Divorce and the "Scorched Earth" Approach
People in the process of a divorce want a lawyer that will fight for them, and that makes sense. After all, just about everything that matters to us is wrapped up in the family, including children, pets, life savings and dreams of living happily ever after. But for many people in the midst of divorce, divorce is the last big chance to make your point, to get your pound of flesh, and to prove it was all their partner's fault. Any lawyer is happy to fight tooth and nail in divorce, because it benefits the lawyer; lawyers almost always work on contested divorces at an hourly rate, and the more lawyers fight, the more they get paid.

When the client decides he or she wants to fight to the dollar, consider the following axioms about life and divorce:
1.     It's rare that anyone walks out of court getting everything they wanted. It's even rarer that they walk out of court feeling vindicated. In Illinois, the issues of fault in the marriage and division of property are unrelated. You can be completely at fault in the divorce, but the court will still divide property equitably. Notice that I said equitably, not equally. The person who leaves the marriage with more obligations (children, debts) or less earning capacity is likely to be awarded more of the property.
2.     When children are involved, taking your spouse to the cleaners will have long term consequences. If one spouse gets most of the property and the other gets the kids, what is life like for the kids? Children are observant; they eventually figure out who got the shaft, and they tend to resent it. They also figure out when parents play games with child support and visitation, and they hold parents accountable in their own way.
3.     Visitation and child support are the child's rights. Yes, the child. Although we have decided not to live together anymore (yes, I am a divorced parent too), the child still has the right to a relationship with both parents, and to suffer as little falloff in standard of living as possible at either home. When parents interfere with visitation or child support, they are encroaching on the child's rights.
4.     To get complete advice on property division, the lawyer needs complete information. When it comes to marriages with significant assets, it's important that both parties know what all those assets are and what they are worth. Sometimes it's simple (bank accounts and CD's), and sometimes it's necessary to have things valued by experts (houses, businesses, antiques, pensions). The experts cost money, but the alternative is to divide property (either by agreement or by court intervention) without knowing what it's worth.
5.     Fighting for principle costs more. I know, I already said this. But the biggest complaint about divorce lawyers is that they charge too much. The reality is that it costs more lawyer time and therefore money to "go to the mat" OR to defend one spouse when the other wants to fight. If that's the decision that the client makes, the client should be prepared for the cost of that choice.

The subject of divorce law could take up volumes, and has. If you want to discuss the right approach to your divorce, talk to me.

Next Column - Employment Law and the "At Will" Doctrine

Ken Runes
May 5, 2002

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