Modern Family Matters

Deconstructing the Divorce Process: Preparing for a Favorable and Lasting Outcome

June 08, 2020 with Landerholm Family Law Season 1 Episode 4
Modern Family Matters
Deconstructing the Divorce Process: Preparing for a Favorable and Lasting Outcome
Chapters
Modern Family Matters
Deconstructing the Divorce Process: Preparing for a Favorable and Lasting Outcome
Jun 08, 2020 Season 1 Episode 4
with Landerholm Family Law
  • Landerholm Family Law's Partner, Will Jones, breaks down the divorce process in Oregon by focusing on the last step, the judgment, and working backwards.


  • The end of a divorce case for most people is called a general judgment of dissolution, which can be reached in three ways: 1) Trial, 2) Stipulation, which means everybody agrees or 3) Default, which is granted when no one responds to the petitioner. 


  • The divorce judgment encompasses the end goal of a divorce. It’s essentially the “law of the land” between two divorcing parties/parents.


  • D.I.Y.(Do-it-Yourself) divorces can be dangerous because there are many details in the divorce process that can get skipped or lost, causing real problems down the line. If your D.I.Y divorce is not enforceable, or you agree to something that is non-modifiable, you can cost yourself large sums of money.


  • When filing a petition, you are setting the goalpost for what you hope to receive. The purpose is to be vague, and not limit the court’s ability to grant what they deem to be fair and equitable. You are stating what you want, and the respondent can state what they want—within these goalposts, the court can work on fair agreements. Requests within a petition should not be considered offensive—simply put, if a party does not ask for it, they will not receive it—so, while there is no harm in asking, there is harm in not asking.


  • Mediation and arbitration are alternative ways for parties to reach agreements without having to go to court. These are not means in which one party can “force” the other to comply or agree. If parties cannot reach agreements together, they will need to take these matters to the court via a trial.
Show Notes Transcript
  • Landerholm Family Law's Partner, Will Jones, breaks down the divorce process in Oregon by focusing on the last step, the judgment, and working backwards.


  • The end of a divorce case for most people is called a general judgment of dissolution, which can be reached in three ways: 1) Trial, 2) Stipulation, which means everybody agrees or 3) Default, which is granted when no one responds to the petitioner. 


  • The divorce judgment encompasses the end goal of a divorce. It’s essentially the “law of the land” between two divorcing parties/parents.


  • D.I.Y.(Do-it-Yourself) divorces can be dangerous because there are many details in the divorce process that can get skipped or lost, causing real problems down the line. If your D.I.Y divorce is not enforceable, or you agree to something that is non-modifiable, you can cost yourself large sums of money.


  • When filing a petition, you are setting the goalpost for what you hope to receive. The purpose is to be vague, and not limit the court’s ability to grant what they deem to be fair and equitable. You are stating what you want, and the respondent can state what they want—within these goalposts, the court can work on fair agreements. Requests within a petition should not be considered offensive—simply put, if a party does not ask for it, they will not receive it—so, while there is no harm in asking, there is harm in not asking.


  • Mediation and arbitration are alternative ways for parties to reach agreements without having to go to court. These are not means in which one party can “force” the other to comply or agree. If parties cannot reach agreements together, they will need to take these matters to the court via a trial.

Steve Altishin:

Hello everyone. This is Steve Altishin with Landerholm Family Law, and I'd like to welcome everyone to our live Facebook event, brought to you in conjunction with our recently launched podcast series: Modern Family Matters. You can get updates about new podcast episodes on our Facebook page, on Instagram and at the Apple store. Today, I'm here with Will Jones. How are you doing Will?

Will Jones:

Not too bad. Good to be here, Steve.

Steve Altishin:

Well, Will is a partner here at Landerholm Family Law, and he's our lead litigation attorney. He also specializes in complex and high conflict divorces, which makes him the perfect choice for today's topic: how to understand the divorce process and how to make it work to obtain a better and lasting result. 

