Coaching For Divorced Women: What is the first thing a woman should do when she decides she wants a divorce?
Victor Garnice: The first thing she should do is to give serious consideration to her overall goal. She needs to have a vision of what she expects her life to be like as she moves forward. The picture she paints should be comprehensive.
- If there are children, what does she believe will be the optimal arrangements for their residential schedule and decision-making concerning them?
- What level of cooperation does she reasonably expect from her ex-husband with regard to the children and their needs after the divorce litigation has concluded?
- Where does she expect to live?
- Who does she expect will be living with her?
- Will she have a job?
- Where will she work?
- How much will she earn?
- How will she pay her bills?
- What will her schedule and typical day be like?
What should a woman consider when choosing a divorce attorney?
First and foremost, she should be comfortable with the divorce attorney as a person. This is a person upon whom she will rely in making difficult and uncomfortable choices as she goes through a major change in her life. No divorce attorney is going to be right for her if she does not feel comfortable confiding in that attorney. There are many levels of this and many reasons for this.
Thoughts, concerns, and worries of events that will occur in the divorce case and the outcome of it will be in the back of her mind. She needs to be able to discuss these with her attorney, and in turn, her attorney must be able to discuss these matters with her. Divorce always has an emotional impact.
She also must be comfortable enough with her attorney to reveal matters that could be used as negative evidence against her if the case goals to trial. This is never comfortable or easy, but it is absolutely necessary if her attorney is going to be prepared to deal with those matters to minimize their negative impact upon her position and her case.
the attorney must be prepared to present her with a plan best designed to help her reach her goals, and, equally importantly, the attorney must be able to describe the plan in a way that makes sense to her.
She should feel comfortable with the attorney’s personality and demeanor. Even though it is the clients and witnesses who testify in court, the picture of her that develops will be shaped by her attorney. The attorney needs to seem reasonable.
In many jurisdictions, the court can order one party in the divorce case to pay attorney’s fees or attorney’s fee reimbursement to the other. While this can be based on the parties’ relative ability to pay, in many states, it can also be based upon the reasonableness or unreasonableness of the positions asserted in the case by the parties. In short, if her attorney is going to argue unreasonable positions to the court, the court can order her to pay her husband some amount to cover the legal fees he expended to successfully defend against those unreasonable positions.
She must feel confident that the attorney is willing both to litigate and to try to settle. These go hand in hand. In most cases, while there is litigation on the surface, there is a back channel of communication between the attorneys for both parties.
What can a client do to best assist you in doing your job as her divorce attorney?
Be honest and forthcoming. Don’t try to conceal bad facts or issues hoping they will just go away. Try to have information and documentation available to provide to the attorney so as to help streamline the case and save fees and expenses. Understand that, no matter how skilled or dedicated the attorney is, the divorce process will be longer and more difficult than she would like, and this is simply unavoidable.
What do you find is the most common battle between high conflict couples?
In a word, control. Control over the finances, control over the children, or other aspects of control. A marriage is a partnership. When that does not happen, conflict arises.
What would you say to a woman that was insisting on having her day in court so that the judge will see her husband’s true colors?
Divorce is no fault. In this jurisdiction, the court is not allowed to be told about the fault of either party in the marriage. Custody and parenting time is dealt with in a way that’s best for the children in court. Property and debts are also divided equitably in court.
That being said, there are certain situations where the husband’s true colors may be a significant issue. For example, if he is physically abusive, it may lend to the question of his fitness for various aspects of child custody. If he has a paramour, significant expenditures on the paramour may be compensable through the assertion of a claim for waste. His “true colors” may arise, but they must be related to other issues in the case.
What advice would you give a client that was being bullied, threatened or coerced by her husband?
Her safety must be her first consideration. Orders of Protection are available at numerous locations and the procedure for obtaining them is structured to be user-friendly and affordable.
She should not need an attorney to obtain one. If she wants an attorney to assist or accompany her, we will provide it, but she should not need it.
Under what circumstances would a judge grant sole physical and legal custody to a parent?
In this jurisdiction, sole legal custody would translate as to sole “legal decision making”. That means the right to make decisions as to the rearing of the child beginning with the three main ones – education, health care and religion. The law in Arizona favors joint legal decision making. Sole legal decision making is becoming a rarity. If her child is exposed to habitual domestic violence, habitual drug or alcohol abuse, and other extreme situations she can make an argument for sole custody.
Arizona views physical custody as “parenting time”. The law in Arizona is set up to accommodate equality among parents in parenting time. The law assumes that having a healthy and strong relationship with both parents is in the child’s best interests. In cases where one parent has a deficit, the judge is likely to try to rehabilitate that parent first, perhaps requiring mandatory classes, counseling or therapy in order to try to modify his negative behaviors. The prospect of no contact at all is extremely rare and would require an extraordinary situation such as one where the other parent cannot be rehabilitated through classes, counseling or therapy and where contact between that parent and the child poses a real and serious danger to the child.
What is your usual or preferred legal strategy or “philosophy” for handling a divorce case?
Obtain all the facts. Attempt to enlist opposing counsel as a modifying force to slim down the client’s expectations. Do not cut off lines of communication that may be useful later for settlement negotiations or in structuring reasonable compromises.
If the other side is unresponsive to reasonable settlement overtures or proposals, there is still a deadline set by the court to move the case forward and be ready for trial. No one can blindly hope that trial won’t occur and use that as an excuse for unpreparedness.
The case should never be “personal” between the two opposing attorneys. They may disagree on issues and disagree on the merits of the case. However, the attorneys should remain professional in their dealings with each other. The attorneys should not let their judgment become clouded by personal issues.
Do you encourage or discourage direct contact between spouses during divorce?
Ongoing contact can be appropriate when it is conducted without recriminations and is not used to convey accusations and venom. If they have children, communication may be necessary during divorce. She should never use direct contact to convey negative communications and hateful comments to her ex. Also, if she thinks she can reach an agreement in direct communication with her husband, that is fine. However, she should check with her attorney first. There are legal complications and requirements to direct contact between divorcing spouses.
What advice would you give a woman regarding social media and texting during the divorce process
Be careful and be discreet. Social media entries, texts, and emails are admissible in evidence. Don’t make any electronic communications that you would not want the judge to see at your trial. Also, even if you were previously provided the username and password of your husband’s accounts, do not access those accounts. There can be serious legal ramifications.
Is there any other advice you would like to give women who are just beginning the divorce process?
Court cases are not fun and they are not necessarily like you see on television or the movies. Whatever your friends may have told you about going through a divorce, each case and situation are different. Yours will not necessarily be like theirs. Try to stay calm and patient and to not act rashly or out of character. Your attorney is there to help you. Lean on him or her for advice as you navigate through the process.
14850 N. Scottsdale Rd., Ste. 395, Scottsdale, AZ 85254-2798
Years in Practice: 37
Victor Garnice has also served two terms as a Maricopa County Superior Court judge pro tempore dealing with divorce matters.