July 2016 – Curtis W. Daugherty, PC

Three Things You Don’t Want to Do During a Divorce:

1. Don’t Argue Religion.
You are not going to convert anybody during your divorce case, but you can turn your soon-to-be Ex against you and set yourself up to look like a hypocrite. I’ve seen it happen.

2. Don’t Make Proposals You Are Not Fully Prepared to Live With.
It’s a good way to either destroy your credibility or end up having to live with something you didn’t want, all because you opened your mouth when your emotions were running high. Which leads me to my last point.

3. Don’t Give Your Ex Access To Your Emotions.
They will use them to manipulate you. They will use them to irritate you into doing something they can use against you, or use them to make you look easily manipulated. Either way, you lose.

By Curtis Daugherty|2016-10-27T00:30:12-08:00July 28th, 2016|Categories: Divorce, Mediation|Tags: never do this during divorce|Comments Off

Three Things You Should Never Do During a Divorce:

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 Curtis Daugherty|2016-10-27T00:30:12-08:00July 22nd, 2016|Categories: Civil Litigation, Custody, Divorce, Family Law-General|Tags: never do during divorce|Comments Off

How to Prove Your Assertions in Family Court

In 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.

By Curtis Daugherty|2016-10-27T00:30:12-08:00July 14th, 2016|Categories: Civil Litigation, Custody, Divorce, Family Law-General|Tags: how to prove assertions, proving assertions, proving assertions in family court|Comments Off

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

Different 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.