What happens if you get halfway through your divorce and you and your spouse start to realize that divorce might not really be the answer?
That’s what happened a few years ago to one of my clients “Susan” (not her real name).
She told me that she and Mike had been flirting with each other; she fantasized about holding hands with him on the boardwalk in Point Pleasant Beach and going to see a movie with him; she was very confused and wanted guidance.
She needed to understand her options.
Here’s what I told her….
The purpose of this document is to memorialize the various options that you have, as I see them in terms of your relationship with your husband, Mike.
By way of background, you filed a divorce complaint through my office. This was based upon Mike’s bizarre behavior at that time, where he was threatening to come to Florida where you were staying with your daughter and her family and kill you as well as others.
At the time, you explained to me that Mike’s behavior was caused by his drug use, and in particular, his return to using drugs after many years of abstaining.
I listened to at least one of the recordings that you provided to me, and I can confirm that Mike was indeed frightening to listen to.
Since that time, though, Mike has apparently cleaned up his situation and from what you have told me, he is once again functioning reasonably well, working full time, continuing to earn his salary, and just a different person from who he was.
As such, you and I discussed the various ways that you might choose to go forward with your relationship with Mike.
I am preparing this document to memorialize those options for your future review.
The first thing you could do is to continue your divorce case. This will end with a written document called a “judgment of divorce.”
The judgment of divorce will have either one or two documents attached to it.
If we settle the case, then the judgment of divorce will have a Settlement Agreement attached to it. We call that a “matrimonial settlement agreement”, or an m.s.a. The matrimonial settlement agreement is a negotiated document that I would negotiate with Mike’s attorney with you and Mike giving us your various opinions.
Normally, when somebody gets divorced the matrimonial settlement agreement is negotiated, signed and becomes part of the judgment of divorce. It deals with all financial issues between the two of you from alimony, to pension distribution, to payment of debts to distribution of assets.
In a small percentage of cases when somebody gets divorced, they cannot work out the issues and there has to be a trial since they can't work out the issues; there cannot be a matrimonial settlement agreement because the parties cannot agree to a settlement.
In that case, the judge decides the same issues, namely alimony property distribution, debt distribution, pension distribution, and all the other issues.
So, to sum up, when somebody gets divorced, there is a judgment of divorce. That is the document that simply divorces them.
And attached to the judgment of divorce is either a matrimonial settlement agreement if they are able to settle or if they are not able to settle, there will be a judgment containing the statement of reasons as prepared by the judge as to why the judge has distributed the assets the way that he has, as well as a statement of alimony and other issues.
So that's what happens if you go forward with a divorce. You either settle or a judge decides the case.
There are other options. You may decide to simply do the first half of what I talked about above, which is negotiate a matrimonial Settlement Agreement, have it signed, and then the two of you just live separated pursuant to the financial terms of the matrimonial Settlement Agreement.
You would remain married. As such, you will be able to stay on Mike’s health insurance and other benefits.
You could also use that same matrimonial settlement agreement and incorporate it into what we call a “divorce from bed and board”. A divorce from bed and board is what I like to call “a 99% Divorce”. Alimony is worked out; property distribution is worked out; property is distributed; everything is worked out.
Except we simply don't go to that last step and divorce you.
So you're 99% divorced.
Well, somebody who is 99% divorced is 100% unable to remarry.
So if you're divorced from bed and board, neither one of you can remarry because you are still technically married, although in a very, very minimal way. But you are still technically married.
A fourth option that we talked about today for the first time would be to simply withdraw your divorce complaint. I reviewed the file when we were speaking today and noticed that Mike’s attorney has filed an answer, not an answer and counterclaim. The difference is significant.
By filing an answer, they are basically just denying that you guys have irreconcilable differences and forcing us to prove it, which is easy to do; anybody has irreconcilable differences and a judge would not stop a divorce no matter what.
But he didn't file a counterclaim. And what that means is that if you choose to withdraw your divorce complaint today, you don't need his permission to do that. We could simply withdraw the divorce complaint and the entire case disappears.
Where would that leave you? It would leave you separated from Mike with no agreement in place. You're just separated.
You could stay separated. As I understand it, Mike is allowing you to use one of his credit cards.
And when I asked you if your average monthly spending is approximately the $4700 per month that I figure you would get in alimony, your response was that you didn't know exactly, but it was probably somewhere in that area.
If that's the case, and if you are being treated fairly, and since you don't know how you want to go forward with your relationship with Mike, and furthermore, since the divorce case is now nine months old and we will be getting pressure from the court in the next few months to move toward a conclusion of this case so the court can close out your file, you could choose to simply withdraw your divorce complaint now. It's an option that you have.
Either you or Mike could always refile at any time in the future if you wanted to or needed to.
Perhaps you wouldn't need to and wouldn't want to you would stay separate continuing to live as you live.
You would be able to go to coffee with him or walk on the boardwalk.
Maybe the walk on the boardwalk would turn into a movie and who knows what else?
Maybe a day on the beach and maybe with divine intervention good things could happen. Who knows?
Finally, you may choose to have me negotiate a “reconciliation agreement” with Mike’s lawyer as an option.
Basically a “reconciliation agreement” is like a Matrimonial Settlement Agreement that is done in advance.
It says “if we divorce in the future, here’s exactly what will happen.” Let’s discuss in more detail next time. There are some potential problems with reconciliation agreements that you need to be aware of if you decide to have one drawn up.
These are the options that you have available to you as I see it.
Please think things through and let me know how you'd like to proceed.
Very truly yours
So…if you are in the middle of your divorce and you and your spouse realize that this may not really be best for the two of you, you should consider my discussion with Susan and speak with your divorce lawyer about what options might be available and best for you.