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.
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.
A new article on Forbes.com by Attorney Jeff Landers gives a nice overview of the reasons to gear up early once you sense that divorce may be one outcome of your marital problems.
While Jeff seems to suggest that divorce dirty tricks are the exclusive province of men, in our experience the risks and considerations he outlines in this otherwise informative article apply to both genders.
Landers points out that consulting an attorney early can not only provide you with a crucial checklist for contingency planning, but can also assure that your spouse won’t beat you to the punch by consulting several of the best area lawyers simply to disqualify them from representing you. He also notes that starting the action assures that if the matter goes to trial down the road, you will be the one, as the plaintiff, to present your case first.
Our clients in Connecticut should also know that by filing for divorce certain Automatic Orders take effect the moment the divorce papers are served on their spouse. These orders prevent the other party from doing a number of things including moving out-of-state with children, hiding assets, taking sole ownership of joint assets, changing locks on the marital residence, changing beneficiaries on existing insurance policies and more. The full text and a summary of the Automatic Orders can be found here on the Connecticut Judicial Website.
Bottom line? While you’re hoping for the best and working on your marriage it also makes sense to prepare well for the worst
In a decision released this week, the Connecticut Appellate court once more addressed the issue of whether and to what extent a divorcing couple can agree to make child support and alimony non-modifiable. It has long been clear that absent clear and unambiguous written language to the contrary, both alimony and child support may be changed by the court as the circumstances of the parties change. This language is normally found in the terms of a written separation agreement, i.e., a contract, between the parties which is adopted by the court at the time of the dissolution and made a court order.
Historically, it has been easier to put a lock on an alimony award than on a child support award for reasons of public policy. The courts have always ruled that only under certain very limited circumstances may the parties to a divorce limit the rights of their children to receive support from their parents.
This week’s decision in Malpeso vs Malpeso involved a situation where the husband was to pay $20,000 per month to the wife as” alimony, or separate support for the minor children” . The ambiguity of that language alone, stated in the disjunctive, made the agreement unusual. The agreement went on to provide that this sum, which it now referred to as simply “alimony” would not be modifiable for 8 years. An exception the parties had agreed on as part of the contract was a calamitous circumstance affecting the economy of New York and similar to the events of September 11, 2001. Clearly such an event had not occurred. Still, the husband argued that his circumstances had changed.
In response to her former husband’s motion to modify the order before the 8 years had expired, the wife objected citing the language of the agreement and the trial court agreed. The appellate court reversed saying the agreement was ambiguous as to whether by “alimony” the parties meant to refer to the order that the agreement had earlier characterized to include child support. Based on that ambiguity, the court held that the longstanding presumption favoring the modifiability of child support prevailed.
In an earlier post, we discussed another recent case in which the parties had agreed, at the time of the divorce, on an ending date for alimony. In that case, the court held that selecting a termination date alone did not make alimony non-modifiable as to term. Both of these cases underscore the need for careful drafting of agreements regarding both alimony and child support. In the event of any ambiguity at all, the courts do not look to the original intent of the parties, but instead to the policies that favor modification.
A new Connecticut Appellate Court case provides us with a window into what may be a shift in judicial attitudes on the issue of whether to look at earning capacity vs. actual or reported earnings in alimony and support cases.
In 2009 when Sandy and Scott McRae — both small business owners — were divorced, the trial court entered an alimony award based not on the couple’s respective financial affidavits, but instead on what the court estimated their real earning capacities to be — a higher number for both husband and wife. Based on those assumptions, the court entered an order that, in theory at least, equalized their incomes.
Mr. McRae wasted no time petitioning the court to reduce the award. On his third attempt in 2011, he finally met with success. Judge Trial Referee Herbert Berall reduced Mr. McRae’s weekly alimony obligation from $250 to $150 per week. Better still, from Mr. McRae’s point of view, the court allowed one half of that amount, $75 per week, to be treated as payments toward a substantial arrearage Mr. McRae had accumulated by unilaterally reducing his alimony payments without the benefit of a court order. At that rate, Mr. McRae’s arrearage would not be fully paid for approximately 7 years and, meanwhile, even the remaining $75 — the new current order — would drop away before long under the terms of the original decree.
