Divorce Case Intake and Pre-Litigation Tactics

1. DIVORCE CASE INTAKE AND PRE-LITIGATION TACTICS

1. Client Interview Questions and Documents to Obtain

In any type of legal interaction between a family law attorney and client, the first interview is perhaps the most important. To advise the client properly, it is important to have a checklist of information from the client at the first interview.¹ Many important questions will have to be asked. A document like a domestic information sheet will answer many of these questions. This form will help answer many fundamental questions about the two parties in the divorce.²

1. What of the two parties in the divorce?³
2. What is the address of the two parties?⁴
3. How long have the parties lived at that address?⁵
4. What is the date of birth of both parties?⁶

To more in-depth questions about the personal lives and the marriage like

1. How many times had the parties been married? ⁷
2. Where(State and County) was the divorce granted?⁸
3. When did the marriage begin?⁹
4. Where was the marriage license obtained?¹⁰
5. Where were the two married?¹¹
6. What was the cause of the end of the marriage?¹²

Additionally, questions about employment will be significant during the initial

consultation such as

1. Are you and your spouse currently employed?¹³
2. Where did both of the parties work?¹⁴
3. How long did the parties work there?¹⁵
4. What is the gross salary of both parties?¹⁶
5. What is the job title of the parties?¹⁷
6. What kind of other assets have the parties received from your work? (Retirement, health insurance, etc.)¹⁸

If there are any children in the divorce, there will be questions about them to help with child custody and what to do with that such as:

1. Age, relationship status, health, what level of schooling the child achieved?¹⁹
2. Who has actual physical custody of the children?²⁰
3. Where have the children resided for the last set amount of time (60 days? 6 months?)²¹
4. Who is best suited to have custody of the children?²²
5. Is the spouse a good parent to the children? ²³
6. When would the parties like to have the children for custody purposes?²⁴
7. Who will pay for certain expenses involving the children?²⁵
8. Are there any wills or trusts involved with either spouse?²⁶

Most importantly, however, questions need to be asked about what assets were brought into the marriage that should be considered non-marital or separate property.²⁷

Additionally, for the case to go forward, there will have to be some documents sent over to the attorney even to start looking at the case, including property owned and the parties’ finances. These documents include:

1. Deeds to all property owned by both parties (either jointly or individually).²⁸
2. Federal and state income tax returns (with W-2s and all the attachments) for the last couple of years(this should include last year’s W-2 forms if last year’s tax return has not yet been filed).²⁹
3. Attached Statement of Marital and Non-Marital Property and Income and Expense Statement completed in detail.³⁰
4. Titles to all vehicles owned (on vehicles with liens the titles will not be available, in which case a copy of the pink license renewal application will be adequate).³¹
5. Marital history.
6. Three most current paycheck stubs.³²
7. All information regarding retirement plans on both parties.³³
8. Complete copies of you and your spouse’s medical/dental/hospital plans.³⁴

2. Advice to Client Who Hasn’t Yet Told the Spouse About the Decision to Divorce

A client may have been thinking about it for a long time. Maybe they have spoken to a therapist or trusted family member. The client may have finally talked to an family law attorney to educate themselves about what is ahead. In the client’s mind, the marriage is over. As much as it may be the hardest thing for the client to ever have to say, the client wants to tell the spouse they want a divorce. When and how, however, is critical to mitigate the impact it may have on your spouse. There are a couple of easy tips to follow to advise the client on how to tell the spouse of the decision to divorce, but it usually is important not to blindside the other spouse.³⁵

These are not easy things to do, but how much will depend on whether or not the spouse has any idea of how they feel. If they have been in marital therapy together or have had numerous discussions about how troubled they are by the relationship, or if the feelings are mutual, there may be more options. Surprisingly enough, depending on what the parties go through, the words “I want a divorce” may not be as much of a shock as you may think. If the spouse has no idea, the blindside of the decision could be devastating. It may be detrimental to the spouse while they have not had time to process like you have they will likely feel anger and denial.

The timing of the decision to tell them is also important.³⁶ Ideally, they will want to tell the spouse they are considering divorce as soon as they realize they want the end of the marriage. Saying it when the person is calm and has time to talk about it together, such as at the beginning of the weekend, is a good idea. The client may already know when the spouse is willing to hear bad news, which should be considered. When it comes to finding the right words to say, it is much more effective to state one’s feelings of the relationship clearly, honestly, and as kind as possible – instead of mentioning all the things that they may or may not have done wrong in the relationship. Saying such things as “I feel sad that we don’t spend time together anymore and that we’ve grown apart,” is easier to hear: “You never do things with me anymore, and it is your fault that I felt lonely.”

