When you are going through a divorce, it is important to have friends and family around to support you. This will be an emotionally devastating time, whether you initiate the divorce or your spouse does. Even if you know it is the best possible path, it will be a very difficult time.
You need friends to talk to, to vent your feelings to, to keep you grounded. If you have children, friends will help as a buffer to make certain you don’t take your frustration (there is always frustration) out on the little (or not so little) ones.
And friends like to help. They want to offer advice, to ease your pain, to help you with the transition. Some have gone through divorce themselves, other have family members or friends who have been through it. They will share stories and ideas and legal advice with you.
Listen carefully to them. They do this out of love and a sincere desire to help you.
Then ignore everything they say. Well, sort of.
More divorcing people have gotten into more trouble by following the well-intentioned advice of friends, family and therapists than can be counted. In my experience I had a client who lost custody of her children because she listened to advice that her therapy group gave her over my advice, and we had to fight for months (at a cost of thousands of dollars) to get custody back.
I have spent uncounted hours trying to undo the damage caused by clients acting upon loving advice from friends or family who knew a lawyer who said they should do this, or whose cousin Bob who just went through a divorce and he said they should do that.
The thing is, each divorce is different, with a different set of facts which differ from cousin Bob’s divorce. There is no telling if your friend is actually relating what this hypothetical lawyer said accurately, or if that lawyer understood the facts, or is even a family law lawyer. Each county is different, with different judges who have different approaches to the law, which is one of the reasons you want to pick a local lawyer who knows the judges and the way the courts work in your jurisdiction. A Bench Bar in Marin County is completely different from a Bench Bar in Contra Costa County.
Understand that your friends are trying to help, and that is a wonderful thing. Listen to them, thank them, then discuss any ideas you think are worthwhile with your attorney. Most of the time your attorney will explain why that idea, while it may sound good, is not practical. They turn out to be like Hansel and Gretel’s gingerbread house – appealing on the outside but not so great when you look into it.
But there are also times – maybe one out of fifty – when a friend has suggested a really good idea to a client that made me go, “Hmm. I hadn’t thought of that. Good idea. Here’s how we can do that.” It happens a couple times a year, and a good attorney takes ideas where they come. The important thing is to share them with your lawyer before you try to implement them on your own.
This is why you want to work out with your attorney some ground rules on billing and communication from the start. I never want my clients to feel that they cannot call or email or text me because I will charge them like some attorneys (text message: “has the other attorney called yet?” “no” ka-ching! $42.50!) I’d rather you feel free to run ideas past me without worrying that I will charge you. You will pay enough for the big stuff; you shouldn’t be nickeled or dimed for little questions (“my friend said … Is this true?”).
There is one source other than your attorney who will be a font of good ideas in your divorce, who knows the facts and will come to understand how things work – you. You will become an integral part of the team and will provide ideas working with your lawyer as you proceed. You want to find a lawyer who will listen to you as well as talk at you.
So enjoy the benefits of good friends who want to help. Be thankful that they care enough for you to give their advice and counsel, and are there to support you. But understand that their well-intentioned advice may not be the best help for you legally, and may actually hurt your case and interfere with your lawyer’s representation if you try to implement these ideas on your own (what is known as “self-help”). You never have to tell them this, just express your gratitude and say you will share their thoughts with your lawyer who is always open to new ideas.
Several years ago I had a client who was normally very careful about such things. Her phone was password protected, as was her tablet. Ditto her laptop. She had changed her passwords after starting her divorce. Then one day while her ex was picking up the kids she set her phone down on the kitchen counter after using it and, before it shut off, turned away for a few moments. Her ex grabbed it and bolted away. He forwarded email to his email, including some pictures that were… incriminating… as well as email he shouldn’t have seen.
It created real problems in a nasty custody battle that took months to undo. All because of a moment of what really cannot be called carelessness. Who would have thought he would grab her phone in the few seconds before it shut off? It created a great deal of heartache and embarrassment as well as legal trouble. He was a supreme jerk, but I’ve added this to my list of warnings I give to new clients.
