Pull the rug out fast and early!

 

Divorce is too often litigated on emotions that jack up legal fees beyond what is actually necessary. This is only good for the lawyers, not you or your spouse and especially not for your children. So, when a litigious lawyer who likes to bill it up has a client who feels “scorned” and wants to throw as much trash and insult your way, do not take a position of needing to defend yourself or vindicate yourself to everything. Only concentrate on the facts that apply to the law for the remedies (exclusive use and occupancy, custody, child support, spousal support, carrying charges, attorney fees, and the like) that are being sought.

For example, if the moving papers (usually by order to show cause) say how horrible you are, how much strife you caused in the marital residence and that you already moved out so the moving spouse should be awarded “exclusive use and occupancy” of the marital residence, and it is true you moved out, just briefly state the facts presented are warped, twisted and not true. Do NOT defend yourself on each and every insult hurled your way. Then, if you did move out, consent to that spouse having “exclusive use and occupancy” of the marital residence. Your legal fees will be lower and you will give them less they can come back at you with. The Judge will be much happier that you got to the root of it and did not waste his or her time with facts that are not relevant to that issue because you already moved out.

Now let’s say you’re the dad and the moving party is the mom and she is asking for temporary custody. She bases this on the fact the children are older and want to live with her, are not talking to you and you moved out leaving them with her, and what a horrible father you are. Well, clearly you are not going to get temporary custody. So, once again reduce litigation fees and show the court you are the reasonable one. Briefly tell the court her allegations of you being a horrible father are not true, that you were always there for the children. That they are not talking to you because of the mother badmouthing you (if true). That you consent to the mom having temporary custody, but that you want immediate therapeutic visitation with the children to re-establish your relationship with the children. The court will be happy to grant you that and very annoyed if the mother opposes it.

Guess what? If the therapist finds the mother caused the problem and the children because of her continue to refuse to speak with you, you may be able to reduce or terminate spousal support if it is awarded, and may be able to constructively emancipate the children to not have to pay child support, and more importantly, show the court the mother is the cause of the litigation and you should not be directed to pay for her legal fees for her to and her lawyer to cause the chaos they are causing.

Now let’s presume you are the moneyed spouse and your spouse seeks spousal support and claims no have no knowledge of the families finances but was the one who always paid all the bills. Do not go on and on refuting her allegations, just attach copies of the canceled checks showing she wrote the checks that paid the bills. If they are in the marital residence, go to the bank and get copies. This will prove she committed perjury. You must always attach proof, and not just use your words as she did.

Unless your lawyer just wants to bill it up too, your lawyer will know the most probable outcome of the motion. So, try to resolve it in that direction, maybe shaving it down a little bit better (and I mean just a little bit) for you. Then have lawyer send it in a letter to the other lawyer to try to resolve some, most or all of the motion in advance seeking to not need opposing papers, or shorter opposing papers. Do NOT label this letter with the usual “For Settlement Purposes Only.” Label it “Binding Offer Good Until and Unless I have do draft complete opposing papers.” Why? Good question, so you can attach it as an exhibit to your papers to show the Court you tried to resolve the motion without further litigation, but the other side only wants to litigate. You also use this to better oppose the other side’s request for counsel fees by showing her lawyer could have just sent your lawyer a letter asking if you would consent and no motion was necessary. This is especially important if your spouse retained one of the more litigious attorneys who will do motion after motion. Pull the rug out fast and early!

In the early stages, take the path of least resistance, get all the experts in place, and let the case unfold and all the proofs come into play. In the end, the truth will come out, and vindication will then be had. But if you go the other way in the beginning, you’ll be broke before the truth comes out and the judge will just want to get rid of the case because they do not want to constantly hear all the mudslinging. Show them you are above it! Take the high road.