In this podcast, Heidi Opinsky talks with John Maher about how to file for divorce. She walks through the following processes: initial court filing, counterclaim, motions, and discovery. Then, she explains how a divorce lawyer can help.
John Maher: Hi, I’m John Maher. I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York, with over 30 years of legal experience in mediation, collaborative law, and litigation. And she represents clients in a full spectrum of family law needs. Today, we’re talking about how to file for divorce. Welcome, Heidi.
Heidi Opinsky: Good afternoon, John.
First Step When Filing for Divorce? Retain a Lawyer
John: Heidi, what is the first step in filing for a divorce if you get to that point where you’ve decided that that’s what you need to do?
Heidi: Sure. So, the first step is obviously to search out and retain counsel of your own choosing. Parties can represent themselves per se, but they have a saying that he who represents himself has a fool as a client. So, you want to be careful because there’s so many nuances and complexities in divorce these days, in terms of what the courts look at to determine how to divide up and distribute assets, or debts, or custody, or parenting time, that you’re wise to get counsel.
And also, you’re emotional. So, to go in and try to represent yourself when you’re going through the worst time in your life, you’re realizing your marriage is going awry, it’s not working. I mean, it’s terrible. You’re in free fall, you’re going through the worst time in your life and that’s not really when you should be representing yourself per se. Sometimes people choose to represent themselves, per se, and sometimes they can’t afford a lawyer, so they have to. And that just happens. But if you can afford a lawyer, you should get a lawyer, is my best advice, and not represent yourself.
What Is the First Thing a Divorce Lawyer Does?
John: So, you get a lawyer and then what’s the first thing that that lawyer is going to want to do?
Heidi: Sure. So, the first papers that a lawyer does is a summons, a complaint, and automatic orders, and those get filed and served on the other spouse so you know that the action is commenced, and then they get filed and uploaded into the court system. So, there’s the summons, the complaint saying, “I’m seeking a dissolution of marriage or a divorce. I’m seeking custody, I’m seeking alimony or maintenance. I’m seeking counsel and expert fees and real estate appraisal fees. I’m seeking a division of the assets of property. I’m seeking a declaration of separate property. I’m seeking a division of debts.” And that’s what the complaint will say.
If there’s a prenuptial agreement involved, usually it’s stated in the initial pleading that there’s a prenup involved and everything should be resolved in accordance with the terms and provisions of the prenuptial agreement. So, that would be in the initial pleading. So, you start with those pleadings. And the automatic orders, those are orders that are automatic, exactly what it says, automatic orders. And what are those? They’re typically instructive to say that you can’t start changing accounts or terminating policies and assets once you’re served with the papers.
You can’t run to the bank and empty out your account and leave your spouse destitute, so to speak. So, you can’t make these changes. And the courts in most states have these automatic orders in effect, and they’re basically preventing self-help, going in, removing all the assets, taking them out to the Cayman Islands or Switzerland or wherever else you would bring them.
They disappear and then therefore there’s no assets of property or equitable distribution for a court to determine, because they’re all gone. If the orders weren’t in place and we’ve learned through history, the courts used to have where you had to apply to the court to freeze accounts so someone wouldn’t do that. So, these automatic orders are instructive and say you can’t do that or you can’t take your child permanently out of the state of your residence. That’s forboden. There’s also, you can’t terminate a life insurance policy and your beneficiary is not your spouse anymore. Or if your spouse is the beneficiary in a 401(k) or a pension, you can’t take them off. You can’t terminate the auto insurance.
What Happens If a Spouse Violates the Automatic Orders?
John: How do you prevent that from happening? Does the court then look into that, the couple’s bank accounts or whatever and they can see if you’ve taken a whole bunch of money out and moved it somewhere else?
Heidi: No. Usually it happens because if someone did something that’s against automatic orders, a motion would be filed for violation of automatic orders in contempt by the spouse who closed the account, or emptied the account, or terminated the policy.
John: But how would the court even know that that had happened?
Heidi: Because a motion gets filed before the judge, that that spouse violated the automatic orders by terminating the auto insurance, by terminating the life insurance policy, by raiding the bank account and taking out funds. If they’re using the bank account just to pay ordinary bills in their ordinary course, that’s not a violation, because obviously people still have to pay their bills.
If they’re moving assets that are day to day functionality of how they lived, status quo, you can still move things around. The market’s bad, your financial advisor’s going to call you up and say, “John, I think it’s wise if we move the funds in the real estate that we have it invested in and let’s change it to a tech stock or let’s change it to-
John: Put it into bonds or something like that.
Heidi: That’s not really a violation. You’re doing something to preserve the asset and move it around for that. And if you own a business, you have to move funds around because you’re running a business. What you do there is not necessarily a violation because you’re doing what you have to do to continue to work and earn a living. It’s really the raiding and the dissipation, wasteful dissipation. Sometimes I see attorneys counseling their clients. Let’s say you’re the figurative housewife and you want to show a lifestyle. I’ve seen lawyers counsel their clients to go out and start spending a lot of money to prove the lifestyle. I personally never do that, because that’s kind of a facade and then you’re using up precious funds, why?
You still have a whole history that you can work on. It’s not like you’re going to create the history after the divorce action starts. So, I actually think it’s bad advice when that’s given. But I see it all the time where lawyers say, “Go out and spend the money to support your lifestyle,” but then the money’s gone and what have you gained? You’ve just spent all the money and has it really changed the 20 years of your lifestyle that you had already proven?
Counterclaims, Motions, and Discovery
John: Yeah. So, after those initial documents are all filed, your spouse has been served with their papers and everything like that, walk me through what the rest of divorce proceedings looks like.
