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To Litigate or Not to Litigate Your Divorce – PART 2

Summary: 

This is the second part of Jessica and T.H.’s discussion on marital litigation with Ruth Kim, a New Jersey attorney practicing family law. Ruth is a tough lawyer who never shies away from the intensity of a divorce trial. Yet, with Ruth’s strength, comes the determination to get her client’s to avoid having to settle in court. She doesn’t step into fighting mode, unless her client’s insist on it. For Ruth, going to trail is always the last option.

Highlights: 

  • Litigation is a lot of homework. You’re going to have to spend time searching for required documents and compiling them so you’re prepared for trial.
  • Like you, your attorneys are focused on your case, and that comes at a cost. The more paperwork, the more time. The more time, the more money.
  • Custody and parenting time are the worst parts of marital litigation. It’s better to settle these issues outside of the courtroom, than have a third-party determine what’s best for your children.

OUR GUEST – RUTH KIM, ZEMSKY FAMILY LAW

FULL TRANSCRIPT

Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re Jessica and T.H.

T.H.: Welcome everybody to today’s podcast with the exEXPERTS. Our guest today is Ruth Kim. She is a partner and family law attorney at Zemsky Law here in New Jersey. We welcome you to the podcast today.

Ruth: Thank you ladies for having me.

T.H.: We spoke with Ruth in a part one, and this is a part two podcast about litigation. There are 0.1% of people who do end up going to court and I settled–

Jessica: You were one of them.

T.H.: I literally settled on the day of my trial. Or do you even call it a trial? On my day in court.

Ruth: Well, yeah, it would be trial. I’ve got to tell you, I know we talked about it in part one, but a lot of those cases, that 0.1%, do actually settle right beforehand, but you do all the legwork to get up to that point. You’re doing all of the discovery, the binders–I am sure that you T.H. had a million binders of just financial documents and all the files that you’ve had. It just builds up. I mean, the last trial that I was took part in, there were five binders, and that was just our side. Imagine how many binders–and when we were in court, you would lug in your binders. Judges never wanted to see your binders there, so you’d lug them home, and it was a laborious process. You were at the cusp of it, so imagine if you actually were starting at trial, and you’re really knee deep into it. Unfortunately, judges are so inundated with work, and a lot of cases they’re backlogged. You might get a trial date on November 1, and not see trial again until December, January, or whenever the judge has availability. Also, keep in mind you’re allotted a certain amount of time for trial, but judges have domestic violence hearings that they need to hear, and they have other court proceedings that they may need to hear. Your trial’s getting interrupted during the time of your trial. Even if you’re allotted an 8:30 to 4:30 time slot, you may only be heard for three of those hours, because they have court staff that has to break for lunch. They might have a DV calendar in the afternoon, so you might get a 9:30 to 11:00 and then a 2:00 to 4:00 slot.

They always say trial is not the best option, and I can tell you having lived it, it isn’t. Even in a Zoom platform world, it isn’t ideal because I mean, there’s so many things wrong–Zoom platforms, there’s a lot of problems with it when it comes to doing a trial because you can’t see body language, and you don’t know what the person is looking at. There could be someone in the room coaching them on what to do. I mean, there are a lot of issues. I can tell you that most people would not want trial to be their ultimate resolution of their case, or have a judge, a person in a black robe, making that final decision in your case. Because if you’re settling your case, you both have a say in what’s going on. At trial, you don’t.

T.H.: Do you think though, people who are getting divorced, generally, do you think anybody says we’re going to court? Or do you think they’re saying we’re getting a divorce?

Ruth: So, and I hate to say this, because when you’re in that 1% you’re already, pardon my language, you’re already screwed, right? I mean, you already there. But a lot of times to get to that point, you have litigants who from the get go say I’m not settling this case. She/he cheated. He/she made my life miserable. I’m going to make their life miserable to the bitter, bitter end. Unfortunately, I have had that.

