The Divorce Process (Part 3)

Jun 22, 2021

Join Tracy and Susan for part 3 of our divorce process series — settlement, trial and the end of the process.


Tracy Hightower-Henne: Today’s podcast is the third and final episode in a three part series about the divorce process. In the past episodes, we’ve talked about Part one and Part two, which are the first two stages of divorce. So today we’re going to talk about those final stages that look like settlement and potentially trial. And then what happens after the ink dries on the final order?

Susan Reff: The end the end of the case is near. Yes, right? So I had a really stressful week this week in court. Oh, tell us I. Well, a really stressful day. You know, like all of my court hearings this week were on the same day that were really stressful for myself and clients.

Tracy Hightower-Henne: So back to listeners should know that sometimes they don’t see Susan all week until the podcast. So I don’t even know these stories.

Susan Reff: Yeah. So I had I had back to back hearings. The first one my client was defending, we were defending against a protection order application that was totally frivolous and just meant to harass our client. And then we had a hearing on a motion that the other side filed after the decree was entered and things just didn’t go as what they the other side wanted. So then they’re filing motions and things like that after the decree to try to undo the decree. So those were back to back hearings

Tracy Hightower-Henne: In different counties, right?

Susan Reff: Yes. My first one was in Douglas County and the second one was in Serby County.

Tracy Hightower-Henne: Did you make it on time?

Susan Reff: Yeah, we had plenty of time in between to get there. Get over to Serby.

Tracy Hightower-Henne: I heard there was a happy hour planned after those two. Did that happen?

Susan Reff: No, it did not happen. We we ended up being on the record in court after five o’clock. Oh, not for very long after 5:00. But, you know, most courthouses are almost like a ghost town at like three o’clock in the afternoon.

Tracy Hightower-Henne: So but I think most happy hours go until about 6:00.

Susan Reff: So I know we. Happy hour would have been a nice way to kind of wrap up those two stressful hearings, but I think everyone wanted to get home and put their their their lounge clothes on and instead of going anywhere. So that’s yeah, that happy hour will be needed to decompress from the because we don’t know the outcome of the second hearing yet.

Tracy Hightower-Henne: Yes. Yes. Internal happy hour popping champagne when we get that outcome because they think you’ll win.

Susan Reff: I think

Tracy Hightower-Henne: So. Since the last podcast, I had an interview for professional award and it was a 15 minute interview, five thought-provoking questions that you don’t know beforehand. And they were things like What is your life mission statement? And I was like, Whoa. And you know, like, I’ve had to think about this before. Another one was, What legacy do you want to leave? And I was like, These are really deep and you know, you’re you’re on the hot seat and having to have these answers immediately. But then the last one was, why do you think you should win this award? And that was probably the the toughest. And you know, as I think as women and as lawyers, we have this thing called the imposter syndrome. And that’s really hard to answer why you think you should win the award?

Susan Reff: Was it one person interviewing you or was there more than one person?

Tracy Hightower-Henne: There was, I think, nine people. Oh my gosh. Yeah. And I also didn’t know that was going to happen either. So I turned around the corner and there’s nine people. Thankfully, I knew pretty well, two of them.

Susan Reff: Was it in person? Yes. Huh? Was it timed?

Tracy Hightower-Henne: No. But I must not have gone over the 15 minutes, so

Susan Reff: What do they tell you like, oh, it’s a 15 minute appointment.

Tracy Hightower-Henne: Oh, they’re set 15 minutes, so then the next person is like ready to go when you’re done.

Susan Reff: How many questions? Five five. So you really had three minutes, basically?

Tracy Hightower-Henne: Basically, yes, huh.

Susan Reff: So that’s interesting.

Tracy Hightower-Henne: So we’ll find out if I win that award soon. We’ll update you on the podcast.

Susan Reff: Yeah, well, that’s exciting. I can’t wait to hear. And I want to hear what your answers are to what your life, mission and legacy and all that are. And if you remember, you know,

Tracy Hightower-Henne: Basically I talked about my mission statement in life has to do with being kind, no matter what and always trying to do the right thing and not taking shortcuts on things, because often that will create more time and cleaning up messes later. So that was that was that three minute answer. In a nutshell,

Susan Reff: I think about how long it took us to write our law firm mission statement. Yes. And the process that that took, I couldn’t imagine having to try to come up with that, not knowing that you were going to be asked that in three minutes.

