“For most people, going to court and fighting in court, which is the traditional way of going through a divorce, is probably the most expensive, the most time consuming, and most destructive way you can possibly divorce.” – Karen Covy
Episode 79 of the Divorce and Your Money Show discusses two questions with the help of Karen Covy, divorce advisor, attorney, mediator and coach.
1) Why is Court the LAST place you want to go to resolve your divorce?
2) What happens if you don’t like your divorce attorney?
The answers may surprise you. This is an episode you do not want to miss.
To contact Karen Covy:
Book: When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially and Legally
Both are some of the best divorce resources out there!
This transcript has been edited for clarity.
Shawn: Today I have with me a very special guest. I have Karen Covy; Divorce Advisor, Attorney, Mediator and Author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, Legally. Karen, welcome to the show.
Karen: Thank you! It’s a pleasure to be here.
Shawn: Tell us a little bit about your background and experience before we jump into questions.
Karen: Well, I have been an attorney for more years than you’ll get me to admit. A few decades ago I started my own practice in divorce. I started as a divorce attorney and realized that the system didn’t make sense to me. I thought maybe mediation would be better. I became a mediator and also learned collaborative divorce. I’m a collaborative divorce lawyer and I kept going on and on. Finally, I wrote a book to say, the system doesn’t make sense, and then became a coach and arbitrator. So, I help people go through divorce every way that there is. Now I’ve come to the point where I believe that the best way for people to go through divorce is to empower themselves through education, through understanding what they’re facing, so that they can make better choices for themselves.
Shawn: Given your range of experience with the different methods of divorce, let’s dig in to a couple of things related to that. The first thing is a lot of people assume that since divorce is a legal issue, you should go to court to have your divorce resolved. Is that not the best option in your opinion?
Karen: Yes, and no. The truth is, the only way you can get divorced is for a judge to divorce you. Ultimately no matter which divorce process you use –and there are a lot of them today that will now keep you out of court –at some point somebody, either you or your lawyer depending on where you live, are going to have to go to court and say to the judge, “Here is the paperwork.” And the judge has to read it, approve it, and sign off on it. At some point everybody is going to go to court, but that doesn’t mean that you have to use the court system to resolve your divorce. For most people, going to court and fighting in court, which is the traditional way of going through a divorce, is probably the most expensive and the most time consuming, and most destructive way you can possibly divorce.
Shawn: Why is that? What is it about going and fighting in front of a judge? Why is that process not ideal?
Karen: The way the system is set up, it’s an adversarial system. You can’t go in and say, “We just want to dissolve our marriage as friends.” Immediately the very first pleading, which is a document that you file in court, says it’s you versus your spouse. So it immediately pits you as adversary. The way the process is set up, it’s very contentious, and the more you fight, it’s just really hard to spend hours, days, months or years, fighting with your spouse in court when everything that you do is designed to win and so you’re always trying to get the better of your spouse. You’re always trying to win. You’re always trying to think of an edge, and then that just encourages conflict. The more conflict you have, the more conflict you breed, and it’s really rough, after you’ve just spent a day in court having your lawyer tear your spouses face off, to sit next to them at your kid’s school recital and try to make nice. Human beings don’t work that way. That’s why the court process, the litigation process is just so destructive.
Shawn: What about the judges themselves? Do they get into all the details of your case? How does that work? What I’m getting at is, a lot of people when I speak with them they want to tell me who cheated and who did this or did whatever. It’s a lot of accusations, and of course I listen because it’s important but does the judge care about these things and do they put the time in for every case that comes across their desk?
Karen: No, no, and no. I hate to be the bearer of bad news. The first thing is, people do believe –like you said –that they’re going to go to court and they’re going to get a chance to tell their story. What they don’t understand is that the court is run by very strict rules. There’s limits on what you can say and what the judge can hear, and what the judge can allow into evidence, and how much time you have to do that. The court systems are really backed up, the judges are very busy, they have a lot of cases to hear, and it’s not that they don’t care about you or they’re not going to try to do the right thing. They are going to try do the right thing but the constraints on them are such that you don’t get to just go into court and say, “Here’s my story judge.” There’s no time for that, you will never get that opportunity. If you want to tell the judge, “Oh my spouse he cheated on me”, or “She cheated on me.”, “He did this” or “He did that.” The judge doesn’t care. The judge only cares about what is legally relevant in your case. What’s legally relevant is usually a whole lot less than what’s emotionally important to you.