But before we get started, I would like to acknowledge the memorial service for George Floyd that is being held today. Watching it before we came on this afternoon, listening to the people speak, I could not help but feel the pain and suffering brought on by the ugly power of systemic and institutional racism. And it has to stop. We have to stop. But there is some hope; there is some light. As many people smarter than I have said, “truth brings light”. And I'm incredibly proud that we at Landerholm Family Law stand united and are fully committed to listening, learning, advocating, and taking action to search for the truth and to fight racial inequality and injustice. Because it starts with learning. We have to start with sharing, and we'd like to share useful and helpful resources, educational tools on our webpage. They're also on our Facebook page, and on our social media pages. They're for every individual who wants to learn about what's going on right now. We're also investing in programs to foster change and to promote greater legal diversity in the legal field. Because we don't have all the answers, we're going to meet with people, and we're going to brainstorm about more ways to get involved in this fight.

And so now I'd like also to invite listeners to this live broadcast, to post any questions you may have. And at the end, we'll try to answer as best we can. So the divorce process, Will, how do we start? Somehow I don't think you're going to say at the beginning.

Will Jones:

No, unfortunately we don't. And that's where a ton of confusion comes from, and a ton of people who come in have been through the self-represented packets that are available from the state. And they start at the beginning, right? Petition and jurisdiction. How to file, how to do all those things. Those are great pieces. They are pieces in the process, there's no question about that. But that's not where we're going. It's like if you got in a car and you had no idea where you're going to go, where do you turn? What do you do? So I always like when I bring clients in to start at the very end, right? The very end of a divorce case for most people is called a general judgment of dissolution. And there are three ways to get to it. There's no fourth way. There's no magic. There's nothing. You can only do it three ways.

 

It’s either 1) it happens after a trial. 2) It happens by stipulation, which means everybody agrees or 3) it comes after a default. The default basically means nobody showed up so the petitioner gets whatever they want. 

So that end document is the entire goal of this process. What's going to go in it? What's going to be left out? What are the terms going to be? It kind of becomes the law of the land between the two divorcing parties. And then of course, parenting time, custody, all that stuff. So that's usually the best place to start-- right at the end. What are we trying to get into this judgment? Now we can build backwards as to how we're going to do that. In what manner are we going to get this judgment done?

Steve Altishin:

Sounds like focusing on the judgment, which is the end product and means everything, obviously means don't screw it up. And I know we had talked about the fact that there's a lot of people who are doing DIY divorces, do it yourself divorces, and they may be out there listening. There's a lot of those floating around out there that have probably gone to judgment. What are things that aren't included, potentially? Because isn't it true that pretty much everything that's enforceable has to be in that judgment?

Will Jones:

Entirely. If it's not in your judgment, the court can't enforce it. So the issue of doing a DIY style divorce, it may be appropriate for some people, right? There's no question about that. And people have come in and we've sent them back out and said, "you don't need us. You just don't. The things you're doing here are so non-complex, so spending money on attorney's fees doesn't really help you". But for a vast majority of people, that judgment in a DIY process isn't going to fit, right? Because let's say you're moving a piece of property, right. Or say, both parents or both parties are on a home loan. Now what do you do when you divide the property? Somebody else is keeping it, so how do you get the other person's name off? Because that other party can't borrow, they can't get another house. It's going to be a second mortgage for them. 

 

There's a lot of little tricks and details in there that can really get lost and really cause problems. People come to me all the time and say "my judgment, that I did myself, I need to be able to buy a car and I'm getting terrible interest rates because I'm on this home mortgage". And I have to go, "well, we need to try to reopen this thing. The last document you had here is incorrect, and I can't enforce it. We have to go back and try to reopen the whole process". Right? You don't always get away with that. So you try. And if you can, yeah, maybe you can get it changed. But property division here in Oregon is non-modifiable. So if your judgment isn't accurate, as far as the property, as far as who's going to hold what, as far as transferring title deeds or retirement or whatever it is, there's a real chance that that's just gone forever.

Steve Altishin:

It sounds like the judgment has to be built not just for, let's say as soon as the divorce is over and you may clear up transfer of a couple of pieces of title, but it's got to be built for 25 years from now. Because it's the deal and it's the enforceable deal and it's not easy to change. So it's gotta be ready to go when you get it finished.

Will Jones:

It does. And some of the things that people who don't do this kind of work don't necessarily think about all the time is that just getting divorced and transferring the property and all that stuff doesn't end everything entirely. You may have life insurance that's going to continue forever for the other party to secure support. One of the, I guess more morbid, but it does happen in this type of work, is if one party dies, that judgment may end up in probate court, right? So there's all kinds of different ways that this judgment can impact things in the future. And that's really what we look towards here because the divorce process is stressful.