Tracy Hightower-Henne: Yes, true. A mission statement is difficult, but I think it is important to kind of have an idea of your mission statement in life and think about that. Yeah, ongoing. Absolutely. So how about like the mission statement of an end of life of the divorce process?

Susan Reff: Well, it’s funny that I mean, funny, not ha ha funny. Ironic, because our mission statement, the end of our law firm mission statement is to help people move on in life. And, you know, divorce is a chapter in people’s lives. And when it’s over, there’s still another chapter. It’s not the end of the story. So, you know, getting clients to the end of the divorce can be obviously extremely stressful. But in the end, you know, seeing seeing it, seeing a client through and being there for them when it’s over is pretty awesome. But the last couple staged pieces to the divorce process, you know, can also be some of the most stressful.

Tracy Hightower-Henne: Yeah. And so, you know, when we talked about stage one and stage two, which is really preparing everything for this final stage, and that’s either we’re going to settle the case or we’re going to go to trial and have a judge make some decisions. And sometimes we’ve settled some portions of the case and the judge is just going to make some decisions. Sometimes there’s nothing settled and the judge is making all the decisions. But you know, in stage two, when we talked about discovery really at the end of that, we’ve prepared what we call in our office, a marital estate index. So we’re putting everything into a spreadsheet as far as all the debts and assets go. And we’re organizing them in a way that makes sense to propose a settlement offer or prepare for trial.

Susan Reff: And I really like using that the spreadsheet because. It’s generally like, you know, a one or two page, depending on the font document that shows the, you know what people have, whereas, you know, if you were to print out all the pages, that’s not a good way to like, get a snapshot of what what there is. And I always send my client a copy of it and ask them to review it and make sure that we’ve included everything. Does it look good? Do they have questions? And then that’s our guide for trying to settle or our request to the judge if we’re at trial and we need those documents to back up what we’re asking for?

Tracy Hightower-Henne: So, yeah, and so as lawyers, we have a whole set of rules of evidence that we have to comply with. So when I’m going to trial, I typically will start with the marital estate index as what’s called a demonstrative exhibit, which just means I’m demonstrating something. So it by itself is not some sort of evidence, but I usually will start with this table and have the judge follow along in the table. So I may have the house, the checking account information, the vehicle information and maybe retirement account information. And then I’m going through all the discovery that we’ve prepared and offering the appropriate exhibits to back up each line on that table. And we do the same thing if we’re going to propose a settlement offer to, we use that literally as our guiding piece.

Susan Reff: And I think it’s helpful for clients to see everything, you know, to see that demonstration of what they have on paper. Because, you know, when you talk about dollars, it’s pretty abstract thought that goes into splitting dollars between people and splitting accounts. And it’s, you know, literally putting things in someone’s column, you’re going to get this, they’re going to get that, you’re going to get this, they’re going to get that. And then does that equal out? Does that sound fair? And if the answer is yes, it’s pretty clear that that’s what should happen, then.

Tracy Hightower-Henne: And I think for some clients to that marital estate index, that one to two page spreadsheet is a really big eye opener of like this is what the marriage has come down to and sometimes we are debt heavy. And sometimes there’s a lot more assets than maybe our client knew about. Or sometimes our client, you know, maybe is the holder of most of the assets, and they’re really stressed out about having some of those be transferred to the other spouse.

Susan Reff: Right.

Tracy Hightower-Henne: So I think it’s a big eye opener to just see everything on paper where we’ve finished discovery. We might have thousands of pieces of documents that come down to this one final spreadsheet.

Susan Reff: A lot of times when we get to this stage, a client will ask me like, well, realistically, how how does a divorce case settle? You know, like what happens? Do I have to go to court to settle my case? Do I? Is the judge involved in the settlement process? And you know, every case is a little bit different, but generally one side will make a settlement offer and say this, you know, an opening offer. You know, here’s what my client wants. Here’s what they’re willing to give to the other side. And then that would be reviewed by the other side and their lawyer. And then there would be a response, either a counter offer or an acceptance, or just a flat out rejection, potentially.

