A blog educating clients and the public about their legal rights.
Saturday, September 19, 2015
The Top Ten Mistakes that Divorcing Couples Make
The Top Ten Mistakes that
Divorcing Couples Make:
When your marriage comes to an
end, it can get complicated. The problem, of course, is that a lot of
difficult decisions must be made, and these decisions have life-long
consequences. It is difficult to know exactly what to
do. This is why it is critical that, if you a seeking a
divorce, that you obtain the services of an
experienced family law attorney. Most of these
mistakes have their root in what might be called "folk
wisdom". In other words, legal advice offered by your
neighbor's cousin who just got a divorce, or by a television show.
A good lawyer will help you avoid these disastrous mistakes:
10. Quit your job. In most divorces, there are two on-going financial
issues. They are child support and maintenance. An
urban legend has it that if you quit your job during the time your divorce
is pending, the court will be unable to order to you pay maintenance or
child support. Following this hair-brained advice is
disastrous. If the court finds that you have deliberately quit
your job, it will be determined that you are "shirking"
your responsibilities, and the judge will order you to pay the
same amount you would have been ordered to pay had you still been
working. The problem, of course, is that you are no longer work and,
therefore, you will begin accruing delinquencies. This could end up
being a lien against your real estate, and your tax refund will be
intercepted each until until the delinquency is satisfied.
9. Move away. Some people think that, if a divorce is imminent, moving
away will throw a monkey wrench into the proceedings.
It will not. In order to file a divorce petition, the law requires
that only one of the parties be a resident of the county for at least
thirty days. If you move away, you will probably be driving this
distance to court; and you will likely not be awarded primary placement of
the children because it is you who has made the situation more difficult.
8. New boyfriend or
girlfriend. This is an
especially bad idea if there are children involved. If, while your
divorce is pending, you meet this other person who you simply cannot live
without, keep it a secret. In making placement decisions, the court
and the the guardian ad litem will, at the very least, think it is bad
form. It will also make settlement discussions much more
difficult, and there are many other disastrous
7. Nit-picking and
niggling. Before you go into divorce
negotiations, make a list of your priorities. It is expensive and
counterproductive to engage in divorce litigation over an extra hour or two of
placement, or over possession of inexpensive pieces of personal property, no
matter what the sentimental value.
6. Get arrested. If a person going through a divorce is going to be arrested,
it will most likely be for domestic violence offenses or for operating under
the influence of alcohol. Once the divorce is started, it is utterly
counterproductive to argue with one another. If the police are called,
someone will be arrested, and it will usually be the man. Once you have a
criminal charge pending,
complete with conditions of bond that prohibit contact with your spouse, you
have created a road-block for yourself that may be nearly
insurmountable. Similarly, don't allow your new-found freedom to drive
you over the edge. A drunken driving charge creates similar obstacles.
5. Fighting the
GAL. The guardian ad litem is a lawyer,
hand chosen by the judge, to investigate the circumstances of the case, and to
make a recommendation to the court as to what is in the best interests of the
children. The judges place great weight in the opinion of the
guardian. It is a fatal mistake, then, to take an adversarial approach
with the guardian. You may as well come to court and curse directly
at the judge.
4. Give away the farm. Some people, especially those who are unrepresented by
counsel in a divorce, are inclined to give away the farm in
negotiations. There are various motives for doing this. They
may truly believe that no price is too great to be rid of their spouse.
Others are motivated by the guilt of infidelity. Either way, it is
a very bad idea to agree to a property division, child support order, or a
maintenance order that is not objectively fair under the law. The
emotional agony will subside with time. The judgment is permanent.
3. Band-Aid approach to
negotiations. When approaching settlement
discussions in a divorce case, it is critical that each party bear in mind
that-- with some exceptions-- this is going to be a final solution.
In other words, try to reach an agreement that will endure. Do not make
agreements that merely placate the other for a short time; that is, an
agreement that merely kicks the can down the road. For example, if
there are young children, and if the parents plan to live in entirely
different cities after the divorce, it is preposterous to agree to a shared
placement schedule. Once the children start school, such a shared
placement schedule is entirely unworkable. The only thing such an
agreement accomplishes is to delay the real negotiations to a time when things
will be much more difficult to resolve.
2. Win at all costs. The family court is described as a court of equity.
This means that the judge is obligated to do what is fair to the
parties. Almost by definition, a "fair" decision will
make neither party happy. There rarely is a winner and a loser in a
divorce. If you approach your divorce with the attitude that you are
going to destroy your spouse financially and emotionally, you are making a
grave mistake. Firstly, you will spent monumental amounts of money
on a fool's errand. Secondly, if the judge gets the impression
that you are vindictive and you are over-litigating the case, it will
back-fire. Do not seek out the divorce attorney whose reputation is
that of a shark. Seek out the attorney who
is smart, a skilled negotiator, and who has years of experience in family court.
1. Drag your feet. Whether to divorce your spouse is a very difficult decision
to make. Consequently, people drag their feet. If your marriage is
not functioning, though, this is a grave mistake. Couples will try
the proverbial "trial separation" that always seems to work
flawlessly on the soap operas. This is nothing short of magical thinking,
though. There are issues that exist that prevent your marriage from
functioning properly. Living separately will not resolve those
issues. It only masks the symptoms of profound problems of living
together that are not getting any attention. Meanwhile, only bad things
can happen while the couple lives apart. It may be the new boyfriend
or girlfriend. It may be that one spouse is a
spendthrift who wracks up tens of thousands of dollars in debt. At the
time of the divorce, this is marital debt that will be divided equally.
So, if your marriage is not functioning, you must file for divorce.
It is critical to understand that the filing of the petition for divorce is not
a point of no return. The family law in Wisconsin provides numerous
ways for the couple to reconcile even though a petition has been
filed. It is possible to seek a stay of proceedings so that the
couple may live together in an attempt to reconcile. There is a 120
day waiting period built into the law to give the parties every opportunity to
work things a out. There is no doubt that the family is far better
off if the couple is able to resolve their differences. You do not
move toward that outcome, though, by dragging your feet.