If you want to go off on your spouse and tell somebody all the horrible things that they did, really, the person to tell that to is your best friend, your family, or therapist. If you want to tell it to the judge you’re not going to get a chance, and even if you did get a chance to say some of it, most of it probably isn’t going to make a difference in your case.
Shawn: Right, because the judges have to follow what’s in the law. Even within that I think that depending on where you might live, the law is potentially subject to some interpretation. Where are you by the way?
Karen: I’m in Chicago.
Shawn: In the Chicago area, and the family court system, there’s various judges. If you were to have a different judge could you potentially have different results on the same case?
Karen: Absolutely. People think the law is this big black and white thing but the truth is, the law, and especially divorce law, has a lot of shades of grey to it. So yes, there are some things that are kind of set in stone, but there’s a lot of things that are open to interpretation, and how the law is interpreted can vary from court house to court house and from judge to judge within the same court house. People say, “Well how is that fair?” The truth is, whether it is fair or it’s not fair, that’s just the way it is. You can complain about it but that’s just what you have to deal with, and live with, which is another reason why I say that going to court doesn’t make a whole lot of sense for people because the result that you can get –how one judge is going to interpret the law and interpret the facts of your case and apply the law to the fact –is going to be different from how another judge would do it. It’s hard to know for sure what you’re going to get because the risk of getting something different from what you want or you think is right, is so high. You’re almost always going to be better off negotiating your own deal yourself, rather than letting some judge tell you what he or she thinks is right.
Shawn: I think that’s a good comment. Given you’ve practiced in the same geographic area for such a long time, do you have a pretty good sense of the judges and their personalities, and kind of what they value?
Karen: What’s important is not what I think or my experience. It’s how people who are listening to the podcast, what their experience is. What that means is that, if you are going to go to court, the most important thing that you can do for yourself is to get a local lawyer in your area, who knows those judges, and who understands how that court system works, and what the culture is in that court system so that they can give you advice not just based on the law but on what is likely to happen in your case. You listen to that person and listen to their advice because you’re only going to go in front of this judge for your case. The lawyers are in front of the judges all the time with a lot of different cases. They have a better idea of what any particular judge may or may not do.
Shawn: I think that’s a nice segue into talking about your attorney. There’s a common perception even on television. I’ve been watching the new HBO series on divorce that you need to hire an aggressive attorney. Is that a fair perception? What should people actually be looking for?
Karen: If you want a blood bath go ahead and hire the most aggressive attorney. If you don’t then that’s not the right choice for you. Here’s the thing, I don’t pretend to know what’s right for every person in the world. I’m not God. The people who are listening, they’ve got to decide what’s right for them. If you want a divorce that’s relatively amicable, and you hire the aggressive lawyer, you’re going to create a war. If you have a spouse who really wants to go to war and you higher a softer attorney, somebody who is better at negotiating or mediating, and your spouse has the aggressive lawyer, you’re going to get hammered. The first thing you need to do before you go pick an attorney is deciding which divorce process do you want to use.
If you want to use collaborative divorce and you want that process to be successful for you and you want it to work, then you have to hire an attorney who has been trained in collaborative divorce. If you want to go to court and fight then you go to court and fight, then you hire a fighter. If you want to mediate, then you hire a lawyer who is mediation friendly, and maybe who is a mediator as well. No lawyer can be your lawyer and your mediator in the same case. But even still there are some lawyers who are more comfortable with mediation and support mediation. You’re going to have a very different experience in mediation if that person is your lawyer, than you would if you hired the shark, aggressive, gladiator attorney who is going to tell you that mediation is bunk and you do this and that, and demand that and that. They can blow the whole mediation up for you, and then the mediation process isn’t going to work, and you’re going to blame the mediator or the process itself, when the real reason that it blew up was not the mediator, it was your lawyer.
Shawn: I think that’s great advice. You’ve mentioned collaborative divorce more than once. Why don’t you just define what that is for the audience, and a little bit more as to how it works?
