17 - Setting Expectations: Settlement or Trial? [Attorney Nick Cutrera]

Today, Family Law Attorney, Nick Cutrera, is joining us to talk about setting expectations during your divorce, in all regards, but particularly with regard to how to settle and whether to go to trial. Nick has some great ideas to protect and encourage you as you make these big decisions!

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Transcript

Unknown: 0:11

Welcome to this starting over stronger show, where you'll find help and hope for your divorce, survival and recovery, divorce Well,

Unknown: 0:23

it gets important to rely on your attorneys advice as far as the things that you're hearing from your spouse, once you have attorneys, you're not really supposed to be having direct conversations. But especially if the relationship has been uneven. Throughout the marriage, it's very important not to let them or anyone else get in your head about what is going to happen.

Unknown: 0:46

Hey, guys, welcome back to starting over stronger divorce, survival and recovery. Today, we're going to explore a really important topic that you are all going to face as part of your divorce, whether to settle or go to trial. Hopefully, the vast majority of you will decide on a settlement. I think, statistically, that is the case. But how can you personally prepare for being a credible client and making this decision as you consider the immensity of all the factors of your unique situation? Well, that is exactly what family law attorney Nick kucera is here to talk about today. He has many years of experience in helping clients make that very decision and counseling them through that process. Nick, thank you for being here. First, would you tell the listeners a little bit more about you your practice and your focus and divorce?

Unknown: 1:33

Okay, my name is Nick kucera. I'm very happy to be here. I have been practicing since 1993, a large percentage of my practices with divorce cases involving children, and of course assets. And also various other litigation matters, such as modifications in child custody, child support, etc. So and I've been doing that primarily for the last 18 years.

Unknown: 1:58

Okay, awesome. Well, thank you, again, for being here. Okay, so we're just going to start by talking a little bit about when a client first comes to you, and they have hired you, I'm going to guess that setting expectations ranks up there pretty high. And the first things first, so where is it that you start with clients with regard to the setting of expectations?

Unknown: 2:21

Well, I think it's very important to get your clients, you know, full version of events and what happened and many times, you know, divorces happen as a result of misconduct by a spouse. So lots of times when I have clients that come in, they're dealing with a lot of emotional trauma and a lot of difficulty processing, how in their view, their spouse has malign them or betrayed them. So their emotions are going to be very raw, lots of times. So I think it's very important to hear what happened in the get their feelings and also to empathize with them, because it is very difficult to go through a divorce. And then after hearing all that, I think it's important to start setting your client's expectations as far as what incidents of misconduct or what things has their spouse done, that may factor in the ultimate outcome of the divorce, whether it be settlement or trial, in what things although they're very important, what things aren't really going to factor that much in the outcome. So I think it's important to differentiate those two things, and make sure that they understand that those are two separate things, you know, the misconduct in the marriage that resulted in the divorce, or just the reasons that they can't stay together anymore. is one aspect in a whole different aspect is the misconduct that's important for determining how it might affect child custody or property division, etc. Those are two different things.

Unknown: 3:47

Yeah, I agree. That makes a lot of sense. Okay. So is it safe to assume that settlement is almost always the goal? Or should it be talked a little bit about that?

Unknown: 3:56

Well, I think so naturally, I think everybody would prefer to move on with their lives and get through that and start moving on to their next chapter and try to settle in a way that is not painful, because once the divorce is over, you're going to need to continue to parent your kids. Yeah, actually, for your whole life. I mean, lots of people will say, well, the kids man's paid at 21 or 22. But our roles as parents, you know, they last forever. So if you can get through the process with as little pain as as possible. That's helpful because divorce trials are painful and but there is a time when a case has to go to trial. And your attorney needs to be willing to go to trial if it reaches that point, because there is a point where you have to go to trial, but by all means you should try to settle it first.

Unknown: 4:45

Is there any way to define what that point is? There's just so many variables.

Unknown: 4:50

Well, I mean, there's there's lots of variables but an attorney with a lot of experience will have an idea of how judges will view certain situations certain property of divisions. Certain aspects of the parenting plan and what might work and what might not work. But the goal is if you are in settlement as you want to avoid, what would be your worst outcome in court, and the other side is trying to avoid what would be their worst outcome in court, you know, so a reasonable settlement is going to be somewhere in that realm where you are exchanging the uncertainty of trial, and the the uncertainty of an outcome and the possibility that things could come out worse than you like for the certainty of knowing that, hey, this is the way it's going to be and we can move on from here.

