In my time as a legal assistant in the family law profession, I have observed many different kinds of client behaviors, some better than others. Those behaviors that cause the warning sirens to go off in our office are not always apparent upon first meeting with a client. It can be two or three weeks of communication before a red flag behavior appears.
One of the worst red flags that I have seen is not telling the whole truth. Clients who spin a yarn that falsely paints them as victims who are down on their luck and being abused by their exes and the system. Usually, this kind of dishonest client is not only being dishonest, but gives as good has he or she got in a mutually dysfunctional relationship. There isn’t much of an argument to be had by accusing your spouse of being an abusive drunk, a pill-popper, a philanderer, etc. when you’re engaged in the same or similar bad behavior. Be honest with your lawyer. He can help you. He can’t magically make all problems disappear, but he can ensure you present the ugly truths about yourself in the most effective ways. Your lawyer can’t help you very much, if at all, however, if you’re not honest with your lawyer. Period.
Another behavior that sets off the warning bells are the clients who focus on how much money and/or assets that they can get out of their former spouse. You are entitled to an equitable distribution of the marital assets. A fair division. But when clients try to leverage the children for money lie about abuse and betrayal and debauchery, that’s not only disgusting but it can backfire.
Finally, the least damning of the red flags but the most common are the clients who ghost their lawyers. Why would you hire an attorney ostensibly to help you, then not cooperate with them? If your lawyer is calling, it is probably important. You need to take the call. You need to return the call. Read your lawyer’s emails. Respond to them. Timely. When you fall asleep at the wheel or just expect your lawyer to do everything, it isn’t your lawyer’s fault when things go awry.
Maybruch, C., Weissman, S., & Pirutinsky, S. (2017). Marital outcomes and consideration of divorce among Orthodox Jews after signing a religious prenuptial agreement to facilitate future divorce. Journal of Divorce & Remarriage, 58(4), 276–287. https://doi.org/10.1080/10502556.2017.1301152
Abstract
This study examined marital satisfaction, marital adjustment, and consideration of divorce among Orthodox Jews in North America (N = 2,652). These marital outcomes were compared for individuals who signed or did not sign a religious prenuptial agreement that facilitates a woman’s future ability to receive a religious divorce from her husband. Results indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement, and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement. (PsycINFO Database Record (c) 2017 APA, all rights reserved)
This paper did not address the question of whether prenuptial agreements lead to divorce, but, among the other subject it touches, “discusses two major explanations for the paucity of prenuptial agreements: underestimation of the value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.”
In the event of divorce – statistically, the reality for nearly half the marriages in America – a prenuptial agreement has the potential to save the divorcing couple anguish, arguments, and thousands of dollars. It may represent an exit agreement far closer to their wishes than the court-ordered divorce. A good prenuptial agreement can even exert a positive force on a healthy marriage.
Fear and Loathing in Marriage: The Psychological and Financial Destruction Caused by Prenuptial Author: Anne Cominsky Mentor: Kurt Meyer, Professor of English, Irvine Valley College Historically, prenuptial agreements as a condition of saying “I do” were sought out by the economically stronger partner as financial protection from divorce. Currently, legal experts and financial advisors agree the general use of prenuptial agreements is on the rise. A random poll suggests that over half of the general public view prenuptial agreements favorably.
If you’re thinking about a prenup, or — worse yet — your intended is pushing a prenup on you, you might as well go ahead and just cancel the wedding. There’s an easier way to keep your assets and income separate: it’s called cohabitation. In most states, cohabiting partners are free to walk away from their relationship with their income and assets intact, all without the hassle and expense of a divorce. There’s an easier way to keep your assets and income separate: it’s called cohabitation. But if you’re truly in love, and you wish to share your life, your body, your children and your checkbook with your beloved “till death do you part,” marriage is generally the ticket. Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money. And, paradoxically, if you take this other-centered approach to marriage, you’re not only less likely to divorce, but also to enjoy a happier relationship. My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account. So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them. Your odds of finding wedded bliss will be higher than your peers with prenups. Join Opinion on Facebook and follow updates on twitter.com/roomfordebate .
