By Stacey Langenbahn, J.D., Attorney-Mediator
Advice from a divorce lawyer: Don’t sabotage your divorce at the beginning by making these worst divorce mistakes! Part Two is about avoiding mistakes in the throws of divorce.
1. Ignore great alternatives to fighting in court. Collaborative mediation (team mediation), and collaborative law are excellent, lower cost, private alternatives to litigation. Compare them carefully because they each suit couples' needs and budget differently. Both do allow you to keep control of important decisions instead of giving them to an overworked judge who will never know (or care) as much about your family as you do. The courthouse should be the last resort, not the first place to go for divorce. The unwritten rule for divorce lawyers is to make the other spouse and his or her lawyer look as bad as possible in front of the judge. (Unfortunately, some also say the other unwritten rule is that divorce lawyers are the only ones who win). Knowing these two things, why would you ever want to litigate when there are far better and more affordable ways to separate or divorce that keep you out of court? Solution: Be an educated consumer. Research your options before you see a divorce lawyer.
2. Run straight to a divorce lawyer when you are mad. Scientists have proven that the thinking part of our brains turns off when we are emotional and angry. So when you are seething mad at your spouse is a really bad time to agree to pay a large retainer to a divorce lawyer. Solution: Wait to make major decisions like how you choose to divorce until you are calm and thinking clearly.
3. Hire the divorce lawyer who tells you everything you want to hear. Beware of any lawyer who says, “You are so right and your spouse is so wrong; I can fix everything” or "I can get you everything you want." Not even the best and most experienced divorce lawyer can control what a family law judge is going to do. Solution: Choose a great lawyer who will talk to you realistically about all your options for divorce, what the law says, and what is reasonable to expect in your case.
4. Forget you need each other’s cooperation. It takes both of you to decide what to do with the house, bank accounts, credit card debt, retirement plans, and when you will have quality time with your kids. The sooner you both realize you need each other’s cooperation to get divorced, the better off you’ll be. Interaction and early agreement set the pattern for cooperation that will be very important not only during the divorce, but afterward as you co-parent your children. Solution: If these things are important to you, find a mediator or a lawyer who supports your desire to work together for an amicable divorce that saves your finances and your family.
5. Use your lawyer as your mouthpiece. Talking through lawyers is extremely expensive. The message is often miscommunicated or misinterpreted causing more trouble. Solution: Talk to your spouse and make as many agreements as you can before seeing a divorce lawyer. If you can’t talk to your spouse, try using a mediator before you get a divorce lawyer involved. A mediator is a professional, usually a lawyer, CPA, or licensed therapist, who stays neutral and is trained to help both of you negotiate, develop creative options for settlement that work for your family, and focus on your children’s best interests.
4. File a temporary restraining order (TRO) when you don’t need one. A TRO is a court order to stop a spouse from stalking, making harassing phone calls, cleaning out bank accounts, refusing to pay bills or to support a child, or destroying property among other bad deeds. If your spouse is not doing these things, don’t use a TRO in Tarrant County. (A TRO is a required part of the divorce petition in Dallas, Collin, and Denton counties). A TRO, especially an unnecessary one, creates significant conflict right from the beginning. Most lawyers do not show the divorce petition and the TRO to the client before serving it on the other spouse. Make sure you know what those documents say because they can stir up a hornets' nest. And the other spouse is highly unlikely to believe it when you say you did not know what your lawyer was sending (even though you are telling the truth). The receiving spouse believes the other is publically accusing him or her of doing things he or she would never dream of. To add insult to injury, the hearing that both spouses have to attend will cost at least $4000 - $10,000 or more in lawyer’s fees in the first two weeks of your divorce. And you probably won’t get to tell your story to the judge. Judges in Tarrant County advise divorce lawyers to tell their clients that if they cannot reach agreement themselves, the judge will call the lawyers into chambers (without the clients) to work out the clients' disagreements. Most clients find the whole process extremely frustrating, damaging, and expensive. Solution: Couples who choose early mediation often can resolve these issues without the need for a TRO. Ask any divorce lawyer you interview whether a TRO is required in your county and if you really need one. If you have been served with a TRO, ask your lawyer to ask your spouse’s lawyer to postpone the hearing to give you two time to work it out between yourselves or through your lawyers.
Part Two – the worst divorce mistakes after you’ve started the divorce.