Ignoring Your Lawyer’s Advice: Part One

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.

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.

I started this article thinking I’d write a quick little post about some common mistakes I see made, and how it can impact a case. Explain why an attorney might give advice that would seem to be fairly wide-reaching into a person’s life. As I wrote, though, I found I had more to say on the topic, and so I’ve expanded this into a two-part post. Today, we’ll discuss common situations, and how your choices in your personal life can ultimately severely impact your family law case. On Wednesday, we’ll talk a little more about 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.

Those are some of the most common situations we see. As you can tell, the advice we give can have a big impact on a person’s life, beyond what they may see as the scope of their case. I can tell you, though, 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.
On Wednesday, we’ll discuss what happens when you DON’T follow your attorney’s advice. Stay tuned. In the meantime, 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.