TOP FIVE THINGS CLIENTS DO TO HURT THEIR CASES
Parties to a divorce action are often at their worst. They are stressed, hurt, scared and angry, and those feelings can cloud their better judgment. While the feelings may be unavoidable, the mistakes people make as a result of those feelings are avoidable. Here are our top five mistakes clients make that can hurt their case:
1. Offering Too Much Too Early.
Although many divorce cases are settled on the kitchen table, people often make the mistake of thinking they can do this within the first week of filing for divorce. Anxious to “get it done” in 60 days, and thinking that their idea of “fair” will carry the day, many people immediately sit their spouse down and say, “here’s what we’re going to do.” This is a mistake, because what you are willing to do that first week may be very different from what you are willing to do when you have more facts, or when you have had a chance to calm down and be more reflective about your marriage and how you ended up in a divorce proceeding. Unfortunately, telling your spouse “I’m willing to do X and give you Y” becomes the starting point for negotiations, not the end result. Good rule of thumb: do more listening than talking, and promise nothing.
2. Relying on Anything Other Than Legal Advice.
Just as you can set your spouse’s expectations too high by promising too much too soon, you can set your own expectations too high by relying on the wrong sources for advice. “My friend got #XXX in child support – I can get twice that because my husband makes twice as much,” “it’s in my name so it’s mine,” “everything has to be divided 50-50, right?” or “he commingled his inheritance so now it‘s community property, right?” are common misconceptions that people cling to before they ever see a real lawyer. When they inevitably learn otherwise, it can be a bitter disappointment. It’s hard to reach a good settlement when one party has completely unrealistic expectations. If a case has to go to trial so that a judge can finally set you straight, you’ve spent more money on legal fees than you would have if you’d had reasonable expectations at the outset. So, talk to a lawyer and get all the facts before you reach any conclusions. Only then can you have a realistic expectation of what your post-divorce future will look like.
3. Waiving the Attorney-Client Privilege.
Although most clients count on the privacy afforded to them in their communications with their lawyer, it is surprisingly common for clients to nonetheless share those private communications with others, thereby waiving the privileged nature of those communications. In a divorce, this often occurs when one client sends their estranged spouse an email from his/her own lawyer, with a comment such as, “see, even my lawyer thinks you’re a jerk,” or “my lawyer says your lawyer doesn’t know what he’s talking about,” etc. In addition to waiving the privacy of that communication, forwarding such information can hurt the ability to settle a case. While the client may want the estranged spouse to see one part of the communication, there may be other information in the communication that discloses a weakness in the client’s case. Bottom line: it is never helpful to share a privileged communication with the other side, so be careful not to hit “forward” in the heat of an argument.
Some clients repeat everything they hear from their lawyer to their best friend or a family member. Sharing this information waives the privileged nature of the lawyer’s advice. If the best friend or family member were to end up on the witness stand, everything the client has told them can be elicited, including the lawyer’s advice and counsel. Again, just don’t do it. Talk to your lawyer about the case, and do not share details of her advice with others.
4. Illegal Tracking and Hacking.
It is a crime in some countries to place a tracking device on a car without the driver’s consent. Nevertheless, many people who suspect that their spouse is not where they are supposed to be feel perfectly justified in placing a tracking device on a vehicle or phone without their spouse’s knowledge. While it is perfectly legal to hire a private investigator to follow a spouse and record his/her whereabouts, electronic tracking without a person’s consent is not legal. As tempting as it may be “just to find out what’s going on,” don’t do it. Not only can the tracking spouse be prosecuted and fined, but whatever is learned from the illegal tracking device will be inadmissible in court.
It is also very common for marital misconduct to be discovered by one spouse snooping through the other’s phone or emails. Unfortunately, under certain circumstances such snooping may also be illegal, rendering the fruits of that crime inadmissible in court. Such communications are fair game to be subpoenaed through normal discovery channels, so don’t play detective – let your lawyer send interrogatories and requests for production of documents for the information you need.
5. Posting Foolish Things on Facebook or Other Social Media.
If you are going through a divorce, posting on Facebook, Twitter or Instagram can be risky. No matter how secure you think your information is, you lose control of photos and comments when you put them on the internet. Contrary to your worst, anger-fueled instincts, it does not help your case to post negative comments about your spouse, and it rarely helps in the war of public opinion either. Most people cringe to see Facebook statuses or tweets that say something like, “it’s so sad to see children who have been abandoned by a father who is too busy spending time with his girlfriend,” or “what kind of mother would leave her child with a babysitter every night while she parties, instead of letting him stay with his own father?” You will (or should) later regret inviting everyone to share in the sordid details of your divorce, and such public disclosure of unfortunate facts can only destroy any cooperation you might have received from your estranged spouse. If the two of you are going to be co-parenting for any length of time, hold your fire. You will need to work together.
Of course, it never helps to have compromising photos of yourself posted by you or others. This is especially true if you have children and custody is in dispute. If your spouse thinks you have a drinking problem, getting tagged in pictures at parties and bars is not going to help your case. Likewise, pictures of you on a date can only lead to trouble. Even if your spouse knows you are dating, being confronted with pictures of it (which someone will invariably send to your spouse) can only make your dealings with your spouse more difficult. “Checking in” at a restaurant in your hometown when you’ve told your lawyer or the court you are unavailable for a hearing because of a business trip can come back to haunt you as well. A good rule of thumb: assume that every comment and photo is going to be shown to your spouse and the judge. If that would be uncomfortable for you, don’t post it.
Divorce is usually a difficult process, no matter how amicable and reasonable the parties believe they will be. The process could be even worse, however, if clients don’t steer clear of these common mistakes.