Sandy McRae appealed the order on a number of grounds. The question that interests us the most was whether the court erred by comparing apples to oranges — 2009 earning capacity to 2011 reported earnings. The court made it clear on the record that it considering Mr. McRae’s financial affidavit and tax returns in deciding whether to modify the 2009 alimony rather than looking beyond those numbers as the first court had done to consider, instead, Mr. McRae’s earning capacity.
The point is a technical but important one. Under Connecticut law and the law of most other states as well, courts cannot modify alimony without first finding, as a matter of fact, that there has been a substantial change in the financial circumstances of one or both of the parties. There were two sides to Ms. McRae’s argument. If the trial judge had looked at earning capacity rather than his actual reported earnings, then the judge hearing the motion for modification should have done the same thing.
Conversely, she argued, if the court was considering Mr. McRae’s reported income in 2011, it should compare it, not with his 2009 earning capacity, but with what he had reported his real earnings to be in 2009 — about the same number he reported in 2011. Effectively, her argument was that if the court had compared apples to apples — reported earnings with reported earnings — it should not have modified her alimony because Mr. McRae was reporting about the same level of income in 2011 that he had reported in 2009.
The appellate court disagreed even though the judge who modified the order clearly said that he was basing the new order on Mr. McRae’s financial affidavit and recent tax returns. The judge said this about the 2009 finding that Mr. McRae had higher earning capacity than his real earnings suggested: ” Well reality set in … [s]o much for predictions. I will tell you, this court, certainly in the last year and a half, has made no decisions finding people’s earning capacity.”
The appellate court rejected Ms. McRae’s arguments finding essentially that the modifying judge based his decision on an assumption that Mr. McRae’s earnings and earning capacity were one and the same so the order was still based on a comparison between past and present earning capacity. This despite the lower court judge’s own words.
So what does all this mean? In part that depends on how many other judges agree that lower incomes are more likely to be the result of economic reality than of divorce game-playing. The case-law in Connecticut makes it clear that courts have the right to consider a person’s earning capacity if they believe that the individual is under-employed. We often encounter clients who insist that their spouses are deliberately under-reporting income or keeping his or her earnings artificially low in order to achieve better results in divorce court. Now it seems, convincing the court of that may be harder in a bad economy than it has been in years past.
This does not mean that earning capacity is lost as a concept in divorce law, but it does mean that the standards of assembling proof, including the use of expert witnesses where appropriate, are higher than ever.
Writing recently for the New York Times, author Matt Richtel in an article entitled, ” Till Death, or 20 Years, Do Us Part”, mused about whether setting an expiration date for marriage might be the best way to address new attitudes about marriage — those that render it expendable depending on circumstances.
Richtel, who writes most often about technology, makes his case for a twenty-year contract with tongue in cheek but does make the serious point that no real mechanism exists, short of prenuptial contracts, to mitigate the drama and stress of divorces that happen at statistically predictable stages of marriage.
Richtel implies that making marriage contracts renewable might have the double advantage of lessening the stigma of divorce where it proves inevitable, and, conversely, of raising the consciousness of couples whose marriages will grow stronger if re-examined and effectively re-negotiated at intervals that coincide with marriages’ biggest stressors. Various experts cited in the article suggest that these milestones involve the birth of a child, a job change, the death of a family member, or when the couple finds themselves living in an empty nest. While most of these events are unpredictable, others are not. Generally, for example, empty-nest syndrome shows up at roughly the twenty-year mark. The president of the American Academy of Matrimonial Lawyers, Kenneth Altshuler, quoted in the article, noted that, in his own practice, divorces seem to cluster around the 7 and 20 year marks. As it turns out, the seven year itch may be more than a movie title.
