Thinking of Getting Divorced? Do this First!

While most of my consults are from people who have already decided to get divorced or who have been told by their spouse that they will be getting divorced, I often get pre-divorce  consults.  These consultations usually go like this, "I'm thinking about getting divorced but I would like to have all my ducks in order.  What should I be doing?"  Great question!  Here is my answer:

1.  Get Informed.  Make photocopies of every single important record in your home.  This includes financial records, medical records, birth certificates, passports, insurance records (life, health, home and car) and monthly bills or invoices that are mailed to your home.  Most bills and invoices these days are "on-line" of course, but some records still get mailed.  I cannot tell you the number of people who have no idea what accounts if any exist or what bills they have.  As you cannot open any mail delivered to anyone except you, I would suggest that you simply write down the name and address of the return envelope of any documents that come to your home that are addressed to your spouse. 

2.  Protect your Stuff.  Make an inventory of all the valuable contents of your home, and by valuable I do not necessarily mean monetary value.  There are many items that have sentimental value, and again, I cannot tell you how many of these items "disappear" when a divorce action is started.  I have had clients crying in my office that they cannot find their baby pictures, mother's wedding dress, jewelry, record collection, etc.  I actually had one client brag to me that she had burned her husband's law school diploma.  Keep in mind that many people start taking things in order to "protect" them, but guess what?  This only fuels the fire, so my suggestion is that you list, photograph and/or copy. 

3. Get a PO Box.  During a divorce you will be getting a lot of mail from your attorney.  Make sure you have a safe place for that mail to go.  Likewise for any other mail you will be getting.

4. Get a new email address.  I had one client that had changed her password, but somehow, through the help of a hacker, her husband was able to get into her email.  While this may be illegal and impermissible in Court blah, blah, blah, the point is that her spouse still was able to get valuable knowledge which he could use in other ways.

5. Protect your Information.  Change ALL your passwords and PIN numbers.  Most people use the same passwords or variation of a password for all their accounts, and during their marriage, they may have shared and interchanged their passwords and PIN.  Don't assume your spouse doesn't know your password.  You will be very surprised at just how savvy he/she is or can be once the divorce gets going.

6.  Get Tech Help.  Have your computer checked for spyware or any other type of software that allows someone not on your computer to see what you are doing.  Also, if you linked your iphone to an ipad or a smartphone to a tablet whomever has your ipad can see your phone texts and email.  Incredible! 

7.  Watch what you say!  In some jurisdictions it is perfectly legal to record a conversation that you are a party to.  What does that mean?  That means that if you and your spouse are having a conversation, whether in person or on the telephone, you or your spouse can record that conversation if it is legal to do so in your state, and it can be used in Court.  A client once brought me a tape recording of an argument he had with his wife (which recording was legal) where she said, "I will do anything to get you out of the house including lying in Court!"  True story!  Needless to say that when we played that recording in Court it raised more than an eyebrow from the judge!

A DIVORCE DIET

After days and days of worrying, stressing, going crazy, and otherwise falling apart, I announced to my client that I was putting her on a "divorce diet."  She looked at me like I was crazy.  I asked her if she'd ever been on a diet.  Of course she had! I told her that divorce in some ways is like a diet.  There are things you can and cannot do.  There are tricks to surviving the process, and as a lifetime dieter, something that many people are familiar with and can relate to, I implemented a "Divorce Diet."  Here is the plan:

1.  Clear your house of all the "temptations."  Many clients have files, boxes or bags of "evidence" they are holding against their spouse.  Get it out of your possession.  Give it to your lawyer, and if he or she thinks it's of value he/she will keep it.  If not, give it to your friend or family.  It serves you no purpose to hold on to pictures, emails, letters, cell phone records, hotel keys or receipts that do nothing other than upset you.  These are constant reminders of the failure of your marriage, your hurt, anger, etc. that keep you stuck and serve as triggers for "binging."  In the context of this "diet" binging may mean anything from over-eating, over-drinking, or any other behaviors that you may regret, or even worse, that can be used against you!

2.  Journal/Record what you are consuming everyday.  This does not have to be in any formal way or in any particular type of book.  The point is to record what you are doing so that you can go back and see what works.  So, for example, an entry might look like this: Yesterday I saw my ex in a brand new car.  It really pissed me off so I ____(insert obscene gesture).  Today I got a call from my lawyer telling me that she received a letter from my spouse's attorney about my "vulgar" behavior.  I'm embarrassed and that letter probably cost me a hundred bucks.  Eventually your entries should get to the point of something like this, I saw my spouse in court today.  She was ranting and making accusations.  I sat quietly with my lawyer.  The court officer told her to be quiet or get out.  That same officer shook his head in disbelief and smiled at me.  Everyone could see what a jerk my spouse is and I didn't have to say a word.  I'm so proud of myself!"