Spouses often do not realize how much their partners know about their online accounts. Your ex may well know your regular passwords, and even if you open up a new bank account, if you’ve used the same password and login (“SuZZYQ1234%”, “Yosemite!1993”) for everything since 2003 they may be able to access every new account you open. Sometimes if they inherited the computer it will have conveniently stored your passwords and will fill them in for them, allowing them access after you leave to bank accounts, email, social sites, even Netflix. Creepy AND potentially disastrous.
When you separate from a partner, you need to make a serious break with the old. Get a new email account (there are plenty of free ones available, from Gmail to Yahoo to your internet provider). Choose login information that you’ve never used before. Use the lock codes for all of your electronic devices, and keep an eye on them; get in the habit of shutting them off when you use them rather than setting them down and letting them shut off on their own.
Be cautious about tweets, emails and social site postings. Divorce lawyers view these as gold mines. That funny picture of Dad passed out at a party with a bottle in his arms his buddies took is great for laughs but the judge may not find it so funny in a custody case. The picture of you cavorting with two brawny young half-naked youths half your age may not be probative but may be prejudicial and you can’t make the judge’s mind forget what her eyes saw.
I have had clients defend their incriminating Facebook pictures by saying “I unfriended my ex and all her friends. No way she will see these pictures” That doesn’t mean some well-intentioned friend won’t pull a picture and send it to the ex in an effort to gain revenge for you and say, “See how much fun my buddy is having now that he is free from you?”
The rule of thumb in any family law proceeding is that you must be prepared for the judge to see anything that you post online, tweet, email, Snapchat, etc. These digital communications give us the dubious option of immediate communications and sharing universally that which previously would never have happened, as the time it would have taken to put us in the position to share (and the limited circle of friends we could share it with) would have either given us the wisdom not to share it or would have limited the damage. Showing a picture to some friends to laugh about at work is not the same as posting it online where millions can copy and preserve it forever (and show a judge…).
By the way – the picture of the guy passed out drunk posed with the bottle by friends on his Facebook page? I used that in a child custody case quite effectively.
One of the least understood aspects of divorce – by folks going through it and frankly often by their attorneys – is the “fiduciary relationship.” From the Latin (fiduciaries) meaning confidence or trust (this is why I can charge the big bucks – I can Google), a fiduciary relationship begins with the marriage vows and ends with the judgment (although it can be extended in some ways by an agreement at judgment, but that is a post for another day).
In practical terms, what the fiduciary relationship means is that the divorcing parties owe each other during the divorce the highest level of good faith and fair dealing – pretty much the opposite of what they are generally feeling like giving each other.
Generous quoting from Family Code section 721 is best to illustrate:
721. *** (b) [S]pouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in … the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property.***
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.
Remember again that until judgment in a divorce you remain spouses. No matter how you may refer to your former better half as your “ex” during the divorce, you remain married and this law remains applicable.
What does this mean?
You cannot hide your assets. You cannot keep your spouse from learning about your finances. You have to provide documents when requested in discovery. You have to provide (within reason, but broad reason) bank statements, credit card statements, retirement account plan information, etc.
If you are living in the community property house during separation, you have to keep the other party apprised of all developments relating the house. Get a notice from the lender about a change in the interest rate? Send your spouse a copy. The property insurance rate increases? Your spouse needs to get a copy of that. Termite inspection failed? Send them a copy.
It is amazing how often spouses are resistant to producing things like bank records and credit card statements when asked in discovery (formal requests or demands for documents you have 30-45 days to produce certain documents). Today judges know that it is simple to obtain copies of statements online; many banks allow you to download copies of statements going back 2 to 7 years in minutes, often with copies of checks included.
The same is true with utilities, cell phones and land lines. What used to be a process that took weeks of communicating with providers and banks for hundreds of dollars can now be accomplished online in an hour or two at no cost and then be provided to the other side on a cheap USB drive or cheaper CD.
Yet many times I am faced with other parties who fail to respond in time or at all, or who provide only partial responses. This can lead to expensive litigation (a motion to compel responses) and the non-responsive party being ordered to pay the costs of the moving party’s attorney fees as well as their own to defend against it. I recently was awarded over $8000 in fees when I prevailed in such a motion; I imagine the total cost to the other party was well over $10,000 simply because she did not respond to requests for bank and credit card statements she was eventually forced to produce.
And while you may believe you are protected by some constitutional rule of privacy, you must provide your recent tax returns as well. (Fam. Code § 3552.)
