DOMESTIC VIOLENCE AWARENESS MONTH ISN’T JUST FOR WOMEN

 

 

October is National Domestic Violence Awareness Month. The often quoted statistics would suggest this month is devoted, primarily if not entirely, to drawing attention to violence against women: According to the National Coalition Against Domestic Violence, one in every four women will be a victim of domestic violence in her lifetime; 85% of reported domestic violence entails a woman as the victim; and, every year, at least 1.3 million women are assaulted by their significant other. Certainly, this violence, or any for that matter, against women is unacceptable.

 

However, just a few years ago, the National Center for Disease Control also reported that 40% of the victims of severe physical domestic violence were actually men, and that statistic is climbing. Moreover, more than one-half of the assaults involving deadline weapons were against men.

 

Unfortunately, other than these few statistics, very little is known about the prevalence of domestic violence against men, for several reasons. First, men are, traditionally, less likely to report domestic violence, whether out of fear of ridicule or a lack of support or the need to feel like and present oneself as “being a man.” Second, as a result, agencies lack the data needed to point in the direction of additional research; they spend less of their already limited resources and focus, instead, on investigating the more widely reported incidents of domestic violence against women. Third, for domestic relations litigators, in the courtroom the claim that the husband is the victim is often received, by court and jury, as an overstatement designed to garner sympathy for the man and/or place blame on the woman. And the lack of statistics and studies only frustrates our argument in the courtroom that neither is true.

 

What are you to do if you are a victim of domestic violence, then? At the outset, get to a place of safety. Now is not the time for pride. If you have children, strongly consider taking them with you. Talk to friends and family about temporary lodging before going to a shelter, if one will take you, because having family around will make it easier for a judge to award you temporary custody. Also consider requesting an order for exclusive use of your home, if you have a case pending, or filing a lawsuit in which you can do so. This may be a divorce, a protection order lawsuit or some combination of the two. Then, talk with the police, as well as your attorney and your counselor, if you have one, about resources available to you and your family. These may include short-term housing, food and other financial assistance, free or low cost counseling and free or low cost legal services. Then, consider the following musts:

 

Must #1: Police Reports – Report the violence to the police. Do not wait for things to get physical; assaults include threats intended to put you in fear of imminent harm, and domestic violence includes the verbal, emotional and financial as much as the physical. In your report to the police, be specific about dates, occurrences and how they make you and your children, if you have children, feel. Follow the officers’ advice for aftercare. Do not tell the officers that you do not want your significant other to go to jail – like many men do – because that will relieve her of facing the consequences for her action, and allow her to continue.

 

Must #2: Psychological Evaluations – If you have a case pending or are enrolled in a program that requires your significant other to participate, then request that she undergo a psychological evaluation. Often, perpetrators of domestic violence have other mental health issues that perpetuate the tendency to be violence. You may also find that she has grown up in a household in which violence was acceptable, or at least tolerated. Understand the mental health dynamics may help both of you seek out and utilize the best resources to repair your relationship, if it is reparable.

 

Must #3: Custody Evaluations – Similarly, if child custody is at issue in your case, do not hesitate to ask that your family undergo a custody evaluation. Request an evaluator who is trained in domestic violence treatment – someone who will not conclude that your claims are overstatements- and that the evaluation focus on each parent as well as each child’s relationship with each parent and how domestic violence does or does not impact that relationship. Sadly, even when children are not the direct victims of domestic violence, they are the indirect victims, lacking self-confidence and feelings of security in their household.

 

Must #4: Separate Counseling – Do not engage in “family counseling” or “joint counseling” until both you and your significant other have engaged in separate counseling and some form of treatment to identify her issues and methods for resolving them. Family counseling and joint counseling are not helpful, as they allow the perpetrator of domestic violence to blame the victim and require the victim to participate in and take some responsibility for the problems the perpetrator causes.

 

Must #5: Courage to Speak Up – Men who suffer domestic violence can only receive help if they break the silence. Not reporting domestic violence because of the stigma attached is the main reason that men currently receive few services, and one of the reasons that studies on the issue are so few.  Speak to your family, your friends, your attorney, your counselor, your church leader, whoever will listen to you and not judge. There is also a Domestic Abuse Helpline for Men and Women (1-888-7HELPLINE) operated by a nonprofit in Harmony Maine that may be of some assistance as you seek out these other, local confidants.

 

Whatever you do, please do not stay silent. Your life, as well as your children’s, is on the line.

