What NOT to do during your divorce.

Many receive advice, only the wise profit from it.” imagesD4UY49L5

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.

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What NOT to do during your divorce.

Don’t blow your privilege!

Silence is a true friend who never betrays.”

Confuciusimage

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.

Don’t blow your privilege!