In the last couple of years, I had a trial where he made it clear that this is how he was going to conclude this matter, and it went to trial on issues that it shouldn’t have, truly.

T.H.: Did he ‘win’?

Ruth: No, because at the end, you’ve spent all of your money on litigation when you could have been spending that money on your children’s college education or retirement! Imagine being 55 and having zero in savings because you’ve spent all of it on a trial. It’s not worth it.

Jessica: You guys are talking about the logical part of it though, which obviously makes sense. The whole problem with litigation is that one or both parties is so caught up in the negativity, the acrimony, the resentment, that they’re literally not able to see straight and think about it. Because the point is, you said something the last time Ruth, which is why would you want an unrelated third party that’s basically a stranger, who doesn’t know anything about you other than what’s been presented by the lawyers–

T.H.: –who doesn’t care about you.

Jessica: Right. The judge–

Ruth: You’re a number. You’re really a number.

Jessica: Right. Why would you want this person to have a say and make the decision? But I’ll tell you, as someone who didn’t go to court, and didn’t do any of that litigating, I think that there is probably a mindset where people think I can’t settle with them because they’re never going to agree or see my side of it, and at least a judge is impartial and will listen to both sides. That’s going to be a more–if this is going to be the result, I’d rather it be the result, because the judge is going to say it, than the fact that he said it.

T.H.: It doesn’t always work though. I had a judge who– the company I worked for imploded, so I had lost my job. I had three little kids, and I was doing a home grown business because I’m just like that. I like to be busy like that. And at the time, because we’re a little older, there was something called a Blackberry instead of an iPhone. On my form, he’s reviewing my expenses, and he goes, ‘What do you need a Blackberry for? You don’t even work.’ That was my impartial judge. I understand that judges are supposed to be impartial, I’m sure many, many are, but some are not. That was the judge I had to live with for one of my four years of my divorce.

Jessica: They’re human beings, so they’re going to have their own opinions from where they come from. I just think it’s more for a lot of the people–again, yes, it’s not always going to work out the way you want, but it’s like your ex-spouse may be offering you a certain settlement, and you just are seething inside. You’re like, if that’s going to be the settlement, I’d rather it be because the judge looked at it and decided that that was fair, versus me just agreeing to it from this person that I’m divorcing and can’t stand.

Ruth: Here’s the problem with that. Yes, you’re having this neutral person make these decisions for you, but if you’re doing your own decision, and you have your own say with regard to the finalization of the terms, there are nuances that you can add in.

There are compromises that you can add in that no judge is going to do for you. The judge is doing bare bones. The judge is going to lay out what the alimony is, what he believes the custody is going to be based upon–by the way, you guys retaining your own experts, or a joint expert, or having a joint expert and then not liking what the joint expert said, then retaining your own rebuttal expert.

I mean, you’re talking about hundreds of thousands of dollars on dealing with custody, and the judge is going to say what your schedule is going to be based upon the review of the testimony, but he’s not going to do the nuances and all the little things. I’m just trying to think of something, like, you want every Christmas Eve. I mean, the judge is going to do a pretty pro forma custody and holiday vacation schedule etc, whereas if you guys were negotiating yourself, you can do those nuances. If you want to negotiate that you get every Christmas Eve every year, because that’s very important for your family, well, you negotiate that he gets every Christmas, or vice versa. There are a lot of things that go into play in avoiding the trial and having the judge make the decisions on these because you could be the master of your own destiny.

T.H.: Let’s take a step back. You come in, and you’re one of those people who says we’re going to court. It only takes one of the two parties to say you’re going to court. The other one, like me, just gets dragged in and you don’t have a choice.

What are the basic expectations that you tell your clients? They’ve already picked this toxic path and expensive path for them. What does that even mean, we’re going to court? What does that mean?