None of this is to suggest seriously that renewable marriage contracts are really ripe for serious thought given the tenor current political dialogue on the overall issue of marriage. Instead, however, Richtel’s article makes us think more seriously about what should be done at the beginning of a marriage to lessen the trauma and bitter discord that so often characterizes the end.
True, prenuptial agreements do put a temporary crimp in the image of unsullied romance that we expect to survive from the first date to the end of the honeymoon. (Although anyone who has ever planned a large wedding knows that only a strong dose of denial can keep that illusion alive.)
On the other hand, at what other point in a relationship will a frank and, mercifully, hypothetical discussion about the practical issue of divorce take a lesser toll on a couple’s relationship? Balance this against the angst that the couple will suffer if their marriage is among the half that end in divorce and at a time when love and goodwill are no longer the most important underpinnings of the negotiations. Once that comparison is made, the only remaining question is what will better serve the couple and their future children — betting everything that they will beat the odds, or promising from the start to do the right thing in the unexpected event that they won’t?
After more than 20 years of marriage that ended in divorce in 2003, Connecticut resident Peter Larson seems to have been no stranger to the courts. When he returned to court in 2010 to seek a reduction of child support and alimony orders, he had two previous efforts at modification under his belt and probably felt confident that he would win his pro se bid for relief. After all, his income had gone from about $85,000 in 2003 to about $21,000 and he was unemployed.
And, in fact, he did come away with some degree of success without the help of a lawyer. The trial court recalculated his child support dropping it from its original level of $347 per week to $115 per week. In addition the court reduced his alimony order to $1 per year — not a permanent victory on the alimony front, but still an important win.
Unfortunately, Mr.Larson’s former wife, Matilde, did hire a lawyer who filed a counter-motion for contempt seeking past due child support and attorney’s fees. Ultimately, although he received a break in his current orders, Mr. Larson was also ordered to pay almost $100,000 in past-due support and was also ordered to pay almost $27,000 in attorney’s fees.
In a per curiam decision of the Connecticut Appellate Court scheduled for release next week, the Court upheld the trial court’s action.
As he had at the trial court level, Mr. Larson represented himself on appeal. His arguments of error were;
- The trial court hadn’t reduced child support enough
- The trial court should not have found him in contempt of prior orders
- The order of attorneys fees was excessive because the fees were unreasonable
The Court’s response to these claims makes it clear that Mr. Larson would have benefitted from consulting with a lawyer before filing his motion and, later, before filing his appeal. First, the court stressed the enormous discretion accorded to trial courts by appeals courts in family matters. It is never enough on appeal that the appellate judges might have decided the case differently. This means that strategic errors at the trail level can rarely be corrected on appeal.
Second, Mr Larson would have been cautioned that, because he was not fully in compliance with existing orders, he should have expected a counter-offense if he chose to seek a modification. Based on the amount of the arrearage that the court found, it is clear that his former wife had tolerated his non-compliance for a very long time up to the point that he made the first move in 2010. To the extent that Mr. Larson thought his current financial situation would — or even could — protect him from being held in contempt for falling behind, he was mistaken and any experienced lawyer would have made that clear to him.
Third, he would have been advised that law that requires courts to consider the respective finances of the parties when allocating responsibility for attorneys fees in divorce cases, does not apply in enforcement proceedings where there has been a finding of willful contempt. In such cases, attorney’s fees can be shifted to the party who failed to obey a court order as a simple matter of punishment.
While Larson complained that he had not been given a fair chance to challenge the reasonableness of the fees, the appellate court noted that, not only had the trial court afforded him the opportunity to do that, but had actually scheduled a separate hearing for that very purpose. Although Larson attended the hearing he did not, according to the court, present any evidence on the subject. It is not unusual for inexperienced litigants to expect the trial judge to take the lead in a factual inquiry.
