will be served to him for example – and decide whether it is best to tell him yourself or let him find out that way.



What if he reacts badly?

It is not your responsibility to protect your spouse from this difficult experience – you will have plenty to do, taking care of yourself and making sure your kids are OK.  But someone with a psychological disorder may “act out”, so you should be prepared for what he might do.

For example, he may become violent.  Here are some ways you can reduce that risk:

•   Have another adult present when you tell him, or tell him in a public place.  (But don’t use your kids as “buffers”.)

•   Have someplace arranged where you can go if he reacts badly.  For example, tell a close friend you might need to stay with her for the night.

•   Have an overnight bag packed and in your trunk just in case.

•   Have your keys and credit cards with you or near the door.

•   Make sure you are able to get out the door without being blocked, and your car isn’t blocked by his.

Another risk is that your spouse might make false accusations;  he might become agitated and claim that you physically abused him or the kids.  If you see him becoming upset, consider leaving until you know he is calmer.  Avoid any physical contact with him, or being alone with him, while he is upset.



Should I tell my kids?  When?  How?

Consider talking to a counselor, or having your kids see a counselor, a few times before deciding this.

Make sure what you tell each child is “age-appropriate” and is what the child needs to know, not what you want to talk about.  For example, a young child does not need to know legal or financial details, only what things will be like for him – where he will be living and how often he will see each parent.

Some counselors suggest that you talk with each child alone, so that child can react in his own way, and not be too affected by how his brother or sister take the news.

Some counselors also suggest that both parents tell the kids together, but when one parent has a psychological disorder it is sometimes recommended that the other parent take responsibility for telling the kids.  If you do it by yourself, make sure you are fair, and focus on the impact on the kids, not on making yourself look good at the expense of the other party.

Think through what your kids are likely to ask, and be ready with simple and true answers.  Make sure you only answer what they are asking, and don’t wander into other aspects that might make them feel more uncertain.  Remember, kids’ top need is a feeling of security, and this is a time of transition;  you need to project strength so your kids will have confidence that everything will be OK (even though you know it’s not that easy).

It can help if you are prepared to establish the “new normal” – how things will be now – so the transition from how things were before is quick and solid.  For example, if you are going to move out, it may be best to have that mostly arranged, so there isn’t a long period of uncertainty about that.

Here are some more ideas about how to do this:  http://divorceinfo.com/tellingchildren.htm.



What if the other party files first?

If your spouse files for divorce, you may be served the papers – that is, they may be delivered to you formally by a process server – which can be embarrassing if it happens at work.  If you know that your spouse is filing, you can arrange to go to the courthouse or his lawyer’s office, and pick up the papers, to avoid that drama.

It can feel like an attack when your spouse files for divorce.  Get some support from family and friends.  Read the documents carefully, but if there are accusations, don’t take it too personally;  some people, especially those with a psychological disorder, use this process as an opportunity to vent their feelings.

But do make note of any false statements or accusations contained in the papers, and think about how you can show evidence that they are false.  Also, consider whether such statements in official documents may be a violation of the law;  for example, in some US states, it is illegal to make false criminal accusations.  You may want to find out how to file criminal or civil charges, to hold the other party accountable if he has made false accusations.

In the papers you receive, you will be told when and how you need to respond.  Failing to respond the right way – filing the right papers – and by that date, will mean that you give up your right to respond, and what the other party said goes.  So it is critical that you respond on time and completely!



Resources

Here is a listing of the forms needed in most US states:  

http://www.divorcesource.com/promotions/divorceforms.shtml.

Here is a more thorough explanation of how the divorce process works in the US:  

http://www.totaldivorce.com/process/filing-for-divorce.aspx.

Here is a site about all aspects of divorce:

http://www.divorce.com/article/divorce-filing

And California has a self-help site with a ton of good information:

http://www.courtinfo.ca.gov/selfhelp/family/







I am not an attorney, and I can't give legal advice.  The information here is based on my own experience going through a divorce in one US state, and on what I have read and learned from others who have been through a divorce with a BPD sufferer.

1 comment:

  1. Hi there this is such an impormative post. Thank you for sharing. Cheers!

    - The Divorce attorney North Andover MA

    ReplyDelete