How To Treat Professionals Involved in Your Divorce

“The pure and simple truth is rarely pure and never simple”

Oscar Wilde

Divorce and parenting cases frequently involve third-party professionals whose job it is to opine regarding the issues in your case, be the eyes and ears of the Court or to make recommendations to the Court as to appropriate resolutions of contested issues. Knowing how to interact with these individuals is critical to the success of your case.

On the financial side, these individuals may be forensic accountants, vocational counselors, business valuation experts, divorce financial planners, appraisers, realtors, etc. These professionals often work with your CPA and your attorney to help sort out the details of your financial circumstances so that you can present a cogent argument to the Court regarding a fair and equitable distribution of your marital estate. For the most part, your job as the client will be to ensure access to information necessary for these professionals to do their job. This will include providing documentation and access to tax returns, accounts and other property and financial information. Working with these individuals rarely creates an issue of client control for attorneys as the client’s role is generally rather limited and the issues involved comparatively straightforward.

But there is another class of professionals that may be significantly involved in your case and who will have a dramatic impact on your life.  These professionals include parenting evaluators, guardians ad litem, parenting coordinators, substance abuse evaluators, anger management evaluators and psychiatric evaluators. That list is by no means exhaustive; however, these are the categories of mental health and parenting professionals who you are most likely to encounter in your divorce. For purposes of this blog post, I will identify this class of professional simply as “professional evaluators”.

I like using professional evaluators because I believe that the results obtained are generally more accurately tailored to the reality of the client’s situation. Without the input of a professional evaluator, important issues — issues that have a real world impact on children and families — will be decided by a judge after a very limited amount of exposure to the parties, based upon testimony in a courtroom setting subject to the limitations of the rules of evidence. In other words, the real or complete story is rarely told in Court.

Make no mistake about it, however: these professionals will have an enormous impact on your case and knowing how to interact with them is critical. Typically, they do not work for one party or the other; rather, they are appointed by the Court to evaluate the facts and circumstances of your case with regard to a particular issue, to report back to the Court and to make recommendations as to how the Court should resolve those contested issues. The vast majority of the time, the Court will adopt those recommendations hook, line and sinker.  The professional evaluator is not limited by the rules of evidence, has as much time as he or she needs to do his or her job and generally has access to information that the Court would not otherwise have in order to make decisions in your case.

Because they will have such a huge impact on the outcome of your case, it is important to know how best to interact with them. After all, although professional evaluators should apply objective, statistical and evidence-based measures to your case, much of what they do is based upon “soft science”, impressions, gut reaction and common sense.  Do not underestimate the value of being polite, prepared and reasonable — even if you feel none of those things.

Here are some pointers:

• Be on time for appointments. If for some reason you must cancel an appointment, give the evaluator as much notice as possible and explain why you have to reschedule. Be prompt in returning phone calls and associated paperwork.
• Be polite and calm in every interaction with the evaluator. Do not lose your temper even if you think the evaluator is “taking sides”. Part of his or her job is to probe for the truth.
• Do not badmouth the other parent, his or her family or friends. While it is important to let the evaluator know what you believe to be weaknesses in the other party’s position, parenting skills, domestic violence issues, substance abuse issues, etc., more generalized assaults on your spouse’s character are rarely helpful and simply make you look uncooperative and bitter. It is better to just state your concerns about the other party as simply and rationally as possible.
• Make sure the evaluator has any written evidence you may have, including affidavits, police reports, orders of protection, etc.  The evaluator will also likely ask for collateral witnesses and contacts. Make sure that you provide accurate, current and complete contact information for those individuals. It is also a good idea to talk to your witnesses before naming them — you might also want your witnesses to read this blog post to make sure that they know how to interact with the evaluator as well.
• If you do not understand what the evaluator is asking for, ask for clarification and help. Make sure to discuss your interactions with the evaluator with your lawyer so that he or she is up to speed and can help direct you further.
• Do not harass the evaluator.  There is a fine line between making sure the evaluator has all of the pertinent information and becoming a nuisance. Try to consolidate your information and questions so that you do not overwhelm the evaluator by calling every day. Do NOT stop by his or her office without an appointment. Be respectful of the evaluator’s time and privacy.
• It is always better to accept responsibility for your own problems and to admit your mistakes than to try to hide them or blame others. It is likely that the evaluator will find out about them anyway.
• Meet your financial obligations to the evaluator. Borrow money of you have to in order to pay the evaluator’s retainer and any monthly statements. But by all means do not ignore your obligation to pay the evaluator.
• Be proactive. Do not expect the evaluator to gather all of your information for you. Make sure that he or she has access to appropriate information.
• Appearance matters. If the evaluator is coming to your house for a home visit, make sure it is clean. Dress appropriately for all interactions with the evaluator; similarly, make sure your children are appropriately dressed and clean. If the evaluator will see your car, clean it up too.
• Be mindful of the fact that the evaluator is watching how you interact with your children. Watch your actions and your words. If you need to discipline your children during an interview, make sure you focus on discipline that sets appropriate limits or withholding privileges and that does not involve corporal punishment, yelling or threats. It is better to appropriately discipline your children in front of the evaluator than to allow your children to run wild while you and the evaluator are talking.
• Do not coach your children on what to say to the evaluator. Do not provide your children with details about court proceedings or issues in your case. Simply let the children know that it is okay to speak with the evaluator and that the evaluator might ask them some questions.
• Make sure to follow-up with the evaluator. Check in once every few weeks and ask if the evaluator has had trouble contacting your witnesses, and whether s/he has received any written information you sent.