Heidi: So, the life of a divorce case is you start with those initial pleadings, then the other side puts in an answer, cross complaint or counterclaim. And that may be that they want to disavow the prenuptial agreement, for instance, that was in the initial pleading. Or they’re asking for maintenance that wasn’t in that initial pleading.
Or they’re asking for expert fees or real estate fees and appraisers that weren’t in the initial pleading by the other spouse. So, you countered the initial pleading with your answer or cross complaint or a counterclaim. And then you’re often running immediately into motion practice. If for instance, one spouse stops supporting the spouse, stops supporting the kids, stops paying for college, stops paying for the car, stops paying for electric bills, you’ll see what’s called pendente lite motions for support and pay third party payments to carry on what was normally the case had you not been getting divorced.
And that the payments were being made, now all of a sudden they stop, you’ll be in court on motion practice for interim relief. You may make a motion initially for counsel fees, because your client doesn’t have the money to pay for your fees and you may make a motion to have the other side pay for your fees right away, or pay for the expert forensic accountant or pay for the real estate appraiser. And then there’s also cases, if they’re in contempt of the automatic orders, like I just said, a violation of an automatic order, that motion would be placed. So, those are the initial, or custody and visitation, obviously. A lot of the times, many, many times the parents don’t see eye to eye on how the child should be raised. That’s just typically in most cases, discipline variances of both spouses, rather than any true need.
A lot of people come in and say, “I want sole custody.” Most cases aren’t sole custody cases. Sole custody cases is when there’s a serious problem with one parent and decisions can’t be made. So, these kind of motions get into play for custody, visitation, parenting time also. So, those initial motions go into court and they get to be decided and need to be decided right away. Then you are also into the discovery phase of the case. You may not know everything about all the assets and property and liability and the income of their spouse, even though you’ve been married to them for 30 years. Either that was information that wasn’t shared or you elected not to know, or they’re hiding things and they were planning the divorce for 10 years. You don’t know. So, you need to have discovery and the attorneys need to have the discovery so they know what they’re dividing. I don’t know what I’m dividing until I have at least at a minimum for discovery in exchange of financial affidavits between the parties. That’s the bare minimum.
And beyond that is documentation of all the assets and fair market value of the assets. And a lot of times you can look at a document on an asset, it doesn’t disclose the value. You may have to find additional information to determine the value. You may need the expert forensic accountant to determine the value based upon their different expertise and models to determine a value. So, same thing with commercial real estate or residential. They do comparative market analysis with other residential properties. So, you need that additional information to put a number on your house. That’s the discovery phase; it is basically so that the attorneys can put values on everything, so that they know then on a ledger sheet, how are we dividing this marital estate. The wife will keep X, Y, and Z. The husband will take A, B, C. You’ll both divide equally the other assets and someone else is paying for the liabilities.
Maybe you’re splitting it up by percentage or pro rata or 50/50, you don’t know. So, the discovery phase is the most important part of the case so that you can put numbers. And once you have completed so that you know what the numbers are on everything, that’s when you can draft a settlement agreement. Or if you don’t agree on anything, you go to trial and you’re prepared to go to trial because discovery’s completed.
The Division of Assets in a Divorce
John: Right. So, after that discovery phase and you put the numbers to everything, it could end fairly quickly after that if you decide to settle and then you’re done, you file that final paperwork or whatever and then you’re done. But if one party or both parties disagrees on what they should have to pay the other one, then like you said, you might have to-
Heidi: And if you own lots of assets and they’re complex like, let’s say you own seven buildings in Manhattan, that’s going to take longer for discovery to get all the documents to value things, because you’ll get all the leases of all the tenants. You understand what I’m saying? To value the money and the income they’re taking in. And I mean there’s different ways of valuing real estate.
Divorce Attorneys Are Critical for Couples With Complex Finances
John: Right. Yeah. So, in terms of filing for the divorce, you said before, and it sounds like it’s just so complicated and so there’s many different things to think about, that if somebody’s thinking about filing for divorce and then wondering whether or not they really need an attorney or not, it just sounds like having an attorney is just absolutely essential given the complexities.
Heidi: Yes. On the other hand, if the parties don’t own anything and they’re not seeking support from each other or for child support, you can probably go to the court, get a divorce kit and do it yourself if there’s nothing that has to be exchanged, but that’s rare. That’s very rare where there’s nothing that’s going to be impacted.
Divorce Attorneys Can Help, Even When a Couple’s Finances Are Relatively Simple
John: Or if you just literally have like, “Okay, we have this one bank account with very little money in it and we have our house and we’re just going to sell the house, we’re going to split it 50/50, and we’re both happy with that.” You could probably just do that yourself, but as soon as there’s more involved in that-
Heidi: But do you know how to do a real estate contract? Do you know how to do a quit claim deed? Do you know how to transfer it so it’s properly in your name? Do you know what your filing fees will be or the transfer conveyance tax fees? It may be even faster, even in that case just to have a lawyer draw a simple agreement and file it all, and then you don’t even know how to file the papers. So, even in simple cases it may be better to get a lawyer too, but certainly in cases that are complex or there are some assets involved or some significant issues about custody and visitation, you’re wise to get a lawyer.
Contact the Law Offices of Heidi E. Opinsky, LLC
John: Yeah. All right. Well, that’s really great information, Heidi. Thanks again for speaking with me today.
Heidi: You’re welcome.
John: And for more information, you can visit Heidi’s website. It’s ctnydivorcelawyer.com or call the Law Offices of Heidi E. Opinsky, LLC at 203-653-3542.