Top Twelve Mistakes People Make When Facing Divorce
Going through a divorce can be one of the most stressful things that can happen to anyone. In times of stress, people make mistakes, even with respect to things that they know well. When dealing with things that are not well known, like proper legal strategy, it’s no wonder that divorcing parties make such serious mistakes so often.
When it comes to mistakes people make when going through a divorce, the challenge is not to come up with a list of 12, the challenge is how to limit the list to 12.
1. Not understanding “divorce code”
Often, though not always, a discussion or two happens before a divorce gets filed. During some of these discussions, one party may be talking in a “code” that the other doesn’t understand. The code-talker says things like, “I still love you…I’m just not in love with you.”
If you end up on the receiving end of this type of statement, it would be wise to realize that what that may mean is, “Oh, I’m definitely planning on filing for divorce, I just haven’t done it yet because my boyfriend hasn’t bailed on his wife yet. I’ll file as soon as it’s convenient for me.”
2. Hesitating when you know that a divorce filing is imminent
Litigation and bar room brawls have some things in common. One is: If you know you’re about to be in a fight, hit first. In a bar, that strategy may keep you from lying unconscious before you ever get to defend yourself. In litigation, filing first allows you to be the petitioner.
If your case ends up in a trial, the petitioner gets to take the stand and tell his or her full story, before the spouse gets to say a word. Think about how important first impressions are, and you will realize one of the many advantages this provides. Moreover, in closing argument, the petitioner gets to talk both first and last. Once again, given that litigation is all about convincing a judge or jury of the correctness of your position, these types of advantages can make or break a case.
3. Trying to appease the other side
Appeasement rarely works. That’s simply reality. If a spouse has gotten to the point that he or she is seriously planning a divorce – or worse yet, has filed – trying to win back their favor by giving in to all their requests, can make the situation go from bad to worse. Often the party planning the divorce tells or asks the other to move out of the house or agree to let him or her move out of state with the children. Making or agreeing to any drastic change when a divorce is on the horizon can have devastating effects that can last a lifetime. When faced with demands or requests, and a divorce looks imminent, you need solid advice from an objective expert, not a friend or family member.
4. Not reading the paperwork carefully
The paperwork that gets filed at the outset of a divorce is not particularly complicated, but it definitely is not like anything that most people read on a regular basis. Often, people will get served with a petition and temporary restraining order and believe that they have been kicked out of their house, prevented from speaking with their spouse, or prevented from having any contact with their children. Rarely is this the case. In short, except where extreme facts have been alleged – family violence, for example – and the request has been accompanied by a sworn affidavit, the court does not have the power to order anything but fairly basic things until both sides have had an opportunity to be heard. Read the paperwork carefully, and distinguish between the things that are being requested and the things that have been ordered.
5. Hiring an incompetent, uncaring, or unethical attorney
Attorneys, like members of every other profession, can be good or bad. The things that make an attorney bad come in three basic areas – competence, concern, and ethics. Given that a family law will have your life in his or her hands, it’s not hard to see how having an unethical one can be catastrophic. If you have any reason to believe that the attorney you are contemplating using is unethical, run!
Concern can be judged in various ways. If an attorney is inaccessible without an apparent, valid reason, it’s possible that the reason is simple: he or she doesn’t really care about what happens to you. In many areas of the law, there are no real emergencies that arise. In family law, they arise all the time. Find someone that is responsive and cares.
The competence of a lawyer can be hard for a layperson to judge. The major components of attorney competence are education and experience. The ability to think, speak, write, and strategize are all important in proper representation. When considering the qualifications of an attorney, look for genuine measures of ability, rather than manufactured indicia.
6. Thinking Temporary orders are temporary
It comes as a surprise to many people, but the reality is that when you are going through a divorce, the Judge has almost complete power over you, your property, and your children. One way in which this power gets exercised is through the use of something called “Temporary Orders.” Although the title does not suggest that these orders are ominous, in fact, they can strip you of significant rights, time with your children, and money. Moreover, they can stay in place for years. Don’t agree to something in temporary orders, believing that temporary means “of reasonable length.”
7. Listening to your friends and family
Just as in any crisis, family and friends can be invaluable when going through a divorce. The problem arises when family and friends with no legal training in family law attempt to direct your actions. Often, the advice is based upon what they believe happened to them or other friends of theirs. One of the first problems with the advice is that it is often based on a misunderstanding of what actually happened. Many divorcees will talk at length about what the Judge “did to” them, when in fact they signed an agreed decree of divorce, and the Judge never heard one piece of evidence or made one ruling.
The second problem is that it’s difficult for experienced family law attorneys to predict the result of certain conduct during a case – it is all but impossible for someone with no legal training to do so.
8. Not realizing that everything you do is being watched and/or recorded
Anything you do or say in public is documentable. You can be recorded, videoed, or photographed anytime you are in public. When in the midst of something as emotional as a divorce, it is fairly easy for one party to goad the other into losing his or her temper. Amazingly, the goading never seems to be recorded accurately, just the response. Remember to walk away, and don’t let yourself get put in a situation in which you will react in a way that will be perceived as improper by someone that doesn’t know all the facts or see it from your perspective.
Just as anything you do is documentable, anything you write, text, email, or post on social media is discoverable and admissible against you. Don’t post anything anywhere about your spouse, the Judge, the opposing counsel, your spouse’s family, your witnesses, your spouse’s witnesses, etc., etc. Furthermore, don’t write anything when you are angry, irritated, frustrated, intoxicated, depressed, excited, happy, etc., etc. Generally speaking, the less said the better – talk to your attorney and let him or her do the writing and speaking for you.
10. Acting on assumptions
Our legal system has evolved over 1000 years. There are mechanisms and protections in place that allow you to seek discovery of any relevant fact. Making assumptions about your spouse’s motives, actions, or inactions with respect to your money or children can be extremely dangerous. Allow your attorney to discover the truth before you act on what you believe the truth to be.
11. Signing a waiver instead of filing an answer
Not all waivers are created equally, but with certain waivers that are presented to respondents in divorce, once signed, very bad things can happen with no advance notice. Filing a simple answer entitles the answering party to notice of any hearing that is scheduled. If you decide to sign a waiver, at least ensure that it states that you want to be notified of any hearings that are set, and that no orders should be signed without your approval.
12. Not being candid with your lawyer
Everyone has things in their past that they are not proud of. It doesn’t matter if the worst thing you have ever done is lose your temper at a little league game or snort cocaine in a church parking lot, you need to tell your attorney about anything and everything that your spouse will claim you have done or said that he or she will characterize as negative. Not telling your attorney about something will not keep your spouse from bringing it up, and you don’t want your attorney to first learn of the allegation during a hearing or trial that may decide the rest of your life.
So there you have it – the Top 12 mistakes people make when facing divorce. The best advice is if you can avoid a divorce, avoid it. If not, then try your best to get through it without making one of the critical mistakes people make that cost them sometimes ridiculous amounts of money, or worse yet, irreplaceable time with their children.