The Problem of Hidden Assets in Divorce

When you start hiding things, that’s when darkness creeps up.

Steve Kazee

At the time two parties are divorced, a court will divide your marital assets in some fashion.  In Montana, the court is charged with making a “fair and equitable” division of the marital estate, i.e., the assets and liabilities acquired during your marriage.  The issue of inherited, gifted or premarital property is a subject for an entirely different post, but suffice it to say there are some different considerations for the division of these types of assets.  While much has been made about the difference between “community property” states and non-community property states, the truth is that the end result is really very similar in most cases.

But how can you divide what you don’t know exists?  The simple answer is: you can’t and too often deceptive spouses get away with squirreling away assets that they don’t want divided.

Montana, like most states, requires that the parties to a divorce disclose all of their assets and liabilities regardless of whether or not they were acquired by inheritance, earned during the marriage or otherwise.  Failing to disclose assets is unethical, unfair and illegal.  Executing a disclosure statement that is  knowingly incomplete  or inaccurate is perjury.

Still, people do it all the time.  So how do you protect yourself from a spouse determined to hide assets?  First, it is wise to have a basic understanding of your finances before you are in a divorce setting.  I am frequently surprised to find that one spouse has been left completely in the dark regarding finances throughout the course of a marriage. Having at least a working knowledge of your financial situation is probably a good idea for a wide variety of reasons that have nothing to do with divorce.  As a collateral (and, hopefully, unneeded benefit) it will also help you know the nature and extent of your marital estate in the event that the worst happens.

If you know that a divorce is likely or imminent, begin gathering financial information as quickly as possible.  If you sense that a divorce is likely, your spouse probably does as well and it is during this time that  assets are most likely to be hidden. You should also know that, before a divorce filing is made,  there is nothing illegal about a spouse moving funds around, selling assets, incurring additional marital debt or closing accounts. The earlier you get a bead on your finances, the less likely it is that assets will be hidden in the first place and the more likely you will be to find them later on. Once you suspect that a divorce is on the horizon, start gathering  as much information as you can, including pay stubs, bank records, tax returns, credit card statements and investment/retirement account statements.

Bear in mind that some assets  are not necessarily hidden but  rather devalued in some way to avoid equalization in the division of the marital estate.  This is particularly true where an individual is self-employed and/or operates his or her own business.  For example, funds from a business may be “laundered” through a family member or close friend for phony services, then returned to the spouse after the divorce.  Cash may be skimmed from the business, bonuses delayed until after dissolution or simply not reported on tax documents or financial statements.  Mechanisms for hiding income and assets are limited only by the imagination and creativity of the party seeking to avoid disclosure.

There are many effective ways to uncover hidden assets and income. Often, basic discovery  procedures will reveal telltale clues to the existence of hidden assets. Having  financial records produced during discovery analyzed by a competent forensic accountant is typically the best way to locate missing assets. It may also be  necessary to hire a private investigator to locate these assets. Sadly, if you are unsure whether or not there are hidden assets, it may cost you a significant amount just to find out.  If hidden assets are located, however, the court will likely require the party hiding assets to pay those costs.

If you are considering hiding assets, my advice to you is simple: don’t. Not only is this kind of behavior illegal, wrong and unfair, but it can very likely end up backfiring on you. If your spouse discovers that you have hidden assets — even after a final decree has been entered — the court can reopen your case to divide those assets that were hidden. In addition, as a punitive measure, the Court can award the entirety of those assets to your spouse. Finally, the court will take a dim view of your behavior, a circumstance that can have disastrous results for the outcome of your case.