Worth mentioning is the automatic temporary restraining order (sometimes referred to by attorneys as the ATROS) on the back of the summons served with the divorce petition. This is a powerful protection of the parties’ rights which also reflects their fiduciary duties.
In addition to prohibiting removing minor children from the state without prior written permission of the other parent, it prevents BOTH parties from:
- cashing, borrowing against, changing or canceling insurance policies
- transferring, concealing, disposing, selling, etc., real or personal property
- creating or modifying a nonprobate transfer
The bottom line is that there is nothing to be gained by attempting to hide the ball. If you attempt to hide assets, or try to stubbornly refuse to cooperate with providing documents that you are required by the code specifically or your fiduciary duty in general to produce, you will be forced to do it at a greater cost in the long run.
Years ago, a small business owner claimed to the judge in one of my cases that he did not keep sales records. The judge point-blank told him she didn’t believe him, and that at trial she would probably end up penalizing him. The end result was that my client, rather than get some small cash payout that would have ended his pain, ended up equal partners in his business because he refused to provide simple documents.
Don’t be afraid of the facts or try to hide them, because they will come out whether you bring them out or the other side does. You want to bring them out so you control how, where and when. You have to trust your attorney to take your facts and accomplish your goals with them and your spouse’s facts.
Rarely have I found that my client’s facts were so bad that I could not achieve our goals in spite of them. Using sunshine and full disclosure while the other side tried to hide and play games often gave us the advantage with the court that allowed even inconvenient facts to work to our advantage.
When in doubt, deal in good faith.
Wow, what a concept!
Years ago at a family celebration, after observing me with our four-year-old son, my aunt said to me, “You’re JR’s primary caregiver, aren’t you?” After I got over a seventy-something woman using the term “caregiver,” I was surprised that it was so obvious.
My wife and I are partners, but with our youngest boy I have always been the one who took the lead. I was the one who instantly woke up when I heard him call out at night, or heard the thump two floors above during the day. He was a sleep walker, and I would wake from a sound sleep hearing his door open. I changed countless diapers. I did the early morning feedings and changings. He brought his new creations to me to show. I went on all the school field trips, and until middle school was always the parent involved (my wife took over in middle school, where she became a force to be reckoned with in the PTA and fund raising). I fixed his boo-boos. He still cries on my shoulder, not mom’s (I won’t embarrass him by giving his age now). I had the luxury of working from home so was always there for him. I sang him to sleep and calmed his nightmares.
Yes, dads can be primary caregivers, even for young children. I’m living proof.
There was an ad campaign in 1968 for women, linked with images of women’s progress that proclaimed, “You’ve come a long way, baby!” Unfortunately, it was for a cigarette for women. Looking back over 40 years later we know that women have certainly come a long way from the roles that they were expected to perform and limited to through much of history.
Yet stereotypes about roles men and women fill in life remain, and these stereotypes impact how the rights of fathers are mishandled by lawyers and the courts today. There still remains enough reality to traditional roles to support this prejudice, however, making it more invidious.
In our “enlightened” society too often fathers are still seen in the role of secondary caregivers for children, particularly young children. There is a bias in many courts that young children especially need to spend the majority of their time with their mother who is “better suited” to care for them.
Like many stereotypes, this one has a basis in reality. Frankly, most dads in my experience are willing to let mom handle the majority of the child raising responsibilities while dad takes care of his work and starts his new life, integrating the kids on his schedule. This is true whether mom works or not.
If you are a dad who will be content to have mom take care of the kids most of the time and you will have them a night or two a week and every other weekend and alternating holidays, then read no further.
If you are more concerned about the time the court assigns you for support calculations than actually being involved in raising your kids, most attorneys can serve you well.
You will find that this is what the courts and most lawyers will produce almost by rote.
But if you are a dad who wants to be actively involved in your kids’ lives, who doesn’t want his gender to be the dominant factor in the court deciding who the primary parent should be, then read on.
Recognizing that there is a bias against you is a start.
American culture actually celebrates bias against fathers. Watch TV on any given night. Start with the commercials, then move to the “family comedies.” In most depictions in ads or comedy, dads are buffoons or befuddled. Kids know so much more than out-of-touch dads. Moms are practical and work around the impractical dad to hold the family together and make everything work.