Ruth: If you’re at that point, you have already exhausted yourself with all of the tools that the court provides to you to try to resolve your case. I know I touched upon this in part one, but I’ll just briefly go through it. It means that you went to the case management conferences, you exchanged discovery, and you’ve had depositions–

T.H.: Hold on.

Please describe discovery. Please describe and define those words for us.

Ruth: The case management conferences are conferences that the court does with litigants and with the attorneys to get a sense of where the case is, and to schedule dates and make sure you’re following along the path. Your initial case management conference, there’ll be dates when things are due, when you’re going to be sending out your discovery. It’s called propounding discovery, and then there’s going to be date when you respond to discovery. He’ll schedule depositions, and if you guys need evaluations, and whether or not there’s a pension evaluation or a house appraisal, or if custody is in dispute. This first initial case management conference, you lay out what are the open issues before the judge, and the judge gives you a kind of a path to figure out guidelines, steps, as to how your case is going to proceed. Presumably, when you’re getting closer to trial, you’ve accomplished all those dates and deadlines, the discovery, and when I say discovery, think about all the questions that you would ever want to ask your soon-to-be ex-spouse, about anything and everything under the sun, truly. If it’s a case that has custody as an issue, then you do custody interrogatories, which are horrible. They’re horrible. It’s, ‘Are you a better parent?’ ‘Why are you a better parent?’ ‘Why do you think that you’d be a better parent to your children as opposed to your–’ ‘Who’s a better disciplinarian? Is it you?’ ‘Have you ever done corporal punishment?’ You name it. I mean, that’s just a sampling of what the custody ones are asking you about. There’s lifestyle ones, which go into, when you’re talking about alimony, the lifestyle interrogatories deal with, ‘Where did you shop?’ ‘Where did you eat?’ ‘Do you wear bespoke clothing?’ ‘What restaurants do you go to?’

Jessica: It’s so invasive.

Ruth: It is very invasive.

Jessica: It kind of feels like you are being strip searched to some effect.

Ruth: It truly is. Then to the extent that your spouse knows about certain things, let’s just say that there was an extramarital affair, they’re going to want information with regards to that, because it goes into, did that person dissipate my money to fund the girlfriend or the boyfriend, and how much? Even then, the dissipation aspect, I think that is a whole different podcast, to be quite honest, because there are a lot of people who are like, that’s my money! He used that money, or she used that money to fund this X, Y, Z escapade, or whatever it may be, whether it’s prostitutes, or another girlfriend, or whatever it may be.

Jessica: We both had that. I ended up getting a lump–I mean, it wasn’t gigantic. I ended up getting a lump sum to of reimburse me for all the trips [me too] taken with her–

T.H.: The jewelry, the trips–

Ruth: But you never get dollar for dollar. That is the problem. No judge is going to say, if he spent 100–and I keep saying he, and of course, I’m being gender neutral, but if he or she spent $100,000 on their paramour, you’ll get 50%.

And even then, the judges say, well, eh. There are considerations, and you certainly can have a trial to go to figure out what that dissipation amount is, but I’ve never seen it to be dollar for dollar. You don’t get that 100k back, because technically, 50k of it was his to spend as he pleased anyhow, which is ridiculous to me–

T.H.: It shouldn’t have been there in the first place.

Ruth: Yes, and can you imagine if it was presently in your bank account, or in your investment account, it would have grown. It’s baffling to me that you don’t get it, but by the same token, we’re an equitable state, so I understand that 50% was the other person’s to utilize. Surely, the dissipation aspect of it is in my opinion, a whole different podcast. It is certainly something very interesting. It sounds like you both had your own separate experiences with regards to it. It’s an interesting topic.

T.H.: Even if you use reward miles, so for anybody listening, we have done podcasts on dissipation of assets, but all my American Express miles, he used for travel instead of cash. I actually got reimbursed like, a million or whatever, and I then took my kids on a trip to Costa Rica two years later with those miles. It’s not always cash. It could be points and stuff like that. 

