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.

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.

Take a deep breath before you click “send”.

“Speak when you are angry – and you’ll make the best speech you’ll ever regret.”

Laurence J. Peter

Although email, text messages and other forms of electronic communication are a necessary evil, I am a big fan of letters. While clearly text messages have their place, they are rarely a good forum for meaningful communication about issues relating to your family law matter.

The biggest problem with electronic communication is the absence of human context. As a species we have developed the ability to communicate complex concepts and emotions; but that communication is not just verbal or written. It has been said that up to 90% of our communication is nonverbal – our facial expressions, hand gestures, tone and body language all play a huge role in expressing what we feel and intend to communicate. Emails and text messages are obviously devoid of any such nonverbal communication. It is for that reason that so many electronic communications are misunderstood or misinterpreted, resulting in anger, resentment and frustration.

And the fact that electronic communication does not require the sender to face his or her recipient in person adds to the willingness of most people to say hurtful things.

When my daughters were about 12 years old, AOL Instant Messenger had become all the rage. Neither they nor I were familiar with this brave new world of instant written communication.I could hardly pry them away from the computer and it seemed that virtually all of their friends were now . . . well, virtual. Undoubtedly, many painful and nasty things were said under the cloak of anonymity. However, many a tear was shed over what appeared to me to be completely innocuous communications. In the tortured minds of my sweet adolescent daughters, virtually every comment was an insult.

It is, of course, true that a written letter also fails to incorporate elements of nonverbal communication. However, they generally tend to be far more thought through than the average text message or email. If there is something important to talk about with regard to your children, your spouse or your case, dignify the importance of the message by either communicating in person, through a counselor or in a well thought-out written communication.

There is something about the instantaneous nature of text messages (and, to some extent, emails) that tempts us to use them to respond when we are angry or hurt. When we receive a text message that seems insulting or derogatory, we rarely ask ourselves if the sender meant to say what we heard. Worse, we can instantly strike back with a nasty text message of our own.

Text messages are regular fodder for court exhibits in my practice. It is because they are often not well thought through that they often reflect the raw emotion, pent-up frustration and sheer animosity of the litigants. In other words, people often say stupid things in their text messages and these often become Exhibit A in their court case. And I’m not the only family law attorney doing this. 92% of AAML divorce attorneys cited an increase in cases using evidence taken from smart phones during the past three years. In that same survey, 94% noted an increase in text message evidence. And, as discussed in a prior post, 81% of AAML members say they have seen increased use of evidence from social networking websites during the past five years, mostly from Facebook.

Angry electronic communications are often used in court to show the inability of two parents to coparent their children, to rebut other testimony or to establish a litigant’s state of mind or attitude towards the other party. So long as the text messages are properly transcribed and complete, there is little your attorney can do to prevent them from being shown to the judge.

Aside from the impact that such communications can have on your case, try to think of the impact your communications will have on your relationship with your ex, particularly when children are involved. I have rarely seen an angry series of text messages between two parties that resolved a dispute or convinced one of the parties that their position was somehow irrational or wrong. So really: what’s the point?

Think before you text. If you really have something important to say, stop, take a deep breath, and write a letter.