Karen: Collaborative divorce is a special kind of divorce process where you and your spouse go and get collaborative divorce attorneys and the four of you put together a team. You may use a divorce coach to help manage emotions, you may need a divorce financial professional, or a child specialist. It depends on what you need. You decide as you go. Once you get your attorneys you decide what kind of support you need. You sit with your spouse and the lawyer, and anyone else that you need and you work on your issues outside of court. All of the sessions that you have and all of the negotiations, happen in a conference room, not in a court room.
The key defining thing about collaborative divorce is that everybody is working together to try to get you divorced in the most efficient way possible, and the way that meets your needs and your interests, and the needs and interests of your family. It’s a very different process sand litigation. The key defining factor of collaborative divorce is that if somebody decides “I’m just going to go to court because I’m not getting my way.”, then all of the professionals withdraw and you start again with new lawyers in the court system. What that does is it gives you an incentive to keep negotiating, and it gives the lawyers less of an incentive to try to blow up the case. Let’s be honest. Most divorce lawyers bill by the hour, so they make money when you fight. In order to keep the lawyers from causing a fight or egging you on in a fight, in collaborative divorce the lawyers say, “Okay. If you go to court, we’re out of a job.” And the financial professionals are the same, and the coaches are the same. It’s a really supported way of getting divorced and staying out of court to do it.
Shawn: If you are someone who hasn’t decided upon what divorce method that you want to use, how would you know if collaborative divorce is a good process for you?
Karen: The best way is to educate yourself. I would go online at my website kerencovy.com, I’ve got a lot of information about all of the divorce processes. I firmly believe that every person and every marriage is different. Some people are going to need mediation, some people would be better off with collaborative, some people will be better off with litigation. The first thing you do is you educate yourself about the process. If you want more specific one on one information, then again, look up lawyers in your area and find lawyers who do the different kinds of divorce that are out there. Find a lawyer who will do mediation, a lawyer who will do collaborative divorce and a lawyer who is a litigator. Interview those people and get information from them, because the problem is, the quality of people’s lives after their divorce depends on how they go through the divorce. That’s something that nobody tells you in the beginning. What do most people do when they want a divorce? They go to a lawyer right? Whatever that lawyer tells them they say, “Well that’s how it is.” They don’t go any farther. It’s just like that old saying, “If the only tool you have is a hammer, everything looks like a nail.” If you happen to walk into a litigators office and you say, “I want a divorce, what do I do?” they’re going to say, “Well, you go to court.” And if you walk into a mediator’s office and you say, “I want to do my divorce.” They’re going to say you should go to mediation. Every lawyer is biased towards the kind of law that they practice. To get an unbiased opinion you need to either get your information from a third party, or talk to each different kind of lawyer and say, “What do you think? Does this make sense to you?” Hopefully if they are being honest with you they’ll say, “Yeah. That looks like you’ve got a fight on your hands, this is what you need.” Or they’ll say, “No. I can work this out. This is what you need.”
Shawn: I think that’s very helpful advice. For people who have gotten a pretty good sense of what method will make sense for them – as far as getting divorced, and they have to choose an attorney – how do you recommend they go about starting to find an initial attorney to represent them in their case?
Karen: The best way is still in my opinion, word of mouth. If you know other people who have been through a divorce and who are happy with their lawyer. Those are the lawyers that you want to call. If you don’t know anybody who has been through a divorce, or you don’t have any acquaintances who are lawyers, or anything like that, then you’ve got to take a different approach. Bar associations and divorce organizations often have lists of lawyers who they know, who they’ve worked with, who they can recommend. You can go on the internet and look there but just be careful if you do that. The lawyer that has the sharpest website or that’s ranked up on the top as number one on google or has an advertisement on google, that doesn’t mean that they’re the best lawyer, that means that they have the best advertising budget. I’m not saying that they’re the worst lawyer either, it’s just that you don’t know what you’re getting. You can use the internet. The internet is a really good place to verify whether somebody has the same approach as you do, whether they are on the same page as you, how long they’ve been in practice and what their specialty is. It’s a great place to verify information but to go find lawyers that way, yes you can do it and it’s not a bad idea if you have no other choice, but you just have to be careful.