 

Learn more, and find resources, here: http://www.helpguide.org/articles/abuse/help-for-abused-men.htm

 

MY WIFE’S ATTORNEY IS A @#$*& [EXPLICATIVE]!

 

If your wife has an attorney who is a, well, you-know-what, chances are you have thought about all of the ways you can tell that attorney to go you-know-where. Whether it was in court, when you heard that attorney accuse you of being a “deadbeat” or an “absentee father,” or in a letter accusing you of hiding money and having to pay it back “or else” or in an attorneys’ exchange outside the courtroom in which your attorney and hers went at it yelling at each other in a battle more reminiscent of a dog fight, these kinds of exchanges can be unnerving.

 

More often than not, attorneys like your wife’s intend them to be unnerving. Guys who are worried about those threats (valid or not) coming true are more likely to settle outside of court, and wives who need to feel vindicated in their divorce need (valid or not) to see their attorneys giving them a pit bull style show.

 

But this style of advocacy often has very little –if anything – to do with the merits of your case, like how good a father you are, how much you support your family already and how your property should be divided fairly. So is the style appropriate? And what can you do if, or when, it crosses the line? Try the following --

 

It’s Not Personal – First, keep in mind that it is not personally. Really. It may come across as personal when your wife’s attorney calls you this and that, but, more often than not, those are stock phrases that roll off the attorney’s tongue with ease because that is the attorney’s style. When your case is over, the attorney will probably not remember who you are and will go on to the next case using the same phrases against the next husband. Your wife’s attorney does not know you, only what your wife has said about you, which is obviously slated in her favor. Like it or not, when spouses divorce, yours sees herself as Mother Teresa and her husband as Manson.  So, the next time you hear the attorney call you a “deadbeat,” remind yourself that this attorney says that about everyone and has no idea who you really are. The judge, who has likely heard this attorney say the same thing in countless cases before yours, knows likewise.

 

Two Wrongs Won’t Make a Right – Granted, that does not make the attorney’s remarks fair. But it also does not give you and your attorney the freedom to stoop to their level, either. In this instance, as in many, to wrongs do not make a right. It is tempting to respond in kind with statements like your wife is a liar, a cheater, and so-forth, but, trust me, your judge will tune out everything you and your attorney have to say and conclude both spouses are at fault for this divorce. That will translate to stricter trial deadlines, referrals for counseling, additional hearings, and more, all of which costs you time and money. And if you wife makes less money than you, you could be paying her share, too. The better approach is to present yourself as humble, upstanding and courteous – even in the face of such pit bull style lawyering – to the judge. Your and your attorney’s style will contrast with your wife’s and hers, and that contract will actually amplify how outstanding, credible, and believable you are. In other words, you use that pit bull style to your advantage by not caving in but ignoring it.

 

Sanctions – But if (or when) that style crosses the line, you may ant to sue. How can anyone, much less an attorney who is subjected to a code of ethics, get away with unsupported accusations and blatant lies, right? Unfortunately, in most jurisdictions, statements in courtrooms are absolutely protected from slander lawsuits. This means, you cannot sue the attorney, or your wife for that matter, for making such statements in documents offered to the court or in oral argument to the judge. However, that does not mean your wife and her attorney face no repercussions for their actions. In those same jurisdictions, laws usually provide that your judge can sanction your wife, her attorney or both with fines, awards of attorneys fees and   even jail time for making statements that are: (1) materially false; or (2) unsupported by law or (3) not advanced as a reasonable extension of existing law. So, when these statements get out of hand, talk with your attorney about sanctions to get them  under control – and, ideally, out of your case altogether.

 

Divorce is tough. But attorneys who argue for the sake of arguing only make it tougher, most often on your attorney fee dollar. If you are faced with this type of attorney on the opposite side of the courtroom, remind yourself of these three things – and never stoop to their level.

 

 

SHOULD SHE STAY OR SHOULD SHE GO? DEALING WITH THE OTHER WOMEN IN YOUR DIVORCE

 

“You have to pay her how much alimony? What about our ‘business trip’ to the Bahamas?”

 

“Billy, why don’t you bring the children over for a nice, long weekend with Grandma? Who cares if it’s Susan’s weekend? What is she, still your wife?”

 

“How can the court make you give that ring to her if you give it to me first?”

 

Sound familiar? If you are dealing with other women, be they girlfriends or second wives, grandmas or aunts, sisters or mothers, you have probably heard statements like these. These women are excellent at giving advice, helping you deal with your family dissolution, and comforting you when you are down.