Tracy Hightower-Henne: So is it like buying a car? It sure sounds like buying a car.

Susan Reff: I think yeah. Or a house or something where the price is somewhat negotiable.

Tracy Hightower-Henne: I will say I often tell clients it’s not like buying a car. So because it sounds like it, but at the same time, I think our job as lawyers is to kind of cut to the chase a little bit. And unless there are some unique circumstances where

Susan Reff: You don’t cut to the chase when you buy the car,

Tracy Hightower-Henne: I don’t. You know what? I don’t like buying cars.

Susan Reff: Oh, I love it. Oh, here’s our here’s our differences in personalities coming out, right?

Tracy Hightower-Henne: Yes.

Susan Reff: I go in there and I’m just like, This is what I want. And if they don’t give it to me, I leave. That’s why it takes me also like two months to buy a car because I totally walk out and they call me like three times and I don’t answer their call. And then I finally answer it.

Tracy Hightower-Henne: So yeah, that doesn’t happen. I don’t know what I do.

Susan Reff: Maybe I should

Tracy Hightower-Henne: Just for you. I think I just go in and I’m like, I guess I want that car and I just don’t really like negotiate. I don’t know. But. So I think with the settlement offer in divorce, it is some of our job to a little bit cut to the chase and like we know from our. Experience of doing this for so many years of kind of what a judge would do at a trial. Absolutely. And sometimes we might have unique circumstances where a client will say, Hey, it’s really important that this account doesn’t get touched and we can offset it from other accounts if we’re doing some sort of equalization transfer. But usually there’s not a ton of game playing like Susan does when she buys a car, apparently. Yeah. You know, we don’t do that in the sense of like, OK, we’re going to just play silent treatment, maybe with opposing counsel and see how many times they call to buy the car. But right,

Susan Reff: We don’t do that.

Tracy Hightower-Henne: But I think with settlement, I just had a case recently where we made a settlement offer and it was literally what I thought exactly the judge would do. And obviously, opposing counsel thought the same thing, and they almost 100 percent just accepted the settlement offer off the bat. I think there was one little teeny thing that we kind of worked on negotiating and my client and ended up saying, I don’t really like that offer anymore. I don’t agree to it, and it was our offer. And I said, That’s not how this works. Yeah. No, Maxis don’t take boxes.

Susan Reff: And generally, I think we spend quite a bit of time putting together that offer with the client, and obviously we would never send a settlement offer that our client had not approved. So you yeah, you can’t say, well, you know that first thing I said, disregard that.

Tracy Hightower-Henne: Yeah. And I think like the settlement offer process, we like to start it as soon as we really have all the information organized. So we’re not waiting until the day before trial to start settling. So there’s enough time for our clients to review the settlement offer, approve it, make any changes so that if it’s accepted, they’re OK with it. And I think a lot of judges expect that we try to settle our cases really hard, and I think the judges think that that’s our job is to keep the cases from going to court, especially the ones that are pretty black and white.

Susan Reff: Yeah. And I think during this time, the settlement process time, you know, we’ve put together that spreadsheet and that gives us a really good idea of what’s there and how it should be split. You know, that’s where we get a lot of we have a lot of conversations with clients about will. So and so didn’t, you know, he didn’t contribute to that account, so he shouldn’t get anything from it. And that’s where, you know, we have to educate a lot and generally we’re doing that throughout the whole process. But this is where it really is relevant, where we have to say it doesn’t really matter that your spouse didn’t contribute to your retirement account because anything that was gained during the marriage is part of the marital estate that the judge can split.

Tracy Hightower-Henne: So free legal advice right here. Anything that is accrued during the marriage debt or asset is part of the marital estate. And if you don’t have a prenuptial agreement, that still is true, so there are a lot of marriages that people keep accounts separate, don’t you know, maybe one person doesn’t contribute to their retirement account, one person does. All of that is up for what’s called equitable distribution of the marital estate, which doesn’t always mean 100 percent equal 50 50. But it often comes down to how do we equalize the marital estate?

