Psychotherapist and Guest Contributor Donna F. Ferber sent me an email a month or so ago encouraging me to read Suzi Parker’s article about famous couples who chose, rather than going through a divorce, to simply live separate lives. Click here to read Ms. Parker’s article about a trend some people call an “un-divorce.”

We both agreed to attempt to fairly evaluate the “pros and cons” of this option: she from a psychological perspective and me from a legal perspective. Initially, Donna was much more open to the possible merits of this arrangement than I was. She made it clear that she was most interested in hopefully reaching and empowering people who are in unhappy marriages and who feel trapped by fear, ignorance, and the lack of financial and emotional resources. Donna and I continued to exchange numerous emails over the last six weeks about this “un-divorce” arrangement, discussing the relative merits of couples remaining married but living separate lives. By reading the title of this article, I suspect you can tell that I am not impressed with the overall wisdom of such a relationship.  While it is certainly possible to construct various hypothetical situations when an “un-divorce” arrangement might make both emotional and legal sense for a client, for the overwhelming majority of individuals such a choice would be legally imprudent for a multitude of reasons.  Those include:

• Postponing the divorce might well increase the legal issues and costs. A divorce would result in a disentanglement of the parties’ legal, financial and emotional obligations to one another, ultimately providing clarity and certainty.  An “un-divorce” may well muddle the legal, financial and emotional obligations of the parties and leave them in legal limbo.
• If your spouse changes his or her mind or later disagrees about the terms of your “un-divorce”, there may well be unanticipated problems in the future.
• In many states, including Ohio, written agreements after the marriage (post-nuptial agreements or “un-divorce” agreements) are not enforceable.
• Problems may arise in an “un-divorce” arrangement if one party becomes romantically involved with a new individual.
• Your credit score might suffer negatively because of your spouse’s financial actions during an “un-divorce.”
• Extending the length of the marriage may well increase your spouse’s interest in both your retirement accounts and investments should you become divorced at a later date.  In addition, this could also significantly increase the amount and term of a spousal support (alimony) obligation since the length of the marriage is a key factor in that determination.
• An “un-divorce” arrangement may create joint liability for both of you arising from legal claims or judgments against your spouse (such as from a car accident he or she may be involved in).
• One or both of the spouses could have a significant change in health. If they remained married, there would be responsibility for taking care of the person with illness, chronic condition, etc.
• College scholarships and grants for your college age children might be reduced or eliminated because of the combining of both the husband and wife incomes, even though in reality perhaps only one of the parents is the “de facto” custodian of the children.
• Since your marriage has not been terminated, your spouse would be able to claim a portion of your estate if you die unexpectedly as well as other legal rights granted to a surviving spouse by operation of law.
• In an “un-divorce” situation, there remains the potential for liability for the debts of your spouse, including his/her funeral expenses, medical expenses and other “necessities.”
• Current Medicaid rules might wipe out a significant portion of your savings. For example, if a husband and wife have a million dollars of combined liquid retirement assets and one spouse becomes institutionalized, the community spouse can only shelter about $110,000 and the rest would have to be used to pay for the care of the institutionalized spouse. If they were divorced, the community spouse could shelter $500,000.

Certainly, our economic times are challenging.  Many more individuals have lost jobs and have negative equity in their homes.  These pressures have, no doubt, created unhappiness and are the origin (or at least a contributor) of many divorces.  As a result, many people may need to obtain both a bankruptcy discharge of indebtedness and a divorce because of the debts that have been accumulated or perhaps because of a real estate foreclosure or deficiency.  If you are in this unfortunate situation, talk to both a bankruptcy attorney and a family law attorney.  Together they can coordinate the timing of those proceedings.  Additionally, the good news is that in most states, retirement accounts and pensions are exempt from bankruptcy attachment, meaning that hopefully all the bad debts can be eliminated often leaving just the retirement assets which can be preserved. Discharging financial burdens via a bankruptcy and getting a fresh start can be extremely important both financially and emotionally!

Some people remain married to maintain health care insurance.  In Ohio (and Connecticut, too), it may be possible to be granted a Decree of Legal Separation and finalize the financial terms but still maintain the health insurance coverage.  This is not true all the time. It is necessary to review the coverage terms under the policy and determine if the health insurance coverage ends when a Legal Separation occurs as it does when a marriage is ended in a divorce proceeding.

In addition, I  have appeared before many family law judges to discuss the date to be used to value assets and determine the alimony terms, and I’ve heard judges say, “Don’t tell me that the parties should be treated like the divorce occurred years ago when they separated.  If they wanted a divorce then, they would have obtained a divorce.”  I suspect if I tried to explain that there was an agreed upon “un-divorce”, I’d expect to hear the Judge laugh and tell me my argument was “un-persuasive.”

