Talking with your lawyer is not like talking with your best friend. Although you want to have open and easy communication with your lawyer, you must remember to stay focused on the issues your lawyer wants you to address and not overwhelm him or her with inappropriate demands and superfluous information. This section addresses things that clients do that their lawyers wish they wouldn't.
Having Unclear Objectives
One of the biggest mistakes you can make is to go through the litigation without knowing what you hope to accomplish. If you know what you want to get out of the litigation, you will feel less lost and confused. If you know where you are going and have a plan for getting there, you will be able to assess your progress and make adjustments in your plan if necessary. Without a plan, you will be doing nothing more than paying attorney bills and wondering how long the whole thing can continue. Just as your attorney needs an action plan, you need one of your own.
Before you can formulate a list of objectives, you must sift through your personal feelings and those of your spouse to determine what motivates each of you. Try to distinguish what you really want from how you react to your spouse. Also consider why your spouse may be acting a certain way. Because each divorcing spouse experiences the dissolution of a marriage differently, one person is usually in more of a hurry than the other to be divorced, and one person is usually hurting more than the other. If you can identify these different motivations and keep them separated in your mind from the goals you are trying to achieve, you will be less confused as your litigation progresses.
If you have plans to remarry soon but your spouse feels no sense of urgency about the divorce (or wishes to postpone your remarriage), your spouse may use the situation as a negotiating tool and force you to give up a larger share of the assets. If one spouse has more earning potential than the other, the economically dependent spouse may fight the divorce in order to keep his or her hooks in the other's income. An abusive or controlling spouse may resist a divorce or insist on custody of the children as a way of continuing to exert control over the other person. Some people are so fearful of being alone that maintaining a connection, even though something as unpleasant as an ongoing divorce, gives them comfort. Other people view the divorce process as an opportunity to harass and punish their spouse or to drain his or her financial resources.
Negative emotion is to be expected as part of getting divorced. If you face the fact that you are going to have to deal with it, your divorce will proceed more smoothly than if you try to deny it and then lose control when it occurs. Divorcing couples have been irrational and cruel to each other since the beginning of time, and if you manage to escape from a marriage unscathed, consider yourself a member of a very tiny club. Even the ultra-civilized elite of the early 1900's were spiteful in divorce. The following passage from an article in the Baltimore Sun (May 16, 1995) about local historical architecture illustrates the extremes some people will go to for revenge.
In their day, these monolith-like buildings, erected between 19I2 and 1926, were a cornerstone of Baltimore social life and housed many prominent city families. One of the most notable was Capt. Isaac Emerson, a lavishly wealthy man and founder of the drug company that made Bromo Seltzer.
Local lore has it that Captain Emerson built the Emersonian as part of a vicious spat with his ex-wife. Mrs. Emerson lived in a mansion the couple had built at 2500 Eutaw Place, and the Captain supposedly had the Emersonian built to block her view of the lake.
With all the emotional subtext in a divorce, winning means different things to different people. Moreover, even for the same person, what constitutes a win may change over time, depending on that person's emotions and finances. If your spouse has left you for someone else, in the beginning you may feel so angry that nothing short of the death of your spouse would feel like winning to you. But over time, as you get used to the idea that your spouse has left, you may decide that you are happier without him or her. At that point, you may be less interested in paying a divorce lawyer to fight over the dishes and VCR. You might prefer to start afresh with new dishes.
That is why, while it may be tempting to allow your emotions to dictate what you do during your divorce case, this approach can be dangerous. If you don't have a focus and hence a frame of reference against which to measure your progress you run the risk of having the litigation get out of control with you footing the bill. If you allow your emotions and your reactions to your spouse's legal strategies to control your decision making, you may run out of money before you achieve your desired result. In fact, you may be so busy reacting to your spouse that you don't know what your desired result is.
Once you have separated out your emotional baggage, identify your goals and objectives, and put them in order of importance. Work with your lawyer to determine which issues are urgent and which can be left for later. Your list may look something like this:
- get spouse out of the house or find new living arrangements for myself
- prevent spouse from snatching children
- make sure the mortgage gets paid even though spouse has control of all money
- protect my business from ruinous claims by spouse
- prevent spouse from cleaning out joint accounts and assets
- determine what assets I have and which of them are subject to claims of spouse and to what extent
- clarify temporary living arrangements for children
- deal with harassing phone calls and/or other harassing contact from spouse
- decide whether to file for divorce
- decide whether to countersue if spouse has already filed
- determine whether I want sole custody, joint custody, or no custody of children
- determine what my child support obligation will be
- determine spouse's position on custody
- determine likelihood of success at obtaining custody arrangements I want
- determine whether any issues can be settled
- determine the mental status of spouse
It is important that you address living arrangements as soon as possible. If you and your spouse have been living together and the impending divorce means that one of you will have to move, that issue must be addressed right away. If you don't know where you will be living, if you worry every day that when you come home the locks on your house will have been changed, or if your spouse has disappeared with all the money and the bank is foreclosing on your house, you won't be able to function at work or on a personal level.
