State of Confusion. Many individuals who file for divorce under the assumption that they are entitled to half of all marital assets are shocked to find out otherwise. Forty-one states, including New York, Florida, Illinois and Pennsylvania, allow only for equitable distribution of marital property. This enables a court to decide how much to award each party according to criteria such as the length of the marriage, earning capacity and contributions to the marriage. This also encourages aggrieved spouses and their high-priced attorneys to argue in innumerable ways over evidence of these factors. In nine states—California, Idaho, Nebraska, Arizona, New Mexico, Texas, Louisiana, Washington and Wisconsin—divorce courts are bound by community property laws stipulating that spouses equally own all income and assets acquired during the marriage.

Don’t Mess Around in Texas. Texas remains a community property state: By law, divorcing spouses share ownership of income and assets acquired during the marriage. But the state adds its own twist to the concept: Divorce court judges can adjust awards based on fault, and do not award maintenance (alimony) except in dire situations. Even in these circumstances, Texas enforces a two-year limit on maintenance. But this state’s penchant for allowing judges such extreme latitude—call it a cowboy mentality—makes some attorneys cringe.

"If you have an affluent spouse, don’t get divorced in Texas," says Connecticut attorney Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who favors a uniform federal divorce law. "The same case can be decided tremendously different if you file papers five miles to the east or five miles to the west."

Beneath the Veil. Hiding assets from the court when divorcing a spouse is illegal, but common. Spouses can squirrel away money in off-shore accounts, disguise liquid assets as interest-free loans and conceal them among bogus business expenses. Most courts will do little to assist the other party in the discovery process. The burden of proof lies with the accuser, who is often left with the expensive task of hiring forensic accountants and paying additional attorney fees and court costs.

"It’s a terribly unfair system in order to get assets presumably rightfully yours," says Penelope (whose name is changed at her request), a former corporate lawyer who was married 17 years before her husband filed for divorce.

While some spouses can afford the high-cost hunt, others may reluctantly decide to cut their losses. "Chasing assets is a process that can take years of emotional strife," Penelope says. "See what you need, try to get that, and be done with it."

Lying spouses rarely face legal ramifications for their subterfuge. Accusing spouses should not expect to be reimbursed for the added fees that come from lawyers, forensic accountants and other professionals. "What a judge will do is give a person what she should have gotten if assets were disclosed," says Ferro, who represented Jane Welch in her divorce from General Electric chairman Jack Welch. "There’s no real disincentive for being dishonest. More often than not, there’s no punishment."

The Moral Morass. The scales of justice do not weigh the damage caused by a spouse who becomes needlessly belligerent during divorce proceedings by filing baseless and vindictive motions. "All it takes is one unreasonable person out of four people," says Ferro, counting each spouse and the lawyers. "It will cost more money, the process will be more difficult and dealing with the children will be more difficult."

Unethical behavior can drag once-loved ones into an ethical abyss. One party can secretly record telephone conversations, a practice legal in some states. Software clandestinely installed can record keystrokes to expose affairs and pornography habits, and unlock hidden assets and passwords needed to calculate a spouse’s true worth. "I ask clients from day one, ‘Is your computer safe?’" Ferro says. "Buy a new one, keep it away from your spouse and email me only about procedural matters. It’s easy to steal something off a computer. Now there’s spyware that you can remotely install via email."

Pigs at the Trough. Unless you have resolved to settle matters between yourselves—Tim and Edra Blixseth, founders of Yellowstone Club in Montana, split their estimated $2 billion estate before hiring lawyers to execute the deal—each spouse will need a lawyer who will not put his fees above a client’s interests. It is essential that clients become educated consumers during this process.

"Lawyers can be persuasive, and clients are generally vulnerable," says Howard Benjamin, a New York attorney who represents clients in divorce proceedings and fee disputes with their lawyers. A former attorney for the New York Departmental Disciplinary Committee, which investigates and prosecutes lawyers in Manhattan and the Bronx for professional misconduct, he also represents lawyers threatened with disbarment.

Clients commonly switch attorneys when they feel their case is being handled improperly. Likewise, it’s not uncommon for divorce lawyers to jettison their clients. The first attorney Penelope hired told her that her husband was too much trouble. Finding new representation can be complicated by attorneys who refuse to take cases in the midst of proceedings. Clients should be ready to cough up another five-figure retainer simply to bring up to speed an attorney who accepts an in-progress case.

"Shopping for a lawyer is harder than buying a used car," Benjamin says. "A used car you can drive around the block and see if it’s going to fall apart. In an interview, you can’t tell competence from incompetence or laziness." He says another pitfall clients face is that their assets are exposed to the very person who is determining what to charge them. "In what other area of law do clients have to show the value of their home, bank accounts, investments, jewelry and everything they supposedly own?" A divorcing spouse should always talk to previous clients of any attorney they are considering hiring, and avoid relying solely on recommendations from family or friends, a magazine article or a lawyer who does not specialize in divorce.

Watch Your Wallet. Clients should not sign a retainer agreement until an outside expert familiar with matrimonial law reviews it. "Clients may read something like, ‘Billing in 15-minute increments,’ and might not think much of it," Benjamin says. "Do you know how many phone calls aren’t 15 minutes long?" In the event of a fee dispute, some lawyers may reserve the right to have a lien put on a home for outstanding bills, although in some states a client can prohibit this tactic. Some states also give clients the right to written estimates of future costs.

Benjamin says the legal system can intimidate even the most successful business people. Clients must become their own advocates and pay close attention. Billing should be itemized and reviewed in detail every month. "Clients should get explanations for anything they don’t understand or think is inaccurate on a bill," Benjamin says. "A lawyer shouldn’t be billing for time discussing the invoice."

Matters such as the tax ramifications on property sales, maintenance payments and legal fees are often ignored by attorneys on both sides of a divorce. These and other issues must be discussed with other professionals of the client’s choosing. Clients should never rubber-stamp the selection of third-party experts to evaluate assets and child custody issues without independently verifying their bona fides. Be especially wary of attorney-recommended experts who often appear before divorce courts.

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