Shawn: I think that’s a great answer. In your book When Happily Ever After Ends, you have a very interesting section about what happens when you’re unhappy with your attorney. I’m sure you’ve had clients at some point who justifiably feel upset for some reason. What do you do in that situation as a client and as an attorney?
Karen: Let me start as an attorney. As an attorney I understand that I’m not dealing with people who are at the best time in their life. The truth is most of my clients are not happy to begin with. Sometimes they have expectations of me or the system that aren’t realistic, or they’re unhappy with how things are going and so that transfers to me. If a client has a problem, my approach is to say let’s sit down and talk about it and what do you want? What do you feel about it? I don’t think that I can do a good job for them or continue to represent them or our relationship is not where it needs to be for me to be effective, then you can end the relationship.
If as a client, what your listeners want to do is if they have a problem with their attorney, take a similar approach. The first thing you do is you call that attorney and say “We’ve got to talk. This is what I expected and this is what is happening. There’s a gap between what I expected and what is happening and I’m confused because I thought you were supposed to fix that.” When you have that conversation the lawyer and talk about what the expectations were and maybe there’s expectations are out of line, and what you think can happen isn’t possible. There’s no lawyer in the world that can give it to you. On the other hand, it may be that your lawyer isn’t the right lawyer for you. They’re not doing a good job and the person that you thought would be a great attorney in court, and they’re not. They’re just not on top of their game as you would like or need. Then, you have a conversation about that and you make a decision.
On the other hand, the biggest complaint that I’ve heard from people about their lawyers is that the lawyers won’t get back to them, and they don’t talk to them. That’s a whole other set of frustration. If you’re having some problems and your lawyer won’t talk to you, I would say try couple times. Call them, email them, put it in writing that you need to talk to them. If they don’t talk to you or you’re still unhappy with their services even after you’ve talked to them, then it’s time to decide whether you should go to another lawyer or not.
You as the client always have the right to change always. I know people think, “Well I’ve signed a retainer with them, I’m stuck.” You just say, “I’m sorry this isn’t working out.” And you find a new lawyer. The problem is you’re going to have to pay that new lawyer. You’re going to have to pay that new lawyer to get up to speed in your case. If you’ve blown through all your money and you have no money to pay a new lawyer, then as a practical matter, you have a problem.
Shawn: That makes sense. Could it be the case that maybe you just get an attorney for a second opinion? Do attorneys do that?
Karen: Yes. That’s another great idea for checking up on your attorney or just for easing your own state of mind. It gives you piece of mind to say, “Look. I’m not sure that what’s happening here is the right thing.” If you’re going to talk to another lawyer its important that first you call that lawyer and you tell them you’re looking for a second opinion. Most lawyers will give you one but not all. What you need to know is that your own lawyer doesn’t necessarily eve have to know that you’re getting a second opinion. When you go for your second opinion you’ve got to have a complete record of what’s going on in your case up to that point. If you’re going to say to a new lawyer, “Hey, does this make sense to you what’s going on?” They’ve got to be able to see what’s going on. They’re going to need copies of all of the court orders and all of the pleadings and all of everything that’s gone before you went into them. If you’re going to go for a second opinion the best advice that I could give anyone is to talk to a lawyer first to make sure that’s what they do and be prepared. So you walk in through the door with everything you need when you for that opinion.
Shawn: Karen, can you tell us a little bit about your book: When Happily Ever After Ends?
Karen: I wrote that because I was just frustrated with the court system and the way it works. I just thought there had to be a better way. I thought that if people had information about what divorce is really like themselves, they would be empowered to make better choices. The book goes through and talks about the different kinds of divorce processes and it talks about what information you’re going to have to gather, and how the system works. I used a lot of vignettes and stories, and examples of other people that were all fictionalized. They were based on real stories but you can’t tell who is who. The names have been changed to protect everybody as they say. It helps give people an idea of what they’re really looking at when they are facing divorce. Hopefully, they can make better choices and take a different view of their divorce than maybe what they had in the beginning.
Shawn: What’s the best place for people to contact you?
Karen: The best place to reach me is on my website. It’s Karencovy.com
Shawn: Excellent. We will include a link to both the book and your website in the show notes. Karen, thank you so much for coming on the show.
Karen: Thank you for having me. I really appreciate it.