It is also essential to think things through.³⁷ If one has not yet told their spouse that they are contemplating divorce, it is vital to have a well thought out strategy on how and when to share their feelings. It is always kinder to give the spouse notice of the feelings. This gives him or her a chance to respond or to work toward improving things. Saying things like “I haven’t been happy for a long time. I’d like to tell you what’s going on for me, and see if we can work on some of the things that are troubling,” is a good place to start-assuming you truly are open to fixing the marriage. If you’re not, don’t give your spouse false hope.

It is also essential to be calm, kind, and direct.³⁸ When the spouse is ready to say they want to split, be as direct and compassionate as possible. Saying something like, “I know this may be hard for you to hear, but I believe our marriage is over and that we need to get divorced.” After all, this was a person that the spouse once loved and may even still love but can no longer live with any longer. While the spouse may not be able to uncouple consciously, if the spouses have children together, the client’s soon-to-be former spouse will be in their life for a long time. It is essential to learn how to co-parent in separate households effectively. Parting in as loving and respectful a way as possible goes far toward making that transition happen.

It is also important to be safe.³⁹ If the spouse is concerned about their safety, they may want to tell the other party in front of a neutral third party, such as a therapist, or they may want to say it in a public place where people will be around you. The spouse can’t control how well your spouse takes the news, but there are ways that they can reduce the anger and encourage understanding.

Being serious is also crucial.⁴⁰ Divorce is a big decision, especially if they have young kids at home. Never use the “D” word as an idle threat that’s manipulative and cruel- and don’t blurt it out in the heat of an argument no matter how tempting it may be. But if they have done all they can to make your marriage work and divorce is still the way to go, then knowing how and when to tell your spouse will help both parties accept, adjust and eventually move on.

3. Initial Analysis and Investigation

Clients seeking legal representation in a divorce action often come to the office with emotions of embarrassment or anger towards their marital situation and nerves about the entire divorce process. During this initial interview, an attorney should act in a supportive counselor role and listen to the potential client’s concerns while taking note of facts that will be important for the case in the future. At the first meeting, it is vital to allow the client to direct the conversation. The attorney should explain to the potential client the need for candor and the confidentiality of this meeting. Potential clients may be hesitant at first to open up about sensitive issues in their marriage or other personal issues surrounding their divorce. Allowing them to direct the conversation allows them to build a trust relationship with you and increases the likelihood that they will be truthful and open about their case. Once you have received all of the necessary information from the potential client, wrap-up the meeting by asking the individual if they are ready to proceed or if they need more time to make a decision.

If, after the initial consultation, the individual is ready to hire your firm, you should discuss in detail with the client your firm’s filing fees, the fee structure, and any required initial deposit. The client should also be informed of the first steps in filing their divorce proceeding and what information or forms you will need from them to proceed.

Next comes the investigation part of the divorce. There is no better tool in a lawyer’s arsenal than that of discovery. The four steps in discovery include interrogatories, admission of fact, request for production, and depositions.

1. Interrogatories⁴¹-This list of questions is sent to the opposing party. These questions must be answered truthfully within 15-30 days, depending on the jurisdiction.
2. Admissions of Fact⁴²-The admissions of fact is a list of short sentences recognized as fact by the party creating the list. Those facts are given to the receiving party and asked to or admit, deny, or disclaim those facts. If the other party does not respond within 30 days of those facts, it is the same as an admission.
3. Request for production⁴³-This step is used to obtain documents that will benefit the case, such as bank statements, income statements, etc. When requesting documents, you must be specific on what you want. Those documents must be produced within the time-frame set forth in your state.
4. Depositions⁴⁴– A deposition allows one party to take sworn testimony from the opposing party and any witness involved in the case. This testimony can be used in court to impeach a witness or to help a witness recall what she said, or if the witness is unavailable.

4. Declining or Terminating Representation

In the case of divorce, The Rules of Professional Conduct are vital. Under this rule, a divorce lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

1. The representation will result in violation of the rules of professional conduct or other law.⁴⁵
2. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client⁴⁶; or
3. The lawyer is discharged.⁴⁷

The most common form of declining to represent a party is when two parties want one lawyer in a divorce matter or any family matter to represent them both. The single best piece of advice that can be given to an attorney taking on dual representation is that you should not do so. Representing both parties in a divorce is a conflict of interest.

5. Case File Organization Tips

It is common knowledge that a proper case management system can transform even the most disorganized law firms. If one knows how to organize the documents the right way, you won’t have to struggle with the organization. Successfully organizing documents and cases is all about using a “subject-neutral approach.” A few easy changes will make it much easier to manage case files and cases in the firm successfully if one has not done already.

