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Six Ways to Handle Your Own Divorce More Effectively

Most of us realize that divorce – especially one in which children are involved – is best faced with the assistance of an experienced family lawyer. This is equally true when self-employment, substantial assets or –just as important — substantial debt complicate finances.

Still, while divorce rates reportedly fell in the depths of the Great Recession, marriages held together by nothing more than inadequate cash flow cannot last forever. Proof of this is the skyrocketing percentage of divorces being prosecuted and defended without benefit of counsel.

If you find yourself in a situation where divorce is both inevitable and urgent, and the funds to retain a lawyer are completely out of reach, there are still steps you can take to protect your interests at minimal cost as a pro se litigant. Here are 6 ways to survive divorce without formal legal representation:

1.) Visit your state’s judicial web site. You can usually find it easily by searching your state’s name and the word “judiciary” or “official web site” There you will find a wealth of information on a variety of subjects many of them specifically created for do-it-yourselfers. The judicial web site will also provide you with links and templates to forms that will be needed in your divorce action. Simply browsing these forms may alert you to options you hadn’t considered. If your spouse has access to funds that are out of your control, one such option is to file a motion asking the court for an allowance from your spouse sufficient to secure legal representation once the case is underway. While not in such an immediate way, a temporary order of alimony might also help level the playing field.

2) Ask for fee waivers. Filing fees and fees for process servers can run into hundreds of dollars. If you qualify, you may be granted waivers of these fees by simply filing the appropriate application and supporting financial information.

3) Become a smart observer. Don’t wait until your hearing is scheduled to visit the courthouse. Learn when motion sessions are being held and when contested divorce cases are being heard. These sessions are almost always open to the public. Once you have sat through several contested hearings and a few uncontested divorces, you will know much more about the process and you will also be alert to some of the hurdles you might otherwise not have anticipated.

4) Find out whether your courts have dedicated pro se assistants. If so, these individuals may be able to help you sort through the paperwork to make sure you have all the documents the judge will require in order to go forward with your hearing. Be careful though. Pro se assistants, just like other judicial personnel, are not allowed to offer you legal advice. This means, for example, that while they can tell you whether your written agreement is in proper form, they cannot advise you about whether it is fair or whether you have covered all of the issues.

5) Don’t skip the discovery process. Although non-lawyers cannot sign subpoenas, court clerks generally can do so on your behalf. If you are counting on your estranged spouse to provide you with full information about income, bonuses, overtime, retirement accounts, spending history and more, you are making the most common and, in the long term, costly mistake that pro se litigants make –one that handily outstrips any short-term savings realized by foregoing legal assistance.

6) Consider engaging a lawyer as coach. This can be a win-win situation for both lawyer and client. The lawyer’s risks are minimized when he or she remains in the background and is not attorney of record. This is because once a lawyer becomes attorney of record in a case courts can require the lawyer to continue working on the case even if he or she is not being paid. Even if the lawyer is eventually allowed to withdraw from representation, losses have already accrued that may be uncollectible or, at best, difficult to collect.

From the point of view of the litigant, using a lawyer as coach has a number of benefits. While a lawyer acting in this capacity cannot attend hearings or negotiate with others on your behalf, he or she can help with any and all other aspects of preparing for negotiation or trial. What’s more, since a lawyer acting as coach is not responsible for the ultimate outcome of the case, she has the freedom to assist in limited ways according to your own needs and budget. For example, one client may want legal assistance just for preparing documents and for guidance in gathering financial information about the other party. Another individual may feel comfortable sorting out the numbers but need assistance in preparing for a hearing by organizing exhibits and questions for witnesses, or by planning overall strategy and argument to the court. Still others who have reached a tentative agreement with their spouse might simply want a lawyer to review the financial affidavits and draft agreement and offer an opinion about whether it is fair and complete. Finally, it is not unusual for litigants to seek legal assistance – either coaching or full representation only after they have run afoul of procedural rules and feel that they have reached a roadblock in their case.

Some lawyers charge their normal hourly rate for divorce coaching but others may be willing to charge a substantially lower hourly rate for these so-called unbundled services. Lawyers are quite accustomed to discussing fees; so never feel shy about asking. Our own firm charges less than half our regular hourly rate for divorce coaching services.

While self-representation – at least at the outset of a case – might be unavoidable, it is no cause for surrender. Every new challenge brings with it the possibility for ingenuity and growth.


FINDING THE CASH — A STEP TOO OFTEN OVERLOOKED IN “DIY” DIVORCE

As the result of our bad economy, more and more divorcing couples are attempting to act as their own lawyers.  While this may save money in the short run, the long run consequences can be both devastating and irreversible, especially when it comes to how the parties divide their property.  This is because, under the laws of Connecticut and many other states, once the court has approved an agreement to divide marital property, the agreement can never be changed. 