Unknown: 5:33

Well, that makes sense. And and with that in mind, you know, I'm sure that there's clients that are overly optimistic as far as the settlement goes, how do you handle I guess, the preparations for settlement in deciphering their optimism, pessimism and how that factors into it?

Unknown: 5:50

Well, I think it's, it's very important, because there's lots of times where a client, either the husband or the wife is very certain that things are going to come out, okay, because they've been wronged. You know, so personally, in lots of times, for example, say, a wife comes in, in the husband has had an affair on her possibly with a close friend or something like that. And she's extremely hurt. You know, and that's obviously a huge betrayal, she may believe that because of that betrayal that a judge will empathize with that and reward her in some way with respect to the outcome. But in terms of the law, you know, Missouri is a no fault state. And as far as the misconduct figures in on anything, it generally what's going to matter to the courts are financial misconduct, such as using a lot of resources or financial resources in your misconduct, such as taking a mistress on a vacation and using a lot of money that should have been marital funds on someone. But the mere act of infidelity, regardless of who it's with, is likely to play a very small role. As far as a deviation from the standard, which is, generally each party is going to get 50% of the net marital say,

Unknown: 7:04

yeah. And I guess we kind of asked for that, right. When we went for no fault, we didn't want a judge deciding our outcomes for our divorces based on his own principles. rayas

Unknown: 7:17

in terms of fault, it can be considered in a maintenance case, you know, what used to be called alimony. And again, it's mostly Financial Conduct squandering of financial assets are can also be considered in the property division. But the impact is not nearly what the hurt person is going to feel like would be just, you know, and that's only natural. I mean, when you've suffered the pain, you know, how much it hurt, and you'd like to be able to, to have that validated in some way. Yeah. But unfortunately, the courts not gonna validate it to the extent of the way you feel that you've been injured. And that's just kind of a reality of the family law process.

Unknown: 7:55

And I guess that would be leaning more towards the overly optimistic side of things. Right. And I obviously the risk is, they're just not getting what you expect, or maybe what you even need. And so then what would be the issues that you might face for somebody who's overly pessimistic? What are the risks there?

Unknown: 8:12

Well, I think a lot of times in overly pessimistic situations, you have a marriage where the partnership just wasn't very equal on terms of input and making decisions, etc. And I often find it, I often find it with women, but I've seen it with men as well. But a typical example might be you don't understand my husband, he's a smooth talker. He's very convincing to the court, you know, he tells me, I'll never get alimony, he tells me I'll never get this or he'll never get that. And because they've been really beaten down in the marriage. And they've bought this idea that somehow they're not a smarter or inferior to their spouse. they've bought into that. And they tend to say, you know, he's saying this, therefore, it's gospel. And I'll never come out on top here. In which case, I often will tell my client, well, how long has he been a lawyer? You know, where did he get his training? Because the thing is, when they're getting divorced, I think an important thing for them and their growth process is learning that that person no longer is going to have power over them in dominate them like that. So from the pessimism standpoint, lots of times I'll have a client say, what you have no idea, you know what she's going to put me through on the stand, I'd rather just give her too much. Basically, it's very important to tell them look, you know, the law is really on your side here. You don't need to accept everything that they're saying was gospel, rely on your professionals.

Unknown: 9:44

Right. And the flip side of that the woman who's just trying to walk away without getting her fair share of things because she's just so stuck in that thinking that I'm not going to get anything anyway. So why, or it's just I'm done with it. I'm not it's not worth it. I don't I don't have the energy to fight him, I'm just gonna let him have everything,

Unknown: 10:03

right, it's just so painful for them. So they want the pain to end. So they're thinking really in terms of short term pain alleviation rather than long term and what's best for them. You know, I've had situations where I've represented fathers before, where the wife is throwing all kinds of allegations against them with respect to the kids, and just being extremely difficult with working on everything. And I've had men say, much as I love my children, I just need this to end I'd almost rather just walk away and agree to terminate my rights, it's very important to understand, you know, I tell them, You almost certainly don't mean man, you know, you're going through a phase right now, that is just so hard for you, you feel like quitting. But I'm certain that you don't mean that, if you sold do mean that, you know, after a few weeks, and you told me that you don't need me, because you can lose your kids without an attorney, you know, so I try to keep them focused on, you know, long term and trying to realize that in the end, they are going to come out of this and most, almost every time they're going to come out of it better if they've been in a bad marriage.

