Three New Year’s Resolutions Worth Keeping: How to Avoid a Messy Divorce in the New Year

New Year, New You? As you prepare to ring in the new year, with weight-loss programs, sitcom debuts and end-of-the-year-gotta-buy-it-now car sales advertised everywhere you turn, divorce may be the last thing you associate with “a new you.” A slimmer you, maybe. A you who watches that new show on Wednesday nights, maybe. A you driving a brand new Mustang, more than maybe. But a new divorced you? Forget about it, right?

 

Not so fast. How about a richer you? A calmer you?  A you who just won his custody case because you were prepared?

 

As you reflect on the year that has passed and plan for the year to come, you should take time to think about where you are in your case, how far you have come and where you want to go, too.  If you are considering divorce, make a list of the reasons why and brainstorm ways to fix them. If divorce is inevitable, write down important information you will need to copy, such as your tax returns, and your goals for your case. If you are in the middle of divorce, reflect on the significant events that have occurred in your case, the outcome for each, and what you learned. If you have finished your divorce, review your documents and determine what you need to do to ensure you receive the property awarded in your decree. Talk to your attorney, or contact one specializing in family law like Cardelli Lanfear, and resolve yourself to make this new year a better year for your divorced or divorcing family, your wallet and your sanity.

 

No matter what stage of the divorce process you are in, these simple resolutions will help you avoid a messy divorce in the new year:

 

RESOLUTION #1: I WILL KEEP A PARENTING TIME JOURNAL

This one is for you parents. Your son or daughter probably tops the list of the most important people in your life, and you may have even uttered the words I will do whatever it takes to win custody  to your attorney. As a family law attorney, I commend you. It takes a tough father to ask why? of the often unstated, but still dominant, assumption that children should reside primarily with their mothers. But, also as a family law attorney, I can tell you that not every disagreement or problem you have with parenting with your wife or ex is significant enough to call your or her attorney. We want to hear and know about every problem, of course, but calling for each one will have you racking up a hefty legal bill and forgetting them when they do matter, at a hearing or trial. Instead, you should write them down so that you can discuss them with your attorney together and remember them when the time comes to testify.

 

I recommend my clients keep a parenting time journal. For a few dollars to purchase a notebook and a few minutes a day journaling, you can keep a valuable timeline for your case. If you are computer savvy, you can keep an electronic journal (just be sure to password-protect it). If you are a writer, you might update it every day. If you are not, you might just jot down notes when problems arise. Keep the journal in a secure place, such as a lock box, out of your wife’s or ex’s and your child’s reach. These notes are for you and your attorney only, and they can easily misinterpret them if you write in particularly venting passage, which you may. Some clients write “Attorney-Client Log” on the cover and address passages      to me so that the entire journal is more likely to be treated as attorney-client, and therefore confidential, communication.

 

Be careful with what you write, if you intend to use your journal when you testify. Testifying is                 a bewildering experience, what with the formality of the courtroom and an opposing attorney grilling you, and you may forget important details about events that you journaled. If you can refresh your memory by reading a passage, you may request to review it. If you cannot refresh your memory but are certain that your memory was accurate and the event new when you wrote in your journal, ask to use your journal as evidence of your recorded recollection. In most courts, you may use your journal for these purposes. However, your opposing attorney may also be entitled to read the passage you referred to and offer it into evidence-- including any rambling curse words you included when, for example, your ex denied your parenting time. That journal could turn from helpful to damaging. So, if you intend to use your journal to help you testify, always write as if the judge is watching.

 

Of course, always call your attorney for an emergency.

 

RESOLUTION #2: I WILL COPY WORK, MEDICAL AND OTHER IMPORTANT RECORDS

In a divorce, these records have a way of, mysteriously, disappearing. Sometimes, they make their way to your opposing attorney’s office. Sometimes, they get stuffed in a box with “move out” belongings. Sometimes they turn up in the trash. Or they just got lost. Whatever the reason, you may very well find yourself searching for documents your attorney requests, only to come up empty handed and have to pay for a third party, like a bank, to provide copies.

 

Make copies of local, state and federal tax returns (ideally, all of them, and at least the past 5 years so that you can establish an earning history); pay stubs (both yours and, if possible, your wife’s or ex’s);         bank and credit union statements (ideally a full year); IRA, 401(k), 403(b), pension and other retirement account records (ideally, for the history of your relationship); investment and stock records; deeds; appraisals; health, dental and optical insurance cards; birth certificates, passports and Social Security cards; and any other important records that identify you, your family and/or the property you acquired during and before your marriage.