5 Prenuptial Pitfalls to Consider — Having One May be Bad for Your Marriage | DivorceNet
For what it’s worth, now that you have some research data: in the course of my cursory research I noticed a distinct bias in the articles that claim that prenuptial and postnuptial agreements do not encourage divorce/discourage marriage. I believe that any intellectually honest person would conclude that for the vast majority of young, unmarried people contemplating marriage for the first time and who aren’t celebrities, or rich or in some other exceptional category contemplating marriage, a prenuptial agreement raises red flags and tends to raise doubts as to the other party’s commitment to marriage.
Pro-prenuptial agreement articles gloss over the red flags. They claim prenuptial agreements “”clear the air, “help break the ice about discussing finances”, and “reduce acrimonious litigation in the event of divorce” rather transparently strain credulity to make those arguments stick.
That’s a good question. One that I’ve wondered about myself, but I don’t know of any such studies. That doesn’t mean they don’t exist, it’s just that I don’t know whether they do.
In divorce actions, be sure to distinguish between the different tax treatment of Roth and traditional IRAs. Investopedia.com stated it clearly and concisely: “The traditional IRA allows you to contribute a portion of pre-tax dollars. That reduces your taxable income for the year while setting aside the money for retirement. The taxes will be due as you withdraw the money. The Roth IRA allows you to contribute post-tax dollars. There are no immediate tax savings, but once you retire, the amount you paid in and the money it earns are tax-free.”
This means that a dollar in a traditional IRA is not worth the same as a dollar in a Roth IRA. Bear the tax consequences of funds in traditional IRAs and in Roth IRAs when you divide marital assets.
As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires” (See Utah Code Section 78A-2-705(13)(d)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:
If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.
A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.
Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.
If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.
If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.
If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.
A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.
Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.
You have just decided to file for divorce. Or perhaps you have been served with divorce papers. At some point early on in the process you will likely think to yourself, “I have so many text messages that clearly prove my spouse is terrible,” or “I have videos of my spouse behaving badly.” You could be right. But do you know what kind of evidence is relevant and that the court finds persuasive? And have you considered the implications of what your “evidence” actually says about you? For every gotcha text message or video you have, does your spouse have similar dirt on you?
You may think to yourself, “I’ll just delete the messages that cast me in a bad light,” or “I’ll edit the videos a certain way to make myself look better” and engage in other cherry picking. This rarely works. Indeed, it often backfires. Manipulating the facts is a form of lying. And it’s not that hard to spot or expose.
Understand what kinds of evidence the court needs and what is useless to a court. The court’s jobs are clearcut: 1) end the marriage 2) divide the marital assets, 3) divide responsibility for marital debts, 4) deal with custody of the children (if any), parent-time, and child support, and 4) determine whether to award alimony, and if so, how much and for how long based upon the recipient’s need and the payor’s ability to pay. That’s it. It is not the purpose of the divorce court to settle scores between you and your spouse or to declare who’s worse than the other. While spousal or child abuse can be relevant in a divorce case, stories about shouting matches and squabbles are nothing new or compelling in a divorce case.
Take a businesslike approach to your divorce case. You have to work out your feelings in a divorce case, just not in court. Don’t dwell on your feelings too much when dealing with the court; it’s a waste of your time and energy.
What should you do, then? You need to face the truth and deal with the truth. Submit the relevant evidence and concede your flaws and faults along with it. Your credibility is more important than trying to put up a false front. Your credibility is easier to show and maintain when you’re honest. Courts are more sympathetic with honest people than with liars.
In every Utah divorce case, the parties must prepare what is known as a financial declaration. The parties to a divorce action are required by the rules of court to provide each other with their financial declarations.
