By: Susan M. Wyckoff, Esquire
1. Do gain perspective and knowledge with professional assistance.
When experiencing difficulties in your marriage, it may seem natural to turn to family and/or friends in seeking advice and comfort. Although a friend or a family member may mean well, your communications with them whether in person or via e-mail, may not offer the confidential and objective advice that you need and will receive from a professional.
There is a confidential privilege that exists in communications with certain professionals. Upon a showing that an attorney and client communicated in a professional capacity, the attorney-client privilege is invoked. One of the items an attorney should go over with you is the existence and any limitations to this privilege; however, generally you will be able to discuss your marital difficulties and the law related to same confidentially with your attorney. By way of example, during your marriage you have had sexual relations with someone other than your spouse. You do not want your marriage to end; however, you do not know what to do. If you consult with a divorce attorney and the attorney-client privilege is invoked, your lawyer is under a professional ethical obligation to keep that conversation privileged. Your lawyer may discuss with you the legal issues related to you disclosing the affair to your spouse, how it may affect grounds for divorce, custody, support, alimony, and/or marital property. By contrast, if you confide in your best friend in your heart you believe that your best friend would never betray your confidence. However, months later your spouse has found out about the affair, you are in the middle of divorce litigation, and your spouse’s attorney subpoenas your best friend to the witness stand in a public courtroom and asks about the affair in detail. Under oath, and ordered by the Judge your best friend has no choice but to admit that you told her about the affair and every single detail you told her whereas your lawyer may not be called to the stand to testify.
Lack of objectivity is also another problem with discussing such issues with a family member or friend. If you are experiencing difficulties in your marriage, it is natural to turn to a friend who may have gone through a separation or divorce for comfort and advice. Be cautioned that although your friend may have gone through a separation and/or divorce, the set of circumstances of his or her situation may differ greatly from yours. An outcome in one separation or divorce case may not necessarily be the same outcome in another.
2. DON’T THREATEN YOUR SPOUSE WITH DIVORCE AS A “WAKE-UP CALL.”
It may be very tempting during a heated argument with your spouse to threaten that you are leaving the marriage or even go so far as to say that you want a divorce. It is easy for your emotions to get the best of you and say things in anger that you really do not mean. By way of example, you come home one from a business trip to find out that your spouse has moved out of the marital home. You are in shock and do understand what went wrong. A few days later, you are served with divorce papers. Yes the two of you were having difficulties, but you had no idea why your spouse chose to file for divorce instead of trying to work things out. Later in the litigation process your attorney asks your spouse what lead to the dissolution of the marriage and your spouse responds, “Every time we argued she threatened to leave and/or divorce me, so finally I left and began divorce proceedings. I gave her what she asked for.” It just now occurs to you just how hurtful telling your spouse that you want a divorce every time you had an argument was not clearly communicating what you wanted. The word divorce has a shock and awe to it; however, it may be you that will be the recipient of the shock and awe if you repeatedly use it when you are not ready to end your marriage.
In addition, divorce litigation is not a tool to fix your marriage or get your spouse’s attention. A red flag should raise for a family law attorney if during an initial consultation the client’s reason for wanting to file a Complaint for Absolute Divorce against his or her spouse is because the client wants to get “the attention” of his or her spouse. The client believes his or her spouse is not taking them seriously and/or is not trying to work on the problems in the marriage. The client does not want to actually get a divorce, but still want to file a Complaint for Divorce because the client is angry or frustrated with his or her spouse. Divorce litigation can be both emotionally and financially draining, not just on you and your spouse, but on any children, family and friends. Before casually throwing out the threat of hiring a lawyer and filing a Complaint for Divorce, ask yourself is there no hope or expectation of a reconciliation.
