Wednesday, May 18, 2011

Top Ten Common Mistakes People Make Getting a Divorce

By Eric A. Ballinger

10. If I ignore this problem, it will go away. The truth of the matter is that is your spouse has mentioned the words, "I want a divorce." This is a serious problem and it will not go away with time. Usually, one spouse is much more emotionally ready for divorce than the other and that spouse enters into the case with a distinct advantage. The better prepared spouse begins taking calculated action while the emotionally unprepared spouse is usually reacting and mostly out of emotion. If your spouse is threatening an end to the marriage, that is a wakeup call. You need to either work to improve your marriage or get ready for the end.


9. I'm moving out of the house. It is no surprise that a divorce ratchets up the tension at home and moving out seems like the easy answer. While moving out of the house will put an end to the arguments and restore your own personal privacy, you put your divorce case at a tactical disadvantage. Strategically, the marital residence is the high ground and should be held on to dearly. During the divorce case you will need access to financial records and to inventory of personal property, all of which is located at your home. Moving out of the house will entail taking your kids from their home they are familiar with or leaving them behind with your spouse. Either action will damage your argument for custody. You either rip the children form all that's familiar to them or you leave the children with the parent you think should not have custody. You also take the incentive away from your spouse to resolve the divorce. The spouse left in the house has all of the benefits of being divorced without any of the costs. Unless you are in fear for life or limb, it is best to remain in the house is until you are advised by counsel or ordered by a judge.


8. It's my money, I'm taking it out of the bank. Financially, going through a divorce is a balancing act. On one hand you do not want to leave your finances exposed and open to a spouse whom you no longer trust, however you do not want to leave your spouse destitute either. Once a divorce is filed, State law and Court orders dictate that you cannot spend money or dispose of your assets, except in the ordinary course of business. Once the proceedings are underway, every penny that has come in and out of the marriage will be scrutinized by the lawyers and the judge. The Court has the authority to order that funds be replaced, even if they no longer exist. The party that gets heavy handed with the money is often penalized by the court as a way to level the playing field. On the other hand, you want to secure enough funds to handle the situation. Securing funds in order to retain a lawyer, obtain separate housing and cover other expenses in the early stages of the divorce is an important part of your strategy.


7. Wait until my spouse's boss hears about this. When your spouse has been caught in some sort of misconduct, especially if it involves their job, there is an overwhelming urge to expose the behavior to their boss, co-workers and even friends to somehow make the situation right. The reality is, most of us know our spouses well enough to know plenty of juicy tid bits that we would not want shared with our employers, co-workers and friends. Despite the burning urge, this is a bad idea. It is never a good idea to shoot the goose that lays the golden eggs. Most of the issues in a divorce are income driven; child support, alimony and division of debts. If your other half loses their job or their income is reduced due to some action of your own, that financial burden is going to fall back to you. In a divorce, discretion is the better strategy. You want your spouse to come out of the process making as much money as he or she can, so that money can work for you.


6. It's going to make me look better if I wait and let my spouse file. It is a common fallacy that it looks better if your spouse is the one that asked for the divorce. While some people would rather not file for moral and religious reasons, there is no real benefit to waiting for the other spouse to file. In fact, there are certain tactical advantages in the courtroom that make it advantageous to be the party plaintiff. While the Plaintiff carries the burden of proof, the Plaintiff gets the first and last word in front of the judge. This is a very powerful advantage in the courtroom. Further, there is some peace of mind to take a proactive stance in what is one of the most disruptive events in your life. The sooner you take action, the sooner you can put your divorce behind you and move on with your life.


5. I'm not giving that !@#$% a dime. A common mistake people make in getting a divorce is being able to separate their angst for their spouse and the money they pay for the support of the children. One of the hardest thing to do is to write a check to the person you are the angriest with. However, not financially supporting the children is a huge mistake. It is against the law to leave your children in a state of want and can lead to criminal prosecution. Further, judges take a dim view of people who do not help out their children financially. There are ways to ease the pain of support and insure that your children are receiving the benefit of your financial support. If there is no order for support, you can always provide support by directly paying for items such as mortgage, vehicles and utilities or by providing in kind support by buying groceries and supplies. Once an order is entered requiring a specified amount that is what is required and failure to pay support can result in further unpleasant consequences with the Court.


4. The kids don't need to see my spouse. This is the converse to mistake number five. Sometimes it is just very hard to send your children to spend time with the person you are the angriest with. There are certain circumstances where it is not appropriate for children to be around the other parent, however that sort of determination should be made only after careful consideration and sound counsel. Divorce is toughest on children and when one of their parents is no longer in their life, it can be as emotionally difficult as having a parent die. Children do not understand the conflicts between adults and often blame themselves. What the Courts look for in a custodial parent somebody who is going to facilitate the children maintaining a relationship with both parents.


3. Let me share my perspective with the kids so they understand. No matter what age they are, your children will rarely, if ever, understand why you are getting a divorce. Most certainly they do not need to get involved with the divorce. However, it never fails, parents always feel the need to justify their position to the children as if they were the jury that decides the case. Young children do not understand divorce and have a tendency to blame themselves when their parents split up. As children get older, they tend to see divorce as grown up business and just do not want to get involved. It is a terribly cruel thing to force a child of any age to pick between their two parents.


2. My spouse wouldn't do that to me. Naiveté in a divorce is almost as bad as open hostility. Many people walk into a divorce believing that their spouse is incapable of doing the sort of cruel acts and misconduct that permeate these sorts of cases. While the hostility of divorce can be bad, turning a blind eye can leaves a party vulnerable. Many of the hurtful acts that go on in a marriage can have devastating effects on the minor children of a marriage. They can also lead to making poor strategic and tactical decisions in handling the divorce, which can be very costly. In handling your case, you only get one chance and no "do over". Vigilance and prudence are very important.


1. I can handle this without a lawyer. The biggest mistake people make in their divorce is trying to handle the case without a lawyer. Even if your case is completely un-contested, you need a lawyer to insure that the documents are drafted properly and to guide you through the process. A divorce encompasses every aspect of your life, custody of your children, title to your home, payment of your debts and division of all of your assets. Even if your spouse has hired an attorney, it pays to have the documents reviewed by an experienced family lawyer whom you trust. They can insure that the documents not only accurately reflect your agreement but also are drawn properly to be enforced in the future. If your case is contested, your lawyer can help you identify and frame the issues to present your best case to the Courts in your jurisdiction.


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1 comment:

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