Unknown: 11:12

Yeah. And you know, I think that's the hardest part of working with people going through divorces just trying to get them to separate the emotion from the logic, and that's your full time job. So I'm sure you do that a lot.

Unknown: 11:22

I've had many clients say, they just have no idea how they're going to get by without the financial support from their spouse, or you know, what, they're really grieving. And they're wondering, how am I going to survive? And I've told many of them, you'll see me a year or two later out shopping or somewhere and you'll say, Nick, you are exactly right. I have a, I'm in a much better place now. And my life is better now. And many times, I will run into them. And they'll say that, but I've actually had clients come by my office, saying, Hey, I was in there. And I just want to let you know it. You're right. Like, you know, I can't believe how much my life is better. Now, yeah, but it takes a while to get there.

Unknown: 11:59

Yeah. And that's why we're talking about setting expectations today. Because your expectations are all over the map when you first come in to start the divorce process. But when you mentioned it, setting expectations, what comes to mind, for me is understanding like the order and the timing of events, I recall from my own divorce, this just almost constant state of wondering what was coming next. What did I need to do? How could I be prepared for whatever it was? And you know, my favorite part? Or should I say my most important part of my job as a divorce coach is helping clients not feel that way. So this kind of expectation setting is something that I'm sure you always do with every client. And I would think that it would be hard to keep up with each and every client and every step of the entire phase of the process. There's just so many variables, how do you deal with that, so that you don't have clients that are calling and emailing constantly with dread and worry and fret?

Unknown: 12:57

Well, you know, I think that's very difficult. And I think it's been more difficult in the age of COVID. I think it's been really difficult because it's slowed down the process so much. And it's hard for people to understand that it takes time. I mean, if you're on a uncontested track, where you think that you can reach a settlement quickly, maybe you could get the whole thing done in three or four months or so. But if you're on a contested track, and you have a lot of contested issues, it's very important to let them know, look, you could be looking at a year before you have trial, got to exchange the documents, you have to have discovery in you've got to prepare for trial, and you'll have an opportunity to mediate as well. And I totally get it people want to be done. But it is a process and it takes time. And sometimes the time actually works well because people an opportunity to get out of the situation and start to look at it from a step back and understand. I think both sides, sometimes the time actually works in your favor as far as getting things calm down and reaching a resolution. Yeah, that

Unknown: 14:01

makes sense. So with document gathering, I'm sure this has to be the biggest stressor for both the client and for you, right. How do you set expectations with regard to just how many documents are going to have to be gathered?

Unknown: 14:15

Right? Well, yeah, if you've got a contested case, you're looking at probably, you know, most likely three years of bank statements through your you know, you need to get your retirement statements all together. Sometimes people ask for checks and drafts and those kinds of things. And it's very important. If you're talking in most circuit courts, they have pre approved discovery, as far as what documents are exchanged. In every case, you may have three years of tax returns and those types of things. But if you're talking, you've got your own business, a solo business and you're not a W two employee, then you're talking a lot about even more documents. I mean, it's very important because there's got to be an investigation as far as how much income does the person actually Make I had one case where a woman had a business and on her tax forms, she would show that she made about 20 or 25,000 a year. And it just didn't comport with the lifestyle that they had and with how much money they had. So we got a financial expert to do a forensic accounting. And it turned out that really, she made about $125,000 a year. So and they had always handled their taxes separately. But that was a lot of work and involved in expert digging into all those records to see where kind of counting church were being used to show such little income on so many gross sales. But if you have a W two employee, it's not. It's not as bad.

Unknown: 15:41

Okay, so let's explore some random expectations that I think many of my clients would do well to have going in ua, and on each one, we'll just kind of do this rapid fire style, I may insert some shameless self promotion about how divorce coaching can help. So expectation number one, it sounds harsh, I kind of hate to even say it, no one will care more about your divorce than you do.

