“DIVORCE” SURVIVAL GUIDE
A DOZEN STEPS YOU CAN TAKE TO PROTECT YOURSELF
1. COPY DOCUMENTS. As soon as you suspect your spouse may want a divorce, as soon as you believe you may want a divorce, or as soon as divorce appears a real possibility, make or obtain copies of all documents relating to all bank accounts, investment accounts, retirement accounts, and any deeds for real property. Also copy titles to cars, boats and/or recreational vehicles. Copies of credit card statements with the balances, as well as copies of all bills are invaluable when you consult with an attorney. Also, these documents become important later when determining the value of your property at the time of separation.
2. SEEK OUT THE APPROPRIATE PROFESSIONAL. If one or both of you are in need of counseling, see your pastor, a psychologist, or a marriage counselor. If you have personal issues such as alcoholism, drug abuse, or a physically abusive relationship, seek out the appropriate treatment and counselors. Seek out legal advice from attorneys. Do not accept legal advice from friends, neighbors, drinking buddies, your mother, or your Aunt Matilda. Do not get your advice from your spouse or your spouse’s attorney.
3. GET LEGAL ADVICE EARLY. As soon as you suspect divorce may be on the horizon, get advice. Once there is any indication that you or your spouse may want to be separated or divorced, consult with an attorney. Timely legal advice can save you money and heartache in the future.
4. DO NOT SIGN. Do not sign any handwritten or typed documents offered by your spouse or your spouse’s attorney without consulting an attorney yourself. While agreements executed by way of fraud or undue influence are subject to be overturned, the presumption is that the agreements are valid once signed. You can save yourself time, money, and heartache by getting the appropriate legal advice BEFORE signing any documents.
5. FULL DISCLOSURE. Full disclosure to your attorney is necessary for meaningful consultation or legal representation. Many times clients find themselves disappointed with advice that they have received from an attorney because the client told the attorney only information that they thought was helpful or in their best interest. If your separation or divorce involves facts that are less than flattering or may be damaging, not telling your attorney will only hurt you. A court hearing to determine visitation is not the time for your attorney to find out that you have had a drinking problem or that you have been arrested for domestic violence.
Likewise, if you suspect your spouse is having an affair, do not fool yourself by denying the fact that your spouse would become involved with someone else. There are many occasions where clients have said that their relationship with their spouse has just gone cold and they want a separation. Then, once a separation agreement is executed without alimony, the truth comes out. The day after the agreement is executed, the “unhappy” spouse moves their lover into the former marital home. The spouse in denial is now embarrassed, furious, and without legal recourse. This could have been easily avoided by making a full disclosure to the attorney and pursuing all benefits to which the aggrieved spouse was entitled.
6. PHYSICAL ABUSE. If you are the victim of a physically abusive or dangerous relationship, avail yourself of the protection offered by the law, the courts, and community programs. It is illegal for someone to assault their spouse. Do not let a spouse abuse you then talk you out of calling for help. While it is more common for the man to assault the female, there have been many instances where the female has assaulted the male. Then, due to ego, he fails to avail himself of the legal system and suffers the consequences. For instance, if a wife has a drinking problem and hits her spouse, if he fails to use the legal system, then he sets himself up to be the fall guy. When she hurts herself drinking, comes to and decides that he pushed her down, he will be hard pressed to prove otherwise in court. Likewise, hollow promises about “it will never happen again” are usually just that, promises and not a true statement of fact. Get help immediately.
7. FRAUDULENT DOMESTIC VIOLENCE CLAIMS. Beware your spouse claiming a domestic violence act against you in order to gain the upper hand in the divorce. Usually this occurs when one spouse resorts to unscrupulous, dishonest, or at the very least, wildly exaggerated allegations against the other. It is not unheard of for the female spouse to use this against the male spouse. What happens is, the parties are alone and get into a heated argument. Sometimes there is physical contact initiated by the female spouse who has heard of this great plan to get rid of her husband or sometimes there is no physical contact at all. Then the matter escalates and either gets loud enough that the neighbors call the police or the devious spouse will call the police and report that they have been assaulted, harmed, or are in fear for their life. Despite all protests to the contrary, if there are no independent witnesses, the police will take an assault charge out against the male. Furthermore, if the spouse is willing to lie to the police, they will probably also go down to the court and take out a domestic violence action, getting a Temporary Order ordering their partner removed from the home with just their personal effects.
Allow me to be clear. I believe that any time domestic violence occurs there should be action taken. However, this law is often abused.