Susan Reff: Right? I I just recently settled a case where all of the retirement accounts were in the husband’s name because the wife had been staying at home, and she now is starting to work and starting to contribute to her own retirement account. And he had two fairly sizable retirement accounts from four one from one one employer and one from another. And it just so happened to work out that 50 percent of it was one whole account. And he said, you know, for whatever reason, he wanted to retain both accounts. So we took 50 percent from each account separately, which is fine. But you know, that’s one of the neat things about settlement is you can get creative where a judge might have said to that guy. Well, I’m just going to liquidate one of your whole accounts. And then he’s like, Oh, well, I don’t really like that idea. You know, in a trial, anything can happen. Yeah, anything can happen

Tracy Hightower-Henne: Any time you go. You literally step foot in the courthouse. You take the risk of losing some control over decision, right? You. You are now placing a decision completely in the hands of the judge who’s going to hear as much information in maybe four to eight hours and make a decision about everything.

Susan Reff: I think one of the misperceptions of trial in a divorce case is that one side’s going to go in and present their case. So they’re going to say I want a and the other side’s going to go in and present their case and they’re going to say, I want B and the judge is going to pick a winner, right? Like the judge is going to go. I think a is best. So I’m going to rule that a happens or b, whichever one that that is not usually what happens in a divorce trial. Usually the judge puts a and B in a blender spins it around double z. Yes. And both parties walk out and are scratching their heads. Like, how did that happen? So because literally the judge didn’t know from day one everything that you two have talked about, everything that you two have negotiated. Tried to negotiate in settlement. They don’t know any of that. They just know what these pieces of paper say about you.

Tracy Hightower-Henne: Also, some of the rules of evidence that we have to comply with don’t allow us to tell the judge what settlement negotiations have been attempted. Oh, absolutely. So that, you know, no matter how hard we can try to settle, if it doesn’t happen, we’re starting at ground zero of creating the documents for exhibits for trial.

Susan Reff: Yeah, I’ve had two trials recently with the same judge where the judge has made some really odd orders that really just go against common sense. And both lawyers have agreed to deviate from those orders to make it more. And in in general, more fair to both clients. And, you know, we’re free to do that. But I would say that takes both lawyers working together to to recognize that the judge made a really weird decision that maybe won’t play out in reality, like the judge thought. And that generally happens when the judge starts dividing accounts, right? And judges who haven’t practiced family law, I think, really struggle on what some of these, how some of these accounts work.

Tracy Hightower-Henne: Yeah. And I think, you know, it goes back to judges expectations of to experience divorce attorneys representing the two spouses. Part of our job is to really present the evidence in a super clean, organized way for a judge to be able to make a decision. But part of this stage, too, is having what is called sometimes a pretrial conference or scheduling conference with the judge, and those might be called hearings, but often they’re literally just a conversation between the two attorneys and the judge. They sometimes happen weeks before the trial. Sometimes they happen the day before or the morning of trial. And it’s really so the judge can narrow the issues, and the judge may even be able to help the attorneys kind of have some conversations with their client about, you know. All right. Here’s what the judge is likely to do. So let’s nix that kind of crazy idea. Maybe. Right.

Susan Reff: Yeah. A lot of our judges will will kind of say, well, if there’s, you know, if there’s a retirement account, I’m going to, I’m going to split it 50 50. You know, from the marital value, OK, where maybe one side was really pushing for more than 50 50.

Tracy Hightower-Henne: Yeah.

Susan Reff: So that’s helpful.

Tracy Hightower-Henne: I think the other thing that is really important to take away from this episode is that when we talk about settlement and preparing for trial with our clients, when they then go, take that information and just chit chat with friends or family of that snapshot conversation, it can be a really difficult conversation from their family to say that doesn’t sound right. That doesn’t sound like a good settlement, and they haven’t been part of the entire probably eight to 10 months of conversation. So for our clients to really have a trust in the information that we’re giving them throughout the case and to not now at the end of the case, the very end start bringing in other people’s opinions because it can create a mass confusion and frustration that, you know, continue to use your friends and family as support, but not as the people giving you legal advice because that’s what you’ve hired your lawyer to do.

Susan Reff: Right. It it doesn’t help any to bring in that person, you know, in stage 10 of 10 to say, OK, what do you think? Yes. Yeah, that’s not helpful.