In a 201o op-ed piece published in the New York Times entitled “A Nation of Do-It-Yourself Lawyers” John T Broadrick, chief justice of New Hampshire, and Ronald M. George, chief justice of California, stressed the disadvantages faced by litigants who, for financial reasons, feel compelled to go it alone. The authors urged members of the bar to step up to help mitigate the problem by offering so-called unbundled legal services so that litigants who could not afford comprehensive representation could nonetheless receive limited assistance in the form of consultation, coaching, and help with document preparation.
What many do not understand is that limited representation can be a minefield for lawyers since the rules in many states do not adequately protect them. We cannot reasonably expect lawyers who would otherwise be willing to play a supporting role in a lawsuit, to risk taking responsibility for the final outcome of litigation they do not fully control or to be required to provide additional or even comprehensive services without remuneration.
Still, in every community there are lawyers who recognize the problem and who are willing to address it as long as roles are clearly defined and the expectations are clear. When the stakes are high, it makes sense to seek them out.
Yesterday, the Huffington Post reported on a new study by sociologists Wendy Manning and Jessica Cohen concerning the relationship between cohabitation prior to marriage and the risk of divorce down the road.
As it turns out, the divorce rates among couples who did cohabit and those who did not are fairly equal.
While the authors of the study looked at factors such as gender, and level of committment — whether or not the couple planned to marry from the start — nothing in the report suggests that the authors considered whether the cohabitation took place before a first marriage or a second or subsequent marriage.
In Connecticut and many other states, the decision to cohabit before a second marriage carries an added risk — the prospect of losing alimony whether or not the new relationship works out.
In most cases, alimony terminates on the remarriage of the recipient. Under the so-called Connecticut cohabitation statute, things are not so clear-cut.
The Connecticut cohabitation statute uses peculiar language. Most importantly, it does not include the word ‘cohabit’. Instead it allows a court to suspend, reduce or terminate alimony if it finds that the recipient is living with another person under circumstances that alter his or her financial needs.
While the language is broad enough to include roommates, relatives, and even long-term guests, the courts have generally interpreted the statute to be focused on couples living together without the benefit of marriage.
As broad as the language of the cohabitation statute is, cohabitation can be tricky to prove especially when the couple separates in reaction to a motion by an ex-spouse to terminate alimony.
Still, the cost of cohabitation for anyone receiving alimony can be loss of a stream of income that might otherwise have continued for years. While courts have the option to suspend or reduce alimony on a finding of cohabitation, termination is far more common. Once alimony has been terminated, it cannot be reinstated.
So if the Manning/Cohen study tells us that cohabitation prior to marriage doesn’t reduce the incidence of divorce, at least for second-timers whose existing alimony is at risk, it might be wise to test a new relationship from a safe distance.
A recent decision of the Connecticut Appellate Court in the case of Felicia Pierot Brody vs. Cary Brody illustrates what can happen when the focus of a divorce case shifts from the issues in the marriage to the credibility, or lack thereof, of one of the parties to the case. In the Brody case, one thing that happened was that a lot of personal information became public – e.g., the husband’s awkward excuse for stashing condoms in his travel bag. Another consequence: Brody was ordered to pay $2.5 million in lump sum alimony even though his prenuptial agreement was meant to prevent that and even though the court was unable to ascertain his income. The trial took place in 2010. Recently the Appellate Court has ruled against Brody on all six issues he raised in his appeal.
For all most of us know, Mr. Brody might have told the truth from start to finish. However, the judge found him not to be credible which, as the finder of fact in a civil case, she was privileged to do.
Any judge will tell you that the best way to appear to be truthful is simply to tell the truth. Still, any divorce lawyer who’s practiced as long as I have, has encountered more than one client who is shocked to learn that their lawyer expects them to be honest.
