Hiring Legal Counsel – Divorcing Gracefully

Kellyanne Conway’s 15-year-old daughter says she is seeking emancipation. Here’s what that process might look like. (Morgan Foster Quoted)

By Morgan E. Foster

Kellyanne Conway’s 15-year-old daughter says she is seeking emancipation. Here’s what that process might look like. (Morgan Foster Quoted)

• Mon Aug 24th, 2020 3:30pm
• NATION/WORLD
By Lauren Leazenby
Chicago Tribune

Kellyanne Conway’s daughter, Claudia Conway, 15, announced she is seeking emancipation from her parents. “I’m officially pushing for emancipation,” she tweeted Saturday.

Claudia’s tweet came just 24 hours before Kellyanne Conway announced, also via Twitter, that she will be leaving her post as senior counselor to President Donald Trump at the end of August to focus more on her children. Claudia’s father, George Conway, also said Sunday he is stepping away from his role as founder of the Lincoln Project to “devote more time to family matters.”

Claudia is citing “years of childhood trauma and abuse” as her reason for seeking emancipation, according to a follow-up tweet.
Megan Foster, a family law attorney in the Washington, D.C., metro area, said the courts know that many teens don’t get along with their parents.

“The court is aware of the nature of the dynamics between teenagers and parents,” said Foster, an attorney at the firm McAllister, DeTar, Showalter & Walker. “So, they’re looking for something beyond just normal teenager-parent butting heads in order to rise to the level of something that would make emancipation an option.”

Emancipation “severs the parents’ legal and financial responsibilities and obligations for the child,” Foster said, adding that the process is “like a child divorcing from their parent.” To be emancipated, first, a child —likely with the help of counsel —would file a petition with the court for emancipation. The court would then issue a summons, and the opposing parties (the parents) would be served.

“That would open the gate,” Foster said. “Then there would be a full case in court in the family law division — similar to a divorce or custody case — dealing with the issue of emancipation and evaluating whether the facts merit granting of emancipation.”

Foster said the child has the burden of proving to the court that emancipation is in her best interest and that she is able to financially support herself.

Typically, minors seek emancipation for one of three reasons, Foster said: Sometimes, the teenage child is already living independently of her parents and already has a sort of practical emancipation that the legal process would make official. Emancipation can also be financially driven, as seen in cases where child actors or influencers have their own income streams. Foster said emancipation sometimes occurs in a contentious divorce, where parents don’t agree about what should happen to a child, but the court has already come down with a custody order. In this case, an emancipated child can make the decision about which parent to live with.

If a child is at least 16 years old, generally speaking, the court is more likely to grant emancipation. “Just because you’re 16 and you file for emancipation, you’re not automatically going to get it,” Foster said. “But if you’re 16 or older, you’re more likely, you have a stronger case.” She also said that because court cases can sometimes take over a year from start to finish, children might be in an even stronger position for emancipation at the end because they have aged up throughout the process.

Foster said minors seeking emancipation should know that it’s a “somber and serious process.” Children who are successfully emancipated often can afford to be represented by effective counsel, she said. If they can afford a lawyer, they probably have enough income to be self-sufficient, Foster said. But emancipation is cost-prohibitive for many who can’t afford counsel.

“But it is a resource,” she said. “If any minor child … seems to find themselves in an unhealthy or untenable circumstance, it should certainly be something they consider.”

In Claudia’s case, Foster said the Trump aide’s daughter will likely have to show that hers is an unhealthy environment to grow up in. She said Claudia may have income from her work on social media, which would help the process. However, her parents would likely oppose the emancipation, which would turn it into a “full-blown court case,” Foster said.

For parents of teens who are seeking emancipation, Foster said: “It’s definitely not an automatic thing.” If a parent doesn’t want their child to be emancipated, a parent should sit down with their child, figure out the reasoning for the complaints and work together to fix the situation, she said.

“If the parents are making substantial efforts to make the situation better, to listen to the child, to make sure she has the attention she needs, to make sure she has the resources she needs … they’re going to improve the chances of getting what they want in the court case,” Foster said.

Tips for Managing & Reducing Attorneys’ Fees

By Morgan E. Foster

Clients often ask at the outset of litigation: about how much is this going to cost? It is a completely reasonable question, but one that is nearly impossible to effectively answer.

The cost of your case will depend largely on three factors: (a) how much you come in knowing (or not knowing), (b) the complexity of the facts (how many assets are involved and the nature of these assets, whether custody is disputed, whether alimony is involved, etc.), and (c) the reasonableness of the opposing party. If you are knowledgeable about all of the assets in play and you and your spouse are able to resolve things quickly, by agreement, these are the least costly cases.

