40……make that 41 things NOT to do during your divorce
June 13, 2012 76 Comments
From time to time I get divorce cases that really make me scratch my head and wonder what in the heck people were thinking when they decided to get married in the first place. These are the cases where the parties literally hate each other and cannot see the other person’s view of anything. Like the old saying, “its only win-win if I win twice.”
In these cases, the parties generally do everything they can to exact revenge from the other for some real or even perceived wrong that has occurred during the marriage. That wrong may be adultery, squandering of assets, physical/emotional abuse or just about anything. Regardless of the wrong, litigants do not understand that they are damaging their own cases by attempting to obtain revenge. As a litigant in a divorce case you want to show up for court not only with clean hands, but a clean history. With that in mind here is a list of things you shouldn’t do if you want to have a successful outcome in your divorce case:
1. Hide things from your attorney. Attorneys can prepare for and deal with facts. Surprises on the other hand create problems. Drug use, adultery, hidden assets and the like can destroy your case if your attorney isn’t prepared to deal with them. This isn’t a game of hide and go seek. Come clean. The same goes for destroying evidence. Just because you delete those emails from your computer doesn’t mean the other side isn’t going to get them another way. When they do, it is going to look pretty bad if you hid them or lied about their existence in your discovery responses.
2. Dispose of assets you know your spouse is going to request. Don’t sell her great-grandmother’s chair in the attic and expect to get away with it.
3. Fail to keep a copy of all communications with your soon to be ex-spouse. If he/she sends you crazy or threatening text messages, give a copy of it to your attorney.
4. Incur debt in your spouse’s name. That would be stupid. Don’t be stupid!
5. Make comments in front of your children about your spouse. Children are not the jury for a divorce. They do not need to know that your spouse cheated on you or that your spouse is a %$^&$. Leave the kids out of it. All they want is to be loved.
6. Use drugs or excessive alcohol. If you do, it will cause you to violate even more of these “do not rules” and probably a few more than I haven’t even mentioned.
7. Send nasty text messages, email or voice mail. If you receive a text message saying you are a no good sorry piece of %&*^ and you reply by calling your spouse a few words that would not be appropriate in church, chances are you will see those words again in court. Be nice. Don’t put anything in email, text, voice mail, or other writing that you wouldn’t want to read in church to the entire congregation.
8. Post stupid crap to facebook or any other social media site. Nothing is private. That person you kinda-sorta remember from high school and friended on facebook will share the pictures of your Jagermeister induced, half clothed 2 a.m. posted pictures. Likewise, when you tell your spouse you are sick and can’t get the kids for the weekend, your spouse will find out if you post pics to facebook showing the great time you are having on the beach knocking back drinks with little umbrellas in them.
9. Show anger in front of the judge, clerk, your spouse or your children. Hold your emotions. Screaming or violent outburst only serve to impress upon people that you are irrational.
10. Fail to weigh the trial of a case on economic and non-economic terms. Sure you want to “win” the case. Are you willing to spend $10,000 or more in legal fees to “win” the same thing that was offered prior to trial? Don’t be stupid. The romance is gone. It is now a matter of money and custody. Do you really want to stand in front of the judge while a lawyer questions you about your infidelity, gambling problem or pornography addiction?
11. Bring your new boyfriend/girlfriend around the children prior to the divorce being final. Failure to follow this will in all likelihood result in your new significant other becoming a witness in your divorce trial. Are you familiar with alienation of affection and what it can cost?
12. Bring your new boyfriend/girlfriend to court. Unless there is a compelling reason for doing so, don’t do it. It will only polarize your soon to be ex-spouse even more. It also provides the perfect opportunity for the new lover to be a witness (and generally an unprepared witness at that).
13. Speak with the lawyer for your spouse or anyone associated with their office for any reason. They aren’t your friends. They have one job which is to destroy you and make sure your spouse receives all of what you consider “your stuff.” If you value your stuff, don’t talk to anyone about your divorce except your attorney.
14. Display a “you owe me” type attitude. Maybe your spouse does and maybe your spouse doesn’t. Be calm and rational. The more you claim your spouse owes you, the more your spouse will conger up recollections of all the things he/she has done for you. This may come as a surprise to you, but when your spouse does that the items on his/her list will outweigh the few things your spouse remembers you have done for them.
15. Make reactive comments. You rarely lose anything by failing to respond quickly. Calmly think about the situation and then respond if required.
16. Talk while others are talking. Easy enough. If your mouth is open, your ears aren’t. You can often gain an advantage in a divorce by soaking up knowledge, but rarely will you do so by passing it out. You need to be the one that is learning, not the one that is teaching.
17. Argue religion. You are not going to convert anyone during a divorce case. You can however, piss them off or convenience them that you are hypocritical.
18. Make proposals you are not fully prepared to live with. Otherwise, your credibility goes out the window.
19. Withhold visitation for failure to pay child support or vice versa. This is a good way to go to jail for contempt.
20. Fail to read all orders entered in your divorce case. Ask your attorney for them. “I didn’t know” isn’t going to cut it with the judge if you were ordered to do something and fail to do it.
21. Increase your debt. Your financial situation is about to change……drastically. This is a time to be very conservative with your finances. There is no guarantee as to what the court may do and no guarantee that the child support will come in.
