Is it helpful or harmful that your lawyer knows your ex’s lawyer in California divorce?

A divorce attorney who works for a time in one place gets to know the other attorneys in the area & how they operate.  In one county where I practiced for several years almost exclusively, I knew who was a pushover, who was sharp as a tack, who would cave right before trial, who was sneaky, who I could trust, and who would mean the case would cost double or triple what I expected.  Often, my clients would ask about the other lawyer, and I would share what I knew.

Often, too, my clients would express dismay, frustration and sometimes even anger that I knew and was friendly with the other lawyer.  They thought it would make me “softer” and not fight as hard for them.  They thought my friendship came “above” my responsibilities to them as a client.  It’s unfortunate that I was unable to convince them of how very wrong they were.  I am not the only one who has experienced this, and this article describes well what I am explaining here.

First, they never understood that I take my job and my responsibility to vigorously advocate for my clients very seriously.  Regardless of who is opposing me, I am going to fight for my client in the same way.  I operate by acting in my client’s best interests, and we discuss our strategy before every case.  I will be more cautious when working with someone I can’t trust, but my behavior does not change markedly from case to case and client to client.  Obviously, when pushed I will push back and I can – and will – get down in the trenches and fight when appropriate.  But in many cases this is not necessary and serves only to escalate the cost of the case.

Second, by knowing my opposing counsel, I know what to expect from them, good or bad.  When it’s a friend of mine, I can expect that they won’t blindside me or screw me over.  That helps my client, helps the case, and keeps costs down.

Similarly, my friends trust me as well, so they are more likely to work more easily with me and, as a consequence, work with their client to make the case more reasonable.  In cases with lawyers I am friendly with, there’s more of an attitude of “trust but verify” – we can agree on things in principle, while proof is in process.  With other lawyers, we may need to more through expensive discovery before we can even sit down to start to discuss the issues.  While it may seem that time cools the fires of anger, resentment and vengefulness, it is often the opposite. The longer the case drags on, the harder it can be to settle.

So, which would you prefer?  I would want an attorney who knew my opposing counsel well, and was friendly with them.

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Trying to prove your ex is crazy? It all starts with you

It’s not infrequent that I have a client who says their ex is completely crazy.  Often they are correct, though just as often my client also has a little bit of the crazy – after all, they were married!  In truth, everyone is a little crazy, at least on occasion, in a divorce.  The key is tempering it when you need to, which is something not everyone can do.

When you’re trying to prove to the judge or court that your ex is the one who is making up lies, exaggerating, and generally trying to hurt you and/or drag your name through the mud, you have to keep several things in mind or you will not be successful.

  1. The judge has a very limited time with you, so s/he has to make quick decisions based on very little information.  The judge, remember, knows nothing about you, your ex, your past, your history, or anything other than what is before the court and what you manage to convey in a short hearing.
  2. Most examples and instances of unreasonable behavior are difficult, if not impossible to prove because there is no outside evidence and it comes down to he said-she said.  The judge has no idea who to believe in those circumstances, so it’s up to you to prove that you are the credible one.
  3. When you start before the court, you and your ex are on equal footing.  If you want to show that your ex is unreasonable, then you have to work extra hard to appear as reasonable as you possibly can.  If you both act unreasonably, then the judge puts you both in the same category, so your pleas that your ex is really the one with the problem will fall on deaf ears.
  4. Proving you are credible, and thus the one to be believed, can be harder than you think it is.  You have to be absolutely truthful with the court – which means no half-truths, no misleading comments, and being up-front and providing relevant information when appropriate, even if not asked.  It also means following ALL – yes, all – court orders to the letter, even if you don’t like them, don’t want to, or are trying to bury your head in the sand, hoping it will go away.
  5. If you are able to do all of these things, and convince the judge that you are the one that is credible, reasonable, and responsible, then you can start to make headway against your unreasonable ex.
  6. If you fail to show the judge that you are reasonable, then it takes far longer to dig yourself out of the hole with the judge than it would have to just behave in the first place.