You must focus on finding a place that can be your sanctuary while the divorce battle plays itself out. Do not overlook the importance of having a place where you can feel safe. Whether that means getting a protective order to keep your spouse away, going to a shelter, moving in with relatives, getting an apartment, or buying a new house, this is the first issue you must resolve. Until you have a home base, you will be useless to yourself and to your children.
If you fear for your physical safety, but your lawyer doesn't seem to be taking you seriously or has been unable to get the court to help (which is often the case), consult with a support group or helpline for battered spouses. Tell anyone who might be able to help about the problem. Keep reaching out for help until you get it. Contrary to what your spouse, or even the judge, might be telling you, being abused by a spouse is not your fault. Don't be ashamed to ask for help.
If you have young children, the next issue you must address is where they will live until the court determines custody. Keep in mind that, in a custody battle, you will be judged based on how well you keep the best interests of your children in the forefront. Judges and mental health professionals generally believe that children are best served by having two parents, and that it is not in a child's best interest to have one parent prevent the child from having a relationship with the other parent. If you take the children away from their other parent during the custody fight, your spouse may accuse you of depriving the children of a relationship, with him or her. In general, the more flexible and accommodating you are about allowing your spouse to have time with the children, the more kindly the court system will look upon you in the end. However, if you move out of the family home and leave the children with the other parent, this may be construed by the court as an indication that you abandoned the children and do not care about them.
Of course, there are cases where general principles do not apply, and your case may be one. You need to discuss the specific facts of your case with your attorney in order to determine what approach to take. For example, if you must leave town to find work or for some other reason, it may not be possible to devise a schedule where both parents see the children regularly. If your spouse is abusing your child, it may not be appropriate for him or her to be alone with the child. Your lawyer needs to advise you on how to handle such situations.
Once the issues of where you and the children will live are resolved, and when and under what circumstances the children will see their parents, you can begin to address the other issues on your list. Work with your lawyer to prioritize your goals; then write down what has to be done to accomplish each. You will be responsible for some of these things and your lawyer for others. Next to each item, pencil in the date by which you and your lawyer propose to have it accomplished. When your list is complete, you will have your own action plan that you can use to periodically monitor the progress of your case and the effectiveness of your attorney. If at any time your case does not appear to be progressing, take a moment to assess the reason. Perhaps it's your own procrastination, your lawyer's failure to accomplish promised tasks, or new legal issues popping up-any of these things could prevent you from focusing on your intended goals. Take appropriate steps to correct any problems and get back on track.
Your action plan is like a to-do list. Often when we feel overwhelmed by all the work we have to do, when we feel we are not getting anything done, it is helpful to make a to-do list and then check off items as we accomplish them. This allows us to see written evidence that we have, in fact, accomplished a great deal, even though it may not feel like it.
Succumbing to the Other Side's Mental Engineering
Another common mistake you must not make is to allow the other side's head games to bother you. Before you embark on a divorce or custody fight, even before you go lawyer hunting, take an emotional inventory. Do you feel scared, angry, weak, powerful, afraid, confused? If you feel angry and powerful, that's great. If you feel weak, afraid, or confused, you need to get your thoughts organized and make a plan so you can start to feel less so.
Once the fight begins, not only will you be under siege legally, but you will be under attack mentally and emotionally. Not only will your spouse be your adversary, but he or she will have a powerful ally in the form of an obnoxious, intimidating attorney. You will have to be strong enough to withstand this attack.
If you want (and can afford) the help of a therapist, by all means, explore this option, as long as your lawyer has no objections. Align yourself with friends, neighbors, family, support groups, spiritual counselors, parents of your children's friends, and anyone else you can think of. Remember that roughly half of all marriages end in divorce. You are not the only one going through this. There are people out there who have been where you are, or are where you are, who can help you. They can say and do things that will help you maintain a positive attitude.