1. Identifying Key Planning Elements⁴⁸– Even before a person begins the file and case management process, one must identify three critical planning elements. First, create a plan that will help assemble and categorize documents according to their source of origin. Second, consider creating and maintaining a uniform computer database that allows a search option. Finally, people will also need to think about getting working copies made and then keep them separate from the original copies.
2. Ease of Access⁴⁹– Many people in the firm tend to make their file organization method way too complicated for their own good. If the focus is too much on the subject matter of the case documents, they may end up getting lost in the immense amount of other files that the person will incur. What one will need to remember is that attorneys simply want to find the document they need. This means that one should focus on making sure that every file is easily accessible to find it with ease.
3. Consider using Computer-Based Management Systems⁵⁰-One of the main benefits of technology is that it is a simple, quick, and effective organization for firm files and cases. If one isn’t already using software to help you with case management, one would be pleasantly surprised at how much easier your job can get, even when it comes to getting updates on a case. File management software also ensures that not many mistakes are made in the filing and management of documents. Additionally, one can even get software that offers encryption protection. This means that one will require a password or employee ID to gain access to the software and the information stored inside. This allows for maximum confidentiality. One must keep an eye open for the latest software programs to help your firm maintain a well-organized case management system.

6. Divorce From Bed and Board/Legal Separation

There are two different types of divorce: absolute divorce and divorce from bed and board. An absolute divorce is the type that most people are familiar with in that it dissolves the marital contract between spouses so that the parties are no longer married. In absolute divorce, a divorce from bed and board is a fault-based legal action. Despite its name, a divorce from bed and board does not dissolve the marriage. Instead, it is a court-ordered decree of legal separation. In this separation, the matrimonial bonds still exist, so neither spouse has the right to remarry.⁵¹

Typically, this type of process will only be necessary where one spouse will not enter into a separation agreement. It is not required to fulfill the separation requirement of an absolute divorce.⁵² However, a divorce from bed and board does help settle the rights of separating spouses.⁵³ Under North Carolina, a complaining spouse might seek a divorce from bed and board to eject the spouse accused of the marital fault from the marital residence or support a claim for alimony, post-separation support, child custody, child support, or equitable distribution of property.⁵⁴ Under North Carolina Law, a divorce from bed and board is fault-based.⁵⁵ In other words, to be eligible for a divorce from bed and board, the complaining spouse must show by the greater weight of the evidence that he or she has been injured by the accused spouse’s actions that fall within one of the six statutory fault grounds.⁵⁶ These six grounds include

1. Abandonment of the family⁵⁷
2. Maliciously turning the complaining spouse out of doors⁵⁸
3. Treating the complaining spouse in such a cruel or barbarous way that it endangers his or her life⁵⁹
4. Indignities that render the complaining spouse’s condition intolerable or life overly burdensome⁶⁰
5. Excessive drug or alcohol use that makes the complaining spouse’s condition intolerable or life overly burdensome⁶¹
6. Adultery⁶²

The grounds can have occurred at any time for a divorce from bed and board, unlike for legal actions seeking an absolute divorce, where the grounds for the divorce must have arisen within six months of the divorce.⁶³

In New Jersey, married couples can get a divorce from bed and board on the same grounds as a full divorce, but both parties must consent to the procedure regardless of the grounds.⁶⁴ Couples who go through divorce from bed and board remain technically married.⁶⁵ Neither spouse can remarry without taking steps to confer the divorce form bed and board into a final judgment of absolute divorce.⁶⁶ While conversion is usually a simple procedure, it does require filing additional paperwork and paying additional court fees.⁶⁷ Spouses who reconcile following divorce from bed and board can also apply to have the judgment revoked or suspended.⁶⁸ This is not an option after a complete divorce, a couple will have to remarry instead. Just as in a complete divorce, a couple can decide how to divide their marital property and debts and enter into a settlement agreement.⁶⁹ If the spouses have not reached an agreement, the court will divide marital property and debts according to equitable distribution rules and may also award alimony if appropriate.⁷⁰

In Virginia, a granting of divorce from bed and board, the court may decree that the parties be separated and protected in their persons and property.⁷¹ A decree of bed and board will operate on the property acquired by the parties and “upon the personal rights and legal capacities of the parties.”⁷² This is considered a decree for a divorce from marriage, except that neither party will marry again during the life of the other.⁷³ Virginia Code 20-116.

