Pro Se Party Wins His Divorce Appeal

Chancery Court can be difficult even for lawyers.  Things that appear insignificant can suddenly hit you like a sledge hammer on the pinky toe.  A party without benefit of legal counsel is at a significant disadvantage.  That doesn’t mean that self represented parties never win or the court disfavors them, but it is rare for a pro se party to succeed.

Dwayne Norris, representing himself, recently bucked the odds and prevailed in the appeal of his divorce case.  The facts underlying Norris v. Norris, NO. 2014-CP-00939-COA, are relatively short:

 Dwayne and Jacqueline were married in October 2008. They separated in May 2012. On June 20, 2012, Jacqueline filed her complaint for divorce on the ground of habitual cruel and inhuman treatment. Dwayne was served with the summons and complaint. Dwayne filed two pro se responses on July 17, 2012, and again on July 24, 2012, which the chancery clerk filed. On January 13, 2014, Jacqueline filed her notice of service of discovery to which Dwayne did not respond. Jacqueline filed her motion to set trial on March 11, 2014, and a notice of hearing set for April 9, 2014. On April 9, 2014, the chancellor entered an order that set the trial for June 5, 2014. The chancery clerk filed a certificate of mailing that indicated Dwayne was sent a copy of the order setting trial on April 9, 2014.  A trial was held on June 5, 2014. Dwayne did not appear. The trial was held in Dwayne’s absence. Jacqueline and Quinesha McCurdy, Jacqueline’s stepsister, both testified on Jacqueline’s behalf.. On June 12, 2014, the chancellor entered the final judgment that granted Jacqueline a divorce due to habitual cruel and inhuman treatment, changed her name, and allowed her to retain all property in her possession. The chancellor further awarded Jacqueline “$5,000 . . . as equitable distribution of the parties’ debt.”

Dewayne’s brief on appeal very colorfully challenged the sufficiency of the evidence supporting the $5,000 award with a few zingers:

She got the goldmine, I got the shaft.

The trial transcript reflects the lack of specificity and completely unsubstantiated estimations.

There are no defaults in divorce cases, and the defendant’s failure to appear should note provide a plaintiff with a blank check and abrogate the necessity of having an evidentiary basis for the amount of the judgment.

Because the appellant was not present to give his perspective on the factual circumstances, the wife and her attorney had the courtroom all to themselves, free to make assertions with impunity, representations without fear of contradiction, and to paint the vilest portrait of your appellant uninterrupted by objections.

This is like buying a pig in a poke.  There are no defaults in divorce cases, and the defendant’s failure to appear should not be license for a plaintiff to ring up the cash register without showing some evidentiary basis for the amount of the judgment.

The Court of Appeals sided with Dewayne:

Jacqueline did not introduce any documentary evidence to support her claim. Also, the record before us does not indicate that Jacqueline filed a financial statement, as required by Rule 8.05 of the Uniform Chancery Court Rules….Because we conclude that the chancellor’s findings are not supported by substantial evidence, we must also find that the chancellor’s award of $5,000 to Jacqueline was manifestly wrong.

Norris, at paragraph 12-13.

So what do we learn here?  Even if the other side doesn’t show up, put your proof in the record.  Don’t rely on guestimates.  Prepare a proper 8.05 financial statement and introduce it to support your request for an equitable distribution.

If you need to polish up on how to prepare a proper 8.05, take a look at Chancellor Primeaux’s 10 Tips For More Effective Rule 8.05 Financial Statements and his subsequent Five More Tips for More Effective Rule 8.05 Financial Statements.

Will the AshleyMadison.com data dump lead to divorces in Mississippi?

AshleyMadison.com is a website designed for married people to find a person with which to have an affair. Their slogan is “Life is short.  Have an affair.”  The bottom of their site contains what appear to be little awards claiming “Trusted Security Award” and “100% Discrete Service.”  Not so.

By now you have probably heard about the AshleyMadison.com (AM) data dump.  This story began back on July 15 when online security expert Brian Krebs reported that a group of hackers named the Impact Team had compromised the databases and proprietary electronic information of AM, its parent company Avid Life media and related sites Cougar Life and Established Men.

