The Quickest Way to a Costly Divorce Settlement

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Of all the things you can do to shoot yourself in the foot during a divorce, this one tops the list. Talking to your Ex about legal issues or personal things that they don’t need to know about. It will cost you money, frustrate your attorney, and set you up for disappointment. And who wants that?

It happens more than you think. You hire an attorney, but between all of the child exchanges and communications with your Ex, you get tired and forget that there is a line between co-parenting and litigation that shouldn’t be crossed. The next thing you know, something you’ve said in a moment of (frustration/irritation/exasperation) has tipped your hand in favor of your Ex, and his/her attorney will use that to prove that your Ex’s behavior has been corrected (at least temporarily right before the hearing) or to use against you. Either way, you have just given away your best chance of getting the modification you have spent so much time working towards.

Talk to your Ex about the kid’s homework, about soccer practice, about rehearsals, but don’t talk to them about anything beyond parenting. Handling legal matters is your attorney’s job. Let your attorney do what you hired them to do without making them jump through more hoops because you opened your mouth about a recent purchase, the party you attended or the lavish trip you took, or whatever. Sometimes the best way to help your attorney help you, is to remain silent.


Three Things You Should Never Do During a Divorce:

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1. Don’t Bring Your New Girl/Boy Friend Around the Kids Until The Divorce is Final.

Doing so will only irritate your soon-to-be Ex, who already doesn’t like the new girl/boyfriend in the first place. You will end up having to defend your new girl/boyfriend against the accusations of your soon-to-be Ex, and possibly end up with a court order prohibiting them from being around your kids.

2. Don’t Make Irritated Comments in Response. Showing emotion in court will only demonstrate that you can’t control yourself. This will make it easier for your Ex to convince the court that you did something while you were upset, and use it against you.

3. Don’t Show a “You Owe Me” Attitude. Maybe your soon-to-be Ex does owe you, and maybe they don’t. But the more you claim they owe you, the more they are going to magically remember all the things they did for you, which will likely end up outweighing the few things they remember you doing for them.

By | 2016-10-27T00:30:12+00:00 July 22nd, 2016|Categories: Civil Litigation, Custody, Divorce, Family Law-General|Tags: |0 Comments

How to Prove Your Assertions in Family Court

Blog17_ProvingYourAssertionsv2In my last post I talked about the level of certainty required in matters of Family Law, depending on WHAT you need to prove. In this post, I’ll cover HOW to prove what you need to prove.


How can I prove it? It’s a question you may not think to ask yourself until you’re standing in front of a judge, but unless your Ex makes it obvious to the court that they are a problem child, you’ll have a hard time proving their errant behavior if you don’t have documented proof.

What you can do. Keeping a calendar or simply writing down what happened at or near the time of the event is a good first step. Having family or friends observe your interactions with your Ex, then reviewing your calendar entries about these interactions is the best way to make your case. Keep a journal or a calendar to record your Ex’s bad behavior, and record it at or near the time it happens. These constitute what the court refers to as contemporaneous notes, and they carry greater weight with a judge.


But I hate keeping a journal. I get it. Writing everything down is a chore.


If that doesn’t work for you, try this. Let’s say your Ex is getting lax about picking up the kids when he or she is supposed to, or refusing to exercise their visitation, leaving you to wait endlessly because they don’t show up or call. Exchange the kids where you can buy a burger or soda, or fill up the gas tank. In doing this, you get a date/time stamped receipt while taking care of something you need to do anyway. Keep your receipts as proof that you really were at the exchange point, on time, and ready to pickup or drop off your child, and it was your Ex who showed up late (or not at all).

A picture is worth a thousand words, especially if it has a time stamp. If you’re having similar problems but the visitation exchanges take place at your home, just take a picture of them walking away from your Ex’s car. Provided you capture the image with a date and time stamp, you’ve made it very difficult for them to claim they were not late, or it was your fault, or whatever their usual excuse is. Even if they are on time, it will put your Ex on notice that you’re serious about sticking to the schedule, and able to prove it if they aren’t.

The point here is that you can’t wait until you’re standing in front of a judge to come up with the proof for your assertions. Figure out the easiest way for you to document your Ex’s bad behavior, whatever that might be. Dealing with a misbehaving Ex in difficult, but if you prepare, you can significantly improve your chances of things going your way in court.