Unknown: 16:02

Yeah, I think that's, I think that's absolutely right. Think that you need to rely on your attorney to the extent that you can to take some of that care away, because you're hiring an attorney to advocate for you and what's important for you. So you can't get triggered by everything that your soon to be ex husband, or soon to be ex wife says if you can to the extent that you can, you need to pass that off to the attorneys. But the truth is, is the judges seen thousands and thousands of these divorces, and so of your attorneys, it's just not the same?

Unknown: 16:35

Yeah, of course not. And you know, I care deeply for my clients. But I think it's just there's no way we can have the level of emotional investment that the client does. So that's just important for them to know going in. I think they need to bear that in mind. Absolutely. Expectation number two, your divorce will take longer and cost more than you think.

Unknown: 16:54

Yeah, I think that that's mostly true, it's especially true if one party in particular doesn't want the divorce, I have found that both parties agree that the marriage is over and irretrievably broken. And they both accept some of the fault for that it's not as bad, but it's if one person really just doesn't want it to end. And they're looking to still interact with their spouse, and they want to save it in they've had a lot of anger and stuff. You know, lots of times negative interaction with the spouse is better than none at all, in their view. So I think that they ramp things up and they make it as difficult as possible.

Unknown: 17:32

Yeah. And obviously, from your perspective, speaking in retainers and billable hours, but really, they are in charge of I think so much of that. And I think you're so emotionally overwhelmed that you don't even realize I think how much you're running your own bill up

Unknown: 17:49

that? Well. Absolutely. I think it's important when you say, Yeah, they don't realize how much they are in charge of it when they told me, how much do you think the divorce is going to cost and say I give a 10 hour retainer, I say if you work through some issues, and you do some things, 10 hours could get it done. But a lot of that we have no idea how your spouse is going to react and what they're going to argue about and what they're going to do. I've seen people spend several thousand dollars in attorneys fees, arguing over a second refrigerator in the rec room. And there weren't that much right in it, it really makes no sense. I've told my clients before you understand you're spending a lot more on me fighting over this refrigerator than if you just gave it to him or her. But for some reason they have an emotion tied up into that. It's hard sometimes for people to let go of that. But yeah, you are in control of a lot of it.

Unknown: 18:43

Yeah, for sure. Expectation number three, if your spouse is self employed, you probably won't get the full amount of support the law says you should receive.

Unknown: 18:53

That's a hard one in the sense that one fact about self employment is that generally, people under report their earnings, they find tracks they find ways not to report everything, whether it be that they're not recording all the cash as income or their intermixing personal expenses with business expenses, etc. But I will say that, you know, most judges say that you're married to self employed individual for 10 years. And you know that he's under reporting his income, you know that that's what they've done. And you file married, filing jointly tax returns for 10 years. I think a judge is unlikely to say you get to benefit from taking these accounting tricks for 10 years. And now you're gonna walk in and say he's cheated on his taxes because it's not really he when you're doing a joint return. It's both of you. And I think judges are likely to hold both of you to what your joint filing as a married couple what those tax returns said. And so if you are under reporting then it's up Likely and under reported number is going to go into the child support calculation.

Unknown: 20:05

Yeah, that makes sense. Okay, expectation number four, you're going to need to put together a small mountain of paperwork. We've talked about this a little bit. Is there other thoughts on what types of paperwork they need to maybe gather in advance?

Unknown: 20:18

Well, you know, one thing that I like to see, especially if it's a very dysfunctional couple in which say one of the partners is trying to bully or intimidate or mistreat the other text messages, if there are some text message exchanges in which your spouse is just off the rails and attacking you, in, you're not reciprocating, you're not doing the same type of things. Those text messages can be very important later. And there's some excellent apps on more so on androids, but there's a few apps on iPhone as well, that can capture those SMS text as PDFs and preserve them very well, for eminence, but I think text messaging of kind of the dynamics of the relationship really shows me a lot as far as is what I'm dealing with?

Unknown: 21:07

Well, it sounds like it definitely helps you, would it help with the ultimate outcome? Will the judge look at those kind of things as well?