My father first pointed this out to me over 30 years ago. It’s not anything new.
What does this matter for your divorce? In a culture steeped in disrespect for fathers, there is an unthinking prejudice, an unconscious bias against dads that people bring with them to their daily decisions.
Replace “dads” with any other group. Would advertisers feel that they could successfully market their products by making fun of how stupid and impractical mothers are? Or replace dads with specific minorities such as African Americans or Native Americans? The disabled? Muslims? Jews? Hindi? Would these groups be caricatured in the same way on such a regular basis with no backlash or outcry?
The fact that American society tolerates such a stereotype and it apparently sells products (why else would it be continued for decades?) means that it is an accepted archetype.
Dads (of every race, color and creed) are somehow less competent than moms. Dads don’t fight back. We grin and bear it. Ha ha. Very funny. And we buy their product after they insult us.
Men are not necessarily less competent than women in other areas in life in commercials or comedies. These same dads may be shown coming home in a nice car to a nice house to a mom who appears to be a homemaker – so he is apparently financially successful. But as a dad he is less competent than the mom.
Our culture also celebrates the “single mom” but rarely the “single dad.” The single mom is honored by politicians and other public figures, in TV specials and by song and movies. To be sure, many (most?) single moms face special challenges, often caused by “deadbeat dads” who neglect their duties and responsibilities as fathers. But those dads are not you, and you should not be demeaned, overlooked or tarred by the brush of their irresponsibility.
The title of “single mom” which is bestowed on any mother in divorce who doesn’t instantly remarry after judgment should not influence the court any more than your title as “single dad” does. You face your own unique challenges, some shared with mom, some different but just as daunting.
No judge is going to articulate this to you. No attorney, on your side or opposing counsel, will make this argument. But it lies underneath your entire case.
You had better understand it. This is the elephant in the room, the cultural bias you must overcome if you want to effectively assert your rights as a father and win the time with your children that you want and deserve.
Dads are not as good at raising kids as moms. It’s built into our culture. It’s an assumption that underlies decisions made by judges every day in courts across the state of California.
And it’s nonsense!
You need a lawyer who understands that and rejects that bias, who will fight for you to win the custody rights you want and deserve.
Now – how do you go about doing that in your divorce?
Recognizing that there is a cultural bias against dads, which cannot help but seep into the subconscious of lawyers and even judges, your next step is figuring out how you deal with the problem.
I’ll list some steps, not in order of priority or even execution; they are all part of a cohesive plan you need to consider. Whatever stage you are in the divorce process (thinking about it, filing on your own, just got served, have a lawyer, have a lawyer you are unhappy with, have been handling divorce on your own and realize you are in over your head, etc.), here are the essential steps:
1. Locate and retain the right lawyer who understands your desires and needs as far as your kids are concerned, and who will fight for your rights
2. Document, document, document
3. Plan your life around your kids and work
Again, depending on where you are in the process, the order you do these will vary. You may start with 1 and work through them in order. Or you may start with 2 and 3 simultaneously and then move on to 1, and so on.
I’ll address them in numerical order, but you have to use them based on your own life situation.
1. Locate and retain the right lawyer who understands your desires and needs as far as your kids are concerned, and who will fight for your rights
There are a lot of fine family law lawyers out there (and a lot of terrible ones). If you are a dad who really wants to maximize your time with your kids because of a deep-seated desire to be a part of their life rather than wanting to minimize the amount of child support you pay, you want to be careful how you approach hiring your attorney.
Most attorneys who have been practicing family law long enough to become competent (10-15 years) become somewhat jaded. Their experience is that most working dads want to minimize child support while having some quality time with the kids, generally on weekends and maybe one or two nights a week. They want some time in the summer and alternating holidays. They are “Disneyland Dads” who want the fun times without all the worries about homework and driving to and from soccer practice and sitting up with sick kids and clothes shopping and getting them up and fed and to school.
This fits a lot of dads, who have gotten used to mom taking care of these things while they work during the marriage. Even in families where both parents work, here in the 21st century this stereotype often still holds true. I’m sorry, feminists and emos and enlightened males, we’re still not that far from Ozzie and Harriet in terms of traditional roles in a lot of cases. If you want to break that mold, you have to step up your game and show the Court you can handle it.