You’ll Be Happier If You Paint with a Broad Brush

If you just focus on the smallest details, you never get the big picture right. – Leroy Hood

Settling your family law matter is a choice that belongs to you and your spouse. It does not belong to your attorney or to his attorney. It does not belong to the judge or to the mediator. Rather, like with all legal matters, the decision to settle is one that must be made by the clients.

But how? How can we reach agreement when we see things so differently?

In order to settle any case, the parties need to have a meeting of the minds; in other words, they must find a way to see eye to eye on the most important and salient aspects of their case. Not every case is one that can be settled even under the best of circumstances, i.e.., where both parties are acting in good faith and willing to compromise. Of course, there are also those cases in which one or both of the parties are not acting in good faith, pursuing an agenda of retribution for perceived wrongs or simply have utterly unrealistic expectations about what they are entitled to. But where the parties are both behaving reasonably, there are ways to increase your chances of reaching an amicable resolution. Here are a few:

Ask your attorney to be realistic with you. Good attorneys exercise client control and manage expectations. Their job is not to tell you what you want to hear but rather to tell you what you can expect. Don’t punish him or her for being honest with you. After all, attorneys are people too and are naturally inclined to want to avoid causing you discomfort or pain.

Be realistic with yourself. Sometimes it is difficult to know what we truly want. Divorce is usually a time of great turmoil and change. You may be re-entering the work force for the first time in a long time. You may be forced to assume responsibilities that have always been the province of your spouse. Regardless of what your future holds, give yourself time to decide what you truly want and try to structure your settlement to give you the best chance of reaching those goals. It does you no good to be unrealistic with yourself regarding what you are reasonably capable of doing given your particular circumstances.

Educate yourself. Your attorney should not be the only one doing the legwork in your case. In addition to deciding what you want, you need to decide how to get there. Talk to professionals other than your attorney to determine what your needs are and how to reach your long-term goals. For example, you might speak to a vocational counselor or a college admissions specialist to discuss what you will need to get reeducated to become self-sufficient or to further your career goals. Meet with a financial advisor to discuss your finances and budget. Having a clear understanding of the real life issues affecting your case will help you to structure an appropriate settlement. It will also help you justify the resolution you need to your spouse, a mediator or a judge.

Don’t let others tell you what you should want. People going through divorce often receive an overwhelming amount of advice from well-meaning friends and family. That information is often third-hand and generally incorrect. Smile, politely nod your head, thank them and then go talk to your attorney. Bad information leads to bad decisions and can inhibit the settlement process. Perhaps more importantly, don’t let society’s expectations or guilt govern your decisions. For example, if you cannot reasonably handle a 50/50 Parenting Plan, don’t ask for one.

Paint with a broad brush. Nowhere is the expression “don’t sweat the small stuff” more apropos than in divorce settlements. Try to avoid thinking only in terms of financial value; think also in terms of sentimental value and meaningfulness. Why fight for the big screen TV if having your old antique bed is more meaningful to you regardless of the relative values? Structure your settlement in a way that is designed to meet your needs even if doing so results in a slightly disparate division of your assets. Try to avoid fighting over percentages. After all, most people overstate the value of their personal property anyway so it is impossible to divide the marital estate with pinpoint accuracy without selling everything. More importantly, if you insist on dividing everything down to the last penny, the chances of resolving your case are slim.

Know your “range” and do the cost-benefit analysis. No lawyer can tell you exactly what a judge is going to do should you take your case to trial. A good lawyer recognizes that, because of the legal standards we work with, every case involves a range of possible reasonable outcomes. What is considered a “fair and equitable division” of a marital estate or in “the best interests” of your child will vary with each individual and depend largely upon factors that are impossible to predict. Your attorney should be able to instruct you as to whether a settlement offer is within the “range” of what the court might do. If the offer is outside of the range, settlement is unlikely. Nevertheless, you must always weigh a settlement offer against the cost — both financial and emotional — of going to court to find out if you can do better.

Only you can weigh the intangible benefit of getting it done. Divorce comes with a very high emotional price tag, both for you and for your children. There is a value to getting it done and over with. However, because this is a value that cannot be measured in dollars and cents, only you can weigh its value with regard to settlement. That said, you should not give away the farm just to get your case over with. You’ll wind up regretting it later.

Remember who you’re dealing with. If there is any chance at all, try to bear in mind that your ex-spouse-to-be was once your best friend. If you have children, try to remember that you will be dealing with him or her for the rest of your life in some fashion or another. You know each other’s hot buttons–try to avoid pushing them.

What NOT to do during your divorce.