 

Your copies will keep you and your attorney organized, and that is one of the easier ways to save money. You will not have to pay your attorney’s office to read and sort stacks of crumpled papers, subpoena third parties for what is missing, and weed out the relevant from the illegible or irrelevant ones. More importantly, you and your attorney can reference records during a hearing or trial with ease.

 

While you are making those health insurance card copies, be sure to note your coverage and speak to your provider upon the continuation of coverage upon your divorce. Before your divorce, use the health insurance available to you! (Strategically, I recommend my clients do this before we file for divorce so that any debts for co-pays, lab costs, etc., are more likely to be treated as marital debt to be divided between the spouses, rather than separate debt to be foisted on one party) Go to that annual check up. Fill your prescriptions. Have your eyes examined and your teeth cleaned. Talk to your doctors about your immediate and future health needs, what insurance to obtain and whether low-cost substitutes (e.g., generic medicine) are available.

 

The more organized and informed you are now, the less scrambling you will have to do during the divorce or post-divorce process.

 

 

 

RESOLUTION #3: I WILL NOT SAY WHAT I THINK, I WILL THINK BEFORE I SPEAK

One slip of the tongue can be the death knell for your case.

 

But isn’t an out-of-court statement hearsay? Not if it is your and your wife or ex offers it against your case. This is an admission.

 

An “admission” is a party’s out-of-court statement or assertive conduct used against him or her.      For example, defendant wife’s e-mail to her husband that she under-reported profits from her resale shop is an admission if plaintiff husband offers that statement against her (e.g., to prove that she earns more than she claims an is, therefore, not entitled to alimony). All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the offering party need not find one of those tens of hearsay exceptions to apply before offering it into evidence.

 

The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-driven plaintiff wife’s lawyer could admit an e-mail of remorseful defendant husband apologizing for “gambling away our savings” or “taking that trip with my secretary because I didn’t care what you and the kids did at Christmas,” which husband thought wife would appreciate, this sincere apology, to prove that husband gambled the parties to debt or cares more about his new girlfriend than his children. Or, lawyer might have wife testify that husband often bragged about the cash he received under-the-table for cash sales at his family business to prove that he earns more than he says he does. Or, lawyer might print husband’s status updates and tweets, in which he ranted about “having to go to court with that B****” and “refusing to give her a dime” to prove that husband disparages his children’s mother.

 

Even if they are inaccurate, untrue or heat-of-the-moment and poorly-thought-out comments, these admissions will do considerable damage to your case. Once the judge or jury hears them, that is it. Although your lawyer may request a limiting instruction so that the statements apply for some things (e.g. the speaker’s credibility) and not others (e.g., the truth), it is impossible to forget a damaging statement. As the saying goes, “You can’t un-ring a bell.” Once they’re heard, they will not be forgotten.

 

Once your wife or ex hears them, you can bet she will not let you forget, either. Better to bite your tongue than exhaust your resources with letters between attorneys’ offices clarifying “what you really meant” or time in court explaining yourself away.

 

Always think before you speak, Will this sound good in court?

 

As the year comes to an end, resolve yourself to make these three changes – keep a journal, make copies of your records, and think before you speak -- and you could very well safe yourself time, money and stress enough to afford that new car and become a brand new you in the new year.

 

 

 

CREATIVE SOLUTIONS TO COMMON DIVORCE DILEMMAS - Part 3

How Will I Know My Kids Are Safe?

If you have ever lost sleep wondering how to keep your children safe during your ex’s parenting time, you are not alone. This is, hands down, the most common parenting time question. Call it parental instinct, loss of control of plain distrust, parents do not like the reality that they cannot be there every minute of parenting time restoring harmony like a graceful dove -- they look like pesky pigeons instead. Nevertheless, you can negotiate a parenting time plan that includes protective provisions. Consider these provisions, which you can enforce in most states with a contempt motion:

For transportation: Each party should be responsible for providing and paying for transportation during that party’s parenting time. If necessary and due to reasonable work schedule conflicts or unavoidable and reasonable personal schedule conflicts, the party may select another properly licensed adult known to the child to provide transportation. The party must personally give advance notice to the other party when possible, and the party will have a first right of refusal to provide transportation instead.

For parenting time pick-up and drop-off delays: Parenting time must be exercised in a prompt manner. If necessary due to an emergency or a reasonable schedule conflict, a thirty minute delay is allowed. The delayed party must personally give advance notice to the other party when possible.