It is a system of role models that harkens back to when Og left the cave hunting each day while Ug stayed with the little trolls. We say how far we’ve come but that model still persists with variations a good majority of the time. It’s the major reason we have to fight against the bias in the court system.
And lawyers see it most of the time with their male clients, so they aren’t necessarily sensitive to the dads who want more, and are not skilled and prepared to fight for them.
How can you spot a lawyer who truly understands you and your desire to be more than just a Disneyland Dad?
Tell your story and see how they respond.
One of the major ways to choose your divorce lawyer is how you emotionally connect, because this is a person you will be exposing to the deepest personal parts of your life. You will need to trust her or him and they will need to trust you. You want to be confident in their intelligence, skills and experience, but also need to be able to relate to them.
Don’t be afraid to explain what your children mean to you, how important they are to you, and how much you want them to be in your life. Explain how you want to make them a priority.
Moms do this all the time. They will come in and say “I don’t care about the money, all I care about is the children.” They are wrong, whether they know it or not (money is always important, if only to provide for their kids), but it’s a common theme I hear from moms.
Not so much from dads. Even when the kids are very important, they come in and their spoken concerns are almost always all about money first, about how much this will cost, about what will they end up paying her.
Before you meet with lawyers, get your priorities straight. Money is huge, no doubt about it. But your kids are… huger. Lead with your kids, and see how the attorney reacts.
If they are puzzled, then they probably aren’t for you. If you see a spark of understanding, if they nod and express some agreement or understanding, then you may have found someone who will be as dedicated to getting your result as you are.
Explain what you are able to do with your work and life schedule, and what you want out of custody – joint legal and physical, half time with you and mom, how you can make this happen. Go in with a plan (more on that in point 3). See their reaction. See if they come up with ideas on the spot to make your plan better or acknowledgement that they can make that plan work for the judge.
If they tell you that the courts rarely give joint physical custody, that your kids are too young, blah blah blah, you probably don’t have someone who will fight to get you what you want. A dash of caution, an acknowledgement of the bias is OK, a bucket of cold water is a flashing warning sign. Better to move on and interview some more lawyers to find a better advocate for you and your kids.
2. Document, document, document
This is critical to all phases of your divorce, but parents often don’t think about it with their children, or may even think it is tacky. If you are separated, or even if you are not, you should keep careful records of the time you spend with your kids.
This may prove critical in supporting your claims that you are a primary caregiver or co-parent. Given the court’s natural tendency to assume that the mother does most caregiver duties, especially for very young children, keep a record (it can be hand-written on a calendar, or recorded on your phone or tablet or computer, or in a binder – however is most convenient) on a daily basis of what you do with your kids.
Record as much detail as possible.
Got kids up at 7
Prepared breakfast and lunches for school
Drove to school
Took late lunch, picked up from school 2:45, took to sitter
Suzy had bad cough, left work early took her to Urgent Care 4:30
I’ve had very good luck with toddlers and even infants with neglectful mothers when dads have kept logs of neglect and their care:
Jan 20 Sharon showed up on doorstep with Clara, said could not care for her asked if I could take her for now
Feb 12 Sharon only visited Clara once since 1/20. Clara eating regularly now. Rash cleared up. Wearing proper size diapers now, was in too small when dropped off. We read every night. She points to words and I read and she laughs.
Feb 15 Took Clara to nurse practitioner friend for checkup. Completely healthy.
Feb 17 Have been able to rearrange work schedule so Clara always with me. Everybody loves Clara, many “aunts and uncles” to look after her in her play area when I have to step away
Record events, times you spend with them, the mundane as well as the big deals. You want to show that you help with the homework, not just the trips to the amusement parks. You want to record the dentist trips, not just the movie nights. Driving them to Staples to get the poster board for the science fair is probably more important than the amusement park.
Also note where you’ve been flexible, covering for mom when she asked. Flexibility whenever possible is important, not only because it is a reasonable thing to do as a parent, it helps your kid out, and it looks good to the court, but you will need it yourself at times and you don’t want mom to say “Remember when you said ‘No’ when I really needed you? Payback is a bitch.”