It is up to you to ask for help when you need it and to take care of yourself as the battle rages. Think of yourself as a football player. When a play-off game is approaching, football players eat right and exercise. They eliminate distractions from their lives so they can train for the big game. They analyze the opponent's strengths and weaknesses and plan a strategy accordingly. They don't cower in fear and fantasize about the worst. Rather, they ready themselves for the fight. This is how you should approach your lawsuit. One thing you can do to prepare yourself for the fight ahead is to anticipate the four most common mind-manipulation techniques employed by divorcing spouses:
- threats and intimidation
- criminal charges
- spouse-bashing and brainwashing of children
- psychologists and other paid experts
Now that you have read something about how a divorce progresses, you can probably see the similarities between a divorce and many of life's other challenges: a golf game, an election campaign, repairing a funny noise in the toilet, the quest to get pregnant, a war. First, pick a challenge from your past. Do you remember how things started out and then changed direction and how, as a result, you felt alternating elation and despair? Remember the unpredictable twists and turns you took on your way to the final result? Remember how it took much longer than you had originally thought it should?
As your divorce progresses and your nerves start to fray, compare the divorce to those other struggles. You are going to have ups and downs, but having a bad day does not mean that all is lost. Look at your action plan and see how far you have come. The emergencies that seemed so important last month have faded away, only to have their places taken by new ones. Divorce is a process, and for every problem that crops up, there are several ways to fix it or turn it to your advantage, as long as you persevere. Hang on to your perspective and your sense of burner. If you have children, you need to rise above the mudslinging and get on with living and having a positive relationship with your children.
Using Your Lawyer as a Therapist
Many times, you will be tempted to talk to your lawyer about your personal problems, particularly since he or she is right in the middle of the action. Resist the temptation. Your lawyer is not trained to help you with nonlegal issues. Although they can and should give you the legal perspective on your problems and help you understand what your rights are and what you risk by making certain choices in the litigation, lawyers cannot help you deal with feelings such as rage and depression. Talk to your lawyer about your feelings only to the extent that the lawyer encourages it, and only for purposes of establishing whether your fears are legitimate and what you can do about them legally.
Once your lawyer gives you the lay of the legal land, if you still cannot cope emotionally, find someone better equipped to help, such as a therapist, rabbi, minister, or priest. Let your lawyer know if you are contemplating counseling. He or she should find out whether what you say to a counselor will remain confidential and immune from being subpoenaed or whether your spouse could get hold of your records and use them against you in the litigation.
In any event, do not bore your lawyer with tirades against your spouse. First of all, you will be charged for the time and will have gotten absolutely nothing for your money. Second, subjecting your lawyer to your negative emotions could make him or her angry or annoyed at you or your spouse, thus making him or her less objective and therefore less effective.
Remember, your lawyer's job, ultimately, is to get the judge to decide your way. If he or she can settle your case before the trial, so much the better. But to do this your lawyer needs to be able to view your case from the judge's perspective, not just yours. Use your lawyer as a weapon in your struggle to win your divorce or custody case, but keep that struggle separate from your other struggle-to heal yourself emotionally.
Expecting to Get Justice by Going to Court
Many people naively believe that, if they can just get the judge to listen to what their ex did, the judge will make things okay. Well, it doesn't work that way. Why not?
In some jurisdictions, judges are appointed as part of a political process and are therefore not answerable to the electorate, other than possibly having to run in infrequent "retention elections." Their biases, values, and belief systems are often more in sync with the political cronies who control the system than the people who appear before them. Even judges who are elected come with no guarantee of open-mindedness. In fact, many judges who routinely hear divorce cases become jaded and callous, adopting the attitude that if two grown people cannot resolve their differences without resorting to the courts, then they deserve whatever result the system decides to impose.
Because there are two sides to every story, judges often find it impossible to figure out who is right or who is telling the truth in the short time they have to deliberate. Instead of trying to figure out the truth themselves, some judges look for a way out. Some will hand the matter off to a social worker or psychologist to "evaluate" often at great expense to the divorcing spouses.
Just as often, a judge will apply direct pressure to the lawyers and litigants to work it out among themselves. It is not uncommon, though, for divorce judges to lecture, belittle, shame, threaten and punish litigants in an effort to get them to work it out or to get one party to give in to the other. Some judges are purposely irrational, unpredictable, inconsistent, rude or insensitive, perhaps in the hope that the parties will be sufficiently cowed to agree on a resolution rather than taking the risk of letting the judge decide for them.