Unknown: 21:13

Oh, you know, absolutely, it could with respect to parenting. Legal Custody means that you guys share a commonality and beliefs on parenting, in that you have a relationship that you can communicate and make joint decisions about the children together. And if you have text messages, I remember one case in which I had a, my client got sole legal custody. But she simply was asking her husband during the divorce process, which of our kids parties, would you like to go to a school that was like Halloween parties? Would you like to start a child one's party and then go to child's two, and then we'll flip so that we can both be there? And he said, No, we're going to each go to one child's party for the entire duration. And she said, why not? They're both of our kids. And we should both be there. And he went on for about a week ended up being about an eight page text message about how it was because he couldn't even stand to look at her being in the same room with her made her made him sick. He can't seem to even breathe the same air. I mean, it was just such a toxic, hateful message. And I think that that message was something that showed the judge, hey, these two can't co parent together? Because this kind of attack came from just asking, how are we going to share time at a child's party? You know, and it's just too toxic for them to be able to, to make joint decisions?

Unknown: 22:39

Well, it's good to know that they look at that kind of stuff. Expectation number five, you will lose friends.

Unknown: 22:46

Yeah, I think that's, that's just inevitable. I mean, anyone that's been through a divorce, you know, including myself, knows that what happens when somebody is hurting is they're looking for allies to support them. And you know, who's the most likely ally, it's your friends. And sometimes, if they've been friends with both of you, if one of you gets the ear of that friend, the other one most likely is, is losing their friend. Yeah. So that's just kind of a reality.

Unknown: 23:16

Yeah. Friends and family, it's, it's just inevitable because it really doesn't matter how long you've been married, it just becomes awkward and uncomfortable for some people to continue that relationship with you. But luckily, you meet new people, and you fill those gaps as time goes on. So

Unknown: 23:32

it's very important that people care for themselves not only through the divorce process, but but after I'm sure that your coaching probably goes into after as well.

Unknown: 23:41

Yeah, for sure. In in divorce coaching, we say there are actually four divorces, the legal divorce, the financial divorce, the emotional divorce, and then the social divorce. And of course, that's part of the social divorce is that your life is going to change socially, you're sure not going to have the same circle. And expectation number six is that you will need more support than you think. Yes. And more than just your attorney, right?

Unknown: 24:03

Yes, I think so. I think so. Absolutely. And we know when we are called attorneys and counselors at law, and I constantly feel like I'm trying to counsel people in terms of the emotional aspect, in what you know, as their best decision in the long run. But the thing is, is that kind of go into our first question, nobody's gonna care more about your divorce than you. It's a pain that I think only divorce people can understand. You know, and it's, it really is, it's a hurtful thing for anybody to go through.

Unknown: 24:35

Yeah, for sure. And divorce coaching can be a lifesaver when you maybe have a best friend or two, but they maybe don't understand your situation, or they maybe don't, maybe they're just worn out here in it. And that's terrible to say, but it is very draining to support somebody through a divorce. You

Unknown: 24:50

know, absolutely. And I have to tell you as a divorce attorney who cares very deeply about my clients, you know, that's one of the biggest challenge And my practice is that sometimes you're seeing these people go through this emotional difficulty that the legal system isn't really set up to handle. And then you try to counsel them as well. But when you're talking $325 an hour, you know, when we have to build our time, six minute calls, costing $32 and 50 cents, and you don't feel good about that, either. For attorneys that really care about their jobs and about their clients, it's draining, and it's part of our job. But imagine putting that on a friend, you know, and they've got to hear it. It is it is a draining thing. And you don't want to be, you know, I'm sure, and for most people, if your friends were honest, they would say, Man, you know, it was hard standing by you that whole time, because it is a it's a challenge.

Unknown: 25:45

Yeah. In fact, I had a client recently tell me that her best friend, just when she met me, she said, it's just so great that I just met you, because I just had this conversation with my best friend last week. And she said, there has to be somebody besides your attorney that can help you through this. Which to me was just her saying, I don't know what to say anymore. I don't, I don't know how to help you. I've not been through this, I don't have any idea how to support you, I want to but I'm not I don't feel qualified. So I think it's really good to know that there is other avenues for support besides your attorney besides your best friend. There's other ways to get the support you need as you go through this.