“I Want a Shark” – How to Hire an Attorney

By Morgan E. Foster

You are contemplating divorce (or another family law issue), which means you are already experiencing conflict with someone close to you. You may feel betrayed and vulnerable – like you are being bullied and don’t know who to trust. Your first instinct may be to hire the strongest, most aggressive “shark” of a lawyer… but think before you jump head-first into those shark-infested waters. Your lawyer will be your team-mate (and your voice) throughout this process, so it is important to understand who will be the most effective advocate for you.

There are many articles about why “aggressive” lawyers are not always effective lawyers. Mark Baer, a California Family Law Attorney and Mediator, describes three reasons why aggressive attorneys are less effective at obtaining the desired results for their clients:

Aggressive Lawyers Are On The ‘Short-List’ – Judges do not care for ‘aggressive’ lawyers. Ask any judge, and they will tell you that they are worn out from baby-sitting lawyers who cannot get along with one another, who quibble over the most mundane aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on. Lawyers who place themselves on a judge’s ‘short list’ of intolerable lawyers are doing a great disservice to their clients. Regrettably, many of the lawyers who place themselves on the ‘short-list’ are either oblivious to (or ‘willfully dense’ to) how their attitude negatively impacts upon the court’s scheduling of matters, the court’s receptiveness to the lawyer’s concerns (‘Cry Wolf Syndrome’) or even, at times, the court’s rulings.
Aggressive Lawyers Get As Good As They Give– During my career, I have let other lawyers out of default or extended firm deadlines as a professional courtesy. I can hear the aggressive lawyers’ comment now – ‘You gave up your client’s advantage in exchange for courtesy!’ Not so. I can unequivocally state that in those cases, the outcome was positive for the clients and, in some cases, made more positive by acting professionally. Of course, there will always be those parties, or their lawyers, who precipitate a hard-line approach to the case. However, perhaps a better practice is to set a positive tone from the beginning before you come out swinging the day the client walks into your door. If you set a negative, aggressive tone from the outset, then do not be shocked when opposing counsel does not return your phone calls, does not grant you any extensions you request, does not work with you to complete discovery, etc. In all, what goes around does, indeed, come around. Hopefully, in all your years of practice, you will never miss a deadline or make a mistake. However, if that day should come, it would be best to have a reputation as being respected and a ‘lawyer’s lawyer’ than to be the attorney to whom everyone else is looking to dish out a little ‘payback.’
Good Lawyers Don’t Just ‘Try’ Cases; Good Lawyers Try to ‘Resolve’ Cases– Before I hop down off of my soapbox, there is one last point to be made. In the end, ‘scorched earth’ policies and aggressive behaviors do not benefit our clients (except in the movies). Family law attorneys can probably attest to this fact the most. Aggressive behaviors run up legal fees, destroy any real chance of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing threatening ‘paper tiger’ letters or emails is, in a word, useless. Whether you disagree with opposing counsel, or you just don’t like their politics, venting your frustrations, lobbing insults or threats, or engaging similar aggressive behaviors does not change the facts or the law of your case. Agree to disagree, spar like professionals, and kept your reputation as a ‘zealous’ and a ‘professional’ lawyer intact. In the end, you will earn the admiration of both the bench and the bar. Moreover, your clients will applaud you for your success and not your rancor. In the end, as we say here in the South, ‘you catch more flies with honey than with vinegar.’”

In my own experience, I have often witnessed adverse results for clients that originate with an overly aggressive approach (driven by an overly-aggressive lawyer or client). These fall into three major categories:

Missed Settlement Opportunities. Often (particularly early in a case) there are opportunities to settle either some of all of the case. For example, you may not agree with your spouse on how the bank accounts should be divided (or you may need more information on this issue), but you may agree on a custody schedule for your son. Any good lawyer will look into opportunities to settle. Overly aggressive attorneys often take outlandish positions (or take a “just say no”) approach trying to drive the terms of a negotiated settlement in their client’s direction. Sometimes this works. Often, it does not. If this overly aggressive approach fails – you may end up litigating an issue (like custody) that you could have resolved in settlement. The more issues that remain disputed at the time of trial, the longer and more expensive the trial will be – and the more you risk an adverse or unpredictable outcome.

Huge Attorneys’ Fees. It stands to reason that the more issues you’re fighting about, the more costly the battle will be. Perhaps a trial on financial matters would take 3 days, but a trial on financial matters and custody may take 6 days. You may not understand in advance that this will DOUBLE the cost of your trial (because it will double the time it takes to prepare and try the case). If you are walking away from a settlement opportunity, make sure you understand what it will cost you. Often overly-aggressive lawyers take an approach that leads to large trials on a multitude of issues – this may serve the lawyer (who is charging by the hour) but it may not result in a favorable outcome for you.