“Many receive advice, only the wise profit from it.”

Harper Lee

I am often asked by clients if there is some critical question that they are not asking or something else they should be doing  to help  their divorce process.  The truth is that it is more likely that there are things that they are doing that they should not be doing.  The legal end of your divorce  is handled (primarily) by your attorney; how you comport yourself personally, professionally and as a parent during your divorce  is up to you but can have a profound effect  on the  legal process, the end result and –particularly if you have children–the rest of your life.

The following are some tips on what not to do  during your divorce  process.   They are by no means exhaustive.

1.  Don’t be a spectator in your own divorce.   Many clients are tempted to allow their attorneys to do all of the work in their case. While most attorneys are happy to do so, being a passive participant in your own divorce case can increase legal fees substantially. In addition to saving money, actively seeking information from your attorney, taking steps to understand the process, gathering appropriate documents and working with your attorney so that he or she understands what you truly need and want will alleviate the sense of helplessness that often comes with the end of a marriage.  I encourage my clients to think of their divorce as both an end and a new beginning. Taking an active role in shaping your future will  help ensure that you are moving forward on the right path.

2.   Don’t go it alone.  Divorce usually  brings about enormous changes in virtually every aspect of your life. Don’t be afraid of those changes, but don’t think that you can handle them all by yourself either. Virtually everyone going through the divorce process would benefit from  counseling, even if only for a few sessions.  Spouses  who will be  forced to enter the work force after a significant period of being a stay-at-home parent should seek vocational counseling  and consider the possibility of  further education.  Spouses who have not been involved in managing the marital finances should seek to establish relationships with a trustworthy financial advisor, realtor, insurance broker and banker. Begin to surround yourself with the people you will need to start your new life.

3.   Don’t involve your kids.  Children deserve to be children. They do not need to know the details of your divorce; they do not need to know why you and your spouse are divorcing.  They do need to know that it is not their fault, that you love them and, while things may be different, that they will be okay.  Avoid parentalizing your kids by using them as an ally or a confidant.  Do not speak poorly of the other parent or allow others to do so in the presence of your children.

4.  Don’t withhold information from your attorney.  This has been covered in previous posts but it bears repeating. Your attorney cannot help you unless you are truthful with him/her and forthcoming with regard to information relevant to your case. Your attorney should not find out about some embarrassing or bad fact when it is too late to avoid the damage , i.e., at trial.  By knowing the weaknesses in your case from the start, your attorney can plan and strategize so as to minimize  the damage.

5.   Don’t alienate your  ex.  If it is at all possible, try to keep an open line of communication with your ex, even if that line of communication is email or text messaging. As discussed in prior posts, keep your communications civil and on topic. Avoid rehashing old arguments or  placing blame — if you couldn’t resolve those issues when you were married, you certainly won’t resolve them now.  If you have children, the ability to communicate with your ex is a critical part of coparenting after divorce. While it is difficult, the emotional dividends for your children are enormous.  Bear in mind, however, that keeping an open dialogue with your ex does not mean putting up with abusive behavior or discussing case strategy.  Don’t let your ex undermine your relationship with your attorney — and he or she will likely try. And, it should go without saying, don’t reach any agreements with your ex without discussing  those agreements with your attorney.

6.   Don’t assume that  your attorney has to be unpleasant to be effective. Some people feel that to be a “fighter,” an attorney must (1) be uncooperative with opposing counsel in such matters as disclosing information, disclosing documents, and arranging for convenient dates for meetings, depositions, etc; and (2) never con­sider or advise compromise or negotiation with opposing counsel. This notion is sadly misguided; the time to “fight” may be in tough negotiations in court. Being uncooperative with opposing counsel greatly increases attorney’s fees with all legal steps done the hard way such as preparation of special documents, appearances in court, etc. The information and documents are ultimately subject to disclosure under the law. Therefore, an uncooperative attitude serves no useful purpose. At times it seems you are always on the defensive. At different stages of the case, the roles reverse. Don’t worry, it evens out throughout the course of the case.

7.   Don’t make a public spectacle of your divorce.  While it is tempting to provide your friends with a blow-by-blow  accounting of your  divorce on Facebook or Twitter, don’t  do it.  If you have nothing nice to say — and you probably don’t — don’t say anything at all.  Facebook posts,  emails and text messages all have a nasty tendency to show up in front of the judge.