For communicating with your children during parenting time: Each party must provide the other party with a phone contact where the children and the party can be reached at all times during parenting time. The parties may not abuse phone contact privileges but may call the children at reasonable times.

For parenting time modifications: The parties should be encouraged to make arrangements to exchange parenting time to allow the children to attend special events and activities with extended family members and to cooperate with each other to allow the children to spend such other time with the other party as the children desire. However, where applicable for purposes of calculating child support, only ordered overnights will be considered.

What If My Spouse Will Nit-Pick Every Parenting Time Problem?

Post-divorce parenting time litigation is a nightmare, and an expensive one featuring police reports, successive court motions, photographs and a deluge of he said/she said testimony. Maybe your soon to-be-ex brings a tape recorder and her mother to every parenting time exchange, in her words “Just in case.” (“In case what?” you think, baffled.) Maybe your spouse locks her front door and refuses to let you pick up your children because you are fifteen minutes late. (Thank you, traffic pile up on I-60.) Or maybe your spouse is so bent on following every word in your order, verbatim, that she has multiple copies highlighted and tabbed and can recite provisions from heart.

Whatever the reason, if you fear you will litigate parenting time problems unnecessarily post-divorce, consider negotiating an informal dispute resolution agreement. The limits to your creativity depend on the laws in your state. For example, in Michigan, families can agree to attend family law mediation, but not if either party alleges or there has been a history of domestic violence between the parties or either party and the children. Contact your attorney or your court clerk to learn what informal dispute resolutions services are available to you.

Then, include them in a provision like this: The parties are encouraged to use the informal enforcement, mediation and counseling resources at X [name your place] to resolve any problems with parenting time before filing a motion for contempt, a motion to show cause or other formal motion, unless warranted by the circumstances and laws at the time, with this Court. Either party may cite this provision to compel the other party to use these resources in the event the party files a motion with this Court first.

Remember, divorce courts do enforce property settlement agreements even if they would not have crafted them at trial, and divorce courts routinely allow unique parenting time plans if the parents agree the plans are in their children’s best interests. See, e.g. Hamilton v Hamilton,647 So 2d 756; 1994 Ala Civ App LEXIS 441 (1994). Therefore, get creative with your settlement options.

Your alternative? Becoming a Bill in a costly battle for cat custody.

THE TOOTH FAIRY STORY AND OTHER TIMES TO BITE YOUR TONGUE

They had five teeth between them, in a sandwich bag tucked amid sweatshirts and socks. Mom always sent them with extra, even in the summertime, as if Dad hadn’t enough. He did. What’s that? he said, tugging at the bag. The teeth jingled. Mommy says the Tooth Fairy won’t come to her house because she’s too poor, they replied, yanking the bag out and plopping it on the bedroom pillows. She said we should bring these to your house because the Tooth Fairy likes people with money.

Will was so upset when he told me this story, his face turned red and he started drumming his fingers pointedly against my desk. The pens clanked. What did you say? I asked.

The temptation: Your mother’s a no-good-sunnuva . . .  a liar and a cheapskate.

The reality: I didn’t say anything.

Good. There’s a war of words waging between exes, sometimes subtle like the Tooth Fairy story, sometimes blatant and yelling loud as can be. They fight over school, sports, new girlfriends and boyfriends, stepmoms and stepdads, who pays what share for summer camp, whether McDonald’s is dinner or a treat, everything under the sun and then some. It is so, so easy to snap back. But that old adage You better bite your tongue is never truer. What you say will come back to against you. And your children.

You should consider a non-disparagement clause instead.

What is a non-disparagement clause?

What’s to stop your ex from stringing a line of slur words in front of your name? More than most non-lawyers think. Under the circumstances, you may have an action for defamation, libel or slander. These are lawsuits for defaming your name without justification in written or spoken communication. However, unless the circumstances are particularly devastating (e.g., your ex spread so many rumors about you not a boss in your town or the next five will hire you), or you are willing to pay a lawyer a pretty penny just for the cause, these lawsuits are unhelpful tools for solving the problem. They cost more than they are worth, and they do not modify your custody order for your children.  Instead, for child custody cases, one of the most helpful legal tools is the non-disparagement clause.

