AND IT RAINED…..LIKE A SLOW DIVORCE

There’s a Robyn Hitchcock and the Egyptians tune called “Balloon Man” that contains the above words. When I think of things that would depress even a happy person, having a divorce take an eternity would rank up there. The difference between being in that situation, and not being in that situation, contains many factors. Sadly, some of them are beyond your control, but there are also decisions that can be made that will speed things up and allow everyone to move forward together.

First thing I would suggest is that the best time to negotiate a divorce is before it starts. Before papers are served. Before everyone “lawyers up” and goes to their neutral corners. Sitting down (and if the other side doesn’t know that a divorce is coming, being served paperwork out of the blue is perhaps the worst way to do it) and going through some things together often sets the stage for a positive outcome. The simple phrase “we need to figure out a way to move forward apart from each other” is a fairly innocuous way of putting it. People don’t often suffer silently, or alone. If you don’t think your relationship is working, there’s a pretty good chance the other side doesn’t think so either.

I would tell any couple to try everything first. Try marriage counseling. Try working on the things that you know are irritants to the other person. Try showing appreciation for the things the other side does for you (and don’t wait until you are apart to find out just how large a part of your life those things are). Be more direct in asking that certain behaviors stop, with reminders each time they arise, or that certain behaviors start happening if they aren’t. Ultimately, we are going to be most comfortable when we can be ourselves, and not walking on eggshells worried when the next blowup is happening. There are ways to get to that, and counselors are great at helping get there. But sometimes, people fall out of love (or maybe never were in love in the first place). Sometimes, people make such huge mistakes or have such glaring flaws that it becomes impossible to continue. That’s (usually) less a matter of whose fault it is than a recognition of something that was there all along, that you chose to ignore or hoped would improve.

Second thing I would talk about is expectation. While I might not ask a specific question about expectations when I meet a client for the first time, that’s a large part of what I’m assessing. Someone who dreams of a day in Court where they get to rail on their partner and the judge puts a wreath on their heads and congratulates them for being so patient, and awards them everything they want - well, they just don’t happen. Wanting to come out of your divorce with half of the property and debts, a reasonable agreement as to child-raising (one that closely parallels the way the kids were raised when you were together), and a pathway for economic independence for both of you? That is manageable. That is what the Court is trying to do, even if each side has his or her own plan of attack.

The downside of high expectations is that it relies on a judge finding heavily in favor of one side or the other. That happens - don’t get me wrong - there are slam dunks in this business, but they are rare, and usually so obviously deserved that they barely deserve to be mentioned, much less the lion’s share of your case. Folks, judges hear this all the time. There hasn’t been a case in divorce court where the couple was getting along famously (though there are plenty of cases where a divorced couple gets along better than they did when together, believe me). They are there for a reason, and judges just want to divide things and move on. They have heard it all, and don’t necessarily want to spend half a day listening to the laundry list of complaints. If your pathway to a resolution involves 80% blaming and 20% presenting economic evidence, you’ve got the numbers switched around.

The short truth of “fault” is that it just doesn’t matter for most things. It doesn’t matter for the division of property. It doesn’t matter for child custody (unless the “fault” is a partner who puts out cigarettes on children’s arms, or something akin to that), it doesn’t matter for parenting time, or debt division. It only matters for the existence or non-existence of alimony. Even then, it is but one of multiple factors for the determination of alimony (length of the marriage, relative earning capacity of each parent, relative physical and mental health of the parties - those factors seem to weigh more heavily than fault). Alimony deserves its own blog entry (I’ll do that one someday as well), as it is more complex and nuanced that most people think, but if a couple makes the same (or roughly the same) amount of money, fault and length of marriage just don’t seem to matter. If a couple has only been married a short time, regardless of relative earnings, it also doesn’t elevate a case from a non-alimony case to an alimony case, at least usually.