Signs your spouse is considering divorce

It is not uncommon for one spouse to be surprised, blindsided even, by the divorce filing of their spouse.  Often, though, the surprised spouse can look back in hindsight and see the signs.  Here are some:

  1. A new vocabulary.  If your spouse starts saying words like “custody” or “community property,” “date of separation” or “dissolution” even (and these terms may not be in the context of your marriage, but may be dropped in conversation about someone else, for example), then this may be a sign s/he is talking to a divorce attorney, or at least gathering information.
  2. Shifting of accounts or money.  If your spouse suddenly wants to move money around, it may be a sign of impending division.
  3. Changes in his or her relationship with family members.  If your spouse has been estranged from her mother during the marriage and now they’re tight, it may be because the rift was due to the marriage.  Now that it’s ending, the rift is healed…you just don’t know it yet.
  4. Super Parent, or changes in parenting.  A spouse getting a divorce may suddenly become super-parent, trying to establish a pattern of caring for children when that wasn’t necessarily the case before.  Your spouse may be setting the stage for the impending custody battle.
  5. Sudden reduction in work hours, overtime, or business.  Many spouses, in the face of paying child or spousal support, find themselves with less work, business, or overtime, and sometimes bosses are complicit with this temporary reduction to avoid higher support amounts.
  6. Secret conversations.  Catching your spouse spending money or talking to someone on the sly may not mean an affair – it may be an attorney or s/he may be talking to others about you.

Divorce is difficult in the best of circumstances.  If you keep your eyes and ears open, though, you may be able to avoid being taken by surprise.

Don’t overlook these important estate planning concerns in divorce

When you get a divorce in California (and everywhere else!), there are important estate planning considerations to take into account.  In fact, these are so critical that you could end up leaving your estate to your ex spouse (ouch!), having your ex make important medical decisions for you, or – if you act hastily and without the proper information – you could get into trouble with the court system.

During Divorce:  First, when you file for divorce in California, regardless of whether it’s Alameda County, Contra Costa County, or any other county, once the other party is served, both of you become restrained from doing certain things.  One of these restraining order involves your will or trust, and prohibits you from making any changes to your will or trust once you’ve filed for divorce and served the other party.  One of the others prohibits either of you from changing or cancelling any insurance, such as life, health, auto/property, etc., or changing the beneficiaries on any insurance or other account where a beneficiary is named.  Do not make the mistake of cancelling your ex’s health insurance or changing your will after you have filed for divorce!

You may make these changes with permission from the other party or with a court order, and you may want to seek this.  Particularly if you have separate property, the last thing you want is for your ex to get it all if something happens to you. You may also want to get permission to change the beneficiary of your life insurance into a trust for your children, but you need permission for both of these actions.

One of the changes that you should make as soon as you can, and there is no court prohibition on this, is your powers of attorney.  For both health and finances, you want to make sure you designate someone other than your ex who will make decisions for you and manage your affairs should you become incapacitated.  If you’re lying in a hospital bed unconscious, do you really want your ex deciding whether to get surgery or wait to see if the medication improves your condition?

After Divorce:  Once your divorce is final, you want to make sure you change your will or trust, your powers of attorney (if you’ve not done so already), the beneficiaries on your life insurance, retirement and other accounts, and make sure you have enough life insurance for your children and long-term care insurance to care for yourself as you get older.

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Dispelling the fairy tale: How kids benefit from parents who don’t “stay together for the kids”

This morning I posted an article from the Huffington Post about celebrities that made the decision to divorce when they knew they were pregnant.  I am of the opinion that children can sense and feel tension and hostility in the family, even if it’s a cool hostility.  And I am not alone: at the family law update classes I attend, research backs me up.  Children from intact happy households fare the best, but those in intact unhappy households fare worse than those in homes with divorced parents.  But I still often hear from clients and friends that they want to stay together until the children are in college, or at least until they are “old enough to handle it.”

But what is this teaching out children?  We are teaching them to put others before our own happiness, and indeed, that our own happiness does not matter.  In addition, we are over-emphasizing the importance of marriage and the “fairy tale” of a lasting relationship.  As was so eloquently put by another author on the Huffington Post, we teach our children, by staying together past our relationship’s due date, that being married and unhappy is more valuable than being alone and happy.

Is that really the message we want to send?

Don’t make your California divorce worse than it already is: avoid these all-too-common mistakes

I’ve talked before about how divorce is nearly always much more expensive and time-consuming than you ever expect it to be – frequently many times more – and given tips on how to not only reduce this time and expense, but how to reduce the stress and toll the divorce process has on you and your children.  Particularly in California divorce, and divorce in the Bay Area, courts are overcrowded and lawyers expensive, so this problem is exacerbated.

