Family Law
Common Divorce Mistakes
Most people going through a divorce decide at the beginning that they will not lose control of themselves, their temper, or their legal bill, and most people keep these resolutions.These people do not spend hours in court, save themselves from spending thousands of dollars in legal bills, and are able to get through this paintful process and get on with their lives.
Conversely, some people do make mistakes in divorce, that can have drastic consequences. And unfortunately, because of the nature of divorce, we often have to live with those mistakes for years, sometimes even for the rest of our lives.
Here are the most common mistakes and some ways to avoid them:
Giving up control of the divorce, usually to your lawyer.
Your lawyer is a professional; he or she is trained to represent your interests in court, and you need to listen carefully to the advice your lawyer gives you. But this is not your lawyer’s divorce. It is yours, and you are the one who will have to live with the results.
Dividing up property without a thorough inventory.
I see it nearly every day. Before you begin negotiating with your spouse, you must build a thorough inventory of what you own and what you owe.
Spending too much time and money letting lawyers gather information.
The legal term for this is “discovery,” and it includes interrogatories, requests for the production of documents, requests for admissions and depositions. Lawyers love discovery. It turns little cases into big cases and keeps the lawyers thoroughly in control of your divorce. It is thus easier and more cost-efficient to gather the information some other way if you can. You and your spouse might be able to simply exchange the information you need. You could use mediation to help you share the information with each other. Before you even go to see the attorneys or mediators, you might consider using a financial preparation kit to help you calculate the after-tax value of your house and other real estate as well your vehicles, household belongings, stocks, bonds, IRAs, retirement plans, and other financial assets. Start gathering and documenting the financial information of your case immediately following your engagement in your matter.
Letting your family or friends tell you what you need, and even sometimes what you should be feeling.
Remember, this is your divorce. No one, and I mean no one, should tell you how you should get through it, what you should be saying, what you should be doing or what you should be feeling. Do not be afraid to rely on your own judgment.
Not paying enough attention to taxes.
I see this one all the time. People negotiate, reach agreements, and get divorced without thinking through the tax impact of the decisions that they are making. It is not unusual for one of the spouses to get a nasty surprise several months or even years after the divorce, when they realize for that they are now facing a big tax bill they didn’t know about, such as capital gains on the sale of property. You should thus consult with your lawyer regarding any specific tawation issues on your property.
Not considering inflation.
Consider inflation in all settlements. You need to consider the effect of inflation on a child’s education, your retirement, and other long-term goals.
Trying to win back your spouse by being generous.
This one makes me cry. Here’s the scenario: the grieving spouse who isn’t ready for the marriage to end and decides that he or she can win back the leaving spouse by “being nice.” He or she lets their spouse have everything and agrees to far less than fairness would dictate, fantasizing that they will realize what a wonderful person he or she is leaving and return to the marriage. What tends to happen instead is that the leaving spouse holds the other spouse in contempt, takes what is offered, and still leaves. The left spouse realizes his or her folly only much later when it’s too late to reverse it. The knowledge that he or she has been taken advantage of makes them resent the other spouse and the system, and further delays the recovery from divorce. It makes a bad situation worse, not just financially but emotionally as well.
Letting emotions rule.
Emotions run high during a divorce. Greed and revenge often taint the divorce, especially if one spouse has a new friend. Often the goal is to ruin your spouse, but that is not the goal of the legal system. If you can keep emotions out of the proceedings, the proceedings can be shorter, less stressful, and less expensive. Counseling may be needed to help. Your attorney can help, but he is not a therapist. He is hired to help you in the legal aspects of your divorce. You may have emotional attachments to property, but you may not be able to afford the property or have rights to the property. Listen to your attorney who will provide you with a non-emotional point of view. Additionally, attorneys often charge more than therapists, financial planners, or other professionals. Don’t overuse your attorney for therapy, as your bills can increase dramatically with unnecessary calls and visits. Reasonable actions should be separated from emotional actions. Thinking strategically and objectively can lead to better decisions in the divorce process.
Representing yourself.
While you have the legal right to represent yourself during a divorce, the legal issues can be complicated. If your spouse is represented, you need to be represented to avoid any potential legal mistakes that you may not be aware of. A divorce will affect your life for years afterwards, especially if children are involved. Thus, while it may seem more cost-efficient to represent yourself, having legal representation throughout the divorce may save you years of financial and parental stress.
Considering the divorce as a battle ground.
Equitable principles apply in a divorce and you need to consider the divorce as a business deal. Your attorney should not be combative, as that can often lose your case. Your attorney should clearly represent your case to the judge, but being too combative can upset the judge. Children should not be used as pawns in the struggle. Do not withhold child support due to a lack of visitation privileges, or vice versa. The issues are separate issues. Withholding child support or visitation can place you in contempt regardless of the activities of your spouse. Respect should be due to all parties, even your spouse and their attorney.
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Revack, Samaan & Muller, LLP
6300 West Loop South
Suite 340
Bellaire, Texas 77401