A little over a month later on August 18 the data dump started showing up around the web.  Various sites have popped up where you can search the database by email address including this one.  According to Joseph Cox at Motherboard, the Impact Group as now dumped another set of data that is roughly twice the size of the first dump.

The two AM data dumps come on the heals of yet another data dump at adult hookup site AdultFriendFinder.com a few months back.  Cheaters beware.

So how long will it be before the first client walks into a lawyer’s office in Mississippi asking for a divorce based on the AshleyMadison or AdultFriendFinder data dumps?  If it hasn’t already happened, it won’t be long.

Something to consider in your divorce case

There are endless things to consider when moving through a divorce case.  Which parent gets custody?  What is the visitation schedule?  What happens when soccer practice interferes with visitation?  Which parent gets to claim the child for tax purposes?  How much life insurance is enough?  While all of those questions must be answered there are other things that need to be addressed as well.

For one……what if there are pictures or digital images of the parties that depict scandalous behavior.  Maybe a picture of the wife naked or the police officer husband smoking marijuana.  It could be anything that one of the parties to the divorce doesn’t want getting out.

For years attorneys have inserted a provision in property settlement agreements that stated something similar to:

Each of the parties shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmarried. Neither party hereto shall in any way molest or harass the other, attempt to visit the other, or attempt to persuade the other to cohabit or dwell with him/her by any means whatsoever, and each party shall fully respect the rights of privacy of the other.

Does that cover a disgruntled ex-husband from forwarding pictures to a co-worker or the new boyfriend of his ex-wife?  Maybe.  With the proliferation of revenge porn sites it is probably better to handle the matter directly in the property settlement agreement or final judgment of divorce.

If there are specific pictures that are known to the parties, require each party to destroy the pictures within a certain time frame of the entry of the divorce.  Also, consider requiring the parties to agree that the pictures have not and will not be disseminated in the future.

New Year’s Resolutions

The New York Post relays some disturbing poll results released by AshleyMadison.  Apparently, the three biggest new year’s resolutions were:

1. Get fit;
2. Travel; and
3. Cheat on your partner.

Ashley Madison is a site dedicated to facilitating cheating.  Their slogan?  “Life is short.  Have an affair.”  97.324% of statistics are made up on the spot to support some point (including the 97.324% statistic).  My point though is that while Ashley Madison’s poll is hardly scientific, plenty of people will in fact cheat this year regardless of whether or not it was their new year’s resolution.

For those of you considering a fling, you might also want to consider limiting your sexting.  TDP reports those sexy pics you send your partner can end up on what are being termed “revenge porn” sites , “where spurned lovers post compromising photos of their exes.”  When I first started practicing law, divorce cases did not revolve around “social media.”  Facebook didn’t come along until 2004.  Now, there are very few divorces and no alienation of affection cases that don’t involve social medial and digital data to some degree.

Speaking of alienation of affection cases, Philip Thomas has a brief report of a recent $150,000.00 verdict in Rankin County, Mississippi.  I would concur with Philip that Rankin County has become a tough venue for these cases.  Given the trial record for the past couple of years, they appear to be tough everywhere in Mississippi and the verdicts can be substantial.

So much for the gloom and doom.  Now for my new year’s resolution———I will work to be a better husband, father and all around person.  Best of success to everyone (except the cheaters) in 2014!

Who gets to claim the child on taxes

 

I do not generally practice tax law.  That is to say, I wouldn’t begin to advise anyone of the tax implications of selling some inherited stock and reinvesting those proceeds in farm carbon credits.   It just isn’t my cup of tea.  However, tax law has implications for my clients in a few distinct instances that I keep up with.  First, taxability of judgments or settlements as income.  Second, taxability of confidentiality clauses in releases.  Third, tax consequences of divorce and property settlement agreements.

For my divorce clients, the typical questions involve taxes due to the division of a business, taxability of alimony payments, and which party gets to claim the children for purposes of the dependency exemption.  That brings us to the question of the day.