I frequently hear that a divorce is just simply too expensive. However, if you and your spouse are able to reach settlement of all issues in an “un-divorce”, you certainly should be able to resolve the issues amicably in a divorce or dissolution proceeding.  Therefore, Attorney fees for non-contested proceedings can be less than a few thousand dollars. While not inexpensive, obtaining a divorce or dissolution most likely is a wise investment considering all the possible consequences in an “un-finished” divorce.

At the conclusion of our lengthy dialog, Donna and I ended in the same place. At first blush there are some positives that might be associated with an “un-divorce” arrangement; however the potential legal risks significantly outweigh the possible benefits! Think about all the important formalities that were required before you became married.  If your “union” and marriage contract are over, then it makes legal sense to do what is necessary to formally end it and avoid future legal limbo.  As Donna cleverly put it, the un-divorce is only an “un-choice”. Just like years ago, when there was a big campaign for people to switch to the “uncola”, we say it is still time to stick with “the real thing, baby” and that is obtaining a “divorce” not an “un-divorce!”

Donna’s Concluding Thoughts:

Thanks to Atty. Mues for giving this subject so much thought and for laying out such a concise, cogent argument. I admit to bombarding him with e-mails extolling the (perceived) merits of “Un-divorce”. Perhaps, it was a viable alternative? How great it would be ( I thought) to offer a rational option for all those people who are struggling with a deteriorating marriage and the absolute terror that accompanies anyone about to engage in a lengthy legal process! However, copious e-mails and his thoughtful dissection of the situation resulted in my reconsidering and ultimately changing my position. In a divorce, often there is a space of time between the decision to divorce and the action of initiating the legal dissolution. The truth is the “un-divorce” is not a realistic alternative to divorce. It is merely the prolonging of the very uncomfortable limbo between when a couple decides they no longer want to be married but haven’t yet gotten the energy to pursue the action.

“Un-divorce” may be like being “a little bit pregnant”. You either are or you aren’t.

This article would not have come about without the inspiration and perseverance from my collaborator Donna Ferber, LPC, LADC. She is a licensed psychotherapist in Connecticut. Her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, won an Honorable Mention Award by the Independent Publishers Association and is available at bookstores everywhere or at www.Amazon.com. Please visit her website at www.donnaferber.com.

Factual Scenario:  The Final Judgment and Decree of Divorce has finally been executed by the parties and has been filed with the Court.  But, alas, Husband finds that Wife is not willing to pay what he is supposed to receive from her; and Wife is not forthcoming in dividing the U.S. Savings Bonds that were acquired during the parties’ marriage; and she is refusing to convey to Husband certain household goods and furnishings as directed in the Final Judgment and Decree of Divorce.

What remedies does Husband have?

The Court does not have a “police force” or “private investigators” to monitor compliance with Final Decrees or Agreed Entries.  There simply is not enough money for the Court to examine whether or not former spouses are following the mandates of their Decrees.  In order for the Court to learn about a party’s non-compliance, the former Husband must file a Motion asking the Court to find his Ex-wife in Contempt of Court for her willful failure to comply with certain terms of the Final Decree or Agreed Entry.  Another name for the same action is for Husband to file a Motion to Show Cause why Wife should not be held in Contempt of Court.  The terms “Motion to Show Cause” and “Motion for Contempt” are used interchangeably.  This is a “civil” contempt action, not a “criminal” contempt action.  The Motion must also contain other information:

1. Notice of Hearing: The Court will have to conduct an evidentiary hearing to determine if Wife should be found in contempt of Court.  The Notice will set forth the date and time of the hearing and the name of the Judge or Magistrate who shall conduct the hearing.
2. In addition to the Motion for Contempt, there must be a notice advising the former Wife that if she is found in contempt of Court, she may be ordered to pay a fine and that she may be sent to jail.  Persons accused of contempt are entitled to constitutional protections, including having an attorney represent him/her.  In all the years that I have practiced Family Law, the only times that I have seen a party sent to jail were in relation to non-payment of child support, which is the most common type of contempt proceeding.

If Wife is the non-compliant party, must Husband incur more legal expenses to take her back to Court?