Judges want to see mom and dad acting like adults, setting aside their personal animosities that generally accompany divorce to work together for the sake of the children. If you can demonstrate that, even if she cannot, you stand a better chance of getting what you want from the judge. Document that as best you can, as often as you can.
Keep a file of events, pictures, handwritten notes, copies of permission slips, programs of field trips you went on, etc. Take pictures of documents on your phone or tablet if you need to. If the kid comes back from a visit with mom and she is incredibly filthy, take a picture. No scanner? Take pictures of permission slips, etc. Be prepared as much as possible to show how active you have been in the kid’s lives, so when the judge says, “You’re a busy man with a job, how can you have half time or more with these kids?” your lawyer can pull out the documents and say, “Here’s how, your Honor.”
3. Plan your life around your kids and work
If you are still reading this, you are either really into pain or really love your kids and want to be a big part of their lives going forward.
That will mean setting priorities in your life, with work and your kids coming first. You may have a significant other by this time (who may even be the cause of the divorce), but at least for the divorce proceedings you need to work with them to understand that they will need to make some sacrifices and fit into your twin priorities of work and kids.
If your kids love your new partner, this may not be a problem. If you are wealthy and work is not an issue, again your partner may not be a problem.
Often, however, there is at least some friction between a new love interest and children. It can be a real test of a relationship to see if your new love is flexible enough to understand that your kids must come first for the time being. Your new partner, as the adult, must be the one to make accommodations, not the children. And you want to keep your new amour out of the picture and unmentioned with the Court wherever possible. Generally if they get mentioned in a court proceeding it doesn’t help you.
The harsh reality is that your kids will always be your kids. You cannot be certain how long your partner will be with you. Your divorce tells you something about the permanence of romantic relationships…
Hopefully your partner will understand and will be able to adapt. Hopefully it won’t cause much of a disruption to your life. But it is a factor to be considered. I won’t lie to you.
To be more than a Disneyland Dad you will have to juggle work and kids. You will have them during the week, will have to figure out how you will get them to school or daycare some days, pick them up, deal with homework, provide rooms and sleeping arrangements, etc. Your cool bachelor pad will be a nursery or a hangout for noisy, messy teenagers or the rumpus room for a bunch of visiting toddlers. Where you may have only been an observer in the past you will be performing all of the duties without a net.
Your Friday date nights will be spent sitting at home waiting for that guy with the tattoo to bring Charmaine home by 10. Your Saturday golfing will be working on the volcano for the science project. You chose this. I think it’s wonderful. Hopefully you will, too.
You’ll have to figure out how much and where possible work can bend. Is flex time possible? Can you work from home at all? Shift your hours? Work longer shifts when you don’t have the kids? Does your job even lend itself to that kind of change?
If it doesn’t, how do you plan your schedule with the kids? The judge will not be happy if you have to wake the kids at 4 AM to get them to a sitter so you can catch a commuter train to Sacramento. You will be asked, why not have them stay with their mom instead during the week? You’d better have a good answer. “Because I don’t want to pay more child support” is not a good answer.
Your answer will always have to take the best interest of the children first, and your desires and needs a distant second.
A good lawyer on your side can work with you to craft a plan to get you what you want and will then fight for you. They will understand that it is an uphill battle against the bias and prejudice of a society that underestimates how dads can be just as successful as primary caregivers as moms, even for young children.
A good lawyer will be your advocate for you as Father of the Year. You want the judge to see you as Father Knows Best, not Homer Simpson.
In real estate, as the saying goes, only three things matter – location, location and location. My house is literally on the border line of two counties; if it was across the border, it would be worth tens of thousands of dollars less. If it was in Marin County, it would be worth hundreds of thousands of dollars more.
In family law, in divorce, what will generally make a difference in you getting what you want is how well you can document your claims at every step of the process. Whether you are negotiating directly with your spouse, working with a mediator, or litigating with the judge, the documents you produce will be critical.
For most people, this requires a shift in thinking. During marriage we generally don’t worry about documenting conversations with our spouses or agreements we make with them, or keeping records of what we spend on the kids. After separation such things are very important.