Tracy Hightower-Henne: I think the other thing too is, you know, when we talk about stage one, which is the very beginning in the filing and all these massive decision, you know, big decision, life changing things are happening, like, where are you going to live? What’s going to happen with parenting time? You’re now on stage three and there’s all the emotions of the fear of finality and the fear of being alone. And, you know, oftentimes people go through a divorce and they don’t. Even when it’s over, they didn’t really want it. So those really sad emotions of just being done are starting to come into play, too.

Susan Reff: I had a really emotionally tough case with a client and it was all about the kids. And we ended up having to prepare everything for trial on just the custody issues. The money was not was all settled and we settled in the courtroom like right before the trial started. And so then we had to, you know, just make a record of what our settlement agreement was. And we walked out and my thought was, you got what you wanted. Great. It’s done because she did get what she wanted, that he he ultimately agreed to it. And you know, we’re out in the hallway and I, you know, we’re walking out and I turned and I looked at her and she’s crying and I know she wanted the

Tracy Hightower-Henne: Divorce, she said, crying, yes, not happy tears.

Susan Reff: And and I it, you know, it took me a second and I said, You know, Oh, I’m really sorry. And she said, I just never thought when I got married, I would get divorced. It wasn’t that she didn’t want to be divorced, like she didn’t see that it wasn’t. She knew it wasn’t working anymore and things like that. But she thought, I can’t believe after getting married, you know, and having a life with this person that I ended up having to go through this process. So I think for her, it was just that like she felt like kind of like a failure to

Tracy Hightower-Henne: Hit her, and she wasn’t expecting that feeling right then. I think that that brings up a really interesting point to like, you may have a final hearing where you know, it’s final. We’ve prepared the decree. We’re bringing it to the judge to sign. But when we have a trial, it’s super unlikely it’s final on that day. Right. Because if we’re presenting eight hours of testimony and exhibits, the judge is often going to do what is called take it under advisement and he, he or she may require us to write briefs and present, you know, closing arguments in writing. And they may then take months to decide. And you’re still married the whole time. Yes. And you know, when we have a settlement, we often have clients who like they want to know what day the decree gets signed so that they can have a celebration of their divorce date. And when a judge is ultimately making a decision, that’s some of the control that you give up. Is the timing too?

Susan Reff: Absolutely. We and I and the other thing I think that we really have to keep in mind with clients to is even though we have a signed decree, whether it was a settlement or a trial, generally there’s more work to be done. So we have to work with the client and the other side to divide those accounts, whether their bank accounts, retirement accounts. We might have to sell a house we might have. Money sitting,

Tracy Hightower-Henne: We’re not selling the house, right,

Susan Reff: Right? The first sale by lawyer. Hey, yeah, that maybe that could be a side gig for us. Yeah.

Tracy Hightower-Henne: But it’s following up on all those things and like making sure if your client’s supposed to be paying money that they pay it on time because there’s usually a deadline and if they’re receiving the money that they receive it. Mm hmm. But by the due date

Susan Reff: And that they know that if there’s things that don’t really involve us, like they know what they’re supposed to do, like what documents need to be transferred and things like

Tracy Hightower-Henne: That. Yeah. And I mean, the other thing to to end with is that when a client gets divorced, we typically will recommend that they also review their estate plan. And that’s not part of the decree or the requirements there. But that’s a good thing to think about when you’re all done with your divorce is that your estate plan really should probably be redone or done because maybe you never did it

Susan Reff: Because now your financial picture is much different than it was before.

Tracy Hightower-Henne: Yeah, and now you get to have the independence of the ability to do all the things with your estate that you want to.

Susan Reff: That is great advice.

Tracy Hightower-Henne: Thanks. I won’t charge you anything.

Susan Reff: That one was free. Yeah.

Tracy Hightower-Henne: All right. So thank you for listening to our podcast today and this three part series about the divorce process. We talked about a lot of information, so check out our website for more information at our Law Omaha. And I’m Traci Hightower-Henne.

Susan Reff: And I’m Susan Reff. We’ll see you next time. Do do you have music or something?

Announcer: Thank you for listening to the lady lawyer League Podcast. Be sure to like and subscribe anywhere you get your podcasts, if you would like to learn More about our firm, Hightower-Reff Law, please visit our website at HR Law We’ll see you next week.

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