What kind of lawyer wouldn’t help you hide your assets, understate your income or cover up your extramarital affairs? The answer: any good one. Yet, despite our best efforts, there are plenty of folks who remain unconvinced that honesty is the best policy even when the truth isn’t pretty.
The fact is, there isn’t much that happens in a marriage that the judge hasn’t heard before. Also, there can be two very different sides to every story even when the story is told by honest people. Your secret spending or infidelity might have led to enormous drama in your household, but in divorce court, might barely cause a ripple. Unless, that is, you deny the deed and the judge isn’t buying it.
Brody was not a divorce between members of the 99% although the basic issues were fairly universal. There was an issue of irresponsible spending — in this case buying one too many Ferrari automobiles , a wine cellar, and an airplane. There was an issue of suspected infidelity with no proof other than a few unused condoms. There was a business purportedly in decline — in this case the Defendant’s hedge fund. There were some “he-said-she-said” claims of verbal abuse. All matters divorce judges deal with day in and day out.
No case in Connecticut goes to trial without first going through at least one formal attempt at settlement usually with the assistance of a judge or court-appointed Special Master. Most cases settle before trial. Of the small percentage that do not, only a handful are appealed and those few find little success in overturning the decision of the trial judge.
In this case, the Defendant raised a number of issues that might have served him well during settlement negotiations. His business really had been embroiled in litigation with the SEC, for example, and the prenuptial agreement arguably offered him protection from a lump sum alimony award that would have to be funded by liquidating personal assets.
At trial, however, the judge found him not to be a credible witness. For one thing, he had admitted testifying falsely under oath in an earlier divorce proceeding that his wife had commenced but later dropped. Back then he had denied removing his wife’s jewelery from a safe, but had later come clean. Added to that was the finding that the Defendant had stonewalled during the discovery phase of the trial pretending that certain documents sought by the Plaintiff didn’t exist. With those two strikes against him, the case was pretty much over. The Plaintiff, whose personal net worth at the time of the marriage had been 29 million, and whose dividend income from her separate property was approximately $100,000 annually was awarded alimony and, tacitly, the designation of honest litigant.
According to a recent article published in USA Today, a study of over 7000 individuals conducted by researchers at the Ohio State University found that 79% of marital separations end in divorce.
The study found that the average length of separations that resulted in reconciliation was two years, while the average of those ending in divorce was three years. Surprisingly, the chances of reconciliation virtually disappeared among this group beyond the three-year mark. While many couples who lived apart for three or more years eventually divorced, others simply continued the separation indefinitely.
The study found that women with children under 5 years old were more likely to separate from their husbands rather than to divorce immediately.
All of this means that a great number of couples either delay or forego altogether the protection of laws designed to shield them financially in the event their marriage comes apart. These include laws governing the division of marital assets as well as laws regarding spousal and child support.
In a relatively new trend, some couples seriously contemplating trial separation begin the experiment by negotiating a formal post-marital agreement that sets out their respective financial obligations while still legally married and also in the event of an eventual divorce. In this way, they are able to enter into a trial separation — or in some cases even continue living under the same roof — with the security of an agreed-upon set of rules. This provides each of them with a degree of certainty about their financial future that would not otherwise be possible absent divorce litigation. With financial issues resolved, they are better able to understand the choices they face and to focus on other issues in their relationship.
Just like prenuptial agreements, post-marital agreements must meet certain standards in order to be enforceable. These standards are governed by the laws of individual states, but certain features are universal. First, they must be accompanied by full mutual disclosure of financial information. Second, they must be entered into voluntarily and both parties must have had at least the opportunity to have the agreement reviewed by independent counsel. All courts reserve the right to review both prenuptial agreements and post-marital agreements for fairness, but, provided there are no egregious flaws in the contract, courts generally support and enforce them as a matter of public policy.
Impending separation is not the only reason to consider a post-marital agreement. Events such as the birth of a child, a return to school, or the launch of a business can be good reason for couples to consider adding a post-marital agreement to their financial plan.