Having Unclear Objectives During Your Divorce
One of the biggest mistakes you can make is to go through the litigation without knowing what you hope to accomplish. If you know what you want to get out of the litigation, you will feel less lost and confused. If you know where you are going and have a plan for getting there, you will be able to assess your progress and make adjustments in your plan if necessary. Without a plan, you will be doing nothing more than paying attorney bills and wondering how long the whole thing can continue. Just as your attorney needs an action plan, you need one of your own.
Before you can formulate a list of objectives, you must sift through your personal feelings and those of your spouse to determine what motivates each of you. Try to distinguish what you really want from how you react to your spouse. Also consider why your spouse may be acting a certain way. Because each divorcing spouse experiences the dissolution of a marriage differently, one person is usually in more of a hurry than the other to be divorced, and one person is usually hurting more than the other. If you can identify these different motivations and keep them separated in your mind from the goals you are trying to achieve, you will be less confused as your litigation progresses.
If you have plans to remarry soon but your spouse feels no sense of urgency about the divorce (or wishes to postpone your remarriage), your spouse may use the situation as a negotiating tool and force you to give up a larger share of the assets. If one spouse has more earning potential than the other, the economically dependent spouse may fight the divorce in order to keep his or her hooks in the other’s income. An abusive or controlling spouse may resist a divorce or insist on custody of the children as a way of continuing to exert control over the other person. Some people are so fearful of being alone that maintaining a connection, even through something as unpleasant as an ongoing divorce, gives them comfort. Other people view the divorce process as an opportunity to harass and punish their spouse or to drain his or her financial resources.
Negative emotion is to be expected as part of getting divorced. If you face the fact that you are going to have to deal with it, your divorce will proceed more smoothly than if you try to deny it and then lose control when it occurs. Divorcing couples have been irrational and cruel to each other since the beginning of time, and if you manage to escape from a marriage unscathed, consider yourself a member of a very tiny club. Even the ultra-civilized elite of the early 1900’s were spiteful in divorce. The following passage from an article in the Baltimore Sun (May 16, 1995) about local historical architecture illustrates the extremes some people will go to for revenge.
In their day, these monolith-like buildings-erected between 19I2 and 1926-were a cornerstone of Baltimore social life and housed many prominent city families. One of the most notable was Capt. Isaac Emerson, a lavishly wealthy man and founder of the drug company that made Bromo Seltzer.
Local lore has it that Captain Emerson built the Emersonian as part of a vicious spat with his ex-wife. Mrs. Emerson lived in a mansion the couple had built at 2500 Eutaw Place, and the Captain supposedly had the Emersonian built to block her view of the lake.
With all the emotional subtext in a divorce, winning means different things to different people. Moreover, even for the same person, what constitutes a win may change over time, depending on that person’s emotions and finances. If your spouse has left you for someone else, in the beginning you may feel so angry that nothing short of the death of your spouse would feel like winning to you. But over time, as you get used to the idea that your spouse has left, you may decide that you are happier without him or her. At that point, you may be less interested in paying a divorce lawyer to fight over the dishes and VCR. You might prefer to start afresh with new dishes.
That is why, while it may be tempting to allow your emotions to dictate what you do during your divorce case, this approach can be dangerous. If you don’t have a focus and hence a frame of reference against which to measure your progress you run the risk of having the litigation get out of control like a runaway truck with you footing the bill. If you allow your emotions and your reactions to your spouse’s legal strategies to control your decision making, you may run out of money before you achieve your desired result. In fact, you may be so busy reacting to your spouse that you don’t know what your desired result is.
Once you have separated out your emotional baggage, identify your goals and objectives, and put them in order of importance. Work with your lawyer to determine which issues are urgent and which can be left for later. Your list may look something like this:
It is important that you address living arrangements as soon as possible. If you and your spouse have been living together and the impending divorce means that one of you will have to move, that issue must be addressed right away. If you don’t know where you will be living, if you worry every day that when you come home the locks on your house will have been changed, or if your spouse has disappeared with all the money and the bank is foreclosing on your house, you won’t be able to function at work or on a personal level.
You must focus on finding a place that can be your sanctuary while the divorce battle plays itself out. Do not overlook the importance of having a place where you can feel safe. Whether that means getting a protective order to keep your spouse away, going to a shelter, moving in with relatives, getting an apartment, or buying a new house, this is the first issue you must resolve. Until you have a home base, you will be useless to yourself and to your children.
If you fear for your physical safety, but your lawyer doesn’t seem to be taking you seriously or has been unable to get the court to help (which is often the case), consult with a support group or helpline for battered spouses. Tell anyone who might be able to help about the problem. Keep reaching out for help until you get it. Contrary to what your spouse, or even the judge, might be telling you, being abused by a spouse is not your fault. Don’t be ashamed to ask for help.
If you have young children, the next issue you must address is where they will live until the court determines custody. Keep in mind that, in a custody battle, you will be judged based on how well you keep the best interests of your children in the forefront. Judges and mental health professionals generally believe that children are best served by having two parents, and that it is not in a child’s best interest to have one parent prevent the child from having a relationship with the other parent. If you take the children away from their other parent during the custody fight, your spouse may accuse you of depriving the children of a relationship, with him or her. In general, the more flexible and accommodating you are about allowing your spouse to have time with the children, the more kindly the court system will look upon you in the end. However, if you move out of the family home and leave the children with the other parent, this may be construed by the court as an indication that you abandoned the children and do not care about them.
Of course, there are cases where general principles do not apply, and your case may be one. You need to discuss the specific facts of your case with your attorney in order to determine what approach to take. For example, if you must leave town to find work or for some other reason, it may not be possible to devise a schedule where both parents see the children regularly. If your spouse is abusing your child, it may not be appropriate for him or her to be alone with the child. Your lawyer needs to advise you on how to handle such situations.
Once the issues of where you and the children will live are resolved, and when and under what circumstances the children will see their parents, you can begin to address the other issues on your list. Work with your lawyer to prioritize your goals; then write down what has to be done to accomplish each. You will be responsible for some of these things and your lawyer for others. Next to each item, pencil in the date by which you and your lawyer propose to have it accomplished. When your list is complete, you will have your own action plan that you can use to periodically monitor the progress of your case and the effectiveness of your attorney. If at any time your case does not appear to be progressing, take a moment to assess the reason. Perhaps it’s your own procrastination, your lawyer’s failure to accomplish promised tasks, or new legal issues popping up-any of these things could prevent you from focusing on your intended goals. Take appropriate steps to correct any problems and get back on track.
Your action plan is like a to-do list. Often when we feel overwhelmed by all the work we have to do, when we feel as though-despite working many hours-we are not getting anything done, it is helpful to make a to-do list and then check off items as we accomplish them. This allows us to see written evidence that we have, in fact, accomplished a great deal, even though it may not feel like it.
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PROVING MALPRACTICE -- To prove malpractice, the plaintiff must prove that a lawyer failed to exercise reasonable skill and that such failure was the proximate cause to the damage or loss. This means proving 1) that his or her counsel’s performance fell below a standard of reasonableness; 2) that "this deficient performance did not involve the exercise of judgment, discretion of strategy, or trial tactics"; and 3) that the performance so compromised the action that without these professional errors, the client would have prevailed.
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