3.  Get Real Support.  Most successful diet plans provide some type of individual or group support.  This is where the therapist comes in.  If you cannot afford a therapist, find a group.  There are many resources for support available.  Find one! While your friends and family can provide some type of support, keep in mind that they love you and may have their own biases.  They may not be able to tell you the truth or may actually add the proverbial "fuel to the fire."  Friends are great but don't use them as your only source of support; they may not be able to withstand hearing about your divorce everyday, and you don't want to lose that friend.

4. No Junk Food.  There are some "foods" that are just absolutely not permitted-not even in moderation.  These are:

• Texting your ex about what a jerk, loser, cheater, liar he is.  I don't care what he or she said first or what buttons he/she pushed.  Do not engage.  Do not respond.  This goes for email as well.
• Telling your kids ANYTHING about the divorce details or ANYTHING derogatory about his/her mom or dad.
• Posting information about your very personal and private life on Facebook or any other social site.

That's it (for now)!

ORDER OF PROTECTION: WEAPON OF DESTRUCTION?

WARNING: THIS POST IS NOT FOR INDIVIDUALS WHO HAVE A LEGAL BASIS FOR FILING AND/OR SECURING AN ORDER OF PROTECTION; WHO HAVE BEEN THREATENED, HARMED, OR IN ANY WAY OTHERWISE THE VICTIM OF DOMESTIC VIOLENCE OR LEGALLY IMPERMISSIBLE BEHAVIOR.

Now, let me talk about Orders of Protection being used as swords, not shields...and what I'm really talking about is advice for those who end up falling upon their own sword.

An Order of Protection is a Court Order which is issued in order to protect an individual from conduct by another person which is legally impermissible.  Conduct which is legally impermissible varies from state to state so I cannot get into what type of conduct might or might not be legally impermissible.  However, here are some scenarios that an Order of Protection is NOT meant for:

• Trying to get your spouse out of the house where you do not have the legal basis to do so. I know it is very difficult to live with your spouse during a divorce. Indeed it may be the most difficult part. However, unless you have a legal basis for having your spouse removed from the house, trying to get an Order of Protection where you don't have a basis to do so, will only make the situation worse.  If you file a baseless Order of Protection and lose, there is no "taking it back."  You have lost credibility.

• Trying to get a "leg up" on a custody battle.  Often times where custody is in dispute, one parent will try to get an order of protection hoping that this will help him/her in the custody dispute.  Unless there is a legally valid basis to seek and obtain an Order of Protection, this type of move will certainly backfire.

Depending on your jurisdiction, the filing of an Order of Protection could result in an attorney being appointed for your child.  This means your child will most likely be interviewed by the attorney (depending on the child's age and your jurisdiction) and the parents will not be present for the interview.  The filing of an Order of Protection may also result in a child protection services (or similar agency) investigation and in that case, both parents and the child will be interviewed.  It will be many days, weeks or months before the investigation is complete, and before it is over, thousands of dollars will have been spent, and countless hours of pain and anguish endured.  Where the allegation was baseless, the result will be "unfounded" or something of that nature, and the case closed.  Your spouse however will never forget your actions, and you can bet that any chance of settling or resolving things amicably will also be closed.

I cannot tell you the number of clients and/or spouses over the years that have sought Orders of Protection without a legal basis and lost; not just from the litigation standpoint, but in other ways that cannot be measured.

If you have an attorney, please consult him or her before seeking an Order of Protection.     

THE PRINCE IS STILL A FROG!

This metaphor applies to your prince or princess.  No, he or she did not magically turn into a frog now that you are getting divorced!

When you are going through a divorce, one of the hardest things to do is see things as they are; not as you THOUGHT they were, think they SHOULD BE, or WISH they were.  I come across so many men and women who are distraught over the demise of the marriage and more so, deeply disappointed in their husband/wife.  As they sit with me they often begin by saying "why can't he/she just do 'the right thing' or I just cant believe that he/she said...or did... As we talk things through a little more, it quickly becomes apparent that the husband/wife NEVER did the so-called "right thing" that the soon to be ex-spouse wishes he/she had and that his/her behavior is pretty consistent with what is happening NOW in the divorce. When my client sees this, I usually see a smile on his/or her face. It's one of those "aha" moments. 