Ruth: That’s the lifestyle, and that’s all the discovery. And again, it’s not just the questions, it is requests for documents. When we’re talking about requests for documents, I’m talking about three to five years of bank statements, three to five years of retirement accounts and investment account statements. And if you’re ever doing the dissipation, whatever you spent on that paramour, you get the information on. Once you’re past that discovery stage, which can be laborious, to be kind, and it can take–

T.H.: I have huge Rubbermaid containers for the amount of paperwork that we accumulated.

Ruth: It’s important for people to hear, it’s easy to get the visual of the lawyers dragging in their suitcases filled with paperwork, but people listening, what you need to understand is this is a lot of homework for you. This is a lot of work that you are going to have to spend time doing because your lawyer doesn’t have access to your bank accounts.

A lot of the information that is going to have to be provided is going to be stuff that you’re going to be spending hours tracking down through your accountant, through your banker, through all of your records. Again, I just think when it comes to people thinking about litigation, you’re like, oh, yes, I’m paying my lawyer to do all these things. Well, yeah, but you have to provide all of those things. Anyone out there who had to ever rent an apartment or buy a home, think about the process you had to go to for approval for your lease, supplying, and the mortgage. This is a hundred times more work than that. You could be spending weeks on end just gathering paperwork before you even give it to your lawyer, before they can start. 

T.H.: And it’s actually very good education for you if you’re not aware of your finances, and your assets, and your marital assets, and who to call, and did you even know you had accounts at this bank, or the he had accounts at this bank. Honestly, at the time, I don’t know what it is now, but everything has to be printed. Then I’m on my little printer in my house, because I didn’t want to do it at Staples. I didn’t want to do it in a public space. It’s kind of embarrassing printing and printing, and the huge clips, and the folders. Ruth, I know you guys, all you lawyers have your binders, but in your house it’s like a–

Ruth: So when you’re at trial, they call them war rooms. If I knew I had a trial impending, we would put every document that we’ve ever had in that file. T.H., maybe your divorce was a couple a few years back, but now everything’s digital, it’s actually far worse. I’m one of those people, I’m tactile. I need to have papers in front of me. Whenever someone files a motion, I need to have it in front of me printed so I can make my handwritten notes on it, and so too with trial documents. You want to look at every sheet of paper to determine is this important to the issues that are presently before this judge. How does this help my client? Or does it hurt the other party? And how do I use this against them? That’s what the binders are for. You’re supposed to produce them, and you’re supposed to label them. If you’re the plaintiff, they’re P1, and that’s the first document that you’re relying upon in your case, and I’ve had up to P387. I mean, we’re talking about–

Jessica: Oh my god.

T.H.: I think that was me.

Ruth: Yeah, I can guarantee it was T.H.

T.H.: Just also everybody listening, if you’re the one who’s saying we’re going to court, every piece of paper costs time for your lawyer to look at, just so you know. It’s not just your time, because then you’re going to hand it off to Ruth or whoever your attorney is, and then you’re going to pay them by the hour to look through all that shit.

Ruth: Just to remind you again, I’ve looked at it already initially early in the case, but if T.H.’s case is four years old, well, guess what, I have to go through the whole file again. I have to go through four years of files to determine what is helpful to me in the trial aspects of it. Now with the digital and everything being online, and knowing how litigious cases are, I actually within each client’s folder, I have subfolders. I have it by category, because I now know, and there are certain cases where you know off the bat, it’s unlikely to settle, whether or not it’s the other side, whether or not it’s the other attorney that they’ve hired. You know that it’s going to be litigious. I just put it in subcategories, so this one is dissipation, this one is inheritance, and this one is life insurance, because I know that these are three prime areas that are going to be major concerns for me. I put them in the regular correspondence file, but I also put it in my subfolders because I know that I’m going to rely upon it later. It actually does help with the going back four years of documents, but certainly, that’s why most smart attorneys require a trial retainer before trial even starts. That trial retainer is not going to be little. It’s going to be thousands upon thousands of dollars, because there are a lot of issues that need to be taking place. Imagine if this is upheaval in your life, it’s upheaval in your attorney’s lives, because they are 24/7 focused on your case, and that comes at a cost.

