I get it. Lawyers tell you things sometimes that you just don’t want to hear. They give you advice and maybe, while you sat in your attorney’s office, you thought you were going to follow it. When you got home, though, other things confronted you, distracted you, and made it difficult for you to do what you had planned.
Believe it or not, we don’t give advice to our clients for our health. And besides that, it’s really not very fun to have to tell someone something that they don’t want to hear. We’d prefer not to tell you to do things that you don’t want to do or that will make you annoyed and more frustrated with the situation. We give advice for your benefit. We see hundreds of cases like yours a year — maybe more — and over the course of an entire career, thousands. We give advice that is designed to help you, whether to make the case run more smoothly or to help present the facts better.
Attorney advice isn’t all, “File this,” and “don’t say that.” It’s bigger than just what happens in your case, from what we file to what we allege and how we present our evidence in court. In divorce and custody cases, we also have to help our client make choices in their personal lives that will allow us to present their facts in the most advantageous light possible. Sometimes, we give advice that our clients really don’t want to hear.
An attorney’s advice, particularly in a divorce or custody case, can be wide-reaching. It can have to do with all sorts of other areas of your life. You may think, “What real impact can THAT have on my case?” It’s possible that you just can’t see the connection. It’s possible that you’re just really drawn to do whatever it is that your attorney told you not to do.
Today, we’ll discuss common situations, how your choices in your personal life can ultimately severely impact your family law case, and what happens when you ignore legal advice your attorney gives you. Let’s get started.
It may be easier to understand what I’m saying if I give some specific examples, drawn from real life situations that I’ve seen.
When you’re committing adultery
I see it happen ALL THE TIME in cases where adultery is involved. A client asks me, “Would it be okay if I started seeing someone new?” or “What if I had a baby by someone else?”
Let me say first… I get it. You’ve been in an abusive, unhappy, or otherwise unfulfilling marriage for awhile now. It’s intoxicating and exciting to think that someone else might be interested in you after all this time. Maybe it’s an old boyfriend. Maybe it’s someone new. Either way, if you’re still married, it’s not a good idea.
Adultery, folks, is pretty risky behavior for a lot of reasons. First and foremost, it’s actually a crime in Virginia. It’s a misdemeanor, and it’s rarely prosecuted, but it’s a crime. Beyond that, it can also have some pretty damaging effects on your divorce. For one thing, if you’ve committed adultery, you can’t ask for spousal support. (Yup – that’s right – your potential spousal support award just flies right out the open window!) Is that worth the risk to you? In general, I think no.
Beyond that, even in cases where spousal support maybe isn’t an issue, there’s the possibility that your infidelity could really ramp up tensions in your case. If he files and starts the litigated divorce process, when otherwise you could’ve just negotiated a separation agreement, you’re contributing to a set of events that will take more time, cost more money, and ultimately yield a worse outcome.
Let me break it down a little more. Women often tell me, “But I’m separated!” But separated isn’t divorced. In Virginia, as in pretty much everywhere, you’re married until you’re divorced – not until you’re separated. There’s nothing about being separated that means that if you sleep with someone else you haven’t committed adultery. In fact, it’s quite the opposite. And adultery can have all sorts of unintended consequences – from criminal prosecution to a loss of spousal support to just a much more contentious, draining, expensive, damaging divorce.
My advice? You’re free to see someone new once the ink dries on your final divorce decree. Not before.
When you’re fighting for custody of your children
It’s an unfair truth: when there’s a custody case at stake, women are very, very unfairly (and very, very minutely) judged.
Literally everything you do matters. We have to tell our clients all the time that absolutely everything, from the way they dress in the courtroom (conservatively, please!) to the pictures they post on Facebook (nothing with you drinking or going out clubbing, please!) and the types of men you bring home (ideally, none, but, if you absolutely, positively must, no one with a questionable background, criminal history, mental illness, drug or substance abuse problem).
I can’t tell you how often women want to bring someone new into the picture. (See above – I get it. It’s exciting.) It’s super duper dangerous to introduce your children to your new boyfriend too early. (How early is “too early?” It depends on your judge. Before your divorce is finalized is DEFINITELY too early.)
In a custody case, I’ve had to tell my clients to do (or not do) all sorts of things. Don’t move in with him. Don’t publicize that your relationship began before the date of separation we alleged in the agreement or complaint. Don’t introduce him to the children. Don’t move to be nearer to him. Don’t date him, period, in some cases. (If he has any kind of criminal history, is a registered sex offender, has a history of drug or alcohol abuse, or anything like that, he’s a liability and, if your children are your #1 priority, you need to cut him loose. NOW.)