When you get a legal separation, you remain legally married to each other.⁷⁴ You must continue to mark that you are married on the form. You cannot remarry and still have the right to inherit from each other.⁷⁵ A child is born to a married woman is legally the other spouse’s child unless proven otherwise.⁷⁶

In some states, a separation is required before you can even get a divorce under certain grounds, and often a waiting period during which you live separate is necessary. There are several types of separations.⁷⁷ A trial separation is an informal separation during which you live apart and see if a separation or divorce is ultimately what you want. Many couples do this when they are having marital problems.⁷⁸ A true legal separation occurs when the court formally declares you are separated.⁷⁹ Not all states offer legal separation, including Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas.⁸⁰

Although most states recognize some type of legal separation, some states may use a different name to refer to the process. Not all states follow the same procedures for it. For instance, in Maryland, they have a limited divorce process, which operates similarly to legal separation. New Jersey, on the other hand, has legal separation, but it is only available for partners involved in a civil union.⁸¹

Circumstances for legal separation depend on the laws of each state. Some states require a legal separation before divorce.⁸² Other scenarios that frequently differ across states include: permitting the court order from the initial separation to serve as divorce proceeding and giving courts the authority to decide whether to change a separation agreement into a proceeding for divorce. ⁸³

One final note about separation is that it is crucial to figure out if the state is a community property state or an equitable distribution.⁸⁴ In community property states, property that a couple acquires during the marriage is said to be owned equally by each spouse.⁸⁵ This means that even if a couple is separated, any property that can be considered community property will continue to belong to each spouse partially.⁸⁶

7. Annulment: Grounds, Procedure, Consequences of an Annulment Decree

Getting an annulment is not an easy process. It is different than divorce because the state is invalidating a marriage rather than recognizing one has ended. The legalities of marriage are mainly left up to the states, but there are different conditions for annulment depending on the state where one is seeking an annulment.⁸⁷ For instance, Missouri grounds for annulment include: Bigamy, under 18(without) written consent of parents or permission from court, incest(parent/child, grandparent/grandchild, brother/sister, aunt and nephew, first cousins), Lack of capacity (whether that be mental incompetence, senility, impotence), Duress/fraud, or common law marriages entered after 1921.⁸⁸ In Illinois, grounds for annulment include: the lacking of capacity to enter into a marriage(infirmity, alcohol, drugs, force, duress, fraud), underage marriages are prohibited, former marriages that have been undissolved, incestual marriages unless there are no chance of reproduction and both parties are over 50 years, and common law marriages.⁸⁹ In Kansas, there are grounds for annulment when the marriage is induced by fraud, there is a mistake of fact, and there is lack of knowledge of a material fact or any reason justifying recession of contract of marriage.⁹⁰ In Oklahoma, the grounds for annulment include incapability of contracting due to lack of age or understanding, cohabitation after incapacity ceases is a defense, either party was induced to marry due to fraud.⁹¹ In most cases, most states prohibit incestual marriage, and grounds for annulment usually pertain to fraud, duress, age without consent, and mental capacity to enter into a marriage.⁹²

Some procedural steps need to be considered when talking about the actual annulment procedure. To be eligible for an annulment, you need to make sure your reason for wanting it meets the strict guidelines depending on the state. It is important to note that most annulments are either voided or voidable marriages. A marriage is void if it was not valid from the beginning. It is as if it never existed. A voidable marriage is one in which the court can deem invalid. Below are the requirements to determine eligibility. The first important step is to make sure you meet the state’s legal grounds for annulment. The legal grounds vary from state to state. As previously discussed above, there are common themes that most states share for instance: lacking the capacity to marry (mental incapacity, or underage without consent). Next, most states will not allow wrongdoers in a marriage to request an annulment. If you marry someone who uses a false identity, for instance, they cannot file an annulment. However, if one learns about the real identity and does not file for annulment for a period of time, they normally have consented to the marriage. A summary on state law on annulment can be found here: https://statelaws.findlaw.com/family-laws/annulment-and-prohibited-marriage.html

Importantly, the annulment process cannot even begin if you are not a resident of the county for at least 90 days (in some states).⁹³ However, depending on the state, this requirement can be as little as 30 days.⁹⁴ The statute of limitations is critical to keep in mind when determining annulment eligibility so that one does not miss your chances of successfully completing the process.⁹⁵ Regardless of your reasoning, you need to make sure you file for an annulment before the statute of limitations runs out in your state.⁹⁶ Otherwise, to remove yourself from the marriage, you must file for divorce.⁹⁷