T.H.: Now you’re going to court, you’ve produced your documents, you’ve found everything, you’ve had your case management conference, you’ve tried mediation and all the panel of lawyers that the courts–

Ruth: You’ve done your settlement conferences. And just so we’re clear, before all of that takes place, any expert reports, any reports that we’re relying upon, all need to be in. If they were done two years ago, guess what, they need to be updated.

You’re going to have to pay for your custody evaluator to make sure that they update their reports. You’re going to have to have your house appraisal updated. If you have forensic accountants involved, all their schedules need to be updated, and they all need to be prepped and ready to go for trial. It all costs more money.

T.H.: We’re going to court, and you have kids, so this is the worst case scenario in terms of money, what are the kinds of experts you can expect that you might need before you go to–who are those experts?

Ruth: Certainly you’ll need, especially if you have children involved, and unfortunately, you’re likely going to have custody and parenting time related issues. If you do, you’re going to need to retain more than likely a custody evaluator. You can either do it jointly, meaning that you or your husband, or you and your spouse are electing to use one joint evaluator to make a call with regards to who should have custody, and what should be the parenting time structure., or you could either retain your own. It’s entirely up to you. Judges weigh these custody evaluators very heavily when it comes to custody trials, because otherwise, it is a he said, she said. It is, he’s a horrible father, and she’s a horrible mother. Well, guess what, now you have a neutral who gets to listen to and hear and get all the evidence that you have, and all the evidence that he has, and the custody evaluator is then going to be rendering a report. Now, of course if you get a custody evaluation and you don’t like what they’re saying, so let’s just say it’s not very favorable to mom. Well, guess what, mom has the ability to go get her own rebuttal report. You’re talking about delaying your case even further. You have a joint custody evaluator who renders an evaluation, and let’s just say they’re doing a fantastic job. They render their evaluations in six months. It’s usually a little bit longer than that. You don’t like the report that came out. Then you go get your own rebuttal. Your rebuttal comes back. It’s obviously going to be, you hope, more in your favor. Well, he’s going to say, well, I want to get someone else to rebut this person. You’re talking about–

Jessica: It’s never ending. It could literally be never ending. People don’t realize that from what you said before, the way that it’s scheduled, because judges are backed up, and trying to get people’s availability, you’re only going to have a day here, and a day there, and a day there, and then things need to be updated. Everyone’s going to rebut the rebuttals of the rebuttals. It really is never ending.

Ruth: Well, there is some point where the judge says enough, and we’ve got to move forward. The rebuttals stop at some point, but truly, it’s a shit or get off the pot moment.

Pardon my language, but that truly is. It’s, okay, now that you’ve gotten this far, and now you’ve got your rebuttal, you have a joint custody evaluator that’s saying this–and let’s be clear, I mean, a judge is probably going to give a lot more credibility to that joint, as opposed to your rebuttal, unless there are very serious issues with regards to the joint expert’s report, because the joint expert’s still neutral, right? Whereas the rebuttal is, I don’t like this about this person’s report, and tell me how do we fix this? And so there are a lot of nuances that go with regards to doing a rebuttal. I’m not saying that–I think that you should always get it. If a custody evaluation is not necessarily in your favor, you certainly should explore why it’s not in your favor, and how do we fix it? I’m not saying you’re buying this rebuttal expert. They’re not going to lose their license to award you sole legal custody or whatever it may be. But certainly, there are alternatives to just accepting a joint custody evaluation.