What if the parties agree and incorporate the following terms in a property settlement agreement:

[I]n 2003, and in odd numbered years thereafter, provided that she is employed and earning income, defendant [Ms. Phillips] shall be entitled to claim the parties’ two younger children, W[] and L[], as dependency exemptions on her income tax returns; and, assuming he is current with his child support payments as of the end of the year, plaintiff [Mr. Shenk] shall be entitled in 2003, and in odd numbered years thereafter, to claim the parties’ oldest son, M[], as a dependency exemption on his income tax returns. In even numbered years, the parties’ entitlement to the foregoing dependency exemptions shall be reversed, with plaintiff having two exemptions and defendant having one, again assuming that defendant is employed and earning income and plaintiff is current with his child support payments at the end of the year in question * * *.

 

The above provision certainly sounds like the parties have considered the benefits of the dependency exemption, but what if both husband and wife later claim the exemption for the same child and there is no Form 8332 (IRS form for “Release of Claim to Exemption for Child of Divorced or Separated Parents)?

According to Shenk v. Commissioner of Internal Reveune, 140 T.C. No. 10 (May 6, 2013), “[U]ltimately it is the Internal Revenue Code and not State court orders that determines one’s eligibility to claim a deduction for Federal income tax purposes…”

An individual is allowed a deduction for an exemption for each individual who is a dependent of the taxpayer for the taxable year.  Section 152(a) defines the term “dependent” to include “a qualifying child”. Generally, a “qualifying child” must: (i) bear a specified relationship to the taxpayer (e.g., be a child of the taxpayer), (ii) have the same principal place of abode as the taxpayer for more than one-half of such taxable year, (iii) meet certain age requirements, (iv) not have provided over one-half of such individual’s support for the taxable year at issue; and (v) not have filed a joint return for that year.

However, in the case of divorced parents special rules determine which parent may claim a dependency exemption deduction for a child.  Pursuant to section 152(e), when the following criteria are met, a child may be treated as a qualifying child of the noncustodial parent rather than of the custodial parent:

•  The “child receives over one-half of the child’s support during the calendar year from the child’s parents * * * who are divorced * * * under a decree of divorce”, sec. 152(e)(1)(A);
• such child was “in the custody of 1 or both of the child’s parents for more than one-half of the calendar year”, sec. 152(e)(1)(B);
• “the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year”, sec. 152(e)(2)(A); and
• “the noncustodial parent attaches such written declaration to the noncustodial parent’s return” for the appropriate taxable year, sec. 152(e)(2)(B).

The father in the Shenk v. Commissioner case above didn’t have a signed declaration so he certainly couldn’t attach it to his return.  As a result, the IRS disallowed the dependency exemption deduction and the child tax credit.  Then, because he didn’t have a qualifying child, his head of household status was disallowed as well.  If you enjoy reading Tax Court opinions, be my guest.  However, the 17 page Shenk opinion can be reduced to a single CliffsNotes styled practice pointer:

If a divorce case involves children, include a provision within the property settlement agreement that requires the appropriate party to execute and submit to the other party IRS Form 8332 on or before January 15 of each and every year.

On a related note, if a divorce case involving children does not resolve by agreement make certain that the judgment entered by the Court adequately addresses the dependency exemption and requires timely submission of IRS form 8332.  If not, a post trial motion should be filed.

You can find Form 8332 here.

Couple in divorce ordered to stop posting about each other on Facebook

Sounds crazy right?  Well that is exactly what happened in a Georgia case.  James Lacy and Emily Lacy were tied up in a contentious divorce and custody battle.  The fight poured over into Facebook.  According to James, his wife posted the following on Facebook:

 [J]udge [P]arrott and my dad ha[d] a meeting the week before our case and guess what you lost your kids.