Do not allow yourself to be alone with your spouse if you suspect that they are the type of person who would file a fraudulent claim against you. This happens with alarming frequency. Many people say, well of course no one will believe him/her, I have never done anything. Dream on!! A court official in Charlotte, North Carolina explained to me one time why once an allegation of domestic violence was made, unless there was proof to the contrary, the aggrieved party, especially if the party was a woman, was going to receive a Domestic Violence Restraining Order. His statement was along the lines that “would you want to be the official who failed to give someone a protective order and then have that person killed or seriously injured by their spouse”. The fact is that caution, good intentions, or political considerations will result in a Domestic Violence Order being issued removing an alleged abuser from the home in most cases with only the testimony of the victim, even if there is no evidence of injury and without independent witnesses.
8. AFFAIRS. If you are having an affair, resolve your marital issues first, not second. When I was a “green” attorney, a golfing buddy came to me for a separation agreement. He and his wife had been unhappy for quite sometime but had continued to stay together for the benefit of their young children. We discussed the case and he never brought up that he was involved with anyone else. It was also clear that the other spouse wanted a separation. Her attorney told me that they would not be able to review the separation agreement until the following week because the wife was going to the beach with her mother for the weekend. While his wife was gone, my buddy checked into a motel with his girlfriend and the wife’s private investigator recorded a great video. The private investigator had of course requested the wife leave town so he could get proof of adultery. The following week my friend executed a deed to the marital home to the wife in lieu of alimony. Enough said.
9. DEAL WITH YOUR CHILDREN. There are two schools of thought as to what is best for the children. One school of thought is that parties should stay together for the benefit of the children no matter what. The second opinion is that the children are intelligent enough to know that they are not in a happy home and it is better for their development if they are not in a high stress, high conflict environment.
Many times people get separated without giving much thought to their children’s lives. If you have children and are not the custodial spouse, you will be obligated to support them financially until eighteen (18) years of age. (I suspect that this age will increase to include college sometime in the future.) The children will be living with one spouse or the other. Lifestyle modifications will have to be made to allow for visitation and holidays. Normally holidays are alternated with the Christmas holiday being divided into two parts. This means that trips may not occur on the same dates as before and sometimes your children will not be with you. Talk to your children as soon as your separation becomes fact and explain that the issues are between the parents and not with the children. Also explain to the children that you love them. I always encourage my clients to cooperate, if possible, with the other spouse in matters involving children. This of course does not apply if there is a dangerous or unfit parent involved or if the parents cannot get along.
10. THINK AND RESPOND. Think and respond to situations, do not react emotionally. Often times my clients come to me after an argument with possession of information that could have been invaluable to them. For instance, someone sees their spouse out with another person with whom they were having an affair. Instead of thinking, my client confronts the unfaithful spouse, makes a scene, and either (a) loses their advantage; or, (b) winds up in jail for some type of criminal assault. Guess what? My clients do not feel better and they lost their advantage. It is extremely important to remember that divorce is emotionally trying for even the most balanced and stable person. Divorce, even if you wish to be out of a relationship, can tax your ability to think rationally and respond in an appropriate manner. My psychologist friends tell me it takes between six and eighteen months for most people to come to grips with the emotional aspects of divorce. Also, this six to eighteen months starts at different times for the two spouses. If you are the person wanting the separation and have been thinking about it and preparing yourself mentally, your adjustment period will end sooner than the other spouse. If you are the spouse who comes home at the end of the day to find the house emptied you are just at the starting point and have a lot of adjustment ahead.
11. A FRIEND AND CONFIDANT. Lawyers provide legal advice and deal with the issues involving court. If you have a pastor or a good friend who is not closely involved in your domestic situation, they would be a good resource to access. One sure way to keep your legal costs high is to call your attorney every time you become either upset or concerned about your divorce. Calling a lawyer to vent or complain about the other spouse is expensive and wasteful. While most attorneys I know will gladly take your call anytime, calls not based upon need for legal advice, but frustration, anger, anxiety, or fears are unnecessarily expensive. For example, one client would call me almost every day to discuss her domestic issues. Luckily she was quite wealthy and could afford the attorney’s fees she incurred. Even after I advised her she would be better served discussing the emotional aspects of her case with someone else, she indicated that she wished to talk with me and did not mind paying for it. This is a luxury that most of us cannot afford.
12. FOLLOW YOUR LAWYER’S ADVICE. In no area of law have I seen people harm themselves more than in domestic cases. Often, after competent and sound legal advice, clients make fools of themselves or damage their case. Friends, family, well-meaning neighbors, and co-workers, even if they have been through a divorce, all have certain misconceptions about the law and what one should do in a divorce. Do not be misled and do not follow second hand advice. If you have confidence enough in an attorney to retain one, then get what you pay for and follow his advice. If your attorney advises you not to be alone with your spouse because he feels there is a risk, then listen to your attorney. Do not do something because cousin Joe says it is a good idea. You will be the one to pay the price.
13. BONUS. Make your first call to Todd E. McCurry, Attorney at Law. I have been practicing in the domestic area since 1987. I have experience with thousands of domestic cases. I can help you!