By attorney Yashica McArthur, Special to THELAW.TV
No one goes into a marriage with the intent that it will end or that a divorce case will be filed against them. They hope the fairy tale will last forever, but more than half of marriages end in divorce.
Unexpected life circumstances like the loss of employment or poor communication can quickly derail the best of intentions. Divorce is a detour on the road map of the family career, an unexpected and off-schedule process of family change. The courage and strength I have witnessed in parents to move on and their commitment to try and do what's best for their children, all while coping with their own pain, continues to impresses me with each client.
Below are the seven most common questions clients ask me during the initial divorce consultation:
- Do I have to move out if my spouse told me to? No, you do not have to move out. Unless and until your spouse gets a court order granting them exclusive possession of the residence, you have the same marital right to live in the house as they do. This is even true when the title of the home is in your spouse's name only.
- Does my state have a waiting period before I file for divorce? In Florida where I practice law, there is no defined waiting period that you must wait before filing for divorce. Florida only requires that one of the two grounds for dissolution is met before filing the petition. The first ground you have to prove is that the marriage is irretrievably broken and the second is that one or both of the parties lacked mental capacity in order to enter into the marriage.
- Can I date before the divorce is final? Many clients think they can't date or be in a relationship during their divorce. Legally speaking, you can date, since the court cannot consider dating in determining financial and property issues. However, dating may cause harm during negotiation, especially if this brings anger, frustration and pain to the ex. Be mindful during the divorce process and respect each other's path. In addition, having an open line of communication about your status and not overtly sharing your relationship will avoid complications during settlement negotiations.
- Is the lawyer willing to attempt a negotiated settlement of your matter? Only a very small percentage of divorce cases actually go to trial. The vast majority of cases are settled; some are settled on the very eve of trial. A good attorney knows that there are no winners in a divorce or custody trial. If the belief of "I want to win" is left unchecked, the process can be emotionally and financially draining to both parties. Your divorce attorney should make every reasonable attempt possible to negotiate a settlement on your behalf, while at the same time diligently preparing your case for the possibility of going to trial. Most cases can settle when the clients are informed and the lawyers are prepared.
- Is the lawyer willing to inform and educate you by answering your questions? All divorce lawyers should be great communicators and willing to answer your questions. Make sure you hire a lawyer who is willing to educate you on the laws surrounding your case. Any skilled divorce lawyer knows that educated clients are better equipped to make sound and informed decisions regarding their family's future.
- Is the lawyer being honest with you or are you being promised a specific result? I always advise clients to be very cautious of any lawyer who guarantees a specific result in their divorce case. All litigation is risky and will be influenced by certain factors beyond the client and lawyer's control. Every case is different, they each have their strengths and weaknesses, and it's your lawyer's duty to point them out to you. You can trust a lawyer who tells it like it is regardless of your comfort level or the amount of the retainer you are paying. Likewise, you should never trust a lawyer who simply tells you what you want to hear.
- Does the lawyer understand your children's best interest is of the upmost importance? No parent should ever use children as pawns in a divorce case, whether it's refusing to allow the child to spend time with a parent because they are not paying child support or they missed a soccer game. Your children's welfare and best interest should always remain your top priority throughout the divorce. A good divorce lawyer will understand and support this objective, and will caution you that manipulating your children will be devastating to them personally and to your chances of being awarded time-sharing.
The author, Yashica McArthur, practice family law in Orlando, Florida.