 

But beware. They look and talk like angels, but they may be devils in disguise. Whether you are in the midst of a family dissolution or your family dissolved years ago, the other women in your life will affect your family harmony – and possibly your legal rights.

 

 

Lovers and Finances

Divorce attorneys often hear the question, “Will my child support increase if my new wife gets a pay raise?” or a variant thereto. My favorite was the client who asked whether the divorce court would order him to give the diamond bracelet he bought for his 20-something girlfriend (and the reason his wife filed for divorce) to his soon-to-be-ex. “I don’t think she’ll go for it,” he said. “They, I mean. My girlfriend won’t understand, and my wife will probably strangle me with it. She has the same one.”

 

The short answer is usually no. First, unless your rights have been suspended or terminated, only you are responsible for supporting your children. Therefore, the court will consider your resources (and your ex’s) when calculating child support, but not the resources of lovers, mothers, aunts, sisters, etc., none of whom are legally responsible for your children. Second, the property and debt you acquired during your marriage (and sometimes before) are game for property division, but not that of third parties, who are not parties to and have acquired no rights under your marriage.

 

There are exceptions.

 

Take the case of Mr. Irvin in Irvin v Irvin, 47 Ark App 48; 883 SW2d 862 (1994), as an example.          Mr. Irvin and his wife had two children, twin boys. In their consent divorce decree, the Irvins agreed that Mr. Irvin would pay $250 monthly child support. Less than three months later, Ms. Irvin petitioned the divorce court for a support increase. Mr. Irvin failed to appear at the hearing. Based on testimony from Ms. Irvin, the divorce court concluded Mr. Irvin had an income of or was capable of earning $25,000, even though he had no job, and increased his support obligation to $505 a month.

 

On review from Mr. Irvin’s objection, Mr. Irvin’s real income came to light. Although he never held a job during their marriage, Ms. Irvin testified that Mr. Irvin always had money to spend. He paid cash for all purchases. The purchases included a $7,500 Firebird, an $18,000 Nissan, a $13,000 mobile home, a $2,000 air conditioner, living room furniture, kitchen appliances, entertainment systems, clothes, and a diamond ring for his girlfriend. He boasted about the ring. (Although he never revealed his occupation, Mr. Irvin was charged with conspiracy to manufacture marijuana.)

 

On appeal, the Arkansas appellate court upheld the divorce court’s award. The court noted, “In this case, the chancellor had evidence before him that the needs of the children had increased since the entry of the divorce, as well as evidence demonstrating that [Mr. Irvin] maintained the ability to provide for his children even though it would appear that he was not employed.” Accordingly, because “when calculating income, it is appropriate to consider the amount a payor is capable of earning or a net-worth approach based on property, lifestyle, etc. . . under the particular circumstances of this case, there was no abuse of discretion in setting the amount of support at $ 505 by imputing income of $ 25,000 based on the evidence of [Mr. Irvin]’s spending habits.”

 

Gifts to lovers do not open the floodgates for a nasty trial on every sordid detail of a date, however.

 

Take the case of Ms. Joldersma in In re Joldersma, 370 So 2d 80; 1979 Fla App LEXIS 14504 (1979), as an example. Ms. Joldersma was the young fling who stole Ms. Stewart’s doctor husband away. He admitted that he was able to pay alimony. Nevertheless, Ms. Stewart’s attorney subpoenaed Ms. Joldersma for a deposition. Among the questions, Ms. Stewart asked how many times she and Mr. Stewart had intercourse, whether they went on vacations, how long they lived together, and other sordid questions, all of which Ms. Joldersma refused to answer. At a contempt hearing, the divorce court held, rightfully, that a party is entitled to discovery from a lover to the extent the discovery is “reasonably calculated to obtain information” about the other party’s ability to pay support. These questions were not.

 

If you are concerned about the financial outcome in your case, be sure to document your income and spending. Keep receipts. Provide your attorney with copies. Back up copies on your computer. Explain what you receive, what you spend and why. Discuss the support laws with your attorney and how they apply to your income and expenses. Rationalize your attempt to reduce your support obligation or avoid paying support within the parameters of the law. A well-prepared case is more likely a winner.

 

Most of all, forgo that trip to the Bahamas, lest you give the divorce court the impression that you have or can earn more than you do.

 

Demanding Relatives and Child Custody

If you feel like your life is a scene from Everybody Loves Raymond, you are not alone. When a family dissolves, strained emotions are inevitable. So too are crazy outbursts we would not usually make – such as the demand to your attorney to “spend whatever it takes” just to get back your tools or the             “With Sympathy For Your Loss” funeral card your spiteful mother sends to your ex-wife as a dig when your divorce is final.