Take the case of Roslyn Smith, reported in the Maryland Special Joint Committee on Gender Bias in the Courts report issued in 1989. Ms. Smith sought help from the court system after her husband threatened to kill her with his gun. She told the committee:
“The thing that has never left my mind from that point to now is what the judge said to me. He took a few minutes and he looked at me and he said, ‘I don't believe anything that you're saying’. ‘The reason I don't believe it is because I don't believe that anything like this could happen to me’. If I was you and someone had threatened me with a gun, there is no way that I would continue to stay with them. There is no way that I could take that kind of abuse from them. Therefore, since I would not let that happen to me, ‘I can't believe that it happened to you’.
I have just never forgotten those words. When I left the courtroom that day, I felt very defeated, and very powerless and very hopeless, because not only had I gone through the experience which I found to be overwhelming, very trying and almost cost me my life, but to sit up in court and make myself open up and recount all my feelings and fear and then have it thrown back in my face as being totally untrue just because this big man would not allow anyone to do this to him, placed me in a state of shock which probably hasn't left me yet.”
Or take the case of Kathleen Murphy, a bank teller who lost custody of her five-year-old son to her former husband, a lumber company executive. According to newspaper reports, the judge awarded her ex-husband exclusive use of the family house and ordered her to pay him $95 per month in child support, even though at the time she was only earning $7 per hour. Ms. Murphy told the Baltimore Sun, "After you put your faith in the judicial system for your whole life and something like this happens to you, you go home and suffer in silence."
Or take the case of Vivian Archie. Although the Tennessee state judge handling her custody case was convicted of sexually assaulting her, his conviction was later overturned. A federal judge who disagreed with this result explained why:
The theory of the felony counts was that the [state judge] willfully-and repeatedly used the powers of his judicial office to coerce a woman named Vivian Archic into fellating him on pain of losing her child. Mrs. Archie was physically restrained throughout these assaults, according to her testimony, and she was afraid to scream for help because of the [state judge's] implied threats to deprive her of the custody of her little girl. The jury evidently thought that Mrs. Archie was telling the truth-and if the jury was right in this, it is hard for me to imagine a more clear-cut deprivation of liberty.
People going through divorce often see their own position as the "right" one and cannot believe a judge won't see it the same way. But a trial is not about the truth; it is the telling of a story. What the judge hears will depend on how good a storyteller your lawyer is and how convincing you and your witnesses are. If you are stiff and wooden or overly emotional and hysterical, the judge may not believe you or may sympathize with your spouse. The judge may have gone through a messy divorce herself, and you may remind her of her ex-husband. The judge could have a very negative reaction to you for some reason, and you may never know why. Although judges are supposed to be trained to put aside personal prejudices and biases, is this really possible? You must realize that whenever you turn a decision over to a judge, as opposed to reaching agreement with your spouse, you are both handing over control to someone else, someone about whom you know very little and over whom you can exert only as much influence as your lawyer can muster.
Your lawyer may try to put certain things into evidence before the judge that are excluded for technical reasons. For example, things other people have told you may be excluded because they are hearsay. Some things may be ruled inadmissible because the judge finds them to be irrelevant. And certain people may not be willing to get up on the witness stand and testify against your spouse under oath because they are afraid of repercussions. What actually comes out at a trial may not bear any resemblance to the way things really are.
Let's suppose, though, that your lawyer does a good job, and all the evidence you wanted to put before the judge for consideration is admitted. You succeed in proving that your spouse, a manic-depressive taking lithium, has a house full of guns and a stockpile of food she plans to eat while living in the underground bomb shelter she insisted on building for use when the roving bands of social misfits take over the country. It may seem crystal clear to you, and everyone you know, that your wife is a nut, but don't be so sure the judge will necessarily come to the same conclusion. You may believe your gun-toting, manic-depressive wife is not a competent parent, but the judge may believe that everyone has a right to bear arms and that, as long as the manic-depressive is taking her medication, she can parent effectively. The judge may view the bomb shelter and food stockpile as legitimate precautions in a world where anything can happen. There are two ways to view every story.
Because judges are so unpredictable, if your legal position is less than clear-cut, it might make sense for you to compromise with your spouse and settle the case. You will not only save on fees but also avoid the risk of getting a bad ruling from the judge.
Even if you win your case and are totally vindicated at the trial level, your spouse can always appeal, thus creating more delay and expense, and possibly win the appeal. For this reason, even if you know you are right, it sometimes makes sense to give up a little and settle, so you can have the fight over more quickly and cheaply, and on terms you can live with.