Posts filed under ‘Divorce Proceedings’

Top 10: Mistakes Men Make in Divorce

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By Jeffery M. Leving

It’s easy to make mistakes at the very beginning of the divorce process, especially if you’re dealing with someone who is highly manipulative, abusive or just plain irrational. Even if you are divorcing a reasonable person, it’s tough to think clearly and make the right initial decisions. Most people are so angry, upset or anxious at the end of their marriage that they’re not thinking logically about what they should do to protect themselves or their children from an unfair settlement.

In the past, the prevailing emotions during a divorce were usually sadness and regret. Today, anger is the dominant emotion: People are angry at their spouses, their spouses’ parents, at their spouses’ new partners, etc. All this anger translates into words and deeds that make the divorce process more costly, stressful, frustrating, lengthy, and an all out war. It doesn’t have to be that way, even if you are divorcing the most irrational of humans. Below are the 10 most common mistakes men make in divorce. If you can learn to place your emotions in check and avoid these mistakes, you can alleviate some of the pain that comes with any divorce.

#10Using Your Children as Pawns
Threatening to limit or deny visitation is a powerful threat, and it can terrify a parent who loves his child(ren). Often, parents who are the primary caregivers, but who lack the financial resources, feel that they must use this threat to gain sufficient financial support.

As painful as these threats are, do not respond in kind. Don’t issue threats of your own. Instead, recognize that in most cases, the truth will come out. If you’ve been a good, responsible parent, your spouse likely cannot deny you a chance to see your kids on a regular basis. More to the point, the court won’t allow it in most instances.

#9 – Thinking Romance First, Divorce Second
The most common factor that turns a normal divorce into an abnormally contentious one is bringing another woman into the mix. The situation is already potentially volatile, and all it takes is the mention that you have a new lover for your spouse to become infuriated.

There are several reasons you may want to announce your new relationship-revenge, one being to show her that someone finds you attractive and you’ve even found happiness. Try to keep a new relationship out of the conversations with your spouse and especially your children. The best decision is to wait until the divorce is concluded before you engage in a new relationship.

#8 – Allowing Your Spouse to Convince You to Not Hire An Attorney
If your spouse has hired a lawyer, you need to hire one quickly. If you don’t, you are an amateur playing against professionals. One underhand tactic is for a spouse’s attorney to offer to represent both parties to save time and money. Not only is it unethical, but it also creates a conflict of interest.

The process is designed to be adversarial, and there is no way a lawyer can fairly represent you both. The odds are that your spouse has something to hide or something she wants, and she knows that if you hire a lawyer it will be more difficult to achieve that goal.

#7 – Using Verbal Abuse
Just about everyone who gets a divorce argues. Not everyone, however, engages in continuous verbal battles in which threats and vile accusations become routine forms of communication. Being on the receiving end of this abuse is demoralizing, especially when the threats raise the possibility of physical harm to you or your children.

You need to discuss any threats of this type with your attorney, who can advise you on how to deal with them. Furthermore, if it is you who’s engaging in the verbal abuse, remember that your spouse can easily obtain an order of protection and any violation of this order can land you in jail. There is a myth that men do not endure verbal or even physical abuse from their spouses, but it is just a myth. Abuse is not gender specific.

#6 – Rubbing Salt In the Wound
If your goal is to avoid a court battle and the high costs that go with it, then you want to avoid any accusations of personality flaws. Be aware of your spouse’s sensitivities and avoid inflaming them. Compromise is the essence of divorce negotiations, and if you say and do things to encourage your spouse to dig in and be inflexible, you’re asking for a war.

No matter how much you despise your spouse; no matter how many ways you feel you’ve been wronged, don’t make a bad situation worse by identifying your spouse’s vulnerabilities when trying to reach a settlement. Always try to negotiate before you litigate.

#5 – Using a Difficult Attorney
Lawyers can turn good divorces into bad ones and bad divorces into nightmares. It’s not just divorcing spouses that are difficult. Certain lawyers are intent on churning fees, and they can cleverly manipulate situations to their financial advantage. The result is couples who will fight over the big and little things and invariably wind up in court and broke.

Do not fall for the myth that you have to find a take-no-prisoners attorney, someone who is ruthless and will use any tactic necessary to “win” the case. When there is one difficult attorney, the odds are the divorce will be costly and unpleasant. When there are two difficult attorneys, the divorce will be a total nightmare.

#4 – Becoming Passive
The last thing you want to do when your spouse announces she wants a divorce is to become completely acquiescent. Many people are manipulative, and if they think they can manipulate you into getting what they want out of the divorce, such as money, property or custody, they will do so.

If you are stunned or saddened, you may agree to anything and everything your spouse recommends. Don’t confuse passivity with being reasonable. My experience is that the shock of divorce soon wears off, and once it does, you’re much less vulnerable to making this mistake.

#3 – Arguing About Who Gets What
In most divorces where couples have been married for a number of years, disputes about property arise, and sometimes these arguments are perfectly understandable. These arguments, however, can become completely irrational and vengeance-based. I had a client say, “I would rather incur 10 times in legal fees what the painting costs than allow her to have it!”