One of the biggest mistakes so-called pro se litigants make in handling their cases is failing to take advantage of a process known as “discovery”. Discovery is the mechanism by which lawyers collect evidence to use in lawsuits. In the case of divorce, lawyers routinely file formal requests for documents, not only directed to the adverse party, but also directed to employers, unions, banks, and others who might have financial information relevant in the divorce. Divorce lawyers then use the information they have gathered to prepare for negotiation and trial. 

If they did not perform this crucial step in the litigation process, they would be forced to rely upon the notoriously inaccurate information provided by the adverse party on a single document known as a “financial affidavit”. 

Unfortunately, this is exactly what the majority of pro se litigants do. This can result in serious miscalculations of the amounts of alimony and child support that should be paid and can also result in the over or under valuation of assets.  It can even mean overlooking marital assets entirely. 

When balanced against the cost of giving up a fair share of a lifetime pension, for example, the savings realized by going it alone in divorce court can be insignificant. 

There is no reason why pro se litigants cannot conduct their own discovery if they first educate themselves about the types of discovery available and the rules for conducting it.

While non-lawyers do not have the right to issue subpoenas on their own, court clerks generally can sign subpoenas on their behalf. 

Some requests for discovery do not even require subpoena power, notably when the request is addressed to the adverse party. Just by formally requesting items such as bank and credit card statements, tax returns, and more, pro se parties could potentially do a far better job in representing their own interests. Sadly, though, most are either unaware of the process or unable to maneuver the system in order to collect the information they need. Still others don’t know what to ask for because they are unaware of what assets are divisible in a divorce 

Courts in Connecticut and in most other states are making great strides in providing assistance to pro se litigants through programs that provide do-it-yourselfers with the forms that are required to process a divorce, but rarely does the assistance go beyond that. In fact, court personnel from clerks to judges are generally prohibited from offering legal advice at all.  Nevertheless, people who have been provided with a set of necessary documents by a court official are often left with the illusion that they have received the range of legal counsel and assistance that they would have received from a lawyer. 

Others feel comfortable trusting their spouse to provide full and adequate financial disclosure and therefore see no need for discovery.  Any experienced divorce lawyer will tell you that this is a mistake. This is not necessarily because the other party is dishonest, but because neither spouse may fully understand how to report income and assets. Many honest people also make the mistake of believing they don’t have to disclose occasional income like bonuses or regular overtime simply because those kinds of income are not guaranteed. 

If you find yourself forced to act as your own lawyer in a divorce, you should, at a minimum, visit your local law library and spend an afternoon reading the statutes covering divorce, paying special attention to those related to the discovery process. 

If you can’t afford to retain a lawyer to provide full representation in your case, you may be able to hire one on an hourly basis for limited purposes such as preparing discovery requests for your signature, or reviewing proposed divorce agreements before a final hearing. When you consider how much it will cost in the long run, to inadvertently forego an extra $50 a week in child support, or $1000 a month in future retirement income, it’s easy to see that working your way through the discovery process is a rewarding task.

 

 


DID YOU REALLY THINK FACEBOOK WAS PRIVATE?

Discovery is a process through which parties to a lawsuit collect evidence and information to prepare their cases for settlement negotiations or trial.

 

Often, parties squabble over whether certain documents or areas of questioning are ‘discoverable’.  Usually the dispute over whether a discovery request must be honored is based on a claim that the document or information is either too burdensome to produce or is protected by laws concerning personal privacy.

 

Lately, more and more of those squabbles concern whether an individual’s Facebook password is discoverable. For anyone who hoped that their Facebook privacy settings were enough to keep their online discourse private from enemies or adversaries, that hope is fading fast.

 

Most often, Courts deal with demands for Facebook access in the context of personal injury litigation where the defendant wants to use Facebook photos or posts to show that the plaintiff’s injuries are not as serious as he or she claims.  Let’s face it – photos of your golf swing or dance moves will shoot serious holes in your disability claim.

 

Courts increasingly agree that Facebook postings are fair game in the discovery process.

 

Laws that prevent Facebook, itself, and other social media sites from disclosing member’s private information are of no help if you are the one being asked to allow access.  For example, a Pennsylvania court recently found that the federal Stored Communications Act, which would have prevented Facebook from honoring a subpoena of documents, did not apply to the Defendant, himself. 

 

Personal injury litigation is not the only area of law affected by this trend.  In a recent pretrial ruling, a Connecticut court paved the way for a divorcing couple in a child custody case to examine each other’s past and current Facebook posts following an attempt by the wife to change her password and delete posts.

 

Conventional wisdom has always dictated that we shouldn’t post anything on Facebook that we wouldn’t want a potential employer to see. What this growing body of caselaw shows us is that, when you share too much information with your Facebook friends, you risk losing more than just a job.

 


Appellate Court Says ‘Normal’ Visitation Expenses Don’t Justify Lower Support

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In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.

The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.

The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.

This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.

However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’

Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.

This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.