There are things you can do to ease the process – for example, hiring an experienced Family Law Coach – but there are also things you can do in your relationship with your ex that will make the process go more smoothly.  The marriage may be over, and even perhaps the friendship and trust that certainly existed at some point, but if you have children, there is still going to be a relationship of some sort, and what you say and do – how you conduct yourself – will have a large bearing on what the post-divorce relationship looks like.  Even if you don’t have children with your ex, you still have to maintain a relationship to get through the divorce process.  Here are some tips to help you through:

  1. Divorce is hard.  It’s hard on both of you.  Focusing on the reasons for the divorce or bringing up old arguments will do nothing but make it all worse.  The marriage is over, don’t dwell on these things.  If you have issues – anger, sadness, resentment – then work on them with a qualified therapist.  Don’t make it worse on you, your ex and your children by hanging on to issues that no longer matter.  One qualifier: if the issues you’re focused on involve concerns about your children (substance abuse, violence, neglect, for example), then these are relevant to the divorce case.  Never listening to you, not picking up socks, and that pesky affair are not generally going to be issues that move your case along.
  2. Make sure you know what you’re talking about before you open your mouth.  Threatening to “take custody” or to quit your job to avoid child support or bad-mouthing your ex’s lawyer do nothing but make the emotions in your case escalate.  Yes, we all can say things we don’t mean when we’re angry.  All the more reason to think before speaking to your ex.  This is a great article about the nasty things spouses say to each other in a divorce – and why they’re empty threats.
  3. This is an issue I’ve talked about before – as soon as you possibly can, start thinking of the divorce in business-like terms.  Once you decide to divorce, the court and legal process essentially strips all emotion out of the equation and gets to the business of dividing assets, determining appropriate support, and working out the child custody and child visitation schedule.  Try to look at the divorce as a business transaction, because that’s what the court is doing.  It’s the break-up of a family unit, so each side gets half of what’s in the family.  Removing your emotions in the court process (and keeping them reserved for therapy, for example) will help to move the process along because you will not be delaying the process on emotional grounds.
  4. One last tip for those working with legal professionals: refuse to work or stop working with someone who is making the process worse.  Unfortunately for you, lawyers benefit financially when cases take longer and are more acrimonious.  If your lawyer tells you to stop talking to your ex (saying all communication has to be through the lawyers) or discourages you from making a reasonable settlement in favor of an expensive trial, find someone else to work with.  You’ll all be better served in the long run.

Or, I suppose if you have endless funds, time and anger, you can do all of the above, fight for years, and make a few lawyers rich.  It happens, all too often.  Remember, you get to choose how your divorce proceeds.  Which will you choose?

Make sure your California divorce attorney knows estate planning. And your California estate planning attorney? Make sure they know family law, too.

There is a great deal of overlap between estate planning and family law.  So much so that, if you’re seeking a lawyer in either area, you should make sure you have one with experience in the other area of law.

Take your divorce lawyer.  Why would knowledge of estate planning be important?  Well, for starters, your divorce is going to end at some point.  And because divorces often take much longer than we’d like, we are often exhausted after they’re done, and have no desire to do any other kind of planning or work on the whole divorce issue.  But once the divorce is done, this is when the really critical aspects of your financial life and future come into play.  You need to change your beneficiaries on your retirements and life insurance.  You need to change and update your will and estate plan, your powers of attorney, and the guardians for your children.  A divorce lawyer without estate planning experience is not necessarily going to make sure you’re properly advised on these issues.

Conversely, let’s look at your estate planning attorney.  First, in blended families (where one or both spouses have children from a prior relationship), there are specific estate planning issues that overlap with family law.  In addition, it’s important to know whether either of the spouses has separate property.  Separate property is property that either spouse owned prior to the marriage.  If either has separate property, then putting the property into the trust without a separate property agreement transforms the property into community property….and this could make the owner spouse quite upset should the couple eventually decide to divorce.

These are just a few of the small issues that overlap, and there are many more.  So many that it would be detrimental to you and your family – not to mention your financial future – to consult with an attorney who lacks knowledge and experience in one of these areas.

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