Ouch!  Lets clarify a few things here.  First, it is never a good idea to speak with the judge about your case outside the courtroom.  Second, it is never good to have your father speak to the judge about your case outside the courtroom.  Third, it is never a good idea for a judge to discuss a pending case with the father of a party outside the courtroom.  Forth, if you, your father or the judge do these things, it is never a good idea to post about it on Facebook!  I don’t know if those contacts actually occurred.  If they did, the wife and judge may have other issues on down the road.

The judge obviously didn’t care for the litigants’ social media bickering and entered an order that:

restrained and enjoined [the parties] from posting matters about each other or their current litigation on Facebook or other social networking sites.

Rather than sit back an enjoy the peaceful quit of the restraining order, the father appealed on First Amendment grounds.  The Georgia Court of Appeals made short work of the father’s argument.  On page 26 of the opinion the Court found “a trial court can require the parties in a divorce proceeding to refrain from making derogatory remarks about the other before the children” and that there was no error in the social media restriction placed on the parties. 

These folks could have saved a ton of money if they would have just followed suggestion eight from 40….make that 41 things NOT to do during your divorce.  Don’t post stupid crap to Facebook or any other social media site.  

Everyone should know this common sense suggestion, but thanks to the Lacys we now have a reported decision to remind us and our clients.

Search terms……….Ask Randy

One of the features of WordPress is that I can see what search terms people use to arrive at my page.  From time to time I review those search terms because it helps me to determine what websurfers are looking for in my page and because they are often down right funny.

I have been collecting the search terms into a list and today I am starting an “Ask Randy” section.  It is a combination of Dear Abby, ask a friend and general legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  As always, keep this legal notice in mind.

These are actual search terms that someone sat down and typed into google.com or some other web search engine to arrive at my blog.

can i talk to my boyfriend’s divorce attorney

Sure and make sure you tell him that you want to be the first witness in the divorce trial.  While you are at it, ask him to tell you if there is anything you need to know about your boyfriend and to send you a letter with the divorce case strategy.  You aren’t his client and anything disclosed to you is open for discovery, but you need to know stuff, right?  I am kidding.  If he needs to know anything from you, he will contact you.  There is no reason to contact him.

my girlfriend sent damaging text messages to my childs mother

Find a new girlfriend.  If she is directing stupidity to the mother of your children, it will not be long before she directs it at you.

how to tell your ex husband you have a new boyfriend

Hallmark card?  No.  Unless you have children and the new boyfriend will be around the children there is not much of any reason to tell your ex-spouse anything.

what to do if you dont want a divorce but hate your spouss

Your hands are kind of tied.  Why be miserable?  Cut him loose and move on for the sake of sanity.

plaintiff lies

Yes, some plaintiffs lie.  Some defendants lie.  Big lies, small lies and medium sized lies.  Prove it to the Court and move on with your case.

what happens when a divorce goes to trial

The lawyers put on proof.  The parties generally take the stand.  While their lawyer is asking them questions, everything sounds great.  When the other lawyer asks them questions, the chair they are sitting it gets very uncomfortable.  Witnesses take the stand.  Some will tell the truth and some will lie.  The Chancellor may believe some or all of their truth and lies.  The Chancellor makes a decision.  Generally both parties end up unhappy to some degree because neither had a hand in crafting a solution.  This is why mediation is an excellent idea.

girlfriend during divorce

Bad, bad idea.  You are in the middle of a bad relationship.  Wait a while before starting a new one.

what to do if your husband wants to divorce you over just a few text messages

Realistically access the situation.  Is it really just over a few text messages or are there other problems?   There is a big difference between a couple text messages and a few hundred or a few thousand.  What was the content of the text message?  There is a big difference between a couple of work related texts and a couple that say “Meet me at my house.  My husband isn’t home, I am not wearing any underwear and want to…….”  You get the idea.

can i hide money from my exgirl friend

I would encourage you to hide money from ex-anythings.  She wasn’t your wife.

why pay medicare first from settlement plaintiff pays his medicare every month to insure his health care

Because there is a law referred to as the Medicare Secondary Payer Act.  Medicare is entitled to reimbursement for medical cost payments from your tort recovery.  Ask your lawyer to explain it.  There are books written about the subject.

can you use your spouses twitter in a court case for adultery?