22. Fail to create a rainy day fund. Keep some cash somewhere safe that you can use for emergencies.
23. Make large purchases. It is hard to argue that you can’t pay an additional $XXX in child support, daycare, etc. if you just went out and financed a new boat, car, motorcycle, gun, closet full of shoes, or whatever.
24. Fail to consider the tax implications of divorce. Your tax situation is about to change. Go see an accountant/CPA and find out exactly how it is going to change so there are no surprises.
25. Fail to update your legal documents. Do you want your soon to be ex-spouse using that power of attorney from ten years ago to remove money from your retirement? Do you want them to make the decision as to whether or not life saving measures should be taken if you have a serious medical condition? I can just see an angry spouse telling the doctors “Pull the plug. He wouldn’t want to live with a broken leg!’ That is kind of funny until you realize something could happen. Do you want your soon to be ex-spouse to receive all your assets if you kick the bucket the day before your divorce becomes final? These events can be avoided, put they must be planned for.
26. Get pregnant or get anyone pregnant. Pregnancy can stall a divorce while the court waits to find out the identity of the father. Do you want to wait months only to provide proof of your infidelity? Just don’t do it.
27. Listen to all your friend’s advice of what you should get or give in a divorce. Every divorce is different. You are paying an attorney to watch out for your best interests. Either trust your attorney or find an attorney you can trust.
28. Fail to take an inventory of household items. You need to be able to show what assets have been removed or destroyed. If nothing else, walk through the house with a video camera and video everything there. It will help you create a list of assets.
29. Fail to keep your attorney advised of your whereabouts. The only thing more troubling for an attorney than a lying client is a client that falls off the face of the earth.
30. Fail to keep a divorce diary. Make notes of things that happen. If your spouse doesn’t pick up the kids for visitation, doesn’t pay child support when due under a court order or anything negative at all, write it down.
31. Cash refund checks that in all honesty belong to your spouse. If a tax refund check comes in, try to reach agreement on a division. If you resolve the issue in your own favor, don’t be surprised when the judge resolves it against you and you have to come up with the money to pay your spouse.
32. Fail to pay child support via check. If you pay any amount owed to your spouse with cash, you are inviting the less than truthful to claim you didn’t make the payment. If you owe $750 per month in child support on the first of the month, get a check for that payment into his/her hands the day before. Better early than jailed for contempt.
33. Fail to remember than Chancery Court is a Court of equity. If you want the court to “do right” you dang well better do right yourself.
34. Discuss settlement with your spouse after you have been drinking. That great idea you had at midnight may not be such a great idea the next morning when you wake up with a hangover and even your dog is looking at you funny.
35. Fail to realize that if you have a child or children, the divorce is not the end. You will still have to deal with your ex-spouse for many years to come. If you are unreasonable now, there is a good chance that your ex-spouse will be unreasonable with you for many years to come.
36. Fail to understand that a happy ex-spouse is a key to your happiness. Few things will make your life more miserable than a miserable ex-spouse. If they are having problems with money or relationships, you will be the target of their cross hairs. On the other hand, a happy ex generally isn’t fixated on making your life a living hell.
37. Fail to understand that the more unreasonable you are, the more unreasonable your spouse will be. Splitting up assets and debts occurs in equitable distribution. It isn’t called “you get everything distribution.” If you want everything, your spouse is likewise going to request everything. You have to give something to receive something. Only litigate over items that are truly valuable to you.
38. Be unreasonable with child visitation or move out-of-state with the children for no reason other than to separate the children from your spouse. Courts don’t like this. Children generally have an established network of friends and family where they are. Relocation will be difficult on you and will likely be even more difficult on them. Don’t do it unless you have a good reason for doing so such as physical abuse.
39. Make extrajudicial modifications to any court order. Your spouse says “don’t worry about the child support for the next 3 months because Jr. is going to stay with grandma.” Unless the agreement is reduced to writing and a judge signs an order modifying the previous order, you are not relieved of complying with the previous order of the court. Stated another way, do whatever the court orders you to do and do it until the court orders you to do something different.
40. Be your own lawyer. Sure, you think you know everything, but in reality you don’t. You figure you will save a few bucks, but in the long run you wont. If you really desire to end up back in court or worse (in jail), draft your own pleadings and draft your own custody agreement. The money you will end up spending to modify a deficient child custody, visitation and property settlement agreement will overshadow the amount you would have spent to get it done correctly in the first place. Even worse, some things can’t be modified. Therefore, if you don’t get those things right the first time you don’t get them at all.
So there you have it. Forty things not to do during your divorce. This list is by no means exhaustive. There are plenty of other things you shouldn’t do during your divorce. Like right now, I just remembered that I failed to tell you that you should never discuss advice or strategy received from your attorney with other persons. That destroys the attorney-client privilege and the attorney on the other side is free to obtain this type of information in discovery. You don’t want that to happen so keep your personal matters personal.
I suspect you could probably name 4 or 5 other things in addition to my 41. Don’t do them either! Divorce is generally a traumatic and life changing experience. Don’t make it any more difficult than it already is.
Last week, I attended a CLE seminar on malpractice prevention. One of the speakers cautioned us about inadvertently creating attorney-client relationships. With that in mind, please read my disclaimer.