An uncontested divorce when there are no children and no substantial financial elements involved can be relatively simple. But if either of you have larger assets, such as a house or retirement account, it gets more complex, even if there is general agreement between the parties – and even more so if there is not.
Examples of larger assets are a house, a retirement account, a small business, or perhaps some larger debts.
The financial side of these cases, like the simpler ones, starts with both sides filling out the Financial Affidavit, disclosing their income, expenses, assets, and debts. You must also provide documents that support the amounts you listed (such as your last two years of federal and state tax returns, most recent W2, and your last six months of checking and banking statements). Keep in mind that in filling out this form, you are making a sworn statement before the court. If you’re found to have been untruthful, you may be held in contempt of court. This could involve a fine or, in some rare cases, jail time.
Divorces with substantial assets involved require a period of discovery.
Because there are other financial elements involved, time will be set aside to get a complete financial picture of the situation. This part of the proceeding is known as “discovery,” because it is when the two sides learn the details of each other’s financial circumstances.
Each side is entitled to requests for information during the period of discovery. The process can involve sending and receiving lists of requested financial information, called a Notice to Produce Documents (often referred to as simply a Notice to Produce).
During discovery, you will also ask the other party specific questions in writing, called Interrogatories, which your attorney will draft. This will help your side assemble all the relevant financial information, as well as being a way to get your spouse to admit in writing the things you want to get on the record. Interrogatories are questions you must answer under oath, so lying in a response is perjury.
At this point, your attorney’s role shifts to resemble more of an accountant than a lawyer because of the time spent pouring through financial documents. This can be a time-consuming process, with a lot of back-and-forth, and a good deal of accounting work involved. Typically, if one side asks for something, the other side will ask for the same thing in return, and back and forth.
After this stage has been completed, your attorney will draft a settlement agreement and try to get both parties to agree to its terms. Very often, this is only the first step in a longer process, because people usually don’t agree on the initial settlement terms.
If no agreement is reached, the next step would be a pre-trial conference.
This is an opportunity for the lawyers to meet with the judge and lay out the remaining points at issue.
At this point the attorneys for each side prepare a Pretrial Memorandum, which is a brief statement of the facts and issues. This is a highly formatted document, but the formats vary somewhat by county. In addition, each judge is likely to have a specific preference for the format, and therefore, it is important that your attorney has a history working with the assigned, so the preferences are met and help to achieve a favorable outcome. Poor formatting, or using the wrong format altogether, of the memorandum, may result in a poor recommendation in the pre-trial conference.
The pre-trial conference is held in judges’ chambers, without the clients present. This allows attorneys and judges to have a frank conversation regarding the terms of the case and receive the judge’s recommendation and of how they may rule in regard to certain terms you may be looking for.
There are trade-offs in choosing to settle or go to trial.
Your attorney will come back from the pretrial conference with the recommendation from the judge and their opinion of suitable options moving forward. You will then have to decide whether you want to settle or go to trial.
You have to weigh what you are getting from each of the choices. You may find that you are almost certain to “win” on a specific item you want in the agreement, but the amount involved may be less than the investment you would have to make in order to get it.
Our firm does not encourage clients to always take the settlements based on the judge’s recommendations. Often, in such cases, a client will walk away feeling like they got the short end of the stick, and are rarely happy with the outcome. In contrast, for the majority of our clients, we often find that even with a less-favorable outcome at trial, a client may feel satisfied because they were able to have their day in court and have an opportunity to argue for what they wanted.
At the same time, some people are uncomfortable pursuing a trial because they want to have more control of the outcome. Therefore, they’ll choose to settle before leaving it up to a third party – the judge – to make a decision.
To sum up, divorces where larger assets are at stake have a period of discovery, which involves a lot of accounting, when the two sides learn the details of each other’s financial situation. Then the attorney will try to negotiate a settlement agreement and, failing that, will have a pretrial conference with the judge. You will then have to decide whether to pursue the judge’s recommendation for terms to settle on or go to trial.