Mistakes to Avoid in Divorce

Posted on July 30, 2009 by Gail Otis

Whether you found a divorce attorney's business card in your spouse's pocket, or have just been handed a complaint for divorce by a constable, there are common mistakes that are often made but which should be avoided.

  1. Ignoring the situation can cause irreparable harm

Often, a person will receive the Complaint for Divorce and become so devastated, or just flustered, that they choose to ignore it. This is the first mistake, because once you are served with a Complaint for Divorce two things occur:

  • You are immediately subject to an Automatic Restraining Order on assets. What does this mean? It means that you and your spouse are prohibited from selling, giving away, hiding, or in any way disposing of any and all of the marital assets. This means you cannot clean out the bank accounts by closing the accounts to transferring all the money out to another location, you may not cash in the stocks, give away or spirit away the electronics or furniture, nor hide the car. You are permitted to use your financial assets (bank accounts, cash) to pay the expenses you incur in the usual course of daily life - such as your utilities, cable and telephone bills, mortgage or rent, etc. If your spouse has used marital funds to retain an attorney, you may also use marital funds for the same purpose. The amount you use should be of a similar amount as that used by your spouse. This is important to understand: any and all assets held in your name or your spouse?s name, regardless of location or when and how acquired, are considered marital assets for the purpose of the divorce, until agreement of the parties or decision by the court.
  • If you have been served with a complaint for divorce, or if you believe that you soon will be served, it is in your best interest to begin to prepare. For example, your attorney will need specific records for your case and you should begin to make photocopies of relevant financial documents such as income tax returns, bank statements, retirement statements, stock statements and even your spouse's paycheck stub. This is especially important if you were not the one who handled the finances during the marriage. It is also wise to collect copies of monthly bills which will assist your attorney to help you prepare your financial statement - required by all parties in divorce actions. Be sure to bring these documents, and any documents you have been served with, when you consult an attorney.
  • The Probate and Family Court rules require that a party file an answer to the Complaint for Divorce within 20 days of being served. Although a Motion to File an Answer Late is generally allowed, you could potentially harm your case if you do not file an answer, and a counterclaim for divorce if appropriate, within the 20 day time frame. It is very important that you contact an attorney as soon as you are served in order to be sure that you are not missing any important deadlines.
  • Do not become confrontational with your spouse

Whether or not there are children in the home, it is never a good idea to become confrontational with your spouse after learning that he or she wants a divorce. It is a sad fact of divorce that some people have sought and have obtained unwarranted restraining orders, even on a short term basis, against their spouse to try to gain an advantage in the divorce matter, particularly if child custody is in dispute. Of course, if your spouse becomes confrontational with you and you are in fear of physical harm by your spouse, you should call 911 without delay. In light of the current economic downturn, however, in the absence of abuse it is not uncommon for parties to continue to live together during the divorce.

  • Remember 'whatever you say or do can and will be used against you.'

There are so many ways a person can harm his/her case even before it goes to a judge. Sometimes, in an attempt to save the marriage, a party may promise to change and will agree with whatever their spouse says about them in order to try to save the marriage. There is an old saying that goes 'admit nothing, deny everything.' When the differences in a marriage reach the point where divorce is seriously considered, or has been filed, reconciliation is uncommon. Although a Massachusetts law does not allow private conversations between spouses to be used in Court, the law does not prohibit the use and disclosure of conversations by email, text message, voice mail message, or when there are others present during the conversation. In addition, if your case involves a dispute over the care and custody of children, and a Guardian ad Litem ('GAL') is appointed to investigate these issues for the court, all conversations can become part of the court record through the written GAL report that will be filed with the Court and provided for the attorneys for each party.

Speaking about GALs, remember that the things you say or do that seem fine in the presence of the children when your marriage is intact may not be acceptable when you are going through a divorce. If custody becomes an issue during your divorce, and a GAL is appointed to investigate who the children should be with, and/or how much time each parent should have with the children, your actions and words may come back to haunt you. You may not think it will happen to you, but it is always better to be safe than sorry. Also, keep in mind that your children are most likely quite upset about parents divorcing, so do your best to keep your children out of the divorce.

Another very important point to remember in this digital age - the internet is full of useful as well as harmful information. As divorce attorneys, we always caution our clients to avoid putting their personal information on websites such as Twitter, Myspace and Facebook. If you have already established accounts on these sites, we recommend that you review the content to be sure that there is nothing that you would cause you harm, or cause your children or family harm, if revealed during your divorce. Chances are that your spouse's attorney will do a Google search using your name, so don't give them additional material to use against you.

The above are just a few of the issues to be aware of, and mistakes to avoid, when you find yourself in a divorce. Other issues may, and will, arise during the divorce, so be sure to find a competent, experienced family law attorney to guide you through the process and to work with you.

This post written by Katie L. Lenihan, Esquire, associate attorney at Otis & Associates, P.C., and edited by Gail P. Otis, Esquire

Divorce, Preparing for Divorce Tags: assets, child custody, complaint, counterclaim, Divorce, Guardian ad Litem, marital assets, Massachusetts law, restraining order, service Comments (0) Trackbacks (0)

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