It's not any fun for anybody. Nobody's ever, you know, smiled their way through a divorce, although you may get a good outcome. But the goal isn't to deal with what's happening today. The goal in this whole process is to deal with the judgment and how that's going to impact everything that moves forward. Because that's where we're going to be in six months, five years, in 10 years. Are we setting things up appropriately in the judgment to take care of clients five, 10, 15 years down the road?

Steve Altishin:

So reaching the judgment requires, obviously, some things that you have to do before that. I know the first thing, at least that you would file, may be a petition. So how does the petition fit into this process? We've sort of deconstructed it and we went to the end, so is the petition important? I mean, what does the petition do at this point then?

Will Jones:

Well, the petition, which is the initiating case for a dissolution case, is important. There's no question about that. But let's look back at where we're going, which is judgment, right? Three ways to get to it, right? Default, stipulation, or after a trial. So say we have a stipulation, which is if everybody agrees to everything, right? So we put a judgment together, everybody signs it. We're going to close the entire case. We're going to file your petition at the same time that we file that judgment, and your petition is worthless because your judgment is going to grab that petition and say that doesn't exist anymore. But we still have to open a case in the courthouse, right? And the petition is what opens that case. In that event, where everybody's already agreed, and everybody's already signed a judgment, your petition is valueless, right? It doesn't do much for you, but you still have to open that case.

 

Where a petition is important is if we don't already have a signed judgment. And that's the huge distinction I want everybody to understand: if you don't have a signed judgment, you don't have a full agreement, right? You're not done. You haven't settled anything yet. Even though you may have some side agreements, even though you may go, "well, we agreed that I'm going to keep the house", those agreements aren't reduced to a judgment. They're not enforceable. There's nothing I can do with those. If you go, "well, he agreed to give me the house" I’ll go, "well, he's not agreeing anymore" because it's not in a judgment. So if we have a full agreement: file it, done. Petition becomes important if we're not going to find an agreement, or if we need to institute a case and start to figure out what's going on, you can't get a default until you’ve filed a case.

 

So if we have to go that route, we file a petition. And the purpose of the petition is to be vague. We'll be specific as to what people have, but we don't want to put in the petition, "I want $300 in spousal support", right? Because the court might award you $500 or $1,000 or $10,000. I don't know what the number might be, it depends on the case a lot. But if you only asked for $200, the court's going to go, "that's all you asked for". Right? So what we're doing is we're setting goalposts. So if we're just dealing with spousal support, we're going to put something in there like "a spousal support amount that the court deems just and equitable". And we're going to leave the court that discretion to decide what's just and equitable. We're not going to tie the court's hands down and say, "nope, we only want this one little thing, and if we can't have this one little thing, we want nothing." We want broad discretion so that, if we do end up in trial because we can't find a stipulation, we have the ability to argue, "it should be higher", or "it should be lower", depending on which client. So the petition sets the goalposts.

Steve Altishin:

Just like anything, it's just an ask.

Will Jones:

Yeah, that's exactly right. It's saying "these are the things that I want". And we're not specific. We might say: "I want some spousal support", or "I want this property to be divided", or "I want custody of the children and reasonable and seasonable parenting time for the other parent". Right? We're not tying things down to, "I want every Wednesday only", because now you've limited the ability of the court. So we're just asking. And we're asking kind of for the sun, the moon and the stars, but we might get that. If you don't ask for it, there's no way you can get it.

Steve Altishin:

So what would you say to someone if they came to you, and the other person had filed a petition, and they show it to you and they say, "well, I'm not going to do anything because this person is asking for the moon and they just must be unreasonable by asking for this"?

Will Jones:

Most of the time, because this happens a lot, almost any time somebody has been served with divorce papers, they come and see me and they go, "they want me to pay their attorney's fees". That's the standard one, right? Yeah, they do. Why not? If they didn't ask for it, there's no way they can have it. They need to ask for that. Meaning, if I file a petition and don't ask for attorney's fees, I've created a problem and one that I need to fix, because those may be awarded. If they don't ask for it, they can't have it, so you've got to ask for everything. 

