Family law cases are a highly complex mixture of finances, emotions, and parenting dynamics combined with the application of a set of laws that can be both flexible and rigid at the same time. Each family presents their own specific set of facts unique to them. While final outcomes are difficult to predict at the outset of a case, I have learned several universal lessons over the past 20 years observing clients and participating in countless litigated cases and negotiated settlements.
1. Family law cases are a moving target. Unlike most other lawsuits which involve a contained set of facts surrounding a particular accident, injury, or business transaction, a family law case is a constantly evolving set of facts leading up to the final judgement. Financial changes that occur during the pendency of the case can have significant impact, such as a parent or spouse losing a job, a business going through a downturn, or the discovery of significant debt that one spouse did not know existed.
2. Financial disclosure is critical to reaching any resolution. Although one party may have been the person during the marriage primarily responsible for managing the money, the spouse who was not does not have to take that person at his or her “word” during a divorce. A party is entitled to full disclosure of income, assets, liabilities, and expenses before entering into any settlement.
3. The question “Can you afford to keep the house?” has many different layers. This can be one of the most difficult issues in a divorce, especially if there are children. The desire of one party to keep the house must be balanced against not only whether the party can afford to keep the house, but also what is being given up in order to do so and what type of net sales proceeds will be received in the future.
4. It’s (almost) never about the dining room set. The discussion over the division of personal property is often left until the end of the case because there are more important issues to finalize first. It is not uncommon for heated disagreements to occur when dividing up the furniture and furnishings after a lengthy negotiation process. Generally, the issue is not about the actual furniture or china, but rather a bigger underlying issue manifesting itself in the form of an argument over personal property.
5. Divorce can happen to anyone. Divorce transcends all socioeconomic demographics. No matter the amount of money someone has, they all worry about their children and what their own futures will look like post-divorce.
6. Adult children have just as difficult time with their parents’ divorce as younger children. There is a common feeling among parents that if they can wait until their children are out of the house, then it will be easier on them when their parents get divorced. There are countless studies on how divorce affects children and how different ages of children react to divorce. The studies show, however, that adult children are affected just as much, if not more, than younger children.
7. The kitchen table divorce is never is easy as you think it is. In an effort to save on attorneys’ fees, couples will try to decide how their settlement should look and then ask an attorney to draft the agreement. The problem occurs if the couple has not gotten proper legal advice or been counseled on how a divorce settlement would look if the law was applied, and more fees may actually have to be spent crafting a new arrangement after proper counsel has been given and everyone knows the intended consequences of the deal.
8. Alternative Dispute Resolution (ADR) is not for every case. In order for ADR to be successful, both parties must be willing to engage, be completely transparent with respect to each of their finances, and hire attorneys who are committed to the selected ADR process with a joint goal of resolving the case without court intervention. If one party attempts to use the process as a means for not having to disclose certain financial facts or circumvent discovery, the process will fail.
9. The case moves as fast as the slowest party does. In order to settle a case, both parties have to be willing to settle. That ultimately means that both parties have to be ready for the divorce. If one party is not emotionally ready, or is still reeling from being told that their spouse wants a divorce, the case will likely move slow in the beginning until the party is in the right space to be able to make a deal.
10. Trial is not glamorous or exciting. And there is no “You can’t handle the truth!” moment. Television and the movies portray dramatic trials filled with “gotcha” moments. This could not be farther from the truth in real life. In reality, the rules of evidence prescribe exactly how evidence comes in and parties do not just get to “tell their story” the way it is shown on television.
11. Children are resilient, but they are also children. There are several recent studies that show that children are much more resilient than we give them credit for and that they can handle anything so long as their parents are aligned and present a united front. While I will not argue with the research, in practicality they are still children. They still need to feel that their parents love them and that they have a known schedule of when they will be with each parent.
12. When a family business is the main asset, you have to get creative in terms of settlement options. One of the more challenging settlement scenarios is a situation where a family business is one of the main assets. If that is the case, the business is usually the employer of one of spouses and the primary source of income for the family. A creative settlement will have to be evaluated in terms of not only valuing the business and buying-out the other spouse, but also identifying a stream of income which will provide ongoing support for the non-employed spouse.
13. If you have minor children, there are certain things that simply can’t be locked down forever. Child support will always be open to modification, as will be the allocation of decision-making responsibility (formerly known as custody) and the parenting schedules. In Illinois, if one parent wants to change the terms of an agreement, they generally have to show that a substantial change of circumstances has occurred.
14. Leave the professional advice to the professionals. Anyone going through a divorce or other difficult family situation where lawyers are needed should lean on their friends and family for emotional support. But the professionals should be the source of their counsel and advice. Hearing stories of friends’ and family members divorces and “what they got” can cause more anxiety than is necessary.
15. It’s the justice system – not the fairness system. Or a business. This may seem harsh, but it is the truth. Courts must follow the law. And laws are not crafted to run the way a business would be run or the way that is the most “fair.” The law attempts to be equitable based on certain factors, but what one person deems equitable is not what someone else deems equitable.
16. No one can force someone to be a better parent. More likely than not, the person you are divorcing will be the exact same person (with all personality traits and quirks) with which you will go through the divorce process. If you didn’t like their parenting while you were married, getting divorced will not likely make them a different type of parent.
17. Just because you made certain decisions in the past doesn’t mean you will make them going forward. If you made all of the financial decisions during the marriage, you will not have control of your ex-spouse’s finances after you are divorced. If you made all of the parenting decisions while you were married, your ex-spouse will not be required to parent just like you would after you are divorced.
18. Choosing a lawyer is important because you need to be aligned. Your lawyer needs to listen to you and understand your ultimate goals and the process you want to engage in order to resolve your case.
19. You can’t force someone to settle. This is one of the most difficult situations, but there are rare cases where some people just don’t want to settle their case – for whatever reason. There could be mental health issues or extreme anger. It takes two people to settle a case. If one person is committed to not settling, the case will not settle.
20. These are the two most common questions: (1) how much will this cost and (2) how long will this take? These questions gets asked in every single initial consultation, and it is nearly impossible to answer. The reason that it is impossible is because often times the lawyer does not know what the other side is going to do or who they are going to hire as an attorney. These two factors have the biggest impact on how long a case will take and how much it will cost.