These arguments can be draining emotionally (not to mention financially), but it helps to recognize that no matter how your spouse uses these objects in the bargaining process, the court generally divides property fairly if both parties have competent attorneys.

#2 – Serving Your Spouse with Divorce Papers in Embarrassing Places
Having an officer of the law serve your spouse at home or business should be reserved for cases where they refuse to file an appearance or accept service of process, or where great conflict exists between the two parties.

There is nothing more embarrassing than having a police officer serve you with papers at work, and nothing more unnerving than hearing the doorbell ring at 2 a.m. and seeing a policeman at the door (and having your neighbors see him as well).

If your spouse uses this tactic on you, as obnoxious as it may be, remain calm.

#1 – Responding to An Impending Divorce With Anger
The early stages of the divorce process can be a highly emotional time when people say things they do not mean or act in unusual or uncharacteristic ways. Divorces “blow up” legally when one person responds to anger with even greater anger, creating an escalating war of attrition that otherwise would have been a brief skirmish.

Therefore, allow a bit of time to pass before you do anything. Your spouse may settle down after blowing off some steam, and you can continue to move forward in a reasonable manner.

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March 6, 2009 at 6:52 pm 1 comment

Military Service Costs Some Men Their Children

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By Jeffery M. Leving & Glenn Sacks

Laws granting deployed soldiers special protections against civil legal actions date back to the Civil War. However, few of these protections extend to family courts and family law. As a result, military men’s service to their country often creates the conditions under which they can become victims of terrible injustices. As America’s military commitments in Iraq and Afghanistan persist, it is important to address the family law issues which military men and fathers face.

Some military men’s service costs them their children. The Uniform Child Custody Jurisdiction and Enforcement Act provides that if a parent moves a child to a new state, that new state becomes the child’s presumptive residence after only six months. Because a normal military deployment is six months or more, if a military spouse moves to another state while her spouse is deployed, by the time the deployed spouse returns the child’s residence has been switched, and the spouse who moved the child is virtually certain to gain custody through the divorce proceedings in that new state.

The restrictions on military personnel’s ability to travel, the high cost of legal representation, and the financial hardships created by child support and spousal support obligations make it difficult for returning service personnel to fight for their parental rights in another state. Many struggle to even see their children, much less remain a meaningful part of their lives.

To solve the problem, the federal Servicemembers Civil Relief Act of 2003 (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act) must be amended to specifically prohibit the spouses of active duty military personnel from permanently moving children to another state without the permission of the active duty military spouse or of a court. In addition, the UCCJEA needs to be modified to state that the presumption of new residence does not apply if the children are taken in this wrongful fashion.

Another family law problem for military fathers is paternity fraud. According to Carnell Smith, Executive Director of the National Family Justice Association, deployed soldiers are often “targeted and preyed upon” by unscrupulous “father shoppers” who falsely designate absent military men as the fathers of their newborns. He says:

“The military provides a steady, easily garnished income as well as medical care for the baby. It’s hard to contest paternity when you’re thousands of miles away and losing a good chunk of your income to child support. Sometimes the guy ends up on the hook for 18 years of child support simply because he served his country.”

Several states, including Illinois, Georgia, Maryland, and Ohio, have addressed the problem through legislation which allows putative fathers more time and greater judicial flexibility to challenge paternity findings.

A third family law problem exists for fathers who serve as reservists and who have child support orders. Support orders are based on civilian pay, which is generally higher than active duty pay. When called up, a reservist sometimes pays an impossibly high percentage of his income in child support, which hurts his current family. Because those who fall behind in child support are charged stiff interest and penalties, a returning reservist may spend years working to pay off arrearages incurred during his service overseas. Worse, some could even face arrest and incarceration.

Normally when an obligor loses his job or suffers a pay cut he can go to court and request a downward modification. However, since reservists are sometimes mobilized with as little as one day’s notice, few are able to obtain modifications before they leave. These soldiers cannot get relief when they return home because the federal Bradley Amendment prevents judges from retroactively forgiving support.

The solution is legislation like Missouri’s, which requires that reservists’ support obligations be automatically adjusted when they are called up for active duty. The Illinois legislature is currently considering a bill to address this issue.

Navy veteran Taron James, who has joined with 600 other victimized veterans and their families to form the activist group Veterans Fighting Paternity Fraud, believes the injustices caused by current domestic relations law constitute a breach of faith with military men and fathers. He says:

“It’s understood that when soldiers go off to serve they shouldn’t have to worry about being taken advantage of while they’re absent. Some of the guys making sacrifices abroad while being put through the ringer here at home must be wondering why they bothered.”
 

Glenn Sacks’ columns on men’s and fathers’ issues have appeared in dozens of America’s largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.

Jeff Leving is one of America’s most prominent family law attorneys. He is the author of Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. Visit his website at www.DadsRights.com.

March 5, 2009 at 6:27 pm 1 comment