Ten Practical Ways To Protect Yourself And Keep Your Sanity In A Family Law Case

 

Gregory W. Herring


When entering and proceeding through a family law case, it is important to plan for the dissolution process and post-dissolution life. The stress and other difficulties — particularly when children are involved — can overwhelm a person’s ability to think, reason, and plan. The basic points and explanations below can help. Because each case is uniquely complex and nuanced, this should not be relied-upon in relation to any particular issue or proceeding.

  1. Care for Yourself and Gain Some Control: Even the most civil family law case can be an emotional marathon — with ups and downs, “victories and losses,” and life changes. Less amicable ones can suck the parties into quagmires. You cannot get through the process in one piece or properly care for those counting on you without first taking care of yourself. Talk to your counselor, friends, and family to help develop and begin working toward a vision of your post-litigation life. Consider retaining a Certified Divorce Coach – our experience is that it really helps. 

Control is “preparation, facilitated by organization,” so start with small steps by at least:

  • Opening a bank account and credit card in your name.
  • If you are living outside the family residence, acquire a Post Office Box.
  • Changing your computer and device passwords.
  1. Marshal Your Financial Information toward Understanding Your New Reality: Child support orders and, initially, spousal support orders are based on mathematical formulae that consider each party’s respective income and tax status, among other financial factors. Critical to those calculations and many other issues is each party’s income and tax information. The sooner you can marshal this, the sooner and more accurately you can begin intelligently positioning. Common sources include personal and business tax returns, annual income reports (forms W-2, 1099, K-1 etc.), credit card and financial account statements, and financial data programs (QuickBooks, etc.).

Be careful, though, to avoid potentially misappropriating a business’ data or documents; this can be a tricky area, so first talk to us if a business is involved.

Scan/copy these documents early and keep them safe. Provide us copies. Many do not know all the credit and other financial accounts under their names. A quick and easy first step is to get your own individual credit report (see, for instance, annualcreditreport.com or creditkarma.com).

Simply keeping your eyes and ears open can be productive — one of our clients unearthed his spouse’s undisclosed safe deposit box by merely chatting with the bank’s employees!

Create a budget. Work with us to determine how much money you will need to get through your case and beyond. Start by reviewing your spending habits over the last three to twelve months. Start tracking your expenses going forward. Do it by using an old-style ledger using Excel or through a financial app. Understanding what you are presently spending makes it much easier to estimate future expenses and needs.

All of this information is also needed to create the financial documents required by law, so you will be “killing two birds with one stone.”

  1. Consider Immediately Closing, Freezing, or Dividing Joint Accounts. You may be inclined toward these things to prevent the other party from cleaning-out accounts. On the other hand, this is also a good way to “fuel the flames,” so it must be well-considered. Another possibility is to consider immediately dividing the assets and transferring them to separate accounts under each party’s respective name, so each spouse has access to some secure amount. Because the Automatic Temporary Restraining Orders (“ATROs”) imposed at the case’s beginning affect a party’s rights to do these things, please do not take these steps without first fully discussing them with me.
  2. Consider Canceling Joint Credit Cards. In the eyes of a credit card company, each party is responsible for all charges made on joint credit cards, regardless of which party actually made a particular charge. If possible, it might be a good idea to have new ones reissued in each party’s name. Since the ATROs could be involved here, too, do not take these steps without first talking to me.

  3. Consider Filing Separate Tax Returns. To the tax authorities, each spouse is responsible for all obligations associated with a joint tax return. Even with the “innocent spouse” rule (which may or may not actually be available to an arguably “innocent” spouse in any given case), you do not want to be caught in an audit due to a questionable joint tax return. Thus, if you have any doubts about whether your spouse is providing accurate tax information, you might consider filing separately even if you might lose potential benefits of a joint return.

Before taking any potential steps, you should first discuss this with your own personal tax accountant (not the tax accountant who has handled your joint work in the past) and me. We would be pleased to provide referrals on request.

  1. Refrain from Eavesdropping or Recording Private Communications. Generally (and except for domestic violence (“DV”) situations), eavesdropping and recording private communications of another person is illegal. Additionally, such evidence would typically be inadmissible under the Family Code (except in a DV case). These principles are reasonably extended to the reading of private email messages and copying of electronic data. California now extends the definition of DV to include the unauthorized downloading and distribution of contents from cell phones and the unauthorized hacking of social media accounts.

  2. Beware of Social Media. We advise our clients to immediately cease all activity related to posting on social media outlets, as anything posted could be used against them in court. Do not eliminate or modify postings, however, without first consulting us. A judge might find that such changes could amount to tampering with evidence, which is a serious offense. This is further discussed in our accompanying memo, regarding Personal Information and Privacy, and Related Concerns.

  3. Preserve ESI. Parties must protect from changing or destroying any electronically stored information (ESI) before and during their case. This means that, until their case is over, they must not delete or modify any email, text messages, voicemails, or even social networking postings (see above). If you are using QuickBooks, Microsoft Money, or other accounting software at home, you cannot delete those files. “If in doubt, keep it and maintain it.”

  4. Keep the Kids Out of it and Consider Professional Custody Input. Child custody and parenting issues are always emotional and difficult. They get worse if a parent immerses children in the lawsuit. We typically recommend that our clients consult with a child development/parenting professional when children are involved. We have “stables” of preferred professionals in different counties. Sometimes both parties can be convinced to work together with the same professional — which is usually (but not always) a good idea.

The State recognizes that parents often need help trying to resolve custody and parenting issues out of court, and that those who can mutually agree to custody and timeshare arrangements are more likely to abide by them. Thus, prior to any potential custody hearing, parents are required to attend a “mediation” where a trained professional attempts to persuade — but cannot force — the parties to reach an agreement (“mediation” is in quotes because in some counties, including Ventura County, these proceedings are not always confidential — whereas a true mediation is). Public mediators, located in the courthouse, are available at no cost. Parties with financial means ought to consider retaining a private specialist, who can typically spend more time with the family and thus provide more nuanced input.

  1. Consider Alternate Forms of Dispute Resolution. Where appropriate, we encourage clients to consider Alternative Dispute Resolution (“ADR”). Forms of ADR include mediation, arbitration, and private trials.

Sometimes the court system presents the best or only reasonable path in a case; but at other times ADR might present better options. We do not agree with some, who demonize the court process — as opposed to some type of ADR (often the particular type that they provide!). Rather, the benefits of the courts include Constitutional consideration of Due Process, structured procedures, and timetables that do not have to rely on the other side’s cooperation (or lack thereof). Ultimately, each case is different and presents its own opportunities for resolution.

Conclusion.

A family law case is usually a defining period. To get through it in the best manner possible, you need to protect yourself while proceeding in a thoughtful and deliberate manner. It is unrealistic to expect to eliminate emotions from playing a role, but the bottom line is that you are apprising and negotiating your future. The foregoing can help you regain a level of control, understand your new reality, protect yourself, and know what you want.

 

Gregory W. Herring
Certified Specialist, Family Law
The California Board of Legal Specialization of the State Bar of California
Fellow of the American Academy of Matrimonial Lawyers
Fellow of the International Academy of Family Lawyers
Writer’s direct email: gherring@theherringlawgroup.com