Divorce Law Blog

Posts Tagged ‘Choosing your divorce battles wisely’

There is a fine line in divorce and family law between assertively pressing your case and literally fighting about each and every issue all the time. Recently, I was asked by a family member to refer her to a good divorce attorney (both parties were too close personally to represent her myself). I considered several colleagues who are very competent, but settled on giving her the names of two lawyers  in particular. In discussing these choices with the family member, I told her that in my opinion there’s a fine line between assertively and aggressively representing a client and being so obnoxious and aggressive that an attorney only makes the situation worse for the client and the family. In any particular case, this line can be easily crossed. I thought these two individuals wouldn’t back down, but they also weren’t likely to create conflicts unnecessarily.

Unfortunately, there are many overly aggressive lawyers, and some members of the public think this is a great thing. The reality of the situation is that most family law and/or divorce cases settle in the end and only a small percentage go to trial. If there are children involved, the parties almost always will have to maintain some type of working relationship after the litigation. In many areas of family law, there is room for win-win arrangements that accrue to the benefit of both parties. If the attorneys are constantly battling and fail to really communicate the opportunities for these arrangements are lost.

If the matter does go to trial, there are usually limited areas of disagreement and it is also helpful if the parties can agree on some issues if only for the reason of limiting costs.

Some attorneys promote the image of being “aggressive” – which often means they are looking to run up a bill and usually leave their clients angry and their families and children in ongoing turmoil. No matter how angry or upset you are with your spouse, don’t make the mistake of hiring such an attorney.

This is not to say that your attorney should be a passive wallflower. But, you should always keep in mind that there is a fine line and that your attorney’s job is to do what’s best for you, the client. A good family law attorney willl be assertive and aggressive in representing your interests, but will choose his  (and your) battles wisely.

High Tech has added an arsenal of technical gear to spy on a spouse suspected of adultery, from GPS tracking of cars and cell phones to video recording and computer spyware. These advances in technology bring up the important issue of the legality and advisability of such spying.

While it may be tempting to use such techniques, or even something as apparently innocuous as logging onto a spouse’s computer to review their Internet history, there are serious legal ramifications since such activity is, generally, illegal in itself. According to Federal law, 18 U.S.C. § 1030, it is a crime to access someone’s computer without authorization, and that includes spouses and children over 18 years of age (parents do have the right to access their underaged children’s computers). Since cell phones are effectively small computers, the law can be extended to include accessing the history of someone’s phone calls, although that is not expressly defined. While this has not been interpreted by Massachusetts court in a divorce setting, the Federal law takes precedence, and someone who spies on a spouse in this manner is violating the law.

Another new technology, GPS tracking, can be used to place a tracker on a spouse’s care, but this may be considered stalking, and in Massachusetts following another person three or more times can be considered stalking. Other states have implemented laws regarding stalking via GPS tracking, and Massachusetts may follow suit.

Massachusetts law defines a right of privacy, defined in G.L. c.214 § 1B. Although the right is privacy is enforced through civil, nto criminal, proceedings, it nonetheless should give one pause before spying on a spouse. Indeed, judges do not want to reward illegal activity of any kind, and such spying may backfire on the spy rather than the one spied upon, denying the admission of any evidence found by illegal surveillance.

Consider some stress reducing guidelines, especially when children are involved:

• Help your kids manage their feelings: Encourage them to openly discuss their feelings — positive or negative — about what’s happening. Talk to your children, let them know that they are not responsible for the divorce. How much detail you go into depends in part on how old and how mature the children are, but regardless of age, they need to know that the divorce is not their fault, and that they will not be losing either parent. Discuss the ways in which custody and visitation will work.
• Keep conflict and argument aways from the kids; disrupt their lives as little as possible. Maintain a calm attitude and avoid conflict, as parental fighting is very stressful for children. Take divorce conversations outside the home or discuss these matters only when the children are not home.
• Don’t use your kids as go-betweens. They should not feel like pawns nor be manipulated by either parent. Do not use children to send messages to your spouse.
• Seek support from friends, church, or organizations like Parents Without Partners, or a therapist with experience with children of divorce, someone that the children can talk to and who can help them address any guilt they feel, however unfounded, about the divorce.

So you’ve decided to proceed with your divorce, to get out from under a situation that has prevented you from fully living your life as is best for you. But now, facing a future without a spouse, you may feel very alone and isolated. You may benefit from some kind of support system to handle your new life alone. There are several places you can turn, from your network of family and friends to more organized support groups specifically tailored to recent divorcees. How do you find such a support group? Your attorney may well know of a group in your area that would work for you. Or you may talk with friends or business associates who have been divorced to see if they can refer a group to you.

Support group notices are often posted on church bulletin boards, in newspapers, or your local library. An advantage to a support group is such groups offer an environment where you can unburden yourself of your situation, without burdening your friends and family members with complaining that they don’t want to hear and that you don’t want to weaken your relationships.

Yes, your friends and family will be part of your wider support group, as opposed to a specific group that meets regularly to share experiences. But they may not welcome what they may perceive as an excess of whining or self-indulgence. Also remember that those friends who you have in common with your ex may or may not choose to continue as your friends. Some may, which you will welcome, but others may feel divided loyalities between you and your ex and side with him or her. It is also good to keep in mind that “mutual” friends may serve as a conduit of information to your soon-to-be ex-spouse, so discretion should be exercised when sharing information with them.

Kevin and Donna are in the early stages of divorce proceedings. Kevin is 32 and Donna is 28, and they have three children, ages 3, 5 and 7. Kevin alleges that, over the past couple of months, Donna has introduced the children to her boyfriend, confusing the kids by calling him their new daddy. Kevin feels that this undermines his position as their father and that Donna is attempting to drive a wedge between him and the children. For his part, while Kevin has casually dated a couple of women including a co-worker, he has deliberately kept his dates separate from his family and has not introduced nor even mentioned them to the kids. What recourse does Kevin have?

Although judges tend to vary significantly on this issue, most judges will prohibit a party to a divorce from exposing the children to a third party romantic relationship while the divorce is pending. This can make it very difficult for a party to a divorce who is residing with or spending a substantial amount of time with his/her new boyfriend/girlfriend. In fact, many times the other party will use the relationship to make it more difficult for the romantically involved spouse to exercise their visitation rights. This occurs particularly often when a spouse is angry and vindictive and often exacerbates the difficulties between the parties.

For these and a variety of other reasons, if possible it is highly advisable to avoid exposing children to new romantic partners and relationships while the divorce is still “fresh”. Often these relationships do not turn out to be long term relationships and they usually create ill will and bad feelings between the parties. Even if the children are not exposed to the third party romantic relationship, it is advisable to keep these relationships low key to avoid angering the other spouse, enflaming the situation and creating greater difficulties in the process of divorce.