3. DO ASSESS, UNDERSTAND AND OWN YOUR FINANCIAL SITUATION.
If there are difficulties in your marriage, there is a good chance they are related to financial issues. You and your spouse argue about money all the time. There never seems to be enough money to make ends meet and one or both of you do not seem to understand what money is coming in and what money is going out. Or perhaps one spouse complains the other is too controlling with the finances and yet the spouse with who is complaining of same has not looked at a joint tax return, bank statement, or the bills for years. Whether you stay together or decide to separate, now is the time to take ownership of what your monthly income and expenses are. In addition, you should always have a basic understanding of your assets and liabilities, including, but not limited to their fair market value and any balance owed. It will be difficult to resolve your financial differences if both of you do not have basic knowledge of and understand them.
4. DON’T FORGET ABOUT UPDATING ADVANCED HEALTH CARE DIRECTIVES AND POWERS OF ATTORNEY.
If you have an Advanced Health Care Directive in which you appointed your spouse to make medical decisions on your behalf or a Power of Attorney in which you appointed your spouse to make financial decisions on your behalf in the event of your incapacity, you probably did so at a time when you and your spouse were trusting of one another and not during a period of time when your marriage was in trouble. Depending upon what difficulty you are dealing with in your marriage you may wish to revisit your spouse being the one who makes medical and/or financial decisions for you in the event of your incapacity. If your spouse is cheating on you and spending the kids’ college money on her girlfriend is this truly the person you trust with your medical care?
5. DO RESEARCH THE VARIOUS PROCESSES OTHER THAN LITIGATION TO HANDLE SEPARATION AND DIVORCE.
There are several different processes, including, but not limited to alternative dispute resolution, by which to separate and/or divorce. Each couple, each case, may be different and what works for one couple does not necessarily work for another. You should briefly familiarize yourself with a few options that you can discuss in further detail with a family law attorney. Each process is time consuming and a financial commitment; therefore, it is wise to get more detail from a family law attorney as to the pros and cons of each process so that you will have realistic expectations. Two such processes are discussed below.
Mediation: The opening scene from the movie Wedding Crashers where a husband and wife are engaged in dividing their airline miles and other property is often cited by clients who want to engage in the mediation process, but with professionally trained mediators and not the actors, Vince Vaughn and Owen Wilson. Mediation is a process by which the parties negotiate and attempt to reach a written settlement agreement with the assistance of a trained impartial person called a mediator. Depending upon the mediators training, he or she will be able to address among other issues, custody, support, alimony, and property issues. The parties may engage in private mediation or if there is litigation pending, court ordered mediation with a court appointed mediator. Stay tuned for the upcoming Blog, “We Want to Use a Mediator, Do We Really Need Lawyers?”
Collaborative Practice: The International Academy of Collaborative Professionals (IACP) define Collaborative Practice as “a voluntary dispute resolution process in which parties settle without resort to litigation.” On their website, www.collaborativepractice.com, the IACP go on to define the core elements of Collaborative Practice as:
- Negotiate a mutually acceptable resolution without having courts decide issues.
- Maintain open communication and information sharing.
- Create shared solutions acknowledging the highest priories of all.
Both parties will be represented by counsel who have been trained in the Collaborative Practice, as well as assisted by other professionals or experts, such as accountants or financial planners. The parties sign a collaborative participation agreement, disclose financial information and use good faith efforts to try to reach a written settlement agreement.
6. DON’T SHARE YOUR MARITAL PROBLEMS ON SOCIAL MEDIA
Sharing the difficulties of your marriage on Facebook, Twitter or another form of social media, even if your account is private, is not a smart idea. When you post something think do I want my children, family, friends, and neighbors to read this tweet. By way of example, you find out your spouse is having an affair so you decide to post the photo you found of your spouse and his lover on your Facebook page with a caption that details what a lying, cheating, @*$# your spouse is. You and your spouse end up going to counseling and working things out. Several months later your daughter comes to you in tears with a copy of the picture you posted on her phone. You have no idea who sent her the picture, but does it even matter, because you are the one who put it out there.
In addition, it is common practice for divorce attorneys to request and/or subpoena copies of a divorce litigants social media posts, tweets and pictures. Do you really want the Judge determining your fitness and character during a contested custody case to read a Facebook post where you failed to control your emotions, are hostile and threaten your spouse that he will never see his child again?
Stay tuned for the post, “Revenge Porn Law, Civil Suits and Criminal Charges that May Follow.