8.  Don’t gloat over your victories.  Don’t rub in your legal victories. Losers try to even up the score.

9.   Don’t lose your humanity.   Divorce is challenging in many ways.  It is not only a legal battle but an emotional journey as well.  It has been said that criminal law matters bring out the best in bad people while family law matters bring out the worst in good people. There is  truth to that.  It is easy during this process to succumb to hatred, to point fingers and to place blame. But, while it may seem difficult to believe at  this moment, there will come a day when all of this will be over and your life will go on.  You wedding was beautiful; try not to make your divorce ugly.  When children are involved,  if you cannot stay married,  strive to at least stay friends.

Don’t blow your privilege!

“Silence is a true friend who never betrays.”

Confucius

The attorney- client privilege is an important ally in your case. It allows you to communicate openly and honestly with your attorney without fear that your communications will be revealed to the other side.  It can be a fragile thing, however, and care must be taken to preserve the privilege.

Most importantly, the attorney-client privilege is afforded only to confidential communications between the attorney and the client. To be confidential, the communication must not be intended to be disclosed to a third person other than those to whom the disclosure is made in order to provide legal services to the client, such as the attorney’s associates and other staff. For example, an eavesdropper would not be able to testify about communication that is otherwise subject to the privilege, given that a third person’s eavesdropping is not a breach of confidentiality, because that disclosure was not intended.

Of particular concern in family law matters is the frequent desire of clients to have a friend or family member present during meetings with the attorney. I recently litigated a case in which the other side’s attorney had (at the client’s request) copied the client’s family members on all correspondence. Surprise!  All of those communications were now discoverable. I’ve also had the issue of waiver of the privilege arise where documents were kept by a party in a location to which the other side had ready and regular access and under conditions clearly not designed to maintain the confidentiality of the documents.

In other words, maintaining the privilege takes some effort and thought. If a communication between an attorney and a client is made in the presence of someone else, then it would not be considered to be confidential. Likewise, communications between an attorney and a client that are made in a public place would not normally be intended to be confidential, and therefore generally do not fall under the privilege. Similarly, the privilege can be waived where the contents of the communications are later disclosed to third parties.  For example, an attorney’s advice contained in an email to the client loses its privileged status if the email is copied or subsequently forwarded to a third party.

Accordingly, you should not allow others to see any mail that your attorney sends to you because it might no longer be considered a confidential communication between you and your attorney. You should take appropriate and reasonable steps to maintain the confidentiality of all documents related to your case by keeping the documents in a secure location. Similarly, no e-mails from your attorney should be forwarded by you to anyone else. Neither should you discuss with others the advice you receive from your attorney regarding your case.

The privilege belongs to you, the client, who may prevent an attorney’s disclosure of confidential information as a witness or of production of evidence in a legal proceeding regarding the client. That also means, however, that the responsibility to not to waive the privilege lies in your hands.

There are, of course, limits to the scope of the privilege and it is narrowly construed because it is in conflict with the general principle that the legal process should seek the truth and full disclosure of important facts. For example, the privilege only protects communications in which legal advice was sought or rendered. In other words you can’t protect facts from being discoverable simply by incorporating them into a communication with your attorney.

If you have any question as to the confidentiality of your communications with your attorney, you should have an open and frank discussion with him/her. But the take home message here is to avoid the temptation to share what you discuss with your attorney with your friends and family.  Unless you want those discussions to be discoverable by your ex.

Should I File First?

“The present time has one advantage over every other – it is our own.” – Charles Caleb Colton

When divorce is imminent, is there any advantage to being the first to file? The short answer is yes.

From a legal standpoint, there really should be no advantage as both the parties stand on the same legal footing.  But as a practical matter, the Petitioner (the filing party) will generally present his or her case first, thereby getting the opportunity to make the first impression on the court.  Additionally, once the Respondent has presented his or her case, the Petitioner will once again have the opportunity to present rebuttal testimony, thereby also gaining the advantage of having the last impression with the court.  We all inherently know the importance of first and last impressions; social scientists call these the primacy and recency effects.

But there are more significant advantages to being the filing party.  The party that files has the ability to select the timing of filing, giving them the ability to prepare both emotionally and financially.  The filing party may have more time to investigate and select a lawyer or to protect marital assets from dissipation. By filing, there is control over the possibility of foot-dragging and delay.

It is my firm belief, however, that the biggest advantage of filing first is the impact that being proactive has on the Petitioner’s mindset and attitude towards the divorce process.  By filing, you are taking action; by taking action, you are taking control. There is nothing worse than waiting for something awful to happen to you and no better cure for that “Sword of Damocles” feeling than to be the one to rip off the bandaid.

The sense that you are in control of your own destiny – rather than at the mercy of your now-adverse spouse – can be an enormous relief and advantage throughout the divorce process.