Divorce: Most Common Questions
Here are some of the most common questions we receive at initial consultation.
Q: How long will my divorce take?
A: This is generally the most difficult question to answer. The reason is because we do not have absolute control over all aspects of your case. As your attorneys, we can certainly do our part to streamline the process for you and move your case forward as quickly as possible, but on occasion, we encounter delays that we cannot prevent.
For example, we cannot control the Court’s calendar. Even if we settle outside of Court relatively quickly, your divorce paperwork has to be reviewed by a Court Referee before the Judge signs the Judgment of Divorce. This usually takes between two and four weeks but can take longer depending on the Court’s calendar.
We cannot control your spouse. When trying to settle outside of court, we cannot force your spouse to accept certain settlement terms or provide documents in a reasonable time frame. Once we are in Court, we can ask for Court Orders to compel a response, but cannot guarantee when he or she will comply.
We cannot control your spouse’s attorney. Attorneys have multiple cases, court appearances, trial calendars, and meetings which cause them to be unable to respond to letters, proposals or voicemails immediately. They also get sick, have family emergencies, and take vacations now and then. Not to mention that they generally have to consult with your spouse on his or her position before they can respond. It is not uncommon to receive a response a week or so after initiating communication.
On a positive note, these minor delays will not be permitted to continue indefinitely. If we sense your spouse or your spouse’s attorney is not making your case a priority, we can file the necessary paperwork to get into Court and bring it to the Judge’s attention. The Court will then help move the case along at an appropriate speed.
Q: How much will my divorce cost?
A: This is also a very difficult question to answer, mostly for the same reasons outlined above. Your attorney can estimate how much your matter will cost depending on the work required (whether we are able to settle outside of court, whether a trial is necessary, etc.) with consideration for your unique circumstances and your personal expectations, but without knowing how your spouse will react, we cannot guarantee a certain price.
However, our firm will provide you with timely billing to keep you informed of your expenses. We will do our best to minimize your costs and offer suggestions on how you can minimize your cost as well.
Q: Will my children need an attorney?
A: Attorneys for the Children are appointed in Family Court for custody and visitation matters, even if both parties have already reached an agreement before they go to Court. This is because the Judge wants to make sure that the children have a representative in Court to help confirm that the children are doing well and that the settlement is in the children’s best interest.
In matrimonial matters, it is sometimes possible to avoid the appointment of an Attorney for the Children if you and your spouse are in complete agreement with respect to custody and access arrangements. However, if you are unable to resolve these issues, the Court will appoint an Attorney for the Children.
Q: What is the role of an Attorney for the Children?
A: If your children are old enough to express their own desires to their attorney, then their attorney is required to meet with your children alone, determine what your children would prefer, and represent their interests in Court. If your children are too young to express their desires to their attorney, then the attorney is required to meet with the children and substitute his or her judgment to determine and represent to the Court what he or she believes to be in the children’s best interest.
Please remember, your children’s attorney represents your children, not you. Nothing you say to him or her is confidential and he or she is not obligated to share any information with you. It is important to keep this in mind and consult with your attorney prior to meeting with the attorney appointed for your children. The child’s attorney must get express permission to speak with you directly if you are represented by an attorney. Oftentimes the attorney for the parent will attend the meeting when the parent meets with the child’s attorney.
Q: What am I entitled to/what is my spouse entitled to?
A: In general, anything acquired during the marriage, regardless of whose name it is titled in, is assumed to be marital unless proven otherwise. This means that if you owned something before the marriage, the burden is on you to provide a paper trail and prove to the Court that it was acquired before the marriage. This also means that your pension, other retirement benefits, bank accounts, vehicles, etc. are all subject to equitable distribution if they were acquired during the marriage. It is important to obtain statements for all of your assets and debts and be prepared to review them with your attorney so he or she can help you determine what your exposure is.
Q: What if my spouse handled our finances?
A: If you have no knowledge of your finances, it is ok. Come to your initial consultation with whatever information you do have and your attorney will handle the rest. We can request documentation from your spouse and/or subpoena copies directly from the source. It may be more difficult for your attorney to assess a reasonable settlement during your initial consultation without knowing all of your financial information, but we can certainly obtain whatever information we need at a later date.
Q: When can I move out/ When can my spouse move out?
A: Unfortunately, it is very common for spouses to continue to reside together throughout a matrimonial action. It is extremely important for you to consult with your attorney prior to making the decision to vacate the marital residence. There are many factors to consider before moving out. For example, depending on your financial circumstances, you could be ordered to continue contributing towards the marital expenses even after you begin to incur additional expenses for your new living arrangements. In addition, if custody and access is not resolved, moving out too soon could impact your ability to secure the ultimate access schedule you want.
This is not applicable in situations where domestic violence is present. The safety of either of the parties and the children would be paramount. It is important for you to inform your attorney of episodes of violence or safety concerns.
Q: Does it matter who files for divorce first?
A: No. Some clients have a personal preference that weighs into the decision to file first, but regardless of who commences the action, you are still entitled to the same relief.
Q: Can we avoid going to Court?
A: Sometimes. We can attempt to negotiate a full settlement outside of court. If we are able to reach an agreement, your attorney can draft the necessary paperwork, have you and your spouse sign it, and submit the paperwork to Court for the Judge’s signature. However, if it becomes clear that we are unable to resolve certain issues it may be necessary to go to Court in order to move your case forward.
Q: Does my spouse have to hire an attorney if we agree on everything?
A: Your spouse is entitled to be represented by an attorney and it is recommended that each party retain an attorney to review his or her rights. However, your spouse may waive his or her right to an attorney and decide to represent himself. If both parties have already discussed and agreed to certain settlement terms, you can retain an attorney to draft the settlement agreement and other paperwork required by the Court. Your spouse can then choose to either review that agreement with an attorney or negotiate directly with your attorney to finalize the agreement.
Call HoganWillig’s Matrimonial & Family Law Department at 716-636-7600 if you have any questions about the information discussed here or with any other questions you may have.