Failed Cost/Benefit Analysis. I have seen lawyers incur $10,000 of fees for a $500 issue. Even if they end up “winning” on that issue, you (the client) have lost, because you spent $10,000 to get $500. Overly-aggressive lawyers can be so focused on winning every issue that they lose sight of whether it makes sense to battle in the first place. A good attorney will advise you to choose your battles wisely – not every issue is worth going to the mats for.

When you meet with lawyers, here are some things to look out for:

Beware of Any Lawyer who is willing to be a “Mouthpiece” – you may be angry and emotional… you may want to “crush” your spouse… you may want to expose her shady business dealings or cause him to get fired from his job… while this may feel satisfying in the short term, it can HUGELY damage your own interests long-term (if your spouse loses her job, you may owe her child support or alimony). A good lawyer is NOT a mouthpiece, simply hired to regurgitate your thoughts and opinions…. A good lawyer will bring a measured, rational voice to the dialog and help you think strategically about making choices that will benefit you long-term. Sometimes that means being the bearer of bad news or taking a contrary position to you. When your lawyer pushes pack – Listen. If your lawyer does everything you say, she is likely not doing her job!
Beware of the “Over-Promise” – Many overly-aggressive lawyers start by building unrealistic expectations in their clients. They promise a “slam-dunk” in Court on various issues (sometimes as early as the first meeting – when it is virtually impossible to have enough information to make that sort of promise). Any good lawyer should help you understand the risks and potential pitfalls along with the potential “win”… If what your potential lawyer is saying sounds too good to be true – it probably is!
Awards or Accolades Can be Misleading – Many attorneys these days tout numerous “awards” but these can be the result of an effective marketing team (more than a top-quality practice). Here is an article by the Better Business Bureau cautioning consumers about so-called “vanity awards” for lawyers.

Here are some tips about hiring a lawyer:

The kinds of referrals you are likely to get depend on the questions you ask. Don’t just ask for “the shark”… think about asking for someone who is a creative problem solver, someone smart, someone who has expertise in your particular subject-area (maybe there is a complex trust involved in your case).
Hire someone who you are compatible with. Family law cases are VERY personal… it’s important to find someone who listens to you, understands your priorities and is able to effectively voice your perspective.
Understand what your goals are and work with your Attorney to ensure those goals are reasonable and attainable. If your goal is to walk away with everything – any good lawyer should tell you that’s unlikely. Having your lawyer help you develop realistic goals will allow you to make the smartest and most strategic decisions.
Have an Open Dialog about Cost and Budget both up front and along the way. Cases are expensive and any responsible attorney will be willing to discuss this issue with you to develop a realistic plan and strategy.
Get a second opinion – any good lawyer will be open to you seeking a second opinion. I am always willing to get on the phone with another lawyer and talk through differing strategies or work together to develop the best plan. If you’re skeptical about whether you’re getting the best advice, talk to someone else. I even refer my clients to other lawyers I respect (or offer to bring another expert in) if we are facing a particularly challenging issue.

Practical questions to ask when you “interview” a lawyer:

What makes your approach unique compared with other lawyers?
How do they communicate – office phone, e-mail, cell phone, text?
Are there extra charges for contacting your lawyer outside of regular business hours?
What cost-saving measures can they recommend to manage fees in your case?
Are there opportunities for mediation or arbitration to explore settlement?
What happens if you have an emergency and can’t reach your lawyer?
Payment methods accepted (check, credit card?)
Billing frequency and method (monthly? By e-mail?) and due-date for payment?
Budget for the case and what will drive the expense?

Finally, remember this: the court views your side of the case as YOU … so the things your lawyer says and does will be attributable to YOU. If your lawyer advises you to do something that the court disapproves of, YOU are the one who will pay the price, not your lawyer… so if you feel the attorney you are meeting with is untrustworthy or does not share your philosophy or approach to your case, keep looking!

Guest Article by Susan M. Wyckoff: I Found my Husband on Tinder!

By Guest Author

By: Susan M. Wyckoff, Esquire

Imagine being out with your girlfriends…an innocent night of girl talk while enjoying a few tapas and some wine. One of your friends who has recently re-entered the single scene shows you the dating website she has been trying out. You have been happily married for several years, so you have been out of the dating scene, but of course, are naturally curious. What harm could possibly come from watching your single friend search for the new love of her life?

