CONSIDERING DIVORCE - Contact

CONSIDERING DIVORCE WHAT AWAITS?
By: John E. Finnerty, Esq.

As seen in the February 2, 2016 issue of Thread M.B. web blog.
The divorce process has its own protocol that will not always seem logical or fair and experiences in
the system sometimes seem Kafkaesque.
In most jurisdictions, there are no rules or mathematical formulas that are utilized to determine
financial outcomes. You should not be surprised if the lawyer you consult cannot tell you with any
degree of precision what will happen. The most a competent lawyer can do for you at the inception
of the case is to explain how the process in the jurisdiction in which you reside works, and what
factors the courts consider when making alimony, equitable distribution and parenting decisions.
Even the most competent professional cannot predict precisely what is going to happen, particularly
at the inception of the case when little is known and facts and evidence are being gathered.
Most divorce principles and criteria are general and amorphous. Implementation of these criteria
varies case to case based upon reaction of individual judges, each one of whom brings their own
biases and personal values to the cases they judge. There just is no way of telling how a particular
judge is going to react to people in the case. Their reactions are a function, not just of what the law
is, but who they are.
Family law is created by state legislatures, not the United States Congress, so procedures,
entitlements, and protocol vary from state to state. Do not rely upon the advise of a lawyer not
admitted to practice in your state. Only rely upon someone who is admitted and experienced in your
jurisdiction and has developed relationships among other professionals, one of whom will represent
your spouse. Beware of anybody who tells you specifically how it is going to work out and what the
results will be. Beware of anybody who guarantees results. Look for a professional who honestly
answers your questions and tells you what he thinks, even if it may not be what you want to hear.
There are practical limitations on what can be accomplished and obtained financially in a divorce.
No one gets everything that they want; it is foolish to attempt to obtain emotional retribution or to try
to even the score. Courts are not about righting years of perceived injustices. In most states, fault is
not even a factor when awarding alimony or equitable distribution. Litigants should approach the
end of their marriage as a business proposition, which requires an equitable sharing of assets and
liabilities and assessment of support rights and obligations based upon whatever legal criteria are
recognized in assessing those issues in the jurisdiction in which you live and whatever the provable
facts are.
You also must also recognize that - - unless there are extraordinary reasons - - each parent is
entitled to continue a relationship with the children and, most importantly, that the children need both
parents. Court's decide parenting issues based solely upon what's best for the children, not what is
best for the parents. There is a severe "proof" burden placed on the parent that believes the other
parent should have minimal time with the children since the laws in most states presume that
children have a right to the care and companionship of both parents.
You can expect, during your case, that you will have to justify, prove and demonstrate every common
sensible assumption upon which you based your life. With the assistance of counsel, you will have
to reconstruct your life to present how you lived. That means that things you took for granted - going
to the supermarket and spending money without counting it; going to the cleaners and paying for
shirts without knowing specific costs from week to week; and assorted other minor details of living
that people take for granted - must be recreated and presented.
The process of preparing your case requires you to be able to communicate effectively with your
lawyer. You need to feel that he/she is listening to you and they need to understand, by your
actions, that you listen to them. This is, after all, about your life and your lawyer must understand
the facts of your life that he tells you are legally significant in order to present them effectively on
your behalf. You and your lawyer (and any experts he recommends you hire) need to become a
lawyer-client presentation team. In effect, your relationships with your divorce professionals, during
the time of your case, should become part of your new 'extended' family so long as the case lasts.
Pick a lawyer who seems to make sense and with whom you have good communication. You both
need to understand each other and, in order to do that, you must openly communicate your
thoughts, feelings and questions. You cannot always expect precise answers and you must be
willing to accept that predictions are difficult and that, only as you get closer to the end with
everything on the table, does it become more realistically possible to start to assess how a case may
turn out.
At the end of the day, you will have to make a business decision about resolution. No one knows
how a judge is going to react to the cast of characters involved, until he or she reacts. That reaction
may come in a pre-trial conference following discovery. If the judge trying the case does not have
such conferences, then you will only know his personal inclination after the trial begins. You must
develop a trusting relationship with your attorney to help you assess what is occurring and to decide
strategic moves.
At the end of the day, the decision to divorce is extremely personal. No one can make it for you.
Such decisions (and the experience of the divorce process) engender strong emotions: anger, grief,
sadness, hostility and denial. They are the regular ingredients of every divorce and of course, the
more contentious the divorce, the more extreme the emotions that are engendered.
I have been practicing in this field for more than 35 years a little bit longer than my marriage, which
will reach 30 years if I get to this August. During this time, I have always thought that decisions on
how to resolve cases are personal and that my job is to give opinions to the people who repose trust
in me as to how best to proceed, consistent with their objectives. It is not my job to make decisions
about those issues, but it is my job to process the case and marshal proofs consistent with the
issues my client wishes to raise. It is also important that I talk issues through with my client and
make clear the proofs that exist about each side of each issue so that the client can make informed
decisions.
No one can ever tell ahead of time whether the outcome of a divorce is better than remaining in a
marriage. People decide to get divorced for different reasons, but all decisions to divorce have
economic and personal consequences. Only you can make that decision. You need a wise legal
guide to help you decide and then to navigate and survive the process - - one that you trust and can
speak with so you understand - - but a skilled lawyer who can fight a war if it becomes that.
*******
John E. Finnerty, Jr., Esq., is the Chairman of Finnerty, Canda & Concannon. He has practiced
Family Law for thirty-five years and has been the architect of many reported judicial decisions that
have impacted the development of Family Law in New Jersey and around the country.
To Contact:
John E. Finnerty, Esq.
Finnerty, Canda & Concannon, P.C.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
(201) 845-4000 (phone)
[email protected]

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CONSIDERING DIVORCE WHAT AWAITS?

By: John E. Finnerty, Esq.

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