Once you see things as they are, it becomes easier to focus on taking action to deal with what IS and to stop wasting your precious time, energy and tears on what you thought or hoped for.

LAWYERS and EXES and THREATS OH MY!

On a daily basis without fail I get a panicked phone call or email about a "threat" one of my clients just received.  "Is it true? Can he/she really do that?" Inevitably the threat, just like a fever, comes in the middle of the night when you can't reach anyone for help.  Scared and stressed, you suffer all night waiting until morning to call your lawyer for an answer.  Keep in mind that I am NOT talking about threats of bodily harm or injury.  Those are different, and none of the below applies to THAT kind of threat.  Any threat of harm to you, your home, or children is one that needs to be reported and acted upon immediately.    These are but just a few common "threats" that are made all too often:

"By the time I'm finished with you, you'll have nothing"
"You'll never see your kids again"
"I'm getting sole custody"
"The kids are going to have to testify"
"The house is getting sold and you will be on the street"
"I'm moving out of state"
"I'm quitting my job"
"I'm calling your boss"
"Wait until the Judge finds out that you..."

Sound familiar? What can you do?

Write it down.  Yes, like my "lists" this too should be written down.  Hearing the threat is very different than seeing it.  When your spouse calls, emails or texts you in a rant, all kinds of emotions and buttons are triggered.  Under this state, it is very difficult to keep calm and impossible to think straight.  Let the threat come and go.  Do not respond to the threat.  Do not make a "counter-threat." Write the threat down. Now read it and think about it.  Chances are that within a few minutes of calming down, breathing and reading, you can see that the threat is often unrealistic, unlikely and the product of some other trigger.  A good friend, excellent therapist and colleague who practices in the field of family therapy once told me, "the dynamics of the marriage are the dynamics of the divorce." Simply stated, if he was a bully in the marriage he will be a bully in the divorce.  If she was controlling in the marriage she will be controlling in the divorce.  Do not expect your spouse's personality or style to change during the divorce, if anything, you will see it reach peak extremes.

Tell your lawyer.  Do not believe your spouse's claims unless your lawyer tells you it is true.  In a contested divorce your spouse has two basic goals, first, to make your life as difficult possible, and second, to "win."  If you keep that in mind, you will begin to train yourself not to react to his/her threat.  If you react to the threat in a way that your spouse hopes you will, i.e. by caving into unreasonable demands and/or giving him or her anything he/she wants just to "end things" then your spouse's tactics have worked and the threats will keep coming!

A word about "lawyer letters."  Lawyers write a lot of letters.  Some letters are necessary, some not so much, and others to appease their angry and upset clients or make them feel better at your expense .  These letters can be very upsetting.  I know it is probably easy for me to say it, but truly, do not take them personally.  Believe me, your spouse's attorney isn't (and your spouse is paying A LOT of money for these letters).     

First Day of Court = First Impression

If you're going to court it's already a sign that the divorce is not going smoothly.  This means that stress, anxiety and tension is even higher than usual.  Add to the fact that you are going to be face to face with your spouse, his/her lawyer and a Judge whom you know little about (except that he or she is going to be making decisions about you, your children and your life), let's just say that admittedly, (and rightfully so) you may not be at your very best.  Here are some tips for preparing for The Big Day:

• What do I wear?  Dress like you're going to a funeral.  Pardon the pun but it really is the simplest way to explain that you must dress conservatively, simply and respectfully.  You cannot go wrong with a suit and dark colors.  If you don't have a suit, wear slacks or a knee length skirt, but keep the colors very basic.  You should not wear jeans, t-shirts, sneakers or open toe shoes, i.e. sandals, flip-flops. 

• Do not speak to your spouse unless the two of you are getting along and can maintain civility. No one should raise his or her voice.  Court is a public place.  There are other couples getting divorced, many attorneys and personnel.  I cannot tell you the number of arguments that break out in the court hallways and believe me, the minute someone gets loud, he or she will find himself being quickly approached and escorted out by a uniformed officer.  Often times the Judge's chambers are in close proximity to the gathering area for litigants which means they can hear what is happening just outside their door.  Tempting as it may be to start telling your husband or wife off, don't do it.  Let your lawyer do the talking.

