The decisions that you make can affect your divorce. “My life is in your hands,” my clients tell me, tearfully, all the time. To some degree, of course, it’s true. What we do is important, it matters deeply to our clients, and can have long lasting personal and financial implications. Still, when it comes to a divorce or custody case, there are a lot of factors involved. There are a lot of ways your case can get messed up. And, sure, there are cases where a lawyer commits malpractice, makes a mistake, or displays some seriously flawed judgment, but the entire case (and its success or failure) isn’t entirely in our hands. There are lots of ways that the decisions that you make can affect your divorce case. I’ll say it again:
The decisions you make can affect your divorce
There’s no question we take our responsibility to our clients seriously. We work hard. We go to court prepared. In fact, we go everywhere prepared. It’s not always the easiest job in the world, being an attorney, but we take an immeasurable amount of pride in our work and care deeply for what happens to our clients—both while we represent them and long after. It’s a big responsibility, as I’m sure you can imagine. Sometimes, it keeps me up awake at night, worrying.
I think what I worry about most, though, are the things I can’t control. I can do all the legal research in the world, prepare the best, most well thought out briefs, and make killer opening and closing arguments. I can subpoena the right witnesses, ask the right questions, and conduct flawless depositions. I can draft well reasoned documents, negotiate effectively with opposing counsel, and come up with creative custody and visitation arrangements. I can do a lot of things, but I can’t control it all.
No one can. But that’s part of what makes me so nervous when someone tells me that they’ve put their entire life in my hands, or that everything that happens from here on out is up to me. I wish that were true! As hard as I work, there are just things I can’t control.
There are things that you can control that I can’t. If you’re going to hire an attorney, you should definitely plan to do everything you can to help make your attorney’s job as easy as possible. Remember that there are lots of variables—and, to a pretty significant degree—you have control over variables that the attorney doesn’t.
In several cases, we’ve had clients who have made decisions that have had a dramatic impact on their case. I’m not saying this to apportion blame because, really, it doesn’t matter. At the end of the day, regardless of who made a mistake, the result is the same. Still, I think it’s important to talk about how the decisions you make can affect your divorce case—because they provide excellent teaching points.
If you’re facing a divorce or custody case, you definitely want to make sure to do everything you can to ensure that things will run smoothly. Hiring the right attorney is a great step in the right direction, but it’s not the only thing you can do. Both in court and outside of court, you might be surprised by how much control you really do have over your case—and what you can do to make sure that things happen the way they should.
So, what are decisions you can make that can affect your divorce case?
1. Negotiating without your attorney
It seems like it wouldn’t really happen that a client attempts to negotiate their case on their own without consulting their attorney, but you might be surprised.
Don’t enter into any kind of agreement—verbal or written—with your husband or child’s father without talking to your attorney first. Your attorney can make sure that whatever you’re attempting to agree to is in your best interests and effectively executed. We’ve had plenty of clients who paid to hire us, and then negotiated an agreement (generally a pretty bad one) on the side without our knowledge or approval.
I once had a client come in—in tears—to have me review a document provided to her by her husband’s attorney. I discussed with her all the ways we could revise and edit it so that it would take her interests into account, and she hired the law firm to represent her on the spot. We began to negotiate back and forth with husband’s attorney immediately thereafter. Imagine my surprise when I learned, several weeks later, that she had gone ahead and signed the agreement originally provided by her husband! By that point, of course, there was nothing I could do to help—and all the negotiating, drafting, and revising I had done up until then was completely useless.
If you’ve hired an attorney, let him or her do their job. You don’t give them free rein to do whatever they want; an attorney will always clear changes, revisions, and additions with you—but you shouldn’t go around negotiating something behind their back. Remember that your attorney’s job is to look out for YOUR best interests. No one else is doing that in your divorce or custody case—not your husband or child’s father, not the opposing attorney, not the judge, and not the guardian ad litem. Your attorney is on your side. If you have questions or need more information or want to see something specific reflected in your agreement, talk to your attorney first. Don’t go around making agreements on the side! Let your attorney do what you’re paying her to do.
2. Being an unreliable witness
Once you get into court, it’s not just what evidence I can offer or what arguments I can make. In all likelihood, you will probably be questioned and cross examined about what you know. Make no mistake: what you say matters.
Before you get on the stand, your attorney will spend some time with you, talking about your case and the finer points of the law. She (or he) is preparing you for what might happen on the stand, and a lot depends on your ability to articulate your position effectively and convincingly.
There’s no question that testifying in court is scary. You’re under a lot of stress and it may be the first time (or almost certainly one of only a handful of times) when you and your husband or child’s father are in the same room in such an adversarial capacity. It’s difficult to organize your thoughts and speak coherently, and there’s a lot to remember.
Still, you’re on the stand because you have a job to do. You can hurt your case pretty badly by forgetting what you’re supposed to do when you get up there. Obviously, you have to tell the truth—I’m certainly not suggesting that you lie—but you have to give full, complete, and accurate information on the stand. It can be a difficult thing to do, but your attorney is depending on you.
If you get up on the stand and stutter or lie or get angry and defensive, it won’t do good things for your case. Prepare ahead of time for the courtroom, and make sure you’re prepared when it’s go time.
3. Withholding information
It’s tempting to omit information. I understand. Especially when you know that property you disclose stands a chance of being awarded to your soon to be ex husband, who wouldn’t hesitate to hide something from you (and you’re not entirely convinced he isn’t doing just that).
It’s tricky, and you’re in waters that are pretty difficult to navigate. I do know, though, that you’re really required to disclose everything, especially if you’ve been issued discovery. We had a case like this just a couple of weeks ago, where we found out later (after we’d negotiated a really, really good agreement for our client) that she had failed to disclose some pretty serious stuff. Though it would have been hers anyway had she properly disclosed it, now she’s facing litigation because her soon to be ex is trying to overthrow the agreement using fraud as his grounds. Will he? Who knows? But the fact remains that she created a much bigger problem by avoiding the truth in the beginning. Now, the resulting litigation will cost her a fairly substantial amount of money—and that’s best case scenario. Worst case scenario, she’ll still have to front those legal costs, and her agreement could be overturned, resulting in her receiving a worse agreement than she thought she had.
Moral of the story? Tell the truth, the whole truth, and nothing but the truth. Don’t fail to disclose an asset or liability, because it could really come back to bite you later.
Divorce and custody cases are definitely complicated, but there are things you can do to help make sure your case runs smoothly. Along with hiring an awesome divorce and custody attorney, you can do things to help take control of your case and your future. For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200 or visit our website at hoflaw.com.