T.H.: I would also say, again, if you’re the one saying we’re going to court, just a friendly reminder, I had to hire my own, he hired his own, and his girlfriend was also part of this process in terms of judging her ability to parent our children. You have a limited amount of time with this stranger. Your biggest fear is that your kid is going to be tired or cranky, or a kid, right? And they’re not going to be in their best light with you and you’re like, holy shit, I’m going to lose my kid. Again, this is another part of a bigger piece where you don’t have control. You don’t have control over a four year old, or a six year old, or an eight year old, or an obnoxious teenager, or whatever the hell’s going on, and they’re stressed out because of what’s going on. This is another thing, another reason why you should really try to do everything you can, and again, I did, and I still had to go through this, but it is very, very stressful when someone’s determining whether you’re a good parent or not, and you have been the sole parent for so many years. Now he’s going to judge if I’m a good parent? You haven’t been here for four years. If you were so worried, you should have been here. It’s no control. That report comes out, and you’re shitting a brick. My ‘advocate’ was no more favorable to me than to him. It wasn’t that he wasn’t favorable to me, but he was also favorable to him. This is a whole other thing. Okay, so you have custody experts. I also hired a forensic accountant. What other kinds of experts are typical for a trial?

Ruth: A lot of times you find that if you have a stay at home parent, and they’re saying I can only earn 10,000, because that’s what I did when I was volunteering, or part time as a librarian, or whatever it may be, or working part time somewhere, and meanwhile, you were an accountant in your other life, so maybe you have your CPA, but you haven’t used your CPA license in 15-20 years, or your law license, or whatever it may be, the other side’s going to want to impute income to you. They’re not going to accept that you’re at 10, because even if he’s at a million, he doesn’t want to pay you.

T.H.: What does that mean?

Ruth: Impute income means that the courts are not going to accept that your income is 10, even though that’s what you earned last year, because you have a higher ability to earn.

Now, you don’t want a court to impute you 100, because that’s what you last earned 20 years ago as a CPA, because you don’t do that anymore. I’m sure, and I don’t know, I’m not a CPA, but I’m sure 20 years, being a CPA is highly different now than it was 20 years ago. Moreover, you have to be certified. You’ve got to do all your classes. You’ve got to continue with your education as a CPA. An employability expert comes in, looks at your credentials, looks at your CV, your resume and says, okay, tell me what you want to do, and we’ll figure out if there’s jobs that that are sort of in that line of work that you’re doing. I’m just going to use CPA as an example. But let’s just say you want to be a bookkeeper now, or maybe you want to be imputed the income of a bookkeeper. Maybe you don’t even want to go back to work at all. I mean, it truly is, but you’re going to be imputed something. Your number’s not going to be that 10. And when I say imputed, let’s just say you want to impute probably 40, because if you’re working at Starbucks 40 hours a week, you’d probably make 30 to 40, right? There’s going to be a number that you’re going to be imputed and it certainly isn’t going to be what you’re earning right now, because you’re far below what someone in your capacity should be earning. There are a lot of factors that go into play with that, especially if you have younger children. If you have children that are under school age, you might not necessarily be imputed so high. There might be step ups with regards to your imputation of income. Maybe you’re imputed 20, and then you go to 40. There’s flexibility with regards to that. But the employability expert comes in and opines as to what you’re capable of earning. That comes into play in the alimony aspects of it, and I know that ultimately it comes into play with alimony and child support, because you’re trying to figure out how much are you contributing on your column versus his or her column.

T.H.: I did that too. I wasn’t a stay at home mom. It was a very humbling experience. They basically said you can make $90,000. So I said, great, where’s the job? That’s awesome. I want to make $90,000. So anyway, okay, now moving forward, what about depositions?

Ruth: There are other experts that you could have. I mean, and truly just to really go back to that quickly, when you have custody and parenting time evaluations, typically you’re going to have, hopefully, the children are going to be in counseling and therapy, so you’re going to have all that aspects of it, you might need a pension expert or an actuary to help assist and figure out what accounts are valued at.