Burden of Proof. What it Means to You in Family Court

ContemporaneousNotes_layersDifferent areas of law require different burdens of proof. In Criminal Law, the burden of proof is “beyond a reasonable doubt,” commonly thought of as 99% certainty. For Family Law, the burden of proof is considerably lower, but there are essentially two levels of proof required depending on what you are trying to prove. Let’s look at those two levels:


Preponderance of the Evidence = 51% Certainty. This is the level of proof required in General Assertions. Lets say you are asserting to the court that your Ex owes you money or that you want to modify custody/visitation. The judge may rule in your favor based on a “preponderence of the evidence,” meaning you’ve demonstrated with a 51% certainty (more likely than not) that your Ex really does owe you money or that the requested modification of custody/visitation is in the best interest of the children.

Clear and Convincing Evidence = 75% Certainty. This is the level of proof required in Proving Contempt. In many cases, my clients are coming to me because their Ex is not following a court order, the set of rules handed down in a previous judgment with regard to such issues as child custody, visitation rights, or property division. When someone disobeys a court order, they are “in contempt,” a legal term for someone’s behavior when they knowingly defy the court. This is a serious matter that can lead to jail time, hence the higher burden of proof.


As an Example: Let’s say your Ex has repeatedly denied you visitation as specified on the court order. The challenge now, is to PROVE that your Ex is in contempt.

There are three things that you and your attorney must prove to this higher standard of clear and convincing evidence (75% Certainty):

1. Prove there is a written court order in your case requiring your Ex to fulfill the particular obligation they are failing to fulfill.

2. Prove your Ex KNEW there was a court order requiring them to fulfill the obligation that they are failing to fulfill.

3. Prove your Ex WILLFULLY refused to fulfill the obligation.

In the above example, showing that there is a court order is relatively easy. Showing where your Ex signed the court order is also relatively easy. Showing that they willfully refused to fulfill the obligation is NOT as easy, and must be demonstrated to a 75% certainty.

This brings us to the topic of “contemporaneous notes” a legal term for notes written at or near the time of the event, while the event is fresh in your mind. This adds credibility to your notes. If your notes were made before the current fight began, your notes are more believable.

In the above example, your Ex has refused to turn the kids over to you for your court ordered visitation. Lets say you tell your Ex that he or she is in violation of the court order, and document it that same evening in your journal. You now have a contemporaneous note. The next time your Ex refuses to allow you visitation, you are in a good position to show that your Ex is “in contempt,” because they continued to defy the court order, even after you pointed out to them that they are defying it.

Your Ex’s only recourse, would be a contemporaneous note of their own that counters yours or, more likely, getting one of their family or friends to claim that your Ex did not fail to let you have the kids but that you failed to communicate with your Ex (the it’s not me, it’s them defense – which is all too common). In that case it will come down to text messages or e-mails or phone records. If you can show that you made the contact, your Ex will be unlikely to counter such proof and you will likely prevail.

Understanding how the burden of proof can work FOR you or AGAINST you in Family Law is important.

When your ex throws dirt at you in court, it isn’t always easy to prove that you didn’t do what they are claiming, and because they have a lower burden of proof, 51% in this case, you might find yourself in a difficult position.

So what do you do? If you’re living under a court order, think defensively. Log your fulfillment of court ordered obligations, and keep a journal. Having your own set of “contemporaneous notes” of when you dropped the kids off, and when you picked them up, could come in handy.

 

 

 

 

Coaching Father on Mediation Process Leads to Favorable Outcome.

This is the second post in a three part series in which I highlight positive outcomes for cases that I’ve handled over the years and what you can learn from them. This is not a representation of the outcome in your particular case, but rather an explanation of what happened in these specific cases:


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All custody cases must go through a mediation process in hopes the parents will settle their differences without a trial. Mediators are county employees tasked with hearing each side’s case and writing a report to the Judge based on the mediation session. Their recommendations carry tremendous weight. A Judge MUST: follow the mediator’s recommendation, or cite special circumstances or give good cause for doing something different.

Therefore, how a parent manages their mediation session can have far-reaching consequences.

In a recent case, all previous reports had been unfavorable to my client who was a Father seeking custody of his children. With my coaching, he received his first favorable report and was granted custody of his children during the school year.

Knowing how the system works, and learning how to present yourself can make all the difference. Let me show you how.