Unfortunately, the answer is “yes”.  Again, the system may not seem “fair” but there are no funds or monies available to assist the wronged party.  So, the attorney must advise the potential client that there will be a filing fee involved along with expenses to have the former spouse served with the Motion and Notice of Hearing, and attorney fees to take the matter back to Court.  In Montgomery County, Ohio, the filing fee for post-Decree contempt matters is $125.00 and service of process in a contempt matter must be accomplished by personal service.

If Wife is found to be in contempt of Court, can she be ordered to pay Husband’s reasonable attorney fees and court costs incurred by him?

The Court has the authority to direct the errant Wife to pay to the former Husband his reasonable attorney fees and court costs expended by him in bringing the matter before the Court.  In fact, the threat of having to pay Husband’s attorney fees and court costs may act as an incentive to encourage compliance with the Order.  In Montgomery County Domestic Relations Court, the Local Rule allows the court to assess only a nominal $350 in attorney fees against the contemnor unless another attorney is retained to testify about the necessity and propriety of a request for additional attorney fees. Even upon expending additional money to hire another attorney to appear in Court and testify about the actual attorney fees incurred in pursuing the Contempt matter, the Court has discretion whether to Order any additional attorney fees or not.

Is it “worth it” to bring a Contempt of Court or Show Cause Action?

The answer to that question must be made on an individual case-by-case basis. The attorney and client should carefully analyze the costs associated with filing the Motion in relation to the financial value of the monies or goods being sought.  In the scenario set forth at the beginning of this article, Husband decided it was worth the legal fees and court costs to take the matter back to Court.  In that post-Decree matter, he was seeking payment of several thousand dollars and saving bonds worth approximately $25,000.  There are instances, however, where it just does not make economic sense to spend additional monies going after a “deadbeat” ex-spouse.

Jason C. Brown, the publisher of the Minnesota Divorce and Family Law Blog, recently posted a very practical article outlining some important steps to take if you are anticipating filing a divorce action. I am grateful that he has allowed me to repost it here. I concur with his wise “nuts and bolts” type suggestions. Remember the old adage, “An ounce of prevention is worth a pound of cure”.  Plus, this “ounce of prevention” might well save you thousands of dollars in attorney fees!

Once you break the news of your desire to dissolve your marriage, interesting things may start happening at your house. Critical records and valuable items of personal property may suddenly vanish. It pays to be proactive to ensure that you have all the information you will need to move forward as efficiently as possible.

The wasted time and cost associated with hunting down missing documentation can be staggering. We’ve handled cases where everything from an expensive diamond ring to boxes of business records have taken a “vacation”. We almost always find them, but not without substantial effort. In cases where they are not found, the Court will impose substantial sanctions and assume the missing evidence is favorable to you.

To help avoid the mess, we’ve assembled a list of 12 things you should gather to ensure that you have all critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

To help avoid the mess, we’ve assembled a list of 12 things you should gather to ensure that you have all critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

Investing some time in gathering these items will ensure that your spouse cannot take advantage of you during the divorce process. The denial of the existence of an asset is a fraud upon the Court. Once your spouse knows that we have all of the key information in hand, they are far less likely to engage in bad faith conduct and be honest in their disclosures throughout the process!

If you believe that it is prudent in your case to copy a computer’s hard drive to preserve information, be sure you have a qualified professional undertake the task. It is very easy to accidentally run the “ghost drive” backwards and, in so doing, wipe out the original hard dhard drive! Not good at all!

I would like to share some constructive fee-cutting suggestions for you to consider implementing after you have done your “due diligence” in selecting the right attorney for you and your issues. Many of the cases I have handled over the last 30 years are family law matters which are engagements typically based upon the number of hours spent in the representation.  The amount of time to complete these cases varies based upon many factors, including the nature of the issues, contentiousness of the parties, and the cooperation level existing between both counsel.  Recently, I have been asked by several clients what they can do to help reduce their attorney fees. Certainly, this is an excellent question especially with money being so tight and all of us having to deal with our poor economy.  Each attorney would no doubt answer this question differently.  So, be sure to ask your attorney about his or her own particular preferences.  Here are some of my simple tips to reduce your attorney fees:

1. Use email instead of the phone.  Email communications are an excellent way to keep your attorney advised as to ongoing developments.  But, realize that many attorneys receive hundreds of emails in a day.  I welcome emails, but please try to keep them as brief as possible.  Also, they work very well if you need a few short “yes” or “no” answers.  I, for one, am not the best typist, and I don’t attempt to type long and involved responses.  Utilizing emails can be a money saver for clients as the cost to communicate in this fashion usually takes less time than phone calls.  Be reasonable and use good judgment.  Don’t barrage your attorney with lots of separate emails, especially about relatively insignificant items; but rather, consolidate information or concerns in a quick-read format.  A secondary benefit of email communications is having a copy of your email in the attorney’s file to be reviewed before Court.
2. Besides emails and office conferences, don’t forget about the option of requesting a scheduled phone conference with your attorney. For updates or questions requiring a more in-depth discussion than appropriate for an email, planned phone conferences work very well.  Typically, they are also shorter in length than office conferences.
3. Try to be as organized as possible.  Many documents need to be reviewed and produced to the other side in a divorce action.  You can save hundreds of dollars by compiling the requested information yourself, financial or otherwise, in an organized fashion in labeled folders or notebooks.  This cuts down on both attorney and paralegal time.
4. Make an agenda of topics or questions in advance of your office or phone conference.  This will help assure that it will be focused, comprehensive and as beneficial as possible.  It also helps eliminate follow-up emails or calls about things you forgot to mention.
5. I can’t emphasize enough how important it is to formulate realistic goals and expectations with your attorney early on in the representation.  As difficult as it can be, set aside your emotions and develop a good strategy to attain your important legal objectives.  Fighting over everything in a divorce case is typically foolhardy and can be both emotionally and financially draining.  Do you really want to pay your lawyer to argue over inconsequential trivial issues?
6. Respond to your attorney’s requests in a timely manner.  This may seem obvious, but you won’t believe how often this can be a problem.  Lawyers have deadlines they must honor and also want to be responsive to opposing counsel’s requests.  If I ask for information or need documents, please respond and get them to me as soon as possible.  You don’t want to pay me to ask you for those items more than once.  Ideally, the lawyer and client need to work together smoothly as partners throughout the representation.
7. No one really likes to make compromises in a divorce action, but it happens in almost every case.  Recognize that negotiating a compromise is an inevitable reality in the process of concluding a divorce case.  Again, as in #5 above, put aside your feelings and carefully consider your attorney’s sage advice and
8. Establish a good rapport with your attorney’s assistant and/or paralegal.  While neither are permitted to give legal advice, they are skilled in answering many procedural questions and can often help reduce a client’s stress level.  Their hourly rate will be much lower than the attorney’s rate.
9. While most attorneys are experienced in providing basic counseling advice, we are not substitutes for licensed family therapists and psychologists.  Finding a good counselor or a support group can save you both emotional anguish and considerable attorney fees.  In addition, in many cases, it helps your attorney to work collaboratively with the counselor in adopting a more holistic approach as the divorce case progresses.
10. Be sure to see your family doctor if you are not able to sleep, are losing weight or becoming depressed.  Priority number one has to be preserving your good health.  Maintaining a strong emotional psyche will assist in facilitating communications with your lawyer and a likely bi-product will be to reduce your fees as well!

Adopting these tips will no doubt result in significantly reducing your overall attorney fees and at the same time, hopefully, improving the level of your attorney/client relationship.  Discuss this subject openly with your attorney.  He or she will likely add their own suggestions!

Growing up in a small and rural community in Southwestern Pennsylvania, I was truly fortunate to be reared by a hard-working Father and a loving “stay-at-home” Mother.  She taught the four of us so many things by example and by so many proverbs.  One of her favorites was “You get what you pay for!”  To her, that meant that you purchased fewer items of high quality personal goods or articles of clothing rather than more items of lesser quality or durability.

Today, as a practicing family law attorney in Dayton, Ohio, I have encountered and worked with more than a few clients who, while trying to save money on legal fees, truly did themselves a disservice with the end results obtained.  In this article, I shall set forth several actual scenarios and discuss the losses the clients sustained in trying to save money!

Scenario #1:  Wife set common sense aside and chose to believe Husband who promised he “would take care of her”!

With Wife’s faith in Husband’s honesty and integrity, she did not retain counsel, did not file an Answer, and did not attend the final divorce hearing in Greene County, Ohio.  On the day of the final hearing, Husband appeared with his attorney, his corroborative witness, and a Final Decree that was filled with phrases such as “by agreement of the parties” and “The parties agree” to this and that provision or issue.  As Wife had not retained counsel nor filed an Answer, the Court accepted the Final Decree in the “non-contested” divorce proceeding and it was filed with the Court.

Wife later learned that Husband had indeed “taken care of her”!  He retained the marital residence with all of its equity and he retained his retirement accounts, free from any claim of Wife.  To his credit, Husband did provide that Wife would retain her automobile and the household goods and furniture in her possession.