 

Classic example I give everybody, I call it the McDonald's problem. You sue McDonald's for $50 and you go through a big, long trial and the jury comes back and says, you get $2 million. The judge is going to go, "yeah, the jury said that, but you only asked for $50. So here's your $50 bucks-- go have a good time". So divorce petitions shouldn't upset anyone, right? Because all they've done is they've set their goalposts. This is as far as the court can go, they can go no further. They can always go less, but they can go no further. The response after somebody has been served with the petition, is going to do the exact opposite. "Pay my attorney's fees and here's everything else I want". Right? So now we have big, wide goalposts to work within.

Steve Altishin:

So speaking of the response, what does it do other than turn around and say, "well, yada, yada, I want this, you don't get it, I get it". Is there a reason that you should file it sooner? File it later? I mean, how does that sort of fit into the process of the whole thing?

Will Jones:

So, because we're looking at it from where the judgment is, right? That's where we're trying to get to is the judgment. And we're going to assume that we don't have a full agreement, not everybody signed a judgment. That leaves us in a position where a petition is going to be filed and maybe your response is going to be filed. So the most important thing about filing a response, which is 30 days from the date of service, no later than that; is that response avoids that default judgment, which is the second or third way to get to a judgment, right? If somebody files a petition and nobody shows up in that response, or nobody appears in that case, then the opposing party who filed the petition can then turn around, with no notice to anybody, and tell the court, "look, they didn't show up", take a default, and get everything they asked for in their petition.

 

No more discussion, no more anything. No notifications from the court or the other person. You didn't show up on time, so we're all done. So the first thing a response does is it avoids that default situation. And that can be fairly important because, say the default judgment gets taken and all that stuff's awarded, then you come and see me. Now I have to go and reopen that entire case, maybe, because that is not a certainty. Right? So, take a default, I have to come back, I have to reopen it, now you're spending money in attorney's fees that should've gone into the case initially, could've gone into your response, could have gone into anything, right?

Steve Altishin:

It seems like what you're saying is, you know, as the person filing the petition, you are anxious and eager that that 30 day ends and maybe you can get a default, but is there a reason that you would advise your client: "let's talk to the other attorney, and let's hold off on filing a response". Is there a reason for not getting it filed right away sometimes?

Will Jones:

There are some reasons, and there are some mechanics that we can put in place to basically buy us some more time if we need it. So if you deliver, or I deliver, to the opposing party a notice in writing, not on the phone, but a notice in writing that you intend to appear, now they have to give you a notice before they take that default. They have to give you 10 days. So that way we can kind of extend our window without worrying about them running to the courthouse and getting everything they want. So in some cases where we're the respondent, or going the other way, I get calls from other attorneys that are respondents, they go, "Hey, we want to hold off on that." And that may be because this is going to be a really big case, right? We're going to have all kinds of discovery moving back and forth, we're going to need evaluations of parents and all that stuff. 

 

Because what your response does, at the court level, is a clerk looks at it. And I think it's important for people to know that a judge doesn't read it when you file it, okay? All that happens is a clerk looks at it and they go, "everybody's appeared. Let's book a trial date". So the clerk books the trial date. Now those pleadings won't get read until you get closer to an appearance by the judge. So they just go book a trial date. Typically, before the pandemic and before all that stuff, four to six months out from when the response was filed was fairly common. Now I don't know what is common. But if I'm looking at a case and going, "this is going to take more than four to six months for the professionals to do their work, for me to do my work, for us to get into mediation, for us to maybe get into a settlement conference", to do all those things, I may want to delay. I may want to go "look, let's hit the brakes on this a little bit, because I know we have a lot of work to do and that's going to take a lot of time". Because you don't want that trial date to come up and not be ready. That is not a good idea at all, ever.

Steve Altishin:

I like it. So you got your petition filed. You have your response filed or not, depending on what you've agreed to, but you haven't been agreed. I mean, everything works great in terms of, like you said, if you agree, but let's say now you haven't agreed, and we've got a trial date coming up. What happens next? What's sort of the in-between part that gets you from here to that judgment that you need to get?

Will Jones:

So, we've eliminated the default because we filed a response, so that's not an avenue to get to our judgment, right? And we're not agreeing, so stipulation is not going to get us where we're going either. So now we're looking at litigation in general. The litigation path is what we call it. So, response gets filed. And maybe before that, what we're going to do is Discovery, which is a big, fancy word to say, "we're going to figure out what's going on". Because if you show up in trial, you need to know the value of a home. You need to know what's smart for these kids. You need to know what a retirement account is worth, you need to know what people make. So we're going to ask for things like pay stubs, all that stuff. So we're going to start gathering information. 