 

By | 2016-10-27T00:30:12+00:00 June 17th, 2016|Categories: Custody, Divorce, Family Law-General, Mediation|Tags: , |0 Comments

Client’s Ex Moved Their Child Out Of The County Without Giving Written Notice.

This is the first in a series of three posts in which I highlight positive outcomes for cases that I’ve handled over the years and what you can learn from them. This is not a representation of the outcome in your particular case, but rather an explanation of what happened in these specific cases:


Frank_Moving BoxI represented a mother whose Ex voluntarily took temporary custody of their child while she fled from an abusive situation with her new spouse. Once she was safe, however, her Ex refused to return the child to her.

This of course was not okay with my client. We were able to gain a positive outcome using a child custody law that runs something like this:

If you are going to move outside the county and take the children with you, you must give the other parent notice in writing and send that notice by certified mail, return receipt requested.

Failure to follow this rule makes a court less likely to permit you to take the children with you. Whether you give notice or not, you must prove that the move is in the children’s best interest.

Because the Father did not follow this rule when he moved to a new county, and because he failed to follow the previously agreed upon visitation plan, this put him in violation of the law. Because of this, I was able to persuade him to comply with the previously agreed upon visitation schedule, thereby avoiding litigation and its expense.

Negotiate when you can. Fight only when you must.

Avoiding the Pitfalls of Child Visitation Issues

With all of the potentially disastrous outcomes in a divorce, the one you really don’t want to mess up on is Child Visitation, and navigating this issue isn’t as common sense as you might think. You’ll do well to remember the following:


CWDblogpostNo11a1. Passing on a Scheduled Visitation Doesn’t Give you the Right to Withhold Visitation.

So you passed up a chance to spend time with your kids because of a scheduling conflict. Your Ex got to keep them for that weekend, so to even the score, you deny your Ex a scheduled visitation. It’s only fair, right? Not to the courts. Taking this approach is refusing to comply with a court order.  It’s a good way to lose time with your kids, end up paying more child support, or get thrown in jail for contempt. Don’t do it!

Family law courts are courts of equity. If you don’t do the right thing by your Ex, the court will do what it can to balance the scales in your Ex’s favor.e scales in your Ex’s favor.


CWDblogpostNo11b2. Don’t Withhold Visitation for Failure to Pay Child Support or Vise Versa.

This is another way to wind up in jail for contempt, and for your Ex to wind up with the kids. It’s also a good way to end up paying more child support. As I’ve mentioned before, the courts are courts of equity, and it’s their job to tip the scales for the sake of fairness. Tip them yourself, and it will backfire every time. As I’ve mentioned before, the courts are courts of equity, and it’s their job to tip the scales for the sake of fairness. Tip them yourself, and it will backfire every time. As I’ve mentioned before, the courts are courts of equity, and it’s their job to tip the scales for the sake of fairness. Tip them yourself, and it will backfire every time.


CWDblogpostNo11c3. Make Sure You Read and Understand All Court Orders in Your Case.

This is true for any and all issues in your divorce, but I mention it here because dealing with children is an emotionally charged issue, and parents find it tempting to bend the rules. Know and understand what you’ve been ordered to do by the court, and do it. “I didn’t know” or “I forgot” or “I didn’t think that’s what the order said” is not going to cut it with the judge. It’s also a good way to get thrown in jail for contempt.

 

Three Things You Should Always Do When Children Are Involved in Your Divorce

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1. Avoid Alienating the Children From Your Ex.
Trying to turn the kids against the Ex will eventually turn them against you. Kids grow up and think for themselves, and when they do, they’ll realize what you’ve been up to. This will not end well for you. Nobody likes to hear others say bad things about their parents, even when it is their other parent. The kids love and need you both.

2. Make All Support Payments With a Check.
If you voluntarily give your Ex money, or can’t prove you made a support payment, then the court won’t give you credit for it and you will have to pay twice. If the payment in question is court ordered support, your inability to prove payment could get you jailed for contempt—every month! Cash may be king, but it’s not your friend.

3. Keep a Visitation Diary
When your Ex can’t follow the visitation order, or constantly wants to see the kids during your designated time with little or no advanced notice, write it down when it happens. It will look more credible if it is noted in real time, and will help show the court that your Ex is being difficult and failing to work with you.