Don’t Be Your Own Divorce Lawyer….#2
Published to: 000114, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on April 8, 2010 7:19 pm
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Where was I??!! Once I get started with my “gripes” regarding our profession, I become a little crazed. Let’s start again.
Divorce laws frequently change. The standards for “custody” have changed markedly three or four times during my career. A variance of as few as 1 – 4 “overnight visits” a year can impact child support several hundred dollars a month or determine whether a young mother can take her child with her if she finds she has to move to another state. Thus, even small marital estates (dollar-wise) have tremendous issues at stake.
And, even after a 20 year marriage, parties to the typical divorce may have a house with a $100,000 equity, retirement benefits worth $200,000-$400,000, and short-term (credit card/medical bill type) “unsecured” debt of $10,000-$50,000! A bad result impacts your future! So does a good one.
That said, what should you do if you proceed self represented? (You did notice that I warned you not to didn’t you?)
1. Read the Rules of Family Court. There are deadlines by which motions should must be filed, witnesses and exhibits disclosed, and discovery requests sent to the other side, and rules regarding what evidence can be admitted. If you don’t even know the basics, you will be making statements when you should be asking questions and talking when you should be listening. Don’t expect a letter or “written statement” to be admitted over a “hearsay” objection. And don’t expect the Family Court Judge to spend hours with the “self represented”. There are “windy lawyers” who want the Judge’s attention too! There are times when a letter can be invaluable, but you don’t know when that is, and I don’t have time here to tell you.
2. Make a List of Everything You Own and Everything You Owe. The rules require you to file a “financial affidavit” containing this information. Don’t say your life insurance is worth $50,000 if that is “only” the death benefit. Find out what its worth if you cash it in or borrow on it. Get the “print-out of retirement benefits” from your or your spouse’s employer. At least, scrounge one out of your spouse’s desk before it “disappears”.
3. Attach to Your Financial Affidavit Your Recent Pay Records, Your Last Three Tax Returns, and a Careful Three Part Monthly Budget that has;
a. Average monthly expenses (for both of you and your kids) BEFORE you separated;
b. Average monthly expenses during the divorce; and
c. Average monthly expenses you expect to have AFTER the divorce.
Leave your budget out at your peril, ESPECIALLY if you are going to need medical insurance or spousal support.
4. Be Honest with Yourself. If you’re dealing with serious physical or emotional abuse, an alcoholic, or drug addict, or person afflicted with a brain disease, you cannot deal with that person on your own. Beg, borrow, or steal (ha ha) the funds to retain a good attorney. Do not be afraid to use a family asset, savings or checking account, or sell something or borrow. The worst the Court is likely to do to you, unless you sell a family heirloom, is give your spouse a credit for anything you took.
5. Treat the Caretaking Functions Worksheet As the Most Important Document You Have Ever Prepared: (Remember, you need one for the one year prior to your separation and one for the two years before!)
If you are the father, you have probably heard that the “new law” gives fathers “50 custody”; not so. There are times when the mother also erroneously assumes this is true or, because of basic fairness or insecurity, she is willing to negotiate a 50% 50% plan, even if that is not how you apportioned the “caretaking functions” before you separated. In most instances, especially involving children under 10 years of age, the Court will look at the “caretaking functions” percentages and be guided by them. At the temporary hearing, the Court looks back one year, and at the final hearing, the Court looks back two years. In theory, the father gets primary “residential care” if he stayed home and provided most of the care for the child, but just try to convince a 50 year old Family Court Judge that you were the “primary caretaker” (outdated term everyone uses!) of a two year old daughter. If you were, there is objective evidence out there that you were. GET IT! And ALSO REMEMBER, even a guy who worked 6o hours a week, and hunted and fished every week-end, will recall that he did AT LEAST 50%, and his family and friends will back him up!
6. Prepare and File a Proposed Parenting Plan. You don’t know how to create such a plan, so use the “one size fits all” Supreme Court form. Be careful against offering too much; the other side will usually want you to give more. AND, look at those “Restrictions”; the existence of such factors MUST be mentioned or later the Court will think you are making them up.
7. Presenting Your Case at a Hearing…….DANGER, DANGER, DANGER. If you are too assertive or interrupt, you will anger the judge. If you are too submissive, your blabby spouse will “win the day”. Look the judge in the eye. Ask permission to speak. Speak plainly and clearly. ANSWER THE QUESTION! If he wants to know if your boyfriend is a pedophile, do not discuss the population explosion in China! (By the way; do I need to tell you not to have a pedophile boyfriend?? Uh oh!) Seriously, I tell my clients to avoid new romantic entanglements, and even put current ones on the shelf. You do what you think is best, for your children. But that “significant other”, while you are still married, is almost always T R O U B L E .
8. Should you close out that account? Perhaps; depends on your situation.
9. Can’t I withdraw all or part of our savings? Probably, but you will be held accountable.
10. If you have to appeal, it is probably too late. But, you can read the Appellate Rules and follow them as best you can.
11. When it is all over, and you screwed it up. Call me; maybe I can help. I will try not to say “I told you so.” Perhaps the Court just needs to understand the “real facts”. I can help you present them. I can even do your appeal.
In the end, my first advice is the best. Get a lawyer who is smart, dedicated, compassionate and fair. They are fairly rare, so be the first one to go look if possible. If not………good luck.
This post was written by Burton Hunter