Heck yes.  Twitter, facebook, myspace, linkedin, email or whatever are merely digital versions of documents.  Ask for them in discovery.  If you already have copies or printouts of their contents, keep them and turn them over to your attorney.

do you have to give notice to your ex wife when i decide to remarry

Not in Mississippi unless the divorce decree states that you must.  As a practical matter, you might want to mention it to your ex if you have kids.  Most divorce decrees have a “morals clause” or provision limiting overnight visits by people of the opposite sex unless you are married to them.

if you have a significant other during a divorce

Just don’t do it.  There is plenty of time after the ink is dry on the divorce.  You are in a divorce and that is a problem.  Do not compound your problem.

should you divorce if your husband put his hand on you

If I were a women (yes, that is a scary thought), I would be gone like the wind if anyone physically struck me.   You have to make your own decision rather than leaving it up to a google.com search.

do i need to ask my ex wife if i can have a dog

If you have children it wouldn’t be a bad idea to inform your ex that you intend to purchase a puppy and see what her reaction is.  If it is negative, you might want to consider if it is really worth the fight.  Likewise, if your children have allergies getting a pup might not be such a great idea.  Also consider the breed of dog.  A pitbull isn’t going to be popular with your ex or the judge.

should i delete wife on facebook during divorce?

Heck no.  Gather up all the info you can.  On a related note, don’t post anything to your facebook account except pictures of you and your children having a great, safe time.  No drinking, no skydiving, and no girlfriends.  You need to look like Ward Cleaver.

best texts to send during a divorce

None.  There are no best texts to send during a divorce.

during a divorce can a judge order you to hand over your emails and messages on facebook

Yes.  If you don’t want the judge to see it, do not write it or type it.  Simple as that.

can porn be used against husband in divorce

Yes.  Most anything that adversely affects the marriage or that could be detrimental to the children can be used against a party to a divorce.

can text messages be used in a divorce case in mississippi

Yes.  The problem is obtaining the actual text message.  Cellular providers do not keep the substance of the texts for a long period of time, if at all.  The number logs that merely show a text went from one number to another number on the other hand is saved for years in some cases.

does negativity piss off judge divorce

Yes.  Negativity pisses off everyone.  You don’t have to be Richard Simmons happy, but don’t be negative.

bringing your boyfriend to divorce court

Discuss this with your attorney.  Never bring anyone to court unless your attorney knows about it before hand and approves.  There is no way I would have a client bring a boyfriend or girlfriend to a divorce proceeding unless there was a dang good reason for doing so.  Otherwise, you are just giving the other side a witness to use against you.

can a divorce be revoked

In Mississippi, the answer is yes.  The process is not terribly complicated, but there is a process.

how to piss off your ex gf for putting you on child support

Don’t do it.  If your spouse gets pissed off, who is she going to take it out on?  Everyone.  This includes you or the kids.  Suck it up, put your big boy underwear on and pay the child support.  Regardless of what you think, it generally costs more to raise a child than what you are paying in child support.

when should you tell your children a divorce happened because of adultery

Probably never.  It is a matter between the parents.  No need to inform the children that “mommy is a tramp” or that “daddy is a dog.”

my divorce is not final and my husband got his gf pregnant is that adultery

Yes……..and your husband is an idiot.

can i get everything in divorce trial

Maybe, but generally no.   Mississippi follows equitable distribution.  It is not 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.

Other states have other property distribution systems for divorce.  For example, Louisiana has community property.  Some states have covenant marriages or contractual marriages which can determine the parties rights and obligations.

do i have to do what the judge says in my divorce

Yes.  As I have previously stated “do whatever the court orders you to do and do it until the court orders you to do something different.”

does gambling look bad for divorce

Excessive anything typically looks bad.  That goes for gambling, drinking, smoking, drug use, etc.  It also looks like you have excess money that could be used to pay more child support or alimony.

40……make that 41 things NOT to do during your divorce

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.