 

And the nice part about gathering information and bank account statements is once you have a retirement statement, who can say, "it's not worth that", right? There's some taxation issues and things like that, but it's not, "I have about one hundred thousand dollars". No, you have $102,306. We're done with that issue. I know what that is. If we do, say, a custody evaluation, as we gather all this information and the evaluator comes back and says whatever they say, everybody's negotiation position changes. So during that whole process, as we gather things, we start to tighten things down and go, "Hey, did you look at this?", "Well, I'd like to make my offering", "Well, I need to change my offer because I didn't realize that the house was worth that". Right? So we're just trying to reach an agreement. If not, we're getting more and more data points so that when we show up at trial, we're ready. We have everything we need. We know what everything in the marriage is worth. We know what the smart ideas for the kids are. We know who's going to come into court and say what.

 

So getting ready for a trial is the same as getting ready for any type of alternative dispute resolution. Whether it's a settlement conference, whether it's a reference judge, it's all the same. We need to tie everything down so we can either make smarter offers or say, "look, you're just not going to be reasonable so we can jump the shark and this case is going to trial. We're not going to spend any more time or money trying to mediate this thing because the other party is just being unreasonable". Let's jump to that. We'll wait for your trial date and we'll try the thing. We don't need to spend any more money trying to just massage something that just isn't going to be massaged.

Steve Altishin:

You introduced a new word: mediation. There's a lot of, I think, knowledge and maybe "dis-knowledge" as to what mediation is, what arbitration is, and how you make those something that helps you get to that agreement or no, you don't have it, and here are your issues.

Will Jones:

The public understanding of mediation, arbitration, settlement conferences, is not always correct. Right? So the problem is I see a lot of people who come in and they're all fired up and ready to go. And they say, "I want to force this person into mediation". Mediation isn't going to force anybody to do anything. It's the exact opposite. People come in and we try to find an agreement. So if you're forcing someone into mediation, or you think a mediator is going to go, "Hey, are we done with this?", in truth the mediator's going to go, "do you agree with that? Or do you not agree with that? Here's a smarter way to look at". So people think that mediation is going to force somebody into making an agreement. It can't. That's what trial is for. Trial will get you a result, which is why, when we were talking just a minute ago, I said we're just going to jump the shark, we're going to go to trial and we're going to get a result, right? Because the only person that can force anything here is the judge. They have all the power, entirely. A mediator is looking to make smart decisions and help people make smart resolutions, but if people aren't going to be smart, then that's what the courts for.

Steve Altishin:

So does there come some point during this process where you're trying to negotiate, you're trying to come to agreement, you're beating your head against the wall at some point, and you just can't come to an agreement? I mean, you can't really force someone to be reasonable sometimes. So what happens when don't agree on something, you can't, and you realize that?

Will Jones:

That's one of the more frustrating parts about being a family law attorney is people will go, "why can't you make them be reasonable? Why aren't they taking this offer? This is smart". Then I go, "yeah, this smart, I'd take it." But I can't. I'm not the other side. And obviously there's a lot of emotions that get wrapped up in this. But I get people who are super, super close to settling cases then we can't settle them because, "well, if I take your offer, you win", "well, if I take your offer, YOU win". But they're both smart decisions. Right? We could wrap this up. We could save a bunch of attorney's fees. It just doesn't always happen that way. I wish it could, but if we can't reach an agreement, that's what the court is for. It's time to go ahead and keep that trial date and end up in court and litigate the thing. That's fine with me. Sometimes they work out that way. That's what I was trained to do, and that's what I do.

Steve Altishin:

So let's say you've got some temporary order or you made some temporary agreements, and obviously something that people can't say is, "Oh, we'll just leave it at this and then stop". I mean, you can't, because what you said was that the general judgment is going to end up overruling everything. So I guess that takes you onto just that thing: the general judgment. Getting to a comprehensive agreement, what kind of things should, or maybe should not, be built into that thing?