The worst thing that you can get into before a judge is a she said/he said argument. This is where one side maintains one position, the other side maintains another position, and the judge has to decide which side to believe. Of course you are telling the truth, and the judge should believe you… but why should she? Sometimes if there is a history in the case the judge will have formed an opinion of both parties and have reason not to believe your spouse, but that can go both ways. Sometimes your position may appear more plausible. But sometimes it will be easier for the judge simply not to take sides and split the difference down the middle, or reject the issue altogether and tell you to work it out between yourselves.
You always want to have pieces of paper supporting your position to hand the judge (or mediator) so they do not have to rely solely on your word. A claim that you paid for something is much easier to make if you have a canceled check to back it up. A claim that you agreed to something is easier to make if you have an email showing that you agreed to it.
Your attorney will ask you for a lot of documentation. Provide it to him or her quickly. If they have to keep asking or have to get it themselves it will cost a lot more money. You may not understand the need for all of this documentation, but the attorney is the expert. They will not ask you for “busy work.”
Keep your communications with your spouse, wherever possible, in writing. This can be email (best) or text messages. Never delete these text messages, and backup your phone frequently. There are cheap programs to download your text messages to computers which are worth investing in; for under $10 you can guarantee a lost or crashed phone does not cost you valuable text messages which document important communications you may need to prove something related to support, custody or a large asset like your community property home.
If you have a phone conversation, follow it up with an email or text message summarizing the call: “Just to summarize our recent conversation, we agreed that you will be picking up Sally at 6:30 PM this Friday instead of 5:30 PM because you have to work a little later.” These things may not seem important at the time, but may be very significant later and you will be sorry that you cannot document them contemporaneously but are left with “Well, there were lots of times I had to change the schedule to accommodate her being late…”
Documentation can be as simple as keeping track of things on a calendar. I had a client keep a calendar in his kitchen where he recorded things related to visitation – late pickups, canceled visitations, when his 2-year-old was not fed or bathed when returned, etc. Individual instances were meaningless, but when he recorded contemporaneously dozens of instances and showed the actual calendar to a judge along with the summary data it was compelling.
Always give copies of important papers you get to your attorney. If you get a letter from a credit card company indicating your spouse is using a credit card you didn’t know you had, make a copy immediately and give it to your attorney. If you discover a document in the house that you think is interesting, let your attorney be the judge of how significant it is.
Ideally, you want to be able to have a piece of paper to support every claim you make to a judge. This won’t always be possible, but if you can support 90% of your claims, and your spouse does not bother to support any of his claims (as many do), then the judge is much more likely to accept your position on the remaining 10% of your positions. It is surprising the number of divorce attorneys who simply appear in court prepared to talk their way through cases. As a general rule (not always, but generally) if you come prepared with documents supporting your positions you will achieve outcomes closer to your positions than if you come with a smile and a story.
One of the most frustrating things for a client in a divorce is not hearing back from their attorney. A divorce is nerve wracking at best, a stressful experience unlike anything you have gone through before (unless this is not your first divorce…). If your attorney will not return your calls or emails, this just adds to your distress.
That means you have the wrong attorney, and there is a simple solution to that. There are a lot – and I underscore a lot – of fine divorce attorneys in your neck of the woods. Fire yours, and hire someone who will work with you.
By the same score, it is important that you be responsive to your attorney.
There can be a number of reasons you may not return a call or email from your attorney. You may truly be busy – but realistically – how long does it take to send a 2-sentence text saying so? You may not want to answer the question or provide the information. You also may not want to incur the cost of another phone call.
Let’s look at cost first. This is almost always an issue. Lawyers generally charge a minimum of 1/10th of an hour (6 minute increments). If a lawyer charges $300 an hour (for ease of math sake; yours may charge much more or much less) that boils down to $5 a minute! Wow. So that minimum charge is $30 if they answer a phone call and say, “Hello.” Or answer a text and say, “No”. That’s $15 a letter.
A good family law lawyer would rather have you communicate with her/him than nickel and dime you to death. While they may have minimums, knowing your financial situation they may be willing to waive their minimums just to keep communications open. You may be able to get them to agree not to charge you for calls or texts of less than 5 minutes, for example, but you need to negotiate this up front rather than protest a bill after getting it.