So, at least in the initial stages, try to put aside notions of fault, and concentrate on the steps. Those steps, whether you do them on your own or with the help of a lawyer, are pretty logical and follow a fairly straight path. First things first, disclose everything. No hidden bank accounts that you believe your spouse doesn’t know about (they almost always do). No secret stashes of cash. No “selling the Harley to your cousin for $600” and claiming you owed him money. Show the credit card statements, bank statements, retirement accounts, and bills to one another and write them all down. Get a Blue Book value on all vehicles (kbb.com) and use “private party value” to value the vehicle - the standard of valuation in a divorce is based on a “willing buyer, willing seller” so using trade-in value or retail value is not appropriate. Try to divide your personal property. Either make two lists and try to get to the point where everything is accounted for, or at least each side chooses the items he or she wants, and the remaining items are sold at a garage sale and the money safeguarded or split. Ultimately, if you own a home, that will be valued, as that is often the number one asset people have is equity in their home, especially here and especially these days. A Realtor telling you what he or she thinks it is worth is not good enough (unless you both agree to the number). The “assessed value” from the Register of Deeds is not accurate in almost every case. You need to agree on what it is worth, or you need an appraisal. If one of you is staying in the marital home, that person is (almost always) going to need to refinance the home at some point, both to pay out the equity as well as get the other person’s name off the mortgage. It is vital that your name be removed from the mortgage if you are leaving - that mortgage showing up on your credit would probably mean you don’t qualify for an apartment, or a car loan or consolidation loan, much less another house. If someone is staying in the home, he or she will have to get the house refinanced, and as part of that refinance, the bank is going to require an appraisal anyway. So in this business, we often say “Parent A will refinance the marital residence and pay to Parent B one-half of the equity in the marital residence. Equity shall be calculated as the appraised value at time of refinance, less outstanding mortgage balance, less cost of refinance. Parent A must borrow sufficient sums to pay off all obligations against the marital residence as well as pay the equity owed to Parent B as part of the refinancing process.”

You would then try to divide everything else evenly, knowing that the house equity is going to be divided 50/50 as well, so you don’t even need to know the actual appraisal numbers to reach a fair resolution. Ultimately, folks, that’s what we’re doing - we’re creating a spreadsheet in which all items are listed, given a value, and placed in the column of Parent A or Parent B. If the bottom-line number for each side (assets minus debts) comes out equal, you are right on track for a fair resolution.

Not everyone is in a position to do all this themself. Some people are not aware of all the assets or debts and run into a spouse who isn’t interested in disclosing those things. Lawyers have methods (many, many methods) to unearth that information, to require the reluctant spouse to disclose that information. But that takes longer, and this blog is about speeding things up.

I’ll insert that caveat here - not every divorce should go quickly. Only when you are certain that you have your arms around all the assets and all the debts and are accounting for all of that should you feel comfortable that a property settlement is possible. And a property settlement is but one aspect of a divorce resolution - there’s also custody, child support, spousal support, grounds for the divorce, lawyer’s fees, a lot of other things to consider. But getting through property is a big one.

With custody, there is great misinformation out there. Some people tell me that this is a “mommy state” where mothers win custody all the time. That’s categorically not true. Some people tell me that they hand out joint physical custody like candy at a 4th of July parade, and (with some judges) that does happen. But usually it doesn’t. The law, and common sense, say that the Court is looking at this from the perspective of the child, not the parents, and that the best thing one can do for a child is to (as best as possible) recreate the home situation even while the parents are living apart. Which means if one parent has done the majority of the heavy lifting and the children look to that parent for nurturing and guidance and food and safety and transportation, that parent will probably be preferred. The exact wording is something to the effect that “whichever parent has been the primary caregiver of the minor child for the year leading up to the filing of the action is hereby declared to be the custodial parent, and the other parent is entitled to South Dakota Parenting Guidelines parenting time.” Each case is different. There are factors that should definitely be discussed with a lawyer about strategy and timing before any bold steps are taken. Most every lawyer will tell you not to move apart until the parenting time agreement is done and in writing and ordered by a judge, and that’s my thought as well.