Unknown: 26:19

And there's many times I've told my clients that unfortunately, some of the problems that they're having with their spouse or something that court is unlikely to be ever be able to solve, no judge is going to make him be friendly and patient with you on the phone, that's just not going to happen. So you're going to have to learn strategies of how to cope with it when he's not friendly. And when he's impatient when he's demanding. And you need to figure out a way to control that on your own, or else he's continuing to pressure buttons even after it's over. I think like the Al anon 12 steps or the Serenity Prayer are great things for somebody going through a divorce, it doesn't just need to be in substance abuse situation. But the idea of controlling the things that you can control, you know, and taking care of your side of the street, letting go of the things you can't control.

Unknown: 27:10

Yeah, for sure. That's, that's great advice. Expectation number seven is that if you have kids, you will have to make a detailed parenting schedule, and it will probably be agonizing not only to create it, but to maintain it as well. Do you have you dealt with that a lot? I'm sure.

Unknown: 27:26

Yes. Oh, yeah, I think so you go through all the holidays, you go through all the plans. And you might think that the parenting plan covers everything, but it doesn't, the more rules that you feel like you need, you know, they always say that more rules, whether it be at a workplace or anywhere else, the more rules you have the better indicator of how dysfunctional the places. So if you're trying to put all kinds of rules in there, it's probably a good sign that, you know, this is a very dysfunctional relationship. But one thing that I always try to tell my clients is, you guys can always agree on a case by case basis to vary from the parenting plan. And the idea is that kind of what goes around comes around. So if he's not flexible with you, you may not want to be flexible with him or her the next time around. So but it is tough.

Unknown: 28:21

Yeah, for sure. I know, kids have to be the hardest part of it. Well, the last expectation that I have here is number eight, which is the more prepared you are at the beginning, the more likely you will be in a good place at the end of your divorce.

Unknown: 28:36

Yes, I think so. I mean, I think that's true. If someone comes into my office, you know, man or woman in their emotional about the relationship, that I get the sense that they're not certain that the marriage is irretrievably broken, you're going to have a hard time through the whole process. So I always try to tell my clients if if some of this emotion is that you wish it could still work out, you're going to be better off spending your money with a counselor or making another effort, you know, one last effort or turning to, you know, save the marriage. I mean, I think that I would kind of modify that a little bit saying that if you're really firm that the marriage is over, you're gonna be in a lot better position if you're still struggling with that and have a hard time.

Unknown: 29:26

Yeah, that caused a lot of wavering, which would just slow the process down. Yes. Yeah. What did I miss anything important that you want to mention about setting expectations for divorce?

Unknown: 29:37

Well, I think it's important to rely on your attorneys advice as far as the things that you're hearing from your spouse. Once you have attorneys, you're not really supposed to be having direct conversations, but especially if their relationship has been uneven. Throughout the marriage. It's very important not to let them or anyone else get in your head about what is going to happen. Yeah, because if you know, I can't tell you how many times people have said, My barber says this or my hairstylist says this or whatever. And thing is, as they might just be hearing stories in the chair, but your attorney has been through so many of these divorces and knows how it comes out. A perfect example would be when someone will say, Well, I need to give him the tax exemption every other year, I have to split those because my hairstylist says that always happens. And that's what happens. And you know, and I'll say, well, the law is very blackletter. It's very clear, the spouse that gets the child support gets the tax exemptions for the children each and every year. In the only way that is changed is if you agree to give them up. So if you're the spouse that's looking and getting child support, don't give those up unless you get something in return. So it's not as simple as you have to. That's that's not the way that it works.

Unknown: 30:55

Yeah. Well, that's for sure that you get advice everywhere, right? And and everybody's advice has to do with probably their own divorce, right, which may not be a factor in yours anyway. So yeah, it may be terrible advice. Well, thank you again for your insight and tips to help listeners set realistic expectations. Has this helped you listeners I am beyond thrilled to meet you here each Wednesday to explore all these important issues with you. I'm getting great feedback from listeners about how much this is helping you. I want to help more people find this help and hope would you take a second and like and follow starting over stronger on Facebook, under that name, and SOS divorce coach Annie on Instagram and where you're listening now you can rate and review the starting over stronger show and share it with someone else you know that needs this support. Please send me an email at Annie at starting over stronger.com if you have questions that you'd like to explore, we will have a future asked me anything episode to address those. And if you have a professional that you want to have interviewed on the show or a friend or loved one who might want to share their own SOS survivors own story, we would love to hear it. We'll meet you here again next week for more help as you divorce and hope as you are starting over This transcript was generated by https://otter.ai