I tell my clients up front a) that family law does not always happen between 8 AM and 5 PM so I expect them to call me in evenings and on weekends when emergencies come up (as they always do especially when kids are involved), and b) I’d rather they call me with a problem than not call me because they were worried about how much it would cost them. I’d rather donate the time than not hear of their concern. Often people stress over nothing, something I can set their mind at ease over in a few minutes over the phone or by email or text. I don’t want to charge them big bucks for a little comfort.
Not calling or emailing your lawyer back may also cost you more money in the long run. I have a couple of cases now where the opposing party failed to respond to her lawyer and produce documents for discovery – easy documents to produce, including bank statements. We went to court, I got an order, and the other parties will be paying tens of thousands of dollars because they didn’t work with their lawyers on simple things, wouldn’t communicate, wouldn’t cooperate. If it goes much further they could even face jail time for contempt of court. These are extreme examples to be sure.
Less extreme examples are that, if your lawyer is charging you for every phone call or email, then every time they try to contact you, you are being charged. This will quickly surpass the amount of your responding to the first contact. And failing to respond may well lead to some court default which leads to serious consequences to you, your children or your property.
Your lawyer cannot do it alone. You have to fully participate.
The last reason people don’t respond to their lawyer’s communication is that they don’t want to answer the question or provide the information. It is important to understand that you must be willing to reveal everything – good and bad – to your lawyer. If you don’t, then you run the probable risk that your lawyer will be blindsided by what you kept from them in court, and they will not be prepared to defend you. Dirty secrets almost always come out in a divorce, and although California is a “no fault” divorce state (i.e., it doesn’t matter if your spouse had an affair during marriage as grounds for divorce any more), it doesn’t mean that such things cannot be used for other things in the litigation.
Married persons (and you are married until the judgment, even though separated) owe each other a high fiduciary duty by law. That means that they must (emphasize must) disclose all financial records to the other, and deal with each other with the utmost levels of good faith and fair dealing in all financial transactions. This translates that each side must produce all bank statements, credit card records, etc., that can be obtained or are in their possession (which includes available through the bank) If one side refuses to do so (often a reason people refuse to respond to their attorneys) they need to understand that the judge will order them to do so, and eventually they will be forced to produce them. By the time it gets to the point where they are forced to produce them, they will have been ordered to pay thousands of dollars in the other side’s fees and possibly sanctions.
When I worked for a firm that made me record every minute spent during the day I had a client who always called me between 7:15 AM and 7:30 AM. He knew I was commuting and I wouldn’t charge him for the call. We conducted much of his case during those early-morning calls. My clients today don’t have to play those games, and hopefully your attorney encourages you to freely communicate without fear of getting a heart attack with your next bill.
Return your attorney’s calls to enable them to represent you. Be honest and forthcoming, and let them handle troublesome issues rather than hide them from them. The issue you think is so bad that you keep it from your attorney may mean nothing and you are hiding for no reason. And it may lead to bigger costs down the road.
Divorce or parentage actions touch upon our most raw emotions. Anger, betrayal, fear, regret. Whether you initiated the proceeding or were blindsided by a deputy sheriff at work, you will be going through a crock pot of emotions and really, really want to vent them.
Make sure you don’t do that in texts or emails to your former partner. You need to be aware that everything you say, do or especially write will probably end up being presented in some way before the judge at some point in the proceeding. While you may get a momentary satisfaction for telling the $@*!& just what you think of them, that text or email could cost you plenty later on.
Write every text message, every email with the understanding that you are writing it for at least four people – your former partner, the judge, and two attorneys. All will probably see it.
Every text or email should be written for the judge to show what a reasonable person you are, and where possible to show how unreasonable your former partner is. You are creating a paper trail so that the judge has something in her hand at a later date when both sides are declaring how they have tried to settle this or solve problems. The judge doesn’t want to be the arbiter of little issues, she wants to have the parties act like adults and solve things without wasting limited judicial resources. When you can show that you tried, via texts going back over time, to solve these little issues in an adult manner with a reasonable tone, you are more likely to have the judge listen to your side of the story in other matters that, well, really matter.
Don’t answer emails or texts when you are angry at something your ex just wrote; cool down a bit, run it past your attorney before replying. Anger will lead to sharp words that may hurt more than help. When they have written something nasty and you respond with something reasonable, you will win much more than the immediate battle – you may win the longer war.