• Do not speak to the other lawyer.  Unless, you, your spouse and both lawyers are all engaging in a discussion, do not approach the other lawyer with the goal of "setting the record straight" or telling him/her the "truth" about your lying, cheating spouse.  First, ethically, your spouse's lawyer is not allowed to speak to you directly unless he or she has your lawyer's permission. Secondly, your spouse's lawyer is there to represent your spouse, so no matter what you say or do, it is not going to persuade him or her to help your position.  If anything, it will only make things worse.

• Do not bring the "gang."  I know that it can be very intimidating and scary to go to Court, but it is not a place to bring your well-meaning parents, sister/brother, best friend, and certainly not your new significant other (yes, this has happened).  First and foremost, when you bring another individual into a conversation or meeting with your attorney you are automatically breaking the attorney-client privilege.  Secondly, your friends and relatives may have their own agenda and as a result, may cloud your own ability to focus. Lastly, it is distracting to your attorney and his/her ability to do his/her best for you.  Think of it like a surgery; you cannot have your friends and/or family in the Operating Room, but unlike a hospital, there is no waiting room for your friends/family in court.

• Do make a list! I have already mentioned making a list for your attorney of the things that are important for your attorney to know about you.  Likewise, make a list of things that you would like the Judge to know.  WARNING: this list will NOT go to the Judge.  This is simply your "wish list," and again, your attorney may conclude that some of it or none of it is important to your case.  In the case of the latter, ask your attorney why or why not something is important.  This will help you get a better understanding of your case.

• Bring a Book.  Depending on your jurisdiction (where your case is), you may be sitting around the courthouse for hours before your case is called.  You are going to need something to help keep you distracted and calm.

• Keep Time.  Speaking of time, make sure you record the time you spent in Court with your lawyer.  And be on time!

You've Hired An Attorney! Now What?

Be a Co-Pilot with your attorney.  The relationship with your attorney is like every other partnership in your life, and if the two of you don't work together it will end up like every other failed marriage, relationship, or Tango.  Your attorney is not in charge, but neither are you.  In order for your attorney to his or her job, you must do yours.  What is your job?

• Tell your lawyer the truth.  Trust me, he or she has heard it all and your story will be no more shocking, outrageous and troublesome than the one from last week.  If your attorney knows the truth then he or she can formulate a strategy to deal with the problem effectively and efficiently.  This will both save you a lot of embarrassment.  By the same token, demand and expect that your attorney tell you the truth and not what you want to hear.  I have had my share of clients say to me, "whose side are you on?!" and as always, my answer is the same, "Yours! That being said, I am here to tell you the truth, not what you want to hear. If you want to pay good money to hear what you want, I am sure there are a dozen attorneys waiting to do so."

• Write up your "Top Ten" things that you want your attorney to know.  This is a list of the ten things that are important to YOU.  These things may not be important to the attorney or the case, but things that are important to you.  It will give your attorney a sense of who you are and what you need.  In turn, the attorney can tell you what things or expectations he or she can or can't do or meet. 

• Be efficient in your communication.  In most cases you are being billed by the hour which translates into very expensive minutes.  Many clients are upset that they are being charged for "phone calls" but the reality is that the attorney's advice (hence his/her time and words), whether in person or on the phone, in the office or in court, is exactly what you are paying for.  That being said, when you do call, have a clear purpose for the call and keep the call limited to the issue at hand.  Even better, if your attorney allows it, use email.  Email is a great way to gather your thoughts and write out questions.  Don't use email to go on and on about issues or to ask complicated legal questions that are beyond what can be done in an email and may require a meeting.  Your attorney can probably get back to you quicker by email than by phone.

• Do what you are asked to do.  If your attorney needs a document get it to him/her as soon as you can.  If your attorney asks you to have a meeting, make every effort to be there.  If he asks you to make an accommodation for your soon to be former spouse (that's reasonable), do it.  I am not suggesting you blindly follow advice.  Always ask a question when you have one, but there is always a very good reason for your attorney to ask you to do something.

• Trust your attorney until you cannot.  I never thought that I would write on the internet because I felt that there was just too much bad information floating out there that only served to confuse and upset the client.  It was bad enough when a client would start a sentence like "my neighbor's husband only had to..."  or "my friend told me that..." and now I hear about all this "stuff" on the internet.  Information is great but keep in mind that just like no two fingerprints are alike, neither is any divorce.  If your attorney does not answer your questions or answers them in a way that just doesn't make sense, then get a second opinion- a professional second opinion.