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So You’re Getting A Divorce: A Primer On How To Separate Amicably

The bottom of most people’s lists of things they would prefer never go through probably goes something like this: tax audit, unsedated colonoscopy, and, finally, divorce. But if you find yourself staring down the barrel of that last one, there are 2 ways to go about it: The right way, and the scorched earth way.

Attorney Robert Wallack has represented the wealthy, the famous, and the irreconcilable in matrimony law — he’s seen former lovers say some hateful shit, but he’s also seen people recognize their shared interest in an amicable split and behave accordingly. “When people are able to put aside anger and bad feelings about the other person, and keep that out of the equation, they’re more likely to have an amicable divorce,” he says. “All of the issues we deal with are fueled by emotion and anger. It’s usually the same feelings that are causing the divorce.”

If this is an article you need to read, that sucks. But here are Wallack’s tips on making suck just a little bit less.

Commit To Your Decision
“The biggest decision is making the decision to divorce. Once you have made the decision to divorce, you should avoid vacillating,” says Wallack. “When people decide they no longer want to be together, they take a wishy washy attitude towards it. Delaying the inevitable ends up hurting them financially or with the kids.” The phrase “you’ve been served” should only be heard one time in this process — unless one of you does a lot of breakdancing.

It’s Just Business
Wallack says that you should try to treat your divorce as a business transaction — albeit one where often your client wants to see you rot in a hole. “When people are in business, and they try to get a deal done, they don’t get everything they want. They get some,” he says. “The common goal is to get divorced as quickly and as inexpensively as possible.” Remember: The best deal is the one in which everyone is a little unhappy. That should be easy enough in this situation.

The 3 Divorce Scenarios
It can be one of these 3, but your divorce may also incorporate a little bit of each:

  • Mediation. Both sides are trying to reach an agreement with the help a mediator. “Often people will try mediation because it’s less expensive. But when you go in with 100 different issues, and the mediator needs to reach a consensus, it could take years.”
  • Litigation. You fight the issues in court, and the judge decides in the end. “I see that most times if a case is contentious, there will be litigation because the parties aren’t able to settle the case. You need the help of the judge.”
  • Settlement. You can settle at any time. “Sometimes you’ll have settlement talks that won’t be fruitful, and you’ll go to litigation, and then step back and settle.

If you’re unlucky, it can be all 3. “I just finished a case settlement after 2 years of litigation, and then mediation. All 3 are designed to achieve the same results and there’s not one best path,” says Wallack

How To Find The Right Attorney
Basically, you need to make sure that you’re comfortable with this person, because you’ll be seeing a lot of them. “Meet with several lawyers and find one you believe will be the right fit for your case. There are some who are great at mediating, some at litigating, and some who are great at settling. Identify what kind of divorce it’s going to be.”

Your high school buddy’s recommendation aside, Wallack won’t work with someone unless he’s met them face to face, and you shouldn’t either. He also points out that the business of divorce lawyering (which is paid hourly) and the ethics of the job (which is to get your client the deal they want) are often at odds. If you have any suspicion that your lawyer is more invested in the business than the ethics, you’ve chosen poorly.

Give Them Some Space
If you can afford to, get a place of your own. “People who are living in the same house is a recipe for disaster,” says Wallack. “It just takes 1 for the powder keg to explode. A physical separation is always a good idea when people are going through a divorce. Sometimes it’s not good strategically, but you’re lowering the level of animus.”


A Note On Child Support
Beside custody battles, child support and alimony are the other big things cited as a travesty of our judicial system. Child support is money that the court requires one spouse to give the other, ostensibly for things the kid needs, like school. And food. And a roof. Alimony is money the court requires one spouse to give the other, which is definitely going to your ex. Alimony is meant to cover “lost earning potential” incurred because the recipient is focused primarily on raising the kid.

“The complaint I hear all the time is that [child support] doesn’t go directly to the kids,” says Wallack. Unfortunately, there’s usually no way to confirm this, because you can’t force your ex to provide a receipt for the roof over your kid’s head, or their lunch on Thursday, or the property taxes that pay for their school. Of course, you can get confirmation on some expenses — like summer camp or therapy — you just have to pay for them on top of your child support.

“Almost all judges will tell you parents are equal in the eyes of the law and the courts. Dads are entitled to equal if not more time with their kids.”

Who Gets Custody?
If you think that women get the kids more than men, you’re right. But that’s not to say there hasn’t been progress. “Traditionally there was this model where moms were deemed the custodial parents by default because they were moms,” says Wallack. “It was dads in the workforce and moms staying with the kids. Now you have more working moms. Is that inherent bias gone? No. It still exists. People are moving in the right direction to eliminate it,” says Wallack.

A judge is mostly looking at who is more available to the children. If mom is working full-time, it might be dad being the primary caregiver. “Almost all judges will tell you parents are equal in the eyes of the law and the courts. Dads are entitled to equal if not more time with their kids,” he says. So you got that going for you, which is nice.