Is there a double standard? Yes. Is it the same for men? No. It’s not fair, but it’s the way the system works, and you need to get over it, not bemoan the problems that are bigger than what we can reasonably manage before your court date. We have to operate within the system in the short term, and advocate for change over the long term. Attorneys who’ve been practicing for a long time can tell you – things DO change over time – but almost certainly won’t change before your case is called in the next year or two. Work within the current system and, to ensure that you’re in as strong a position as possible, follow your attorney’s advice.
When you’ve engaged in a criminal act
So, sometimes, when it comes to divorce, there’s also some criminal activity. Some of the most common offenses we see are that you’ve opened his mail, or logged into a password-protected account. It’s against the law, and you should not (I repeat, SHOULD NOT) do this.
Not only do you face potential criminal charges, but you also ensure that the evidence you get is evidence we can’t use at all!
Sometimes, we see worse activity – breaking into his home or apartment or hotel room to steal things of his, vandalism of his car or other property, stalking and harassment… Again, these are criminal offenses, and you need to tread carefully.
The last thing you want to risk when your divorce (and potentially also your custody case) is underway is to make yourself look like a total lunatic to the judge. People lose custody that way. People end up with a poorer result in their case. In this kind of case, you could face criminal prosecution (which can carry with it penalties like fines, jail time, probation, community service, anger management classes, etc) on top of it all, too.
You’re emotional. This is scary. It’s not unreasonable to lash out a little bit. But, if you’re feeling that way, you risk doing irreparable damage to your case and to your children, not to mention opening yourself up to more potential liability. It’s just not worth it.
When your attorney gives you advice
When your attorney gives you advice, ask questions. Be sure you understand. If you leave your attorney’s office and someone else presents you with a follow up question that makes you doubt what your attorney told you, ask your attorney again. Present the follow up question or different argument that gives you pause.
Don’t be afraid to ask your attorney why, or what might happen in the event that you took this alternate course of action. Your attorney can tell you what she’s scared of happening, and can help show you why this might not be most advantageous for you.
Ultimately, though, your case is your responsibility. You can make your own choices, good or bad, but understand that they have a bearing on your case. There’s not some magical lawyerly voodoo we can do to undo damaging things that you’ve done.
Sometimes, it works out okay anyway. Other times, it can be the absolute death knell for a case. Ask yourself whether you’re willing to take a risk. Ask yourself (or your attorney!) what it might cost you. Are you willing to pay that price?
Sometimes, attorney advice goes against something that you really, really, really want to do. It can be hard to follow. It’s your choice, either way. It’s always frustrating to me, as an attorney, when my clients don’t follow my advice – but, on the other hand, it happens all the time, so I’m used to dealing with bad facts. The choices you make are always up to you. But, don’t you think that, if you’re paying your attorney, you should maybe listen to her? After all, it’s not our first, second, or even third divorce – and chances are, for you, it is.
If you DON’T follow your attorney’s advice
If you’ve heard it all and decided that you’d prefer to take a different course of action, well, that’s your prerogative.
But, if you have, please, please, please don’t lie to your attorney. I know it can be difficult to face up to mistakes (especially if, in retrospect, you’ve already realized that this was likely a mistake) to someone that you’re afraid will be disapproving. It’s hard to say, “Yes, I heard you say that, but I decided to follow my own intuition and I disregarded what you said.”
Like I said, though, I think most attorneys are used to a certain percentage of their clients not following their advice. We’re pretty desensitized to many things, so, in most cases, attorneys won’t be all that disapproving. Of course, we do have to point out the ways you’ve altered the case, and what the new outcome might look like, given the facts are we’re aware of them, but I think for the most part we all recognize that we can’t control our clients once they walk out of our doors. We’ve seen pretty much everything (hey, in family law, you learn that it really does take all types in this world), and nothing you can say would have a ton of shock value. We’ll strategize with you and come up with a next best solution – but, of course, your case can, at that point, be compromised.
What should you never, ever, never do? Lie to your attorney. If you haven’t followed the attorney’s advice, fine. Be open about it. Discuss advantages and disadvantages. Come up with a new strategy. But never, ever lie. If your attorney doesn’t know how the situation has changed, the last thing you want is for your attorney to be unprepared and surprised in court because of something that you could have disclosed but chose not to.
In many cases, especially in family law, we’re only as good as the information we’ve got – and we have to get much of that directly from our clients. Never lie to your attorney.
I can tell you, from my experience handling divorce and custody cases, that a lot of the things that a person does, and the choices a person makes, in their own private time can have a dramatic impact on their divorce and custody case.
If you need more information or would like to discuss your personal situation with an attorney, give our office a call at 757-425-5200.