Traps to Avoid
proceedings, emotions run high. You may feel angry or betrayed. You may want
to take immediate action. However, there are a number of pitfalls that you
must avoid and tips to help you prepare your case.
In a contested divorce always
assume that any statement you make is recorded. This includes telephone calls
and answering machine messages. Do not say or do anything that you would
not want a court to know about. In most states it is legal to record any
conversation that you are involved in. Such recordings are admissible in Court.
However, it is a felony to record a conversation in which you are not involved.
An example would be placing a recording device on a telephone to capture
conversations between your spouse and another individual.
In some states, any recording
may be illegal if the other party is not informed that the recording is
Most courts disapprove of
recordings of conversations with the children since it involves them in an adult
dispute. ALWAYS consult with a lawyer in your state before making any
SPEAKING WITH OPPOSING
Once you are represented by an
attorney, opposing attorneys may not speak with you regarding the case. If they
call you refer them to your attorney. Do not call them even if your lawyer is
unavailable and you consider it an emergency.
SPEAKING WITH JUDGES.
Parties may not speak with or
provide letters to a Judge unless it is part of a scheduled hearing. Contact
without the other party present is called ex-parte contact and is prohibited.
You may object to any correspondence from the other party to the Court if there
is no motion pending before the court.
In a custody proceeding it is
important to maintain a notebook including dates that events occur relating to
the care of your child(ren). What is the daily routine? Who takes them to the
doctor? Who takes them to school activities? List any concerns regarding the
other party’s parenting including the method of discipline, drug use, alcohol
use, disabilities or neglect.
It is preferred that such records are hand written since it provides
a contemporary record. By contrast, a typed notes may always be modified after
the fact. Once these documents are created, they may be discoverable by
the other party if you intend to use them in Court and are not simply providing
a records to your lawyer.
In a custody proceeding courts
are often faced with conflicting “he said” and “she said” testimony. It is very
important to find independent documentation to verify any
statements. For example, if you contend that you are the primary
caretaker, reports from doctors, daycare provider or teachers may document your
attendance at parent-teacher conferences, signing off on homework or taking the
child to the doctor. It is very important that you acquire this documentation
when possible. If domestic abuse is an issue, you may wish to document incidents
with police calls to the homestead, police reports or orders related to domestic
abuse. If drug or alcohol use is an issue, a driving record showing DWI arrests
or drug charges may prove invaluable. This may also apply to any individuals
that have frequent contact with the children. If they are a danger to the
children, it is relevant.
INVOLVEMENT OF CHILDREN.
Avoid involving minor children
in the proceeding. It is not appropriate to show your child court documents.
This may harm the child emotionally and damage your case. Also, you should avoid
blaming or vilifying the other parent in the child’s presence. Remind the child
that the divorce is not their fault and is a parental dispute. Tell your child
(no matter how you truly feel) that both parents love them.
To prepare for divorce, in
addition to acquiring necessary documentation, you may wish to photograph or
videotape your furnishings, personal property and real estate. By photographing
the contents of your home, you will create a comprehensive log of your
possessions and the condition of your home. It may be difficult at a later date
to recall all items or necessary repairs.
DON’T LOSE YOUR TEMPER.
One of the most abused
processes is the ORDER FOR PROTECTION alleging domestic abuse. Do
not get caught in this trap. It makes any custody battle very difficult since
there is a presumption under many state laws that an abuser should not have
custody. Do not yell, grab, hit, or throw anything in the presence of your
spouse or, even more significantly, in the child(ren)’s presence. If your spouse
tries to incite you, walk away. Something as simple as blocking someone’s egress
from a room may be considered abusive.