You already touched on the forensic accountant or the forensic evaluators, especially if you have a spouse that has a business or owns his own business, and whatever it may be, you’re going to need that to get evaluated. Depositions are what take place after all the discovery is done. You have all the documents in front of you, and it’s a point in time where some cases do settle, because they’re getting questioned on the things that they produced and the information that was gathered. Maybe they’re saying to themselves, oh, maybe I don’t have a strong case. Or maybe we realize you’re not so great under pressure, and you won’t be so great before a judge, and maybe we should settle the case now. Not that I’m saying a lot of cases do, but you could see the holes and flaws in your case. You either regroup and re-get your ammo, recharge, or whatever it may be, and go forward, or you say maybe we should go to another mediation session and try to resolve this. But deposition is the first step in asking the questions that you may have had all along with regards to your case, such as, when you’re going through discovery, and you see a line item, and it’s not an account you’ve ever seen before, and you’re seeing it on a monthly basis. Now you’re wondering where is he is funneling this money to. At a deposition, you get to ask those questions and you get to get in-depth answers with regards to it. It may lead to either settlement, which is unlikely, but it’ll more than likely lead to more questions and more money and more issues. 

Jessica: People need to know also, again, looking in from the outside as someone who didn’t have to go through this whole process, I think people get caught up and we’re going to do this because this is going to be the chance that I can ask him about this bank account. I can ask details about this affair. I can ask about X, Y and Z. Okay, great. Keep in mind that anything that you’ve ever done, now’s the time he’s going to ask you about it. How many glasses of wine do you have a night? Do you smoke pot on a regular basis? Are you going out? How many times a week are you getting a babysitter so you can go out with your friends? Anything that can be used against you is going to be used against you, just like whatever you have to use against them.

So again, I think people sometimes get caught up in what they’re going to accomplish and not necessarily how it’s going to hit them back.

Ruth: 100%.

T.H.: And also, not even just deposing one another. I deposed a lot of people involved in his business, other people he knew personally, where money was exchanged that was questioned. I deposed those people. That was a bigger, I guess, threat or risk because they don’t want to be in a compromising position–

Ruth: Or enmeshed in your divorce litigation.

T.H.: Right. And they’re going to tell the truth. Do they have dirty laundry that you don’t want to have–?

Ruth: Yeah, the deposition process isn’t just the parties. You can depose your experts. You can depose relevant people to your case. I mean, you can’t depose the mailman or whatever, there has to be some relevancy or case, unless the mailman impregnated your wife or whatever, maybe, but there has to be a relevant person or reason as to why they’re being deposed.

Jessica: But it could be someone that they’ve had an affair with. It could be friends of yours for specific reasons that you’ve been on vacations with.

T.H.: A business partner.

Jessica: –your colleagues, right, or your business partner, so keep that in mind. It’s really that you’re dragging other people through the mud into your case.

Ruth: And again, they don’t want to be enmeshed in your divorce litigation. A lot of people are reticent to being deposed. I wouldn’t want to be deposed if my friends were getting divorced. I like both of you. I don’t want to be in the middle of this. So it is a difficult spot to be in.

T.H.: I actually deposed somebody, and I assumed it would be at his office, but it was actually at his home. He was humiliated, and he was so angry with me. But I was like you know what, too bad. I mean, I’ve got a situation here. The long and short, and I hope everybody understands this, as much as you can control whether or not you go to court, and the extent to which you fight for certain things that may not be as important later as they are now, this is already, just talking about it, so many hours of work, of time, of reports, of hiring other people, not just your lawyer. You’re worried about how much money you’re spending on your lawyer? I had a forensic, I had a custody expert, I had to go to unemployability expert, and I had to get appraisers. And again, I didn’t want this. There were times when I compromised, but there were other times that I wasn’t. Then I was like, you know what, he’s dragging me here anyway, so I’m going. I’m not going to just sit back. But just really do the best you can, and if there’s any way to appeal to your ex, appeal. Kill him with kindness. This is really hard on both of us. This is really, whatever. If you get that moment to be human, do it, because it was four years, every minute of every day, and still just managing your kids with a divorce and yourself. I had to go back and get a new career, which I would have done anyway, but I don’t want someone to tell me I have to do that. I want to do it because I want to do it.

