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  • 标题:Commentary: So you're getting divorced: Part II
  • 作者:Paul Mark Sandler
  • 期刊名称:Daily Record, The (Baltimore)
  • 出版年度:2004
  • 卷号:Jan 23, 2004
  • 出版社:Dolan Media Corp.

Commentary: So you're getting divorced: Part II

Paul Mark Sandler

Breaking up is hard to do, goes the famous song. When breaking up spells divorce, it's even harder. Graceful divorces are rare, but husbands and wives on the verge of calling the whole thing off, as another song goes, will endure the crisis well if they make themselves aware of the pitfalls that often befall separating spouses.

Some of the most treacherous pitfalls are equally understandable. Not listening to lawyers, getting angry, failing to follow instructions and gather necessary documents in the midst of a devastating personal emergency are typical mistakes that clients make in divorce proceedings. Yet they can spell disaster.

Last week, we suggested eight rules of thumb to consider when beginning the divorce process, and discussed the first two: Marriage counseling and finding the right lawyer. Now we discuss steps three and four: Listening to your lawyer and avoiding the common pitfalls of an angry or emotional spouse.

Listening to your lawyer

Lawyers experienced in domestic cases can offer a range of likely results concerning how the court will divide property and render awards of alimony or other payments. Settlements are often based on these predictions. It is wise to pay close attention to your lawyer's suggestions about settlement. Do not permit the demon of anger or other emotions to distract you from considering your lawyer's advice.

For example, if your case involves adultery, you might want to ask, Shouldn't we hire a detective and follow my spouse? While you may be enraged at what you believe to be your spouse's reprehensible conduct, your lawyer may advise that hiring a detective to prove that your spouse is committing adultery may not have as significant an impact on the case's outcome as you suspect. Sometimes it is quite expensive to engage the services of a private investigator and, in cases in which your spouse's adulterous relationship is open and notorious, such an expense may not be necessary.

Listen to your lawyer, but do not hesitate to ask questions and challenge his or her conclusions if you believe you are not satisfied with the responses.

You should also listen to your lawyer's advice regarding alternative dispute mechanisms, even if you are hell-bent to go to trial. Mediation, arbitration and informal sessions with court masters can frequently narrow issues and save you money.

No matter how you proceed, you must maintain a realistic expectation of how your case will be resolved, especially when it comes to the economic support you could be required to make or could receive. Many jurisdictions have specific guidelines for child support, and some states have guidelines for awards of alimony and division of marital property.

It is important to understand that judges and courts are often restricted or limited in terms of what they can and cannot do. Your attorney will make recommendations about what he or she believes is the appropriate outcome of the case, and you would be wise to listen carefully.

Anger and denial

Indeed, your attitude and understanding of the divorce process at the outset can impact the case's outcome. Approaching divorce blinded by anger or denial can lead to irrational behavior early on that will hurt you down the road.

The ostrich syndrome is a classic example. Many men or women who are in the dominant role of the marriage do not respond promptly to their attorney's requests for information. Your lawyer will ask you for all documents that relate to the assets you and your spouse own and all documents that relate to your income and expenses. Give full attention to your lawyer's request. Make sure that you provide all documents that are in your possession, custody or control. Take the time to call your friends, employer or advisors if they have pertinent documents.

Your failure to properly respond to these requests can result in economic disaster or embarrassment. At some point in time, you may be asked to give a deposition. If you have not turned over all documents, you can be made to appear foolish or dishonest during that deposition.

The point is: Do not be an ostrich and hide your head in the sand when your attorney asks you to produce documents. The case will not disappear by hiding from the lawyer's requests. Go to work and be part of a team effort with your lawyer to resolve the case. When your counsel asks for documents or other information, provide a complete response.

Similarly, be sure to thoroughly read documents presented to you by your attorney before you sign them. Frequently you will be asked to sign documents containing important information. When you sign the document, you will be certifying to the truth of the statements. But if you don't read them carefully, you may not spot an inaccuracy that can come back to haunt you later in a deposition or at trial. When you try to explain it away by saying you did not carefully read the document, you damage your credibility. Your credibility is your most important asset in a domestic trial, as in any trial.

Follow the money

Those spouses who are careless about providing and signing documentation may also fail to appreciate the marital property that's at stake. Marital property is all property acquired by the spouses during the marriage (with certain exceptions, such as inheritance and gifts from third parties). The value of this total amount, which will be considered for distribution between the parties, is not determined until the date of the trial for divorce.

This means that if you separate on Jan. 1, 2002, and your spouse receives a bonus from his or her employer in March 2002, this bonus is still considered to be, in many states, marital property, even though you are living separate and apart. Therefore, if you are the dominant spouse, do not think for one minute that money you are earning or property you are acquiring through marital efforts while you still married but separated does not constitute marital property.

Indeed, divorce cases are as much about the future as they are about the past. In that vein, it's important to learn about your spouse's business plans. Frequently, a spouse will defer an important business transaction in the hopes of keeping the proceeds to him or herself. Your attorney, through proper inquiry and pretrial discovery, can learn about such plans. And if you believe your spouse has money hidden somewhere, you should tell your attorney. He or she can hire experts and subpoena documents from banks or other institutions to trace what you believe to be hidden funds.

Naturally, all this is easier said than done. When it comes to assessing marital property, spouses are often prone to the worst of their emotions. Listening to your lawyer and doing your best to stay level-headed won't make breaking up easy. But it will protect you from unnecessary harm, embarrassment and bitterness as the case approaches conclusion.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears each Friday in The Daily Record. Thomas C. Ries is a partner with Kaufman, Ries & Elgin, a Towson firm concentrating in family law matters throughout Maryland.

Copyright 2004 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.

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