Your friend opens up her Tinder page, shows you her profile and explains how it works – various pictures of men will appear, most of which will have the man’s name and age in the lower left hand corner, some of which may have a brief profile, including his profession and workplace… swipe left if you are not interested or swipe right if you are interested. If she “swipes right,” and the man in the photo “swipes right” on her photo, there will be a match, and potentially an online conversation that will hopefully lead to a meetup. Riveting! While swiping through the photos, you see various pictures of men, some attractive, some not. You and your friends have an innocent laugh or two, until one photo suddenly makes your heart sink …the man in the photo IS YOUR HUSBAND! It takes your girlfriends a minute longer to recognize him, but suddenly everyone is silent in disbelief. What do you do?

Ask your friend to take a screen shot of every picture and every word of the profile.
Then ask your friend to text or e-mail the photos to another friend. Do not text or e-mail the photos to yourself yet, in the event that your spouse, or worse, your children, have access to your e-mail or text messages.
If your husband has never met your friend, ask her to swipe right to see if there is a match.
If there is a match let him initiate the conversation, and if, and when he does, have your girlfriend takes screen shots of all of the direct messaging.

At this point, you may be tempted to take matters into your own hands such as having your girlfriend set up a meeting with him where you appear with your other friends – very, very bad idea. It is highly unlikely that you will have any productive conversation with your spouse about his or her on-line dating presence. In addition, if you confront your spouse, you are not only putting yourself at a disadvantage as to discovering all of the facts, but you are also putting your spouse on notice to try to cover-up his or her behavior.

The next step is to contact an attorney who is experienced in the area of family law as it is now time for you understand what rights you have and do not have. In addition, the attorney may refer you to a private investigator for further investigation of your spouse’s conduct. Your attorney should also be familiar with companies that are able to legally and defensibly capture, preserve and analyze web content. Consulting with a family law attorney, does not always lead to a separation or divorce, but it should lead you to being educated on the law and access to the appropriate professional resources.

There are a number of internet search sites, such as Spokeo, that will assist you in finding out if your spouse has an internet dating profile by running a search of your spouse’s e-mail address. These sites costs money and may be a good start provided that your spouse is not very clever. If your spouse is clever, he or she may have taken the precaution of buying with cash a disposable smart phone with prepaid minutes and creating a new e-mail account with that unknown, hard to trace number. Once he or she has the new e-mail account, he or she will be able to open a Facebook page and use same to create a profile on Tinder, Bumble, Grinder, etc.

An initial consultation with a qualified family law attorney will more than likely cost you between $250 and $500 depending upon the attorney’s experience and the nature of the case; however, when you are considering that the well-being and financial future of you and your children, and that thousands to millions of dollars of marital assets are at issue, spending an initial consultation fee to get your ducks in a row is very wise.

Know Your Resources & Build Your Team!

By Morgan E. Foster

If you’re contemplating divorce, you’ve probably thought about your personal support network – who you might tell first… who will be your shoulder to cry on… but it is important to take stock of professional resources as well. Below is a description of some of the key resources available and team-members you may want to assemble. Before you disclose any sensitive information to any professional, make sure you understand their duty of confidentiality to you, whether they can or will share this information with third parties (including your spouse) and whether they can be compelled to share the information in testimony in Court. Your attorney can help advise you on this point.

