Divorce Items to Avoid
Jan L. Warner
If you are in the midst of a divorce case or you are even thinking about getting divorced, your actions from this point forward -- both socially and financially -- will be scrutinized beyond your wildest expectations. Talk about being in a goldfish bowl. Even the most innocent act may become the basis of unprecedented and expensive attacks in the court system. You can't do anything about what may have happened in the past. But from now on, you must provide a stable and systematic picture of your activities.
Not all of the following "Don't's" will specifically apply to your particular situation. But they should give you a practical idea of what you need to do, what you need to avoid doing, and what you need to watch out for when you choose to enter the arena of divorce and separation.
This guide contains some of the things I tell my clients. As with all of our information, the following material is not intended as legal advice, but, instead, as a practical guide to help you navigate through the system. Always rely on a qualified matrimonial lawyer to answer your questions.
What can't be negotiated or settled will be decided by the Court based upon the testimony and evidence. There are no hard and fast rules that you can look to in order to try to determine what result you will receive. Reconstruction of your marriage -- from start to finish -- should be your goal.
Just as you would be hesitant to purchase an automobile without driving it and finding out as much about it as you can, no lawyer can evaluate your case and give you advice without finding out everything available. There can be no "rush jobs" in family law as informed decisions must be made very step of the way.
The party who is best prepared is the party who should -- all other things being equal -- obtain the better result.
Don't rely on some of the commom myths that well-meaning people may tell you. None are even close to the truth.
"He'll never get that much visitation."
"Your divorce will be over in 60 days."
"The husband always pays the wife's attorney's fees."
"The father is always responsible for the support of the wife and children."
"There's no way you could lose your case."
"To prove adultery, one spouse must be caught in the act and there must be pictures."
"The wife is automatically granted alimony."
"The wife is automatically entitled to ½ of the husband's income and assets."
"All lawyers are alike."
"One lawyer can handle this for both of you."
Don't listen to friends and neighbors who "have been through it". You can't afford to gauge the result you feel you should receive on what friends and neighbors tell you happened to them. These comparisons - even assuming you get the straight scoop - are not reliable because, even with the same facts and the same presentation, two judges could give two different decisions on two different days.
Don't burn all the bridges between you and your spouse, especially if there are children involved. Trying to "keep your cool" in the emotionally-charged atmosphere created by divorce is easier said than done. But losing control will serve only to maximize insignificant problems and prolong the agony and expense of divorce. Try to direct your anger and energies toward such constructive goals as assisting in the preparation of your case.
Don't think that any lawyer is a miracle worker who can solve your problems overnight. This just won't happen. It has taken years for the problems in your marriage to come to a boil. There are no quick or easy solutions. A plan to solve your marital problems can be formulated only after you are informed and only after you are prepared.
Don't operate under the misapprehension that you will get everything you want. This rarely, if ever, happens. The lines of negotiation between your lawyer and your spouse's lawyer must remain open. If reasonable settlement cannot be made, litigation will occur.Don't take any proceeding before the Court lightly. The outcome of your case will be the barometer by which the success -- or failure -- of your future will be measured.,
Don't forget: Leaving aside all of the technical rules that govern court proceedings, the bottom line is that the Judge will use his common sense and discretion in making the decisions that will affect your future. This means that your credibility and conduct, the manner in which your case is presented, and the credibility and behavior of your witnesses, are all very important factors that will be considered by the Judge. A common sense decision must be based upon a common sense presentation of your case.
Don't turn down reconciliation efforts if you believe that good faith efforts are being made. But remember: "Reconciliation" is sometimes used as a ploy, a part of a strategy by the other side. So always talk to your lawyer before getting your hopes up and before attending any counseling sessions.
Don't discuss the progress of your case with your spouse or anyone else. To do otherwise may undermine your lawyer's work and be disastrous to you.
Don't threaten your spouse about how your lawyer is better and how well you are going to do. This will serve only to intensify already hard feelings and to reduce the possibility of settlement.
Don't make any statements to your spouse, third persons, even close relatives, which you would not want to be heard again -- in court. This can be very embarrassing -- and damaging to you.
Don't engage in extended conversations -- by telephone or in person -- with your spouse or third persons familiar with your situation. You must always assume that you will hear your statements again -- in court.
