It’s that time of year! You are probably about to give other people some new Stuff. And you’re likely to get a bunch of new Stuff yourself.
Remember when you were a kid?
Not getting what you wanted sometimes made for a bad Christmas. What was worse, though, was not getting what you thought you were getting!
You thought you were going to get the cool Evil Knievel Jumping Motorcycle, and instead, you got one of those plastic trucks that you had to push around by hand. Or you thought you were going to get Malibu Barbie, and instead, you got a Lite Bright.
Not getting what you thought you would get at Christmas can be rough. But, what’s worse than that – or maybe just the adult version of it – is not getting what you thought you were going to get in your Divorce.
Divorces are all about dividing Stuff. Well, maybe not all about, but quite a bit about. In fact, after the parts dealing with any children involved, one of the most important parts of a Divorce Decree is the part that is typically labeled “Division of Marital Estate.”
There is usually a section that says that “Petitioner is awarded the following as their sole and separate property and Respondent is divested of all right, title, interest, and claim in and to that property,” followed by a list of property. And there is almost always a corresponding section for Respondent’s list of property.
Most people care about what they get awarded. More than that, though, most people care about what they really end up with!
Here are some things to attempt to help ensure that what you think you’re going to get is, in fact, what you get:
1. If you care about it, write it down.
Generally speaking, the property listed in the Divorce Decree can be described however the parties want it to be. You could have a Decree that says that “Petitioner is going to get whatever he and Respondent have agreed to.” And you could have a similar statement for what Respondent is going to get.
Doing something like that is unusual but not unheard of. It’s also a pretty bad idea, if you care about what you get.
Clients often ask, “How specific should I make the list of property that I want?”
The answer is: If you care about it, write it down.
By that, I mean, make it clear. Give a description that would allow a Judge to know for certain whether you got what you intended to get.
There is no rule or law that says that you have to describe “the household furnishings” in any more detail than that. In fact, you don’t even have to describe them that well. But if you are arguing later in court about whether you got what you intended to get, it’s going to be hard for a Judge to know what you meant by that term.
2. If you care about it in the Divorce, care about it in the Mediation.
Every Divorce is basically resolved in one of four ways:
1) Negotiation between the parties;
2) Negotiation between the lawyers;
3) Mediation; or
4) Trial.
That statement is true whether you consider your Divorce “uncontested” or “contested,” and whether you resolve it through Litigation (hearings, motions, etc.) or Collaboratively. Collaborative Divorces still involve negotiation and/or Mediation and/or Trial.
Although there is no requirement that you ever try to negotiate before you get to Trial, most courts do require that if you haven’t settled by some other means, you Mediate before you go to take up their courtroom time with a Trial.
If you settle your case at a Mediation, you will end up with a document called a Mediated Settlement Agreement, which is typically referred to as an MSA.
Once you have an MSA, it is binding. That means that one side or the other can demand that the court enter a Divorce Decree in accordance with the terms of the MSA. Although there are a lot of “outs” in terms of the terminology used in an MSA and getting it from that form to a Final Decree, best practice is to go back to Rule 1, above. If it matters to you, have it written down in a form that cannot be debated.
3. You are ultimately responsible.
If you use an attorney in your Divorce, their job is to assist and advise you. They want you to be as happy as possible with the outcome. Sometimes, your attorney will even help lookup descriptions, VIN numbers, etc., for your property.
You, the Client, though have final responsibility for ensuring that the MSA (if you have one – and from this point on, understand that “Decree” really means “MSA, if you have one, and your Decree”) and the Decree describe the property that you care about in the way that you want.
You will probably be asked to provide an Inventory to your attorney. If you do a sloppy job with that document and then follow it up by not getting accurate descriptions in your Decree, you may end up being very unhappy with the property that you end up with, compared to what you thought you were going to get.
4. You can be creative.
In accurately describing the property that you want, you are allowed to be as creative and complete as you want to be.
Some of the basics are:
1) Make sure that you use the accurate name of any financial institution;
2) Make sure that you use the complete and accurate name of any retirement asset;
3) Use VIN numbers on vehicles;
4) Use serial numbers on firearms and other items that have them;
5) Describe quantities of things fully and accurately
Beyond that, though, there is nothing saying that you couldn’t use photographs or video to document the items that you are describing. You can certainly use account statements and similar items to document property held in accounts.
If you don’t want all of that to be a part of your Decree – and you probably don’t – there are ways that documents, including photographs and videos, can be shared with the other side in such a way that it’s easier to prove later what you were talking about.
5. Get things in your possession before the Decree goes Final.
One of the most important things that you can do to help yourself is to take actual possession of items you want and think that you will ultimately end up with before the Judge signs the Final Decree.
If you don’t do that, and you later end up with the items that you wanted, but they have been damaged or devalued in some way, you will have a problem on your hands. If they are irreplaceable, there may be nothing that can ultimately remedy the situation.
If the other side claims that they already delivered the items to you, you may have a tough time proving the negative – that they didn’t.
Even if you are holding the items you want, however, you still want to document in the Decree what you are getting. Possession of an item at the time the Divorce Decree goes final or even after does not prove that you are supposed to be the one in ultimate possession of it. You still need to document everything as fully and accurately as you can, if you care about it.
6. There may be something you can do.
If you either don’t listen to the above or despite your best efforts, you don’t end up with what you thought you were going to get, don’t give up all hope. There may be something that you can do about the situation.
Divorce Courts have a great deal of power. For example, they can set aside a Decree that they have entered, under certain circumstances, they can put people in jail, and they can financially penalize people.
If you didn’t get what you thought you were going to, ask your attorney about what can be done. If you don’t get the answer you want, try asking other attorneys. Practicing law is an art, not a science, and not everyone sees the situation and the possibilities the same way.
Also, understand that there may be a deadline to get things changed if there is any hope of doing so. A very old saying is: The Law Favors Finality. In short, that means that at some point, every case will be considered final, and there will probably be nothing that can be done to correct a wrong.
Some specific things to ask your attorney about are:
1) Motion for Clarification;
2) Motion for Enforcement;
3) Motion for Contempt;
4) Post-Dissolution Property Division Suit;
5) Motion for New Trial
6) Appeal
7) Restricted Appeal
8) Bill of Review; and
9) Mandamus
Just like Christmas, before the big day, you won’t know for sure what you’re going to end up with. But unlike Christmas, you can control a lot of the outcome yourself when it comes to Divorce.
Like the list you made for Mom and Dad – if you care about it, write it down.