Husband Who Lost Lion’s Share of Assets in Divorce Misses Deadline for Appeal by One Day

Talk about being a day late and a dollar short!  In Michael Farren’s 2010 divorce, the trial court found  that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.

Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the  wire to preserve his right to appeal the decision.  But there was a problem.  After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him.  Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.

After an appeals process that has taken almost three years,  the Connecticut Appellate Court in a decision released  this morning denied his appeal, agreeing with the trail court that one day late is still late.

That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure.  The rules required that he file a memorandum of law together with his motion. He hadn’t.  Ms. Farren moved to dismiss the motion and won.  Mr. Farren argued that because he  had corrected the oversight by filing a memorandum after the fact, no harm had been done.  The trial court was not persuaded.   Again, the Appellate  Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.

It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief.  In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer.  The result was the same.

Mr.  Farren may never have  been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance.  This was an appeal restricted to issues of procedure.

The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion.  In this case, all the trial judge had done was enforce the rules of court.

Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.”  In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took  three years to hit home.  Appeals are long, arduous, and costly and in the case of family law, not often successful.

In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.


Home Ownership – Breaking Up Can Be Harder for Unmarried Couples

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In a decision  released this week, the Connecticut Appellate Court upheld a ruling by the trial court that the court did not have authority to allow one member of an unmarried couple to buy out the other in order to separate their interests in a jointly held home — a solution routinely applied in divorce cases.

Dean Fusco and Robbin Austin had been in an almost 40 year relationship and for many years had shared a home that they had purchased together.  When they broke up, Dean moved out of the home they had owned together for about 23 years and Robbin remained in the house but ultimately, like many estranged couples, they were unable to see eye-to-eye on a fair way of dividing their possessions including the equity in their house.

Since they were not married,  Dean and Robbin could not take advantage of the relatively short process of  divorce which typically takes between 5 and 12 months to accomplish except in the most hotly contested cases. Instead, they were relegated to the ordinary civil docket which often moves even more slowly.  In order to receive his share of equity in the house, Dean had to file an action for partition — a procedure designed to separate joint ownership in real estate.

Not only is the procedure more cumbersome and, in most cases, more drawn out than divorce litigation, the remedies available are also limited.

Because Robbin was living in the home and wanted to remain there, she asked the court simply to determine what the house was worth and to award Dean his share based on the evidence of what he had contributed over the years both financially and in labor and management.  That was, after all, what any divorce court could do and probably would if the parties were already separated.

The court said no.  Historically, partition in Connecticut can have only two results. One is called ‘partition in kind’ .  That means the property is literally divided up and each party walks away owning his or her part of the whole.  That may work fine with open land or a farm, but can hardly work in a single family home.

The other option is ‘partition by sale’.  This is used when the nature of the property doesn’t lend itself to a line drawn in the sand.  So, because this was a single family home, that is what the court ordered.

Robin, who didn’t want her house sold, appealed the trial court’s  decision.

There is a statute she pointed to that does allow the court to order one party the option of  buying out the other even when they are not married and must go the partition route.

The statute did not apply here.  The problem, according to the Appellate Court who denied the appeal, was that this third option only applies in a small class of cases in which the party to be bought out has an interest deemed to be “minimal”.

Even though Dean had contributed less than Robbin financially, he had worked on the house over the years and the trial court had not considered his interest  to be minimal.

The lesson of this case is not that anyone considering buying a house with a significant other outside of marriage or civil union should marry.  The lesson is  that partners in real estate purchases, whether or not they are in love, need to have a clear written agreement about how their interests will be determined in the event that their partnership some day ends.


Alimony Order Against Unemployed Lawyer Overturned

In a decision to be released next week, Keller vs. Keller,  the Connecticut Appellate Court has overturned a hefty order of alimony and support entered by a Superior Court judge.

The Defendant husband held a law degree from Columbia University and was licensed to practice in two states.  After a brief practice, he had gone into finance and most recently had owned a hedge fund that had , at first, done very well but had later turned sour. At the time the order entered, the fund was closed. The evidence showed that  Attorney Keller had no income and the family was living on borrowed money and the last of their liquid assets.

In Connecticut and elsewhere, judges may make orders of alimony and support based on a finding that the payor has earning capacity even if he or she is unemployed or underemployed.  Tn the Keller case, the judge did just that, finding that Attorney Keller had a gross earning capacity of $25,000 per month.  Based on that finding, the court ordered him to pay combined alimony and support of $9,000 per month during the pendency of the case.

The Appellate Court overturned the order, not because the lower court did not have discretion to consider earning capacity but because the court failed make a finding as to Attorney Keller’s net earning capacity.   Under Connecticut law, orders of alimony and support must be based on net income whether that income is real or merely imputed.

The lesson for litigants hoping to obtain orders against their unemployed or underemployed spouse is to present evidence specifically on the subject of what they believe their spouse could earn after taxes.