The Top Ten Divorce Mistakes

Santa Maria Divorce Attorney, M. Marshall wrote “The Top Ten Divorce Mistakes” for the Sacramento News and Review. Divorce is often an individual’s first significant brush with the legal system. Many are overwhelmed by what can be a complicated and thorny legal situation. Here’s how to avoid or deal with the Top 10 MISTAKES

MISTAKE 1: Believing your spouse will be nice and play fair

Reality: your Ex is bringing a knife to a “tickle fight”. Most people facing a divorce are emotionally vulnerable and upset; many are in a state of denial. I tell unsuspecting clients they need to protect themselves; and their common retort: “my spouse would never do that.” Welcome ashore from the Good Ship Lollipop! You need to look out for Numero Uno; and expect your spouse to do the same. Divorce court is an adversarial system; expect to take some punches (above and below the belt). It’s time to take off the gloves, fight smart and play for keeps!

MISTAKE 2: Having unrealistic expectations or demands in Divorce Court

It’s over. You’re not getting back together. Your Ex wants everything (and for you to burn in hell). Too many people enter divorce proceedings with unrealistic expectations and demands. Since finances, children, property, a business or retirement funds may be in dispute, a realistic evaluation of your options is essential. Focus on an outcome you can live with, explore problem solving and so everything possible to assist your attorney and maximize results.

MISTAKE 3: Not being fully informed; stupid questions get bonus points!

Many clients are intimidated by the legal system and even their own attorneys. Instead of asking questions, they accept everything on blind faith; resulting in unintended consequences. To ensure well informed decisions, I encourage my clients to pepper me with questions about their case, the likely outcome, or possible terms of settlement.

My relationship with a client is best when there is open and honest dialogue. I encourage clients to ask every question they can think of; legal, moral, financial, etc. I pride myself on an “open door” policy and am available to answer questions day or night. Family law is not a “9 to 5” business. I truly believe there is no such thing as a stupid question; especially when it comes to protecting and asserting my client’s rights.

MISTAKE 4: Playing hide the ball; or keeping your attorney in the dark

They are your priest in the court house…though some clients don’t trust their own attorneys; their only friend in the battle trenches. By withholding information about their personal history, future plans or financial assets, they’re handicapping their attorney.  Divorce court is an equal opportunity laundromat for airing dirty laundry.  Your Ex will paint a portrait of you Stephen King would admire. Fortunately in litigation, the truth always finds its way out. You need to present a clear picture of what your assets, liabilities, trophies, skeletons and motives are. If you want your attorney to do an effective job, they need to see the “whole enchilada.”

MISTAKE 5: Tomorrow, tomorrow: not getting representation soon enough

Many clients first attempt to handle their own divorce (commonly referred to as “Pro Per”)…. Yikes! The resulting damage can be extensive and sometimes permanent. People often make a mistake interpreting the law, or grave assumptions not knowing their rights. During these crucial times, ignorance is most definitely not bliss.

I have seen mistakes such as one spouse giving the other spouse his sole or separate property (i.e. the inheritance from his grandparents). His ex told him it was “community property” and “by law” she was entitled to half.  If he had legal representation, he would still have all of his inheritance! It kills him to see her driving away in the Benz Gramps paid for.

MISTAKE 6: Allowing your emotions to get in the way of your legal decisions

Many people going through divorce are emotional, frazzled and distraught. They are convinced beyond doubt their position is correct; and sincerely believe they are victims of an evil “Ex”. If you let your emotions gain control, rather than reason and logic, you will undermine your case. Be reflective rather than reactive. Emotional people tend to hear what they want to; and are often unable to articulate what they really want or mean. Level headed decisions always prevail.

MISTAKE 7: Expecting the legal system to be fair and the Judge to see things from your perspective

No matter your position or the strengths of your convictions, the judge can see the same issues in a completely different light, different than even your Ex’s perspective. Judges often rule on limited issues, not addressing the “Big Picture”. The bright glow of your halo, or your Ex’s dark horns, is not necessarily outcome determinative.  Your just and noble viewpoint won’t always prevail; at least not in its entirety. Learn to accept it! The more realistic and balanced your expectations, the better you can problem-solve and obtain the most favorable outcome.

MISTAKE 8: Letting “it” slide: complacency in enforcing Court Orders

Early in divorce proceedings the parties engage in all out war; personal attacks and outrageous allegations are the norm. Once emotions have cooled, the parties commonly express desires to “work it out”; they don’t want to be tied up in court proceedings. They are reluctant to enforce their rights or “rock the boat”. The Ex finally quit throwing things at your car; hence, the failure to enforce court orders timely. Lack of action may negatively impact your future rights or obligations.

The custodial parent lets the child move in with the other parent; then later demands the child’s return. The courts will generally enforce the status quo and leave the child with the “non-custodial” parent. In doing so, the court seeks to provide stability and continuity for the child. The parties must exercise and protect their custody and visitation rights, or else risk losing them. Once visitation or custodial rights are lost or limited, it is an uphill battle to restore them. This impacts not only the relationship with your child, but effects child support obligations as well.

MISTAKE 9: “The IRS is holding on line 2:”  Ignoring tax consequences

Divorce proceedings can present complicated financial issues involving:  assets, personal property, real estate, trusts, estates, retirement money; all of which have tax implications. Clients with significant assets should consult their financial adviser or C.P.A. to counsel them on tax consequences before entering into any Divorce Settlement Agreement.

MISTAKE 10: Be an asset to your case, not a hindrance

Your goal should be to do everything in your power to assist your attorney in presenting your case, and achieving your desired goals. Clients caught up in the moment do really dumb things, sometimes impacting their freedom (jail) and restricting access to their children. In the early stages of a divorce people really need to put their emotions in check.  I routinely advise clients, “keep your hands and your mouth to yourself”.  “I wish I wouldn’t have…” doesn’t bode well.

Overly emotional clients are often “needy,” calling up to a dozen times a day. I typically do not keep track of phone calls and don’t charge them to clients unless I get multiple phone calls in a single day. Write down your concerns, and address them all in a single phone call. This allows a certain amount of personal assurance without negatively impacting my available time (or the client’s retainer). I strive to maximize results, while minimizing litigation costs.