When Wife later retained my services, we filed a Rule 60-B Motion and asked the Court to set aside the Judgment that had been prepared and filed by Husband and his counsel. As you can imagine, it is harder to repair damage that has been incurred than to prevent the damage from occurring in the first place; and it is costly to undo damage in terms of time and money.

Eventually, Wife received a lump sum settlement and paid my legal fees for services rendered.  If she had retained legal counsel in the first place, I firmly believe Wife would have had a better outcome at a lower emotional and financial cost to her.

Scenario #2:   Husband set aside common sense in trying to save monies on attorney’s fees and did not retain counsel.

In this scenario, Wife made no promises to “take care of Husband”.  Husband had earned income exceeding that of Wife but neither party would be considered to be “wealthy” or “financially advantaged”.  Wife’s counsel prepared the Final Decree and had Husband be solely responsible for most liabilities.  It is instructional to note the Final Decree did not specify whether the liabilities were in the name of Wife, in the name of Husband, or in joint names.  A liability in the amount of $7,000 was assigned to Husband to pay. He was to be solely responsible for payment of that indebtedness and he was to save and indemnify Wife harmless therefrom.  Husband later learned that the $7,000.00 liability was in Wife’s individual name.

Then, the economy became “tighter and tighter”.  Husband remarried and had another child.  The unpaid liability in Wife’s name grew in amount, due to interest and penalties and lack of payments from Husband.  The creditor of the unpaid liability began seeking payment from Wife and obtained a Judgment against her with garnishment from her minimal earnings.

Wife then filed a Motion to Show Cause against Husband, and he sought counsel from an attorney specializing in personal bankruptcy.  It was at this time that Husband was advised the indebtedness was in Wife’s name alone and could not be discharged by him.

This post-Decree matter remains pending before the Domestic Relations Court of Montgomery County, Ohio.  It is another example of the danger in trying to save legal fees and then being “caught between a rock and a hard spot” with the outcome.

Scenario #3:   Husband, in an effort to save money and to expedite the divorce proceeding in State A did not tell his Divorce Attorney (State A) about his pending Bankruptcy Proceeding and did not tell his Bankruptcy Attorney (State B) about his pending Divorce Proceeding.  This scenario is illustrative of the proverb “You get what you pay for!” and is also illustrative of the proverb that “Haste makes waste!”

With the foregoing fact pattern, Husband obtained a Final Judgment and Decree of Divorce which may be “voidable” as neither counsel obtained an Entry for Relief from Automatic Stay as is required by the Bankruptcy Court(s).  Husband remains in State A while Wife and the parties’ child or children relocated from State A to the State of Ohio.

To save time, Husband “agreed” that both children born during the parties’ marriage were “his” biological children.  He now submits the second child could not possibly be his child as the child was conceived while he was serving his Country in Iraq.  Immediate question becomes apparent– then why did he agree that the second child was born as issue of the marriage?  His response was that “things were so bad” that he would have agreed to anything to terminate the marriage.

We are presently trying to register the Foreign Decree (State A) in the Domestic Relations Court of Montgomery County, Ohio, so that our Ohio Court shall have jurisdiction in this State.  If successful with that action, we shall then challenge the paternity of the second child born “as issue of the marriage” with the knowledge and understanding that our Courts are not in favor of making a child born during the marriage of the parties an “illegitimate” child.

With the foregoing scenarios, there are lessons to be learned by parties in a divorce/dissolution action and for the attorneys involved with same.  They include the following:

For parties to a divorce/dissolution action:

• A divorce action or a dissolution action are adversarial proceedings. One attorney can NOT represent both of you. If monies are “tight”, at least retain an independent attorney to review the pleadings that have been prepared by the attorney for your spouse. You can then be advised as to any issues that could be problematic in nature and be guided to make an informed decision as to whether or not you should retain independent counsel.
• Be honest and forthright with your counsel.  Tell him or her everything that he or she must know to fully represent you.  Your attorney must be completely informed as to marital assets, marital liabilities, and of any bankruptcy proceedings.

For attorneys in divorce/dissolution matters:

• Ask more and more questions of your potential clients to try to get the best information    as to the issues in the instant matter.
• Are there issues as to the paternity of any of the children?
• Are there bankruptcy proceedings pending?  If so, you must obtain Relief from Automatic Stay in the bankruptcy proceeding for the Final Decree of Divorce to be valid and not “voidable”.
• Identify all marital assets and liabilities and verify which party “owns” each asset and liability.

The parties in each of the foregoing scenarios incurred legal expenses they did not intend to incur because they were trying to save money at the initial stages of the proceedings.  Again, as I wrote in the early paragraphs of this article – “You get what you pay for!”