But the process of moving this forward starts with disclosure and honesty. It is the policy of this office to gather information, then make a proposal that we feel is fair, and if the parties remain far apart from one another (after we hear back from the other side), set it for a trial so it gets resolved. If you’re close, keep trying. Consider “splitting the difference” to get it done, if the amount in controversy is less than the cost of a trial (several thousand dollars). There is nothing worse than trying to negotiate with someone who has no intention of agreeing with you, who is accustomed to bullying and getting his or her way, or trying to shame someone into an unfair economic resolution. So understand what is fair, make a proposal, and resolve every issue you can resolve and take the rest to a judge for resolution. Going back and forth is expensive and time-consuming, and it becomes wasted money if it doesn’t lead to a resolution - you still have to litigate everything at the end if there is no agreement. The same process by which you gather the information also (usually) provides the pieces of paper/evidence that you will ultimately use to prove each point anyway. If you have a complete spreadsheet and a document that outlines each entry within it - current bank statements, current retirement statements, current debts, current valuations of assets - there isn’t much more that you need in order to “prove” your case and ask for the result that is set forth at the bottom of the page.

Sometimes, as well, there are situations where getting into Court early in the process is important. If there are obvious problems with living under the same roof, for instance, or major disagreements regarding custody, it is often wise to bring these matters to the Court’s attention early and seek a resolution (even a temporary one) that allows you to move past the initial difficulties and on to other topics. Those “interim decisions” often morph into a final agreement as people settle in to their new normal.

Truly, that’s most of it (obviously with some side roads that I’m not discussing in full detail). Try to agree first. Get done what you can get done. Disclose everything and try to divide by two. Try to match the existing custody arrangement, putting it in a setting where parents live apart. Figure out child support. Have a professional write it all up (even if you think you agree on everything, there is a devil in the details, and often it is not even the things you agree on, but the things you didn’t consider, that cause the most trouble or lead to future problems). It’s really a pretty cheap insurance policy to make sure your divorce agreement - perhaps one of the most important contracts you will ever sign - is prepared by someone who knows what he or she is doing.

There are things out of your control, no doubt. There is no dealing with a complete narcissist. Someone who hasn’t paid any attention to the children who now “demands” joint physical custody (who is usually only thinking about reducing his or her child support rather than the actual joys and pains of parenting) is a non-starter and bad for the kids. There are cases in every town where the lawyer on the other side starts by demanding everything, and makes a boatload of money by refusing to budge off that extreme position, making every step take longer and longer. I call this the “scorched earth” policy - by the time they are done, everyone hates everyone, everyone has spent way too much money and the only “winner” is the lawyer who cares more about their bottom line than improving the lives of the client. Lawyers who do this for a living know that this happens. You often cannot do much about it, other than follow the steps above - disclose, propose a resolution, set it for trial.

I’ve had divorces take too long, just like everyone else. Sometimes, I thought that logic and reason would ultimately appeal to the other side and that we’d all come together. And it never happened. Sometimes, one of the parties has such unrealistic expectations about what is going to happen that everything “reasonable” is seen as a total capitulation to their spouse which they are not ever going to allow to happen. Sometimes, these clients are urged on by their families or someone else who claims to have gotten a better result in their divorce than what you are looking at. It’s pretty easy to tell someone else what he or she should be doing when it isn’t your life or your money or your children. Take even the best-intentioned friends’ comments with a shaker of salt. Don’t try to get the divorce your parents tell you to get. Don’t try to get a better divorce than the next person. Try to get a fair divorce, a reasonable divorce, a divorce that means both sides give a little bit and get a little bit and move forward and save money.

Sometimes, I underestimated the amount of acrimony that was going on. I failed to realize early enough that there was a party to the marriage who wasn’t going to let go of anything, and who was going to be “divorcing” for the rest of his or her natural life, even long after the divorce was over. We’ve all met these folks - still bitter, still blaming, still the victim, faultless in their own right, and dedicated to spreading that vitriol to every relative and child and friend.

A slow divorce is the coldest winter you will ever experience. It never goes away, often even after it is done. A few simple ground rules about respect and disclosure and progress, and it doesn’t have to be that way. I can’t change human nature, but I can and do turn down cases that have that odor of madness. Life is too short - mine and yours. I am here to help people get past a rough patch of life and on to whatever is next, with their head held high and a full understanding of what is fair and what is possible. And I like to do it as quickly as possible.