Don't operate under the false impression that what you say to doctors, counselors, or psychiatrists will not be repeated in court. They may be. And your medical records may be subpoenaed for the judge, the other lawyer, and your spouse to see. Ask your lawyer about what is privileged and what is not before you act.
Don't reveal to any third person, even close family members, any conversations or correspondence you may have had with your lawyer. By doing so, you may breach your attorney-client relationship, destroy the privileged communication that you and your lawyer enjoy in your professional relationship, and find yourself listening to your innermost thoughts in court.
Don't forget that any statement you make outside of court can be repeated as an admission against your interest in court.
Don't discuss with anyone the strategy of your case or any other plan of action which you and your lawyer may discuss. If experts have been hired to assist in the preparation of your case, don't discuss with anyone, even close family members or friends, any communications you may have with these experts. Again, you must assume that any statement made by you will be repeated in court.
Don't write any letters, cards, or other correspondence you would not want to see again – in court.
Don't put thoughts that you would not want anyone else to know about in writing – except as may be placed in your lawyer’s file for use in your case. If such documents fall into your spouse's hands, rest assured that they will be brought into Court and used against you.
Don't have personal discussions from or to mobile or portable telephones. You have no expectation of privacy and these calls can be monitored and used against you. It is probably best that you not talk to your lawyer on a portable telephone, and if you have to use mobile phones, the experts say that digital service is the most difficult to intercept.
Don't forget to keep a factual diary of daily events pertain to your marital situation. Documentation is essential and you may be allowed to use your notes to refresh your memory when you testify.
Don't make any long distance calls without understanding that you may be required to explain the reasons for your calls to a court.
Don't charge long distance telephone calls to your telephone or accept collect calls that you do not want anyone to know about. Even if you destroy your copy, the telephone company will be able to provide copies of your records for at least six (6) months prior to the date of any subpoena.
Don't purchase or secure from anyone any device that can be used to tap a telephone. It is illegal to intercept the conversations between two people who do not consent to the interception. The evidence obtained will not be admissible, and you may subject yourself to both criminal and civil penalties. You should discuss the ramifications of wiretapping with your lawyer.
Don't place yourself in what may be described as a "compromising situation". Any social relationship, despite its intended innocence, may place you in the position of explaining your activities. It may be misconstrued and used in an effort to discredit you, to attempt to secure a divorce from you, or to show fault on your part. And depending on where you live, fault may effect one or more important aspects of your case -- and cost you money and/or property.
Don't use cash for household expenditures, payment of support, or any other purpose. Your expenditures and needs will be thoroughly questioned, and you must be able to make a full disclosure of your financial records. Simply put, it is very difficult, time-consuming, and expensive to reconstruct cash expenditures. It is best to maintain good, legible, and up-to-date checking records or a financial ledger which can be provided to the Court.
Don't write checks to cash and don't write checks in even amounts to grocery or other stores. Your expense records should, in themselves, provide a complete resume' of the expenditures which you have been required to make.
Don't throw away receipts. If you must borrow money for any purpose, make sure the loan proceeds are deposited into your checking account and are properly documented both as to the deposit and the expenditure thereof. Keep your financial records in a safe place.
Don't hurry through the preparation of your expense budget. Make sure that estimates are marked as estimates. If you're not sure of a figure, say so. You will probably be questioned thoroughly about the your financial budget, so make sure you understand it.
Don't forget to get backup materials to substantiate your expenses. For example, instead of simply saying $900.00 per month as apartment rent, take the time to go to one or more apartment complexes, talk to the managers, determine the waiting period, if any, and get in writing from the apartment manager the exact amount of the deposit and rent which you will anticipate paying.
Don't think that what you receive you will have to spend or use. The tax-related aspects of your case are very important.
Don't be impatient. Take pride in yourself and in preparing your case. Remember that you are the integral part of your case, and just as you intend to rely on your lawyer's advice, your lawyer must rely upon your preparation to give you appropriate advice.
Don't sign anything until you have reviewed it with your lawyer. You will be asked to sign documents before a notary public. This means that you are swearing to its accuracy. If you're not sure it's correct, don't sign it until you are satisfied.
© 1996 – 2003, Jan L. Warner
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