Ruth: Or impute you an income that was well above what you would have been earning initially.

T.H.: That’s right. Who the hell are you? Don’t lose control of your life. Don’t let someone else determine the direction of your life. I think at this point, Ruth, if you agree, now, it’s based on your state, and your situation. We didn’t mean to scare you, but just really to open your eyes. This isn’t even the half of it. This is just prep.

Ruth: It truly isn’t. The one thing I have to tell you–

Jessica: Do what you can to avoid it.

Ruth: Right. A practice tip that I would tell you is if you have a relationship with your ex, reach out to them.

Because at some point, it could be a train that has derailed, and you and your ex-spouse, or soon-to-be ex-spouse, are the managers of the train, you’re the conductors. Conduct, speak, have a conversation and just say, hey, listen, this has spiraled out of control. How do we get it righted? How do we right this ship? I’ll give you an extra day. Let’s just call it a day and get this done and resolved. Maybe I’ll do this. I mean, at some point, you can negotiate a little bit too. I’m not saying that you shouldn’t do so without your attorney’s blessing or without having spoken with your attorney, but ultimately, you’re still the conductors of the train. You can get yourselves back to a place where you don’t need trial, or where you could say, maybe we’ll narrow down the issues for trial. This is very important too. You could have a trial on ten issues, but if you could resolve five of them, guess what, you’ve cut down the amount of preparation, the amount of time that’s going to take place, the lawyers involved, the experts involved, and maybe we’re only dealing with alimony as opposed to custody parenting time. Because truthfully, for me, custody parenting time, that’s the heartbreaker for me as an attorney, as a mom, but also helping people and doing this and navigating through the divorce process. If you can get custody and parenting time squared away, it makes my job easier, because then it’s a business transaction. It really is extricating yourselves from the business of your marriage and just doing the finances thereafter. The custody and parenting time part, and I know T.H. can speak on that, is the hardest part of all this.

Jessica: Yeah. But overall, I mean, I think the message is that people traditionally think litigation is what divorce looks like. Nowadays, it’s not necessarily what the majority of divorces look like, and this is why. It’s just important that people who are in this situation have a really clear understanding of the complexities and the nature of litigation and why it takes so long and why it costs so much money, and why you really are better off if you can just find some common ground. It’s just a great conversation. There are still so many more aspects, even of litigation and other things, but this is, like T.H. said, barely scratching the surface. Thank you for laying that all out because I think people sometimes really need that outline, and to hear how crazy it can get, to have a better understanding of what direction they want to take in their own process.

Ruth: Thank you.

Goodbye: For everyone out there listening, if you know anyone at all who would benefit from what we talked about today please share this episode and everything exExperts.  Be sure and click to subscribe to the Podcast on iTunes or wherever you listen to your podcasts and please follow us on social media @exEXPERTS Divorce etc… on Instagram and Facebook and YouTube and our website at www.exexperts.com.  Thanks for listening!

Meet This

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Ruth Kim

Family Law Attorney
Zemsky Family Law

Why We Chose her:

Basically because she rocks! Ruth focuses on divorce litigation but with a heavy heart, instead of a heavy cash agenda. She’s funny, very smart and is an ally for her clients as they go through this difficult process. T.H. had to litigate and it was painful – she wishes she knew Ruth back then to help her in the process more efficiently. We know Ruth’s message and information will be helpful to everyone.


One Thing she wants You To Know: Divorce is hard. Your divorce attorney should not make it harder.

Make a Connection: https://www.zemskyfamilylaw.com

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