How to Optimize Your Initial Meeting with a Divorce Attorney
Divorce is a fact of life for many couples despite the fact that the divorce rate in the United States fell 18 percent between 2008 and 2016, according to a University of Maryland study. Much of that drop was due to millennials choosing to stay together. But, the Pew Research Center noted that “gray divorce” is on the rise. Adults in the U.S. age 50 and older have seen divorce nearly double since the 1990s. For those over the age of 65, the rate during that period has nearly tripled. Those who have been married for a significant time generally have accumulated more assets and wealth and have children for which custody and child support represent major issues. Meeting with a divorce lawyer is one of the most important steps you can take to protect your interests in the family and financial issues that will be affected by this breakup.
Ending a marriage is an emotional rollercoaster but meeting your divorce lawyer for the first time can also be stressful if you aren’t prepared. Depending on what stage of life you are in, whether you have young children or not, and whether you will have significant property division of spousal support issues, being prepared to discuss your potential divorce and answer your attorney’s questions in the first meeting will have significant impact on the process.
As a preliminary matter, your lawyer will want to know why you think your marriage is likely to end in divorce or why you want to initiate divorce proceedings. You should arrive prepared to have a candid discussion about your situation and background so the attorney can decide what information may be needed for your case. It is important to remember that you have a privilege of confidentiality with your lawyer. To obtain the best legal advice, you need to be open and honest, even with the most difficult questions. One of the biggest mistakes clients make is withholding sensitive information, such as prior acts of misconduct, for fear of embarrassment or in hopes it will never be disclosed. Sometimes this information can have a drastic impact on the course of the case, and failing to answer your attorney’s questions in an open and honest manner may result in receiving advice they may not otherwise have given you.
Because of the nature of the discussion, the initial meeting can be overwhelming. Many people ask to bring a friend or close relative with them to the meeting to help them remember questions to ask or take notes. While doing so may offer the client additional support, including a third party in a meeting with an attorney can create issues and undermine the attorney-client privilege. If a client has information to share with the attorney that needs to be protected by the privilege, the third party should leave the room prior to addressing the subject.
The initial meeting with the attorney will review the major topics that need to be addressed to dissolve the marriage. Generally, divorce cases have four major categories to consider:
Division of Marital Assets
A significant portion of any divorce action is determining how to divide what has been acquired during the marriage. This begins by preparing a “marital balance sheet” to delineate your financial assets and liabilities.
In the state of Georgia, marital assets and debts generally get divided equally. Your lawyer’s responsibility is to make sure that the division is fair and equitable to you, and to make sure any property that would qualify as your “separate” or pre-marital property is protected. To achieve that result, your attorney may have to hire forensic accountants, financial analysts, business valuation specialists and other experts for your case. They may have to locate and value multistate and international property, trust funds, stock options, restricted stock units, pensions, benefit plans and other compensation packages.
Additionally, some assets have real, immediate value while others do not and could provide severe tax penalties if liquidated.
Some other assets are not part of the marital balance sheet and not divided. That “separate property” includes assets that you or your spouse either brought into the marriage or received during the marriage as a gift or inheritance from a third party.
To prepare for this discussion, you should have a working knowledge of what assets could be subject to equitable division, and you should be prepared to identify any assets you brought into the marriage or received by gift or inheritance during the marriage. You should also do your best to identify any significant debts that need to be addressed, such as mortgages, unsecured loans, and credit cards.
Also known as spousal support or maintenance, alimony is generally based upon the needs of the spouse receiving alimony and the ability of the other spouse to pay. Since Georgia law does not provide a standard mathematical formula for determining an appropriate amount or length for alimony payments, a judge or jury has significant leeway to determine the amount of an alimony award. Courts may consider the standard of living during the marriage, the marriage’s duration, the age and health of each party, the financial resources of each party, and the contribution of each party to the marriage (including homemaking and child care), among other factors. The new tax law has made significant changes to the tax treatment of alimony, which may affect the enforceability of prenuptial agreements made prior to 2019.
To discuss the topic of alimony with your lawyer, you should be prepared to answer a number of questions. Primarily, do you earn income, and if so, how your income is structured. What has your standard of living been during the marriage? Are you employed? If not, do you have a plan to earn income after the divorce? What is your educational background, and would you need any training to re-enter the workforce? Your attorney will also want you to have an idea of what your expenses will be after the divorce. This will help the attorney identify your “need” for alimony, or if you are the payor, your “ability to pay.” In Georgia, you will complete a document called a “Domestic Relations Financial Affidavit” at some point in the divorce process to help your lawyer further analyze your need for alimony or potential ability to pay.
Custody and Parenting Issues
Perhaps the most emotionally charged subject is custody. Divorcing parents have to decide where the children are going to live and who will be making the decisions about the most important issues in their lives. This is especially difficult when it comes to minor children.
Highly contested custody cases involving minor children can be complicated by a number of issues including domestic abuse, child abuse, mental illness, special needs, substance abuse, and even when one parent is a foreign national.
In some situations, the court relies on an objective third party, known as a guardian ad litem, to create parenting plans that are specific for that family and to make determinations on custody. A guardian ad litem meets with the parents and the children, interviews third parties who have knowledge of each spouse’s parenting style, and makes a proposal to the court about an appropriate custody and visitation schedule for the children.
In Georgia, as in many other jurisdictions, courts base their custody determinations on the “best interests of the child.” The judge may award joint custody or sole custody.
For the first meeting with your divorce lawyer, you should have an idea of what type of custody you will be requesting and what your spouse might request. Your lawyer will ask you questions about what the historical roles in the household have been in providing for the children on a daily basis. There may be other issues such as geography, work-related travel and cost that impact the custody discussion.
To calculate what the obligations for each child will be, your attorney will use a “Child Support Worksheet.” Depending on your unique situation, the worksheet will provide an approximate idea of what you can expect. Child support is paid until a child graduates from high school. In the state of Georgia, a parent cannot be compelled to pay for anything once that child turns 18 or graduates from high school, whichever is later. Your lawyer can help you develop a general idea of what the child support obligations might be based on this worksheet.
In addition to discussing these major topics, your lawyer can explain the procedural aspects of divorce, including how the court system works and how long the process may take. Often, a temporary agreement is reached on custodial rights and financial concerns until the case is finalized. The cost of your divorce will depend on how both spouses determine how they want to handle the case. Your attorney can provide an outline of fees and how they will be charged. Though you should know, your attorney will not necessarily be able to predict the cost of your divorce or how long it will take to complete.
Choosing which lawyer you hire will determine what type of legal strategy the attorney will pursue, especially when children are involved. Will it be acrimonious or amicable?
Divorce is tough on all parties involved but strong, competent and caring legal representation can make the difference between a protracted, all-out war and a fair and equitable parting-of-the-ways.