 

These things happen, and most divorce statutes are built to accommodate them. Custody statutes require the court to consider “the totality of the circumstances,” as opposed to an isolated night of yelling in front of your children. Child support and alimony are based on income and earning capacities, as opposed to who is the “smarter” or “crazier” spouse.

 

But beware overbearing relatives.

 

Take the case of Ms. Ward in Ward v Ward, 2006 Ohio 851; 2006 Ohio App LEXIS 738 (2006), as an example. Ms. Ward had an overbearing mother, the Marie Barone type. She was present at custody exchanges, she dictated how Ms. Ward cared for her child, she even established herself as the child’s first-preferred caregiver, preferred even over Ms. Ward and Mr. Ward. Mr. Ward received primary physical custody, partly because his mother-in-law was too controlling and would continue to isolate him from his child. On appeal, Ms. Ward argued, inter alia, that he mother was not so controlling. However, two psychologists testified otherwise, and Ms. Ward readily admitted that “in the hierarchy of caregiving, her mother came first, then her, then Mr. Ward.” The appellate court affirmed the divorce court’s award of primary physical custody to Mr. Ward, finding its conclusions that Ms. Ward’s mother was overbearing and would continue to isolate him and the child were not against the weight of the evidence.

 

If you are concerned about your family members’ impact on your custody rights, be sure to confront them early and often. Remind them that their behaviors could impact your court’s custody decision. Tell them you appreciate their concerns, but as the parent you have the right – the constitutional right – before them to decide how to raise your child. Note their involvement with your child in a parenting time journal to refresh your memory and undercut your opponent’s allegations that they are always around or dictate your time. Plan play dates and special occasions for their visits, but spend more time with your child doing one-on-one activities. Be sure to discuss your concerns with your attorney to plan the best strategy.

 

Most of all, remember that when your custody rights are at stake is not the time to cave in to your own Mother Marie’s demands.

 

Insiders and Property Division

Faced with a sizable loss if forced to divide an investment account, sell a vacation home or otherwise divide property acquired during the marriage, some spouses divert their assets to friends and family. They quip, “I don’t have to divide it if I don’t have it.” A blank stare, mouth open, face white, falls across them when their attorneys say the property still counts and, worse yet, they might have committed a crime.  

 

Take the case of Mr. Wiand in Wiand v Wiand, 178 Mich App 137; 443 NW2d 464 (1989), as an example. He and Ms. Wiand acquired a sizable estate over their ten year marriage. The estate included homes, investments and Mr. Wiand’s interests in formulas, trade secrets and closely held businesses. These assets were worth, in the divorce court’s guesstimate, nearly one million dollars alone. But that was truly a guesstimate, because the court did not have the assets before it to value. Anticipating a large loss to his wife if he divorced owning them, Mr. Wiand sold them to his brother in what appeared, on paper, to be an arm’s length transaction. The divorce court found, however, that Mr. Wiand and his brother conspired to deprive Ms. Wiand of her rightful share of the marital estate. Therefore, the court awarded her one-half the value of “the brother’s” assets. The appellate court affirmed the award, holding that a court may divide property held by a third party if one spouse and the third party conspired to deprive the other spouse of it by awarding the value of the property to the innocent spouse.

 

Mr. Wiand had to pay his wife over $300,000 for assets he no longer owned.

 

If you are concerned about the effect divorce has on your property rights, be sure to discuss your rights with an attorney in your area. Discuss what rights you have while married, during divorce, and when newly single. Consult with a tax specialist to learn what tax advantages and disadvantages you face if you pay alimony or transfer property as part of a written separation instrument. Avoid extravagant purchases. Document all of your purchases and sales, and keep receipts to substantiate them. If you question your spouse’s spending, take advantage of the discovery period to subpoena third parties, obtain documents and investigate to prove a case of unexercised ability to earn, waste or fraud.

 

Most of all, know that if a deal sounds too good to be true – e.g., your brother will “sell back” the classic car you “sell” him (for nothing) after your divorce so you do not have to give it to your wife – it is.

 

As a practical matter, the outcome of each case depends on its facts and the laws in the jurisdiction. No two cases are the same, although Mr. Irvin’s, Mr. Stewart’s, Ms. Ward’s and Mr. Wiand’s might remind you of yours. You should consult a lawyer in your area to learn more about the laws applicable to your case and how other women in your life feature in them.

 

Nevertheless, there are some lessons (and a little humor) to gain from those who have gone before you.