Legal Team. Your lawyer will head your legal team but the team may also include paralegals, support staff, expert witnesses, private investigators and/or litigation support vendors. For more information on hiring a lawyer, see our earlier blog post “I want a shark – how to hire a lawyer.” Your team may need to include more than one lawyer if you have trust/estate issues, employment law issues or require an expert in a certain area (like dividing military pensions or preparing Qualified Domestic Relations Orders to divide retirement). At some point you may need an estate planning attorney to revise your will, change medical directives and powers of attorney, update beneficiary designations, etc.
Financial Advisor. A financial advisor will be an important part of your divorce team, but beware of using your marital financial advisor. Your marital financial advisor may have an equal duty to both you and your spouse (which means they may share any information you give them with your spouse) so make sure you are clear on this before you start confiding in your current/marital financial advisor. For this reason, it may be wise to consider working with a new financial advisor through your divorce. Your new financial advisor can help you understand your spending history and prospective budget, understand your marital net worth, identify outstanding liabilities, and help with long-term financial planning (for college and/or retirement). This long-term planning can be invaluable when you are making divorce decisions (whether to keep the home or sell it… whether to agree to pay for college or not… etc.) A financial planner can also help you manage your credit through divorce or establish credit in your own name. Once the divorce (or financial settlement) is complete, your financial advisor can help you plan and manage your assets and monthly spending going forward in light of your new financial circumstances.
Accountant. An accountant can be an invaluable part of your divorce team – helping you to understand the tax consequences of various settlement proposals regarding the division of assets (what is the “basis” in that asset and what are the tax consequences of you selling it in the future), or how much a proposed alimony award will leave you to live off of (after paying state and federal income tax). Like with your financial advisor, think carefully about using your marital accountant for this purpose. Your marital accountant may owe an equal duty to your spouse and may share any information you give him/her with your spouse. Instead, you may consider getting a new accountant to assist you through the divorce process. This should be someone who can work closely with your legal team and financial advisor as needed. (Some financial advisors have an in-house accountant who may be able to help).
Physician. If you have a serious medical issue or upcoming surgery or other procedure planned, it is important to understand how the divorce may impact your health insurance coverage and whether you need to make accommodations for major medical
Therapist. No matter how calm and confident you feel about divorce being the right choice, there WILL be a lot to process through the divorce. Your entire life will These other changes (even more than the dissolution of your marriage) may place huge emotional burdens on you. Changing relationships may cause paid or confusion. Some days you may feel empowered and condiment. Others, you may feel depressed and paralyzed. A trained counsellor or therapist can help you manage the roller coaster ride that is divorce. There are also therapists and counsellors that can advise you and your spouse together (on how to co-parent or have a more successful relationship going forward), or who can work with the whole family (including your children). If you do seek counselling for co-parenting or family counselling you may want a separate therapist to be your personal therapist (so you can ensure confidentiality in your communications).
Mediator/Arbitrator. Mediators and Arbitrators are professionals trained in alternative dispute resolution techniques – helping parties reach compromise or settlement outside of court. There are mediators and arbitrators who specialize in custody and/or divorce. Your attorney can help you get to the right professional for your case. The Mediator/Arbitrator will serve as a neutral third party who will help bridge the gap between your position and your spouse’s position to reach a settlement or compromise. Frequently, information disclosed in mediation is confidential. Depending on the nature of the mediation/arbitration, you can attend either with or without your attorney. Discuss with your attorney which approach is appropriate in your case. Often, you will have the opportunity to submit a written Mediation Statement or Arbitration Statement in advance to “preview” your case and your positions to the professional.
Court. Depending on your jurisdiction, your local courthouse may have resources available. Some Courts have a designated Family Law office or staff and almost all courthouses have written materials available to refer you to local resources. Many courts have classes available either in-person or online on co-parenting (some of these classes may be mandatory). Visit your local Circuit Courthouse to access these and other resources. As an alternative to physically visiting the Courthouse, you can also visit the Courthouse online. Anne Arundel County Circuit Court has an excellent Family Law site with lots of information about the process.
Advocate for your Children. In a custody battle, there may be opportunities to ensure that professionals are in place to assist or advocate for your child. There are options for a Court-appointed “Best Interest Attorney” or other attorney advocate for your child (you and your spouse may have to pay for this professional out-of-pocket). There are also options for the Court to appoint a “custody evaluator” or other professional to evaluate the custody situation and recommend what is in the child’s best interest. Other therapist or counsellor options may also be available. Discuss with your attorney the pro’s and con’s of having an advocate assigned to your child/children.
Other Resources for your Children. In addition to an advocate or therapist/counsellor, there may be “every-day” resources available to assist your child through this difficult time. For example, you may want to discuss the divorce with a guidance counsellor at your child’s school and/or his teachers so they can pay special attention to your child through this undoubtedly difficult time. It will be important for the school to understand as the custody situation evolves who has authority to pick up your child and with whom the school should communicate. Make sure you discuss these issues with your attorney to ensure you are protecting your rights, and not infringing on the rights of your spouse.
Appraiser/Valuation Team. You and your spouse may not agree on the value of certain assets and this will likely become important in your case. There are appraisers available to appraise the value of almost anything (real property, jewelry, cars, artwork, rugs, and ownership interest in a business or entity). Talk to your lawyer about whether you need to get anything appraised and who should do it.
Insurance Agent. You may need to obtain an insurance analysis to determine your need for disability income and life insurance or life insurance on your spouse (for the duration of the time when he/she has financial obligations to you). You may only be able to take out a life insurance policy on them with his/her consent so this may need to be negotiated up front.
Vocational Consultant or Job Placement Professional. Maybe you’ve been out of work for 20 years… is the Court really going to expect you to get a job? The answer is probably yes (talk to your attorney about the specifics of your case). You may not know where or how to begin. A job placement professional or “head-hunter” may be able to help. A professional vocational consultant may be able to meet with you and generate a report on your earning potential.

Guest Article by Susan M. Wyckoff: Marriage in Trouble? 6 Do’s and Don’ts

By Guest Author

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.