With rare exception, divorce litigants struggle with preparing a complete, accurate, truthful financial declaration. We prepared this video (and an accompanying blog post) to help you 1) overcome procrastination, 2) understand the purpose of each part of your financial declaration, and 3) persuade you, we hope, not to give in to the temptation to lie on your financial declaration or try to hide anything from disclosure on your financial declaration.
What is your financial declaration?
Concisely stated, your financial declaration is a document that provides information about income, assets, debts, and personal expenses.
The information in the financial declaration is used to analyze and determine questions of child support, alimony, division of marital property, and assigning responsibility for marital debts and obligations. as well as for determining an attorney’s fee or “for any other reason” (Utah Rules of Civil Procedure Rule 26.1(e)).
The specifics of what needs to be included in your financial declaration are outlined in URCP Rule 26.1. The acronym URCP means “Utah Rules of Civil Procedure,” and URCP 26.1 requires that you provide specific supporting documents with your financial declaration:
Your previous two years’ personal and business tax returns, including all the documents submitted with your tax returns and all documents used to prepare those tax returns
Pay stubs for the last 12 months before the petition for divorce was filed with the court.
Documents that verify the value of all real estate that the parties have an interest in (for example, your most recent appraisal, tax valuation, and refinance documents)
Bank statements for all financial accounts for the 3 months before the divorce was filed (this includes checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held jointly, in your name, or as a trustee or guardian, or on someone’s behalf).
We also suggest that you provide documentation of your personal expenses going as far back as you can. If you don’t have this documentation, start compiling it.
Is there a way to be exempt from preparing and producing a financial declaration?
No. We will not discuss this topic again. You must prepare a financial declaration, and you must prepare it within the time limits you are given to prepare it. You must give your spouse a copy of it. There is no way around it. If you refuse to provide a financial declaration, the court can and almost surely will sanction you severely. Here is what Rule 26.1 provides on that subject:
(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.
(g) Failure to comply. Failure of a party to comply with this rule does not preclude any other party from obtaining a default judgment, proceeding with the case, or seeking other relief from the court.
Do I have to give the court a copy of my financial declaration? Why?
You may be required to file a copy of your financial declaration with the court if 1) a hearing is scheduled on the subject of child support, spousal support, division of property, allocation of responsibility for debts, attorney fees awards and court costs, or 2) the court has ordered you to file it.
Do I have to give my spouse a copy of my financial declaration? Why?
Yes, you do need to give your spouse a copy of your financial declaration. It is required by court rules. Rule 26.1(c), to be exact.
But the better question is why wouldn’t you give your spouse a copy of your financial declaration? Exchanging financial declarations with your spouse is a way of keeping both parties honest about income, assets, debts and obligations, and personal expenses.
There is an element of wounded pride and embarrassment associated with close examination of the details of a person’s finances. Being honest and pushing your pride aside is hard but is still better than misrepresenting or hiding your financial state.
What will happen if I do not prepare and provide my spouse (and the court, when necessary or when ordered to do so) a financial declaration?
See paragraph 2 above.
And your attorney will likely withdraw as your counsel.
You could be sanctioned for contempt of court. This can lead to fines, penalties, or even jail time.
You could lose your rights and entitlements you would otherwise deserve when it comes to division of marital property, responsibility for marital debts and obligations, and the spousal support and child support awards.
6. Isn’t a financial declaration just busy work?
I hope that by now you can see that a financial declaration is plainly not busy work.
A clear, accurate, and complete financial declaration is one of the best ways to establish your honesty, character, and credibility overall.
A clear, accurate, and complete financial declaration is necessary to help you understand the reality of your financial situation now and what it will likely be post-divorce.
We get it. Taking a hard, honest look at your financials is scary and discouraging. But burying your head in the sand does you no good. Face up to it and get it done.
I do not see the point of a financial declaration (you are lying; of course you see the point of a financial declaration).
“Hey,” you may think, “I have a smart and original idea: I will lie on my financial declaration.” This is neither original nor smart.