The process and prerequisites of getting an annulment are important. Still, perhaps the most important thing to understand about an annulment is the legal effects and consequences of getting a divorce.⁹⁸ In some cases, especially where the marriage was very short, both partners can simply walk away from each other once a court grants an annulment.⁹⁹ But it gets complicated when the couple has young children or substantial property together. It is important to realize that just because the marriage is annulled does not mean the court can’t deal with custody, visitation, child support, alimony, and property division. Whether it be in divorce or annulment, the children’s welfare and interest are vital to a judge.¹⁰⁰ As a result, it is a given that in an annulment action, a judge can and should decide custody issues. For a parent who doesn’t have physical custody of the children, the court will determine a schedule of when that parent will spend time with them.¹⁰¹ The court will also decide on child support. A judge will do this by looking at the state enacted guidelines that determine the appropriate amount of child support payments, primarily based on parent’s incomes.¹⁰² It is important to understand that annulment will not normally negatively impact the legitimacy of the children.¹⁰³

Additionally, alimony is another consideration to take into account.¹⁰⁴ You might think that spousal support should not even be considered.¹⁰⁵ However, some states, including New York and New Jersey, permit their courts the ability to award spousal support in annulment actions.¹⁰⁶ California, by contrast, does not allow their courts to award spousal support in alimony cases. It is essential to understand your state’s specific laws on the awards of alimony in annulment cases. Considering how restrictive alimony laws have become over the years, obtaining an alimony award in an annulment is a long-shot.¹⁰⁷

Property distribution is the last and perhaps the most important issue when talking about alimony.¹⁰⁸ If a couple has accumulated property during their time together, they may want the annulment judge to decide how to divide it between them. Some states allow the judges to do that, and others do not. New York courts can make these types of property decisions in an annulment case, but New Jersey and California cannot. An important note to remember is that if a marriage is annulled, you lose inheritance rights you may have had as a spouse.¹⁰⁹

8. Is an Expedited Procedure Available?

A couple may have reasons to seek a speedy and efficient divorce. For instance, a spouse might prefer to avoid incurring attorney’s fees or participating in a time-consuming trial. An expedited divorce may also become necessary if a spouse plans to remarry. The strategies available to expedite a divorce depend on the laws of the state. Spouses may be able to choose from several strategies to speed up a divorce. Beyond the legal strategy selected, the court’s schedule and any backlog in cases may also affect a divorce’s timing.

Unfortunately, expediting a divorce may be difficult than one might think because of the many conflicts and issues that may arise from a divorce.¹¹⁰ There are usually some conditions that will make the likelihood of an expedited procedure for divorce more likely.

1. Come to agreement on everything¹¹¹– Every asset, piece of furniture, household good, property, debt, dollar, and liability must be accounted for and distributed between a couple when they divorce for the property distribution. This can be a complex process, especially for items with sentimental attachment. Additionally, child custody and support are more difficult to agree on in many cases. However, if these matters can be agreed upon, divorce can proceed with a lot more speed. The more a couple agrees to in advance or on their own, the less the need to involve lawyers, and the time and funds for everything involved in the divorce process
2. Pursue a Summary Divorce¹¹²– For qualifying parties, most states offer a summary divorce (or uncontested divorce). The summary divorce tends to be a faster and cheaper divorce for those few who qualify for this legal option. Although the factors vary from state to state, the common qualifications that are seen through most states include the following:

1. The couple were married for a relatively short time (usually 5 years or less);¹¹³
2. The couple has no minor children (natural or adopted);¹¹⁴
3. The couple does not have any significant “real property interests”;¹¹⁵
4. Total value of marital property is less than a certain amount(usually between $25,000 and $35,000, and not including value of motor vehicles);¹¹⁶
5. Total value of either spouse’s separate property is less than a certain amount (may be same threshold as with total marital property);¹¹⁷ and
6. Both spouses give up any right to spousal support.¹¹⁸

In some states, even if a couple does have children and/or significant marital assets, the couple may still be able to take advantage of the summary divorce/dissolution process if, as part of the divorce filing, they submit written proof to the court that they have resolved key issues like child custody and child support. For example, a couple seeking a summary dissolution may reach an agreement in writing on property division, promise to give up any right to spousal support, and agree on a set amount for child support.¹¹⁹ The couple would submit these written agreements as part of the summary divorce petition.

Some examples of Summary divorce decrees;

1. Tennessee Request for Divorce(complaint)Form and Information Packet: (http://www.tncourts.gov/sites/default/files/docs/packet_-_divorce_forms_no_children_-_jan_2018.pdf).¹²⁰
2. Nebraska Complaint for Dissolution of Marriage: No Children: (https://supremecourt.nebraska.gov/sites/default/files/DC-6-4-1.pdf).¹²¹