Will Jones:

Well, you said a couple interesting issues there. So temporary agreement, right? I don't think that everybody out there really knows what those are. So, say a petition was filed. You don't have a general judgment yet. At any point, people can enter into a temporary parenting plan, an agreement, or even after a hearing: who's going to have exclusive use of the home? Who's going to continue to make the car payments? Is there going to be some matter of temporary spousal support? So, that temporary either agreement or hearing is meant to last the life of the case? 

 

So say people are having difficulty with parenting time. You can ask for a short hearing in court if you can't find an agreement for a parenting plan that will last just until we get to a general judgement. And it doesn't affect anything in the general judgement. General judgment could be entirely opposite. But, that temporary order is enforceable for the life of the case. So if you go "well, we have these temporary agreements and we'll just leave it at that", what's going to happen at some point is the court's going to go: "there's been no activity on this case for so long, dismiss it." Now your general judgment, instead of awarding anything, is a general judgment of dismissal, right? So your case is now gone. Because the case is gone, your temporary order is gone and no longer enforceable. It's just out of the way.

Steve Altishin:

So you could get someone coming at you three years after a divorce that they never resolved, drop a temporary parenting plan on your desk or a mediation agreement on your desk and say, "here, enforce it"? It sounds like that ain't going to happen that way.

Will Jones:

Not at all. I have some people that I'm working with right now, they have a lovely mediated parenting plan, right? They did it 6-8 months ago. It's well put together. It's well drafted. It's well written. It's signed by both of the parties. It's great. About three weeks ago, the opposing party says "you're not getting any parenting time". So they come to me with this lovely mediated agreement and say, “I'm not getting my parenting time, what do I do?”

 

Well, your mediated agreement, it's a nice piece of evidence for what you guys thought, but it's not enforceable because it's not a court order and it's not a judgment. I can't help you with that. Now I can take that and go, "hey, you guys thought this was a smart idea", but until it's in an order and then eventually a judgment, it's a contract. And you can't contract for parenting time in Oregon, by the way. 

 

But say, you guys agreed to the house and all this other stuff—that's a civil contract. That's all. That's all you have. You don't have a judgment. So I can't go and foreclose on that house. I can go and sue under the contract, maybe. If I get a judgment out of that, now maybe I can start talking about foreclosing on the house, but it's not in a judgment. And that is one of the larger myths that exist is that "we've worked out something". Well, you don't have a judgment and you don't have an order, so you haven't. 

 

One of the more common ones is "he's going to keep the house". Okay, that's fine. Your names are on it. He needs to refine. Well, he can't refine. Now where are we? Because they agreed that he was going to keep it, but he has to refine and he can't do it. So you don't have an agreement on that. That house probably needs to be sold at that point, but people haven't thought about that yet. But they agreed and they think they're done with that. And you're not. Not until it's in a legally binding enforceable document, which is generally a judgment.

 

And I'm sure every family law attorney will give you stories about how we worked out 99 and a half percent of the problems in these cases, and they're ready to go and all we need is somebody to make a decision here. And the argument is over, say: "well, will the Wednesday visit be overnight or just for dinner with the kid?" And it's like, "Oh, somebody give", because you know, we got a $10 million case and we've agreed to everything and nobody will give in. And then one attorney has to call the other one and go: "see you in trial tomorrow. I guess we're doing the whole thing because we can't figure it out", because it's not in a judgment yet. It's not there. 

 

Now, people are free to settle pre-trial any issue they want. They can settle the house. They can do all that. And just tell the court, when they show up at trial, "we've agreed to these certain things. And we have disputes about these other things". Still, not in judgment, not enforceable. But a judge, if you guys have agreements or stipulations, will usually go: "one less thing I have to hear today. Very clear."

Steve Altishin:

Well, Will, thank you. I think we've run out of time. We could probably talk about this for another hour and a half and it's fascinating stuff. And it's important because like you said, you've got to get the judgment, right? I mean that's the end of the story. But we are we're out of time. And so thank you so much, man. 

 

And again everybody, I'm Steve Altishin with Landerholm Family Law. We're bringing you this Facebook live in conjunction with Modern Family Matters. And hey, if you have any family related topics that you would like us to address, legal or otherwise, or are interested in being a guest on this podcast, please feel free to call me or contact me personally at steve@landerholmlaw.com And other than that, I just wanted to say, these are sad, but hopeful times and we're going to get through them all together. Everyone stay safe and we'll see you later.