A non-disparagement clause is a clause in a custody order that requires each parent to refrain from disparaging the other parent in their child’s presence. In other words, whenever the child is around, neither parent can say something that might impair the child’s relationship with and regard for the other parent. For example, neither parent could say something like, “Your father is a no-good-rotten-little . . .” or “Your mother doesn’t care what time you get home because she’s too busy with her boyfriend.”       The purposes for this clause are many – to encourage the child’s relationship with both parents, see, e.g., MCL 722.27a, to keep the parents’ personal squabbles between them, not between them with their child stuck in the middle, to give each parent a sense of security the other is not planting seeds of hatred during parenting time (e.g., “You don’t want to go to Daddy’s house anymore, do you?”) are a few examples. The theory is, without those nasty comments, the child and the parent are more likely to bond, free from the other parent’s personal anger.

What does a non-disparagement clause look like?

Non-disparagement clauses are as varied as the attorneys writing them and the families needing them.      At a minimum, they must be sufficiently clear to apprise each parent of what conduct is not allowed, but you can otherwise be creative with yours.

A general non-disparagement clause might go something like this:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”

But what if you and your ex-spouse rely heavily on electronic communication, e-mails or texts?:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child’s high regard for the other party. ”

And what if your ex-spouse despises your new spouse?:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, neither party shall say or do anything about or toward a third party in the child’s presence that may estrange the child from the other party or impair the child’s high regard for the other party. ”

Be sure to discuss any language with an attorney before you include it in your decree. You must understand it, your soon-to-be-ex must understand it, and it must withstand all of the what-ifs. A big what-if is the judge who will accept your decree. You must be sufficiently vague to pass judicial scrutiny (no crazy clauses about having to pass a purple pencil to the person entitled to speak, as if you were in student government again, and certainly no illegal clauses) but sufficiently clear to know what you and your ex should not do and when methods of enforcement you can pursue.

Enforce how?

Will you have to make like 007 and carry a hidden microphone, desperate to catch your ex in a disparaging rant? No, most of the time.

Before you record any conversation, discuss your reasons with an attorney, thoroughly, or you could commit a crime. Federal and state laws prohibit surprisingly more surveillance than most people think. For example, the Federal Wiretapping Act (FWA) prohibits most methods for recording conversations.  The pertinent part of the FWA is 18 USC § 2511(1), which provides that violations occur when one:

   (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
   (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--  (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce.

The FWA does contain an important exception commonly known as “the consent exception” or   “the participant rule.” According to 18 USC § 2511, it is not unlawful under the FWA for most of us to intercept a wire, oral, or electronic communication if we are a party to the communication or where one of the parties to the communication has given us prior consent to the interception.

State privacy laws also may apply, however, and you could run afoul of them if you record conversations.

Therefore, unless absolutely necessary, and then only after discussing it with an attorney, avoid recording conversations with your ex.  Instead, bring a trusty witness who can testify, credibly, that your ex said this, that or the other thing disparaging about you. Be sure to keep a journal of disparaging remarks, too. This will help you track their frequency and severity, and it will refresh your memory if you pursue court action. An isolated remark one stressful day is probably not enough for court action, but a series of remarks traced in your journal, or one grave remark on a special day, may be.

Most of all, do not be afraid to take court action. Non-disparagement clauses are court orders designed to preserve your relationship with your children. The powers of contempt of court support them, and they support one of the most important constitutional rights in the United States: our rights to our children. Consider these enforcement options:

Motion to Clarify: Lofty non-disparagement clauses can be ambiguous. Attorneys have a habit of using more words than necessary (e.g., “You shall not say, utter, speak, indicate . . .”) particularly when they have to write a clause pleasing to everybody. For example, does “Do not disparage the other party or the party’s decisions” include a second wife an ex-husband decides to marry or just the decision to remarry? If your clause is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a clause meant when issued, according to the circumstances at that time. That is, what did the clause mean on the date the court granted the divorce? What did the court and the parties contemplate at that time? If you are certain that your interpretation is correct, try this motion.

Motion to Modify: What if your interpretation of the clause is incorrect? Ask your court to modify it. A motion to modify asks the court to change a clause based on circumstances that have occurred since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for modifications. In general, there must be a “change in circumstances” or “proper cause” since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, terms, like non-disparagement clauses, should change as the child’s interests and the parents’ needs change.

Motion for Contempt:  If your ex does disregard your clause, ask the court to compel her action and to hold her in contempt for not acting before. A motion to compel asks the court to bring the opposing party before the court to explain why he or she disregards the court’s orders and to impose an appropriate remedy, which may include an order requiring action, contempt sanctions, fines, jail-time, costs attorney fees, family therapy or loss of parenting time.  

Most of all, do not snap an angry or curse-laden or crazy or otherwise curt comment back. Stoop to that disparaging level, and you could be the one in contempt. Better to keep your children’s parenting time and bite your tongue.