You are not the first and will not be the last person to believe that they can lie to your attorney, to the court and to your spouse and to your spouse’s attorney. People have been lying to the courts from the beginning. Sometimes it works. The odds, however, are against you.
The moral thing to do is to tell the truth.
If doing the right thing is not reason enough to be honest and forthright, then remember you are not as good a liar as you think, and you will be caught in your lies.
Do you really believe that you are smarter than the opposing counsel, your attorney, and the court individually or combined? You can fool some of the people all of the time, all of the people some of the time, but you can’t fool all of the people all of the time.
Lying can get you some big benefits if you get away with it. However, if you are caught lying, you will lose. The court can hold you in contempt, and even strike your pleadings outright and award default judgment to your spouse. If your main worry is your money, then you should disclose it. Getting caught in a lie or worse, lying under oath is usually more costly than being honest and forthcoming.
Courts have seen liars lying on financial declarations forever. There is nothing new under the sun.
Unless your lawyer is a crook, if you insist on lying on your financial declaration, your lawyer will be required to drop you as a client.
OK, so you’re now convinced there is no escaping the preparation of your complete and accurate financial declaration. How do I prepare my best financial declaration? Great question. Let’s start answering it by first addressing the wrong way to prepare a financial declaration.
The wrong way to prepare your financial declaration
Guessing or estimating without 1) making it clear on your financial declaration form that you were making an estimate, and 2) making the most accurate guess/estimate you can and explaining the bases for your estimate.
Your spouse isn’t likely to cut you some slack if you guess or estimate incorrectly. No, instead your spouse will accuse you of lying. Don’t make wild guesses. Don’t make estimates without making it clear that your estimate is an estimate, not an unquestionable fact.
Sloppy guessing and estimating makes you look dishonest and/or ignorant. Courts don’t listen to liars and fools or take them seriously.
Falsely claiming that you “don’t remember” and that you cannot find documents.
This is lying, and it doesn’t fool anyone. Anyone may honestly forget or misremember a few details. Sometimes documents get lost. It’s only human. But conveniently claiming “I don’t recall” and “I can’t find it” in response to crucial questions? Come on. You cannot even lie persuasively to yourself like that.
Claiming you can’t find documents doesn’t mean your spouse or your spouse’s lawyer can’t find them through other means.
The right way to prepare your financial declaration.
The right way to fill out a financial declaration is to be as honest and thorough as possible to provide as complete and accurate a financial declaration as possible. Yes, it may hurt or embarrass you to be so honest about your financial situation, but it hurts worse to lie and be sloppy.
Do the necessary work. You can’t skip steps and take shortcuts and turn out a complete and accurate financial declaration. If you think you are an exception, you’re lying to yourself.
Don’t procrastinate. You cannot prepare a good financial declaration by waiting until the last minute. Procrastination does more damage to your ability to prepare a good financial declaration than any other bad habit. Procrastination needlessly and inexcusably makes it sadly and much harder to prepare your financial declaration.
Conquer procrastination. Conquer it by:
1) committing to complete 3 pages per day, Monday, Tuesday, Wednesday, Thursday, and Friday. There are about 14 pages in a financial declaration form. Your attorney can prepare the first 2 pages for you. That leaves 11-12 pages you need to fill out yourself. If you complete 3 pages per day (and leave yourself an extra day or two to compensate for interruptions or snags you encounter along the way), you’ll have it done—and done well—in 5 days.
2) compiling your supporting documents. Start now. Make sure you contact your banks, credit unions, and other financial institutions, HR and/or payroll department, retirement benefits administrator, and credit card companies to get the documents you need to attach to your financial declaration:
Tax returns for the last two years
Pay stubs or other proof of income for the 12 months before the petition was filed
Loan applications for the 12 months before the petition was filed
Real estate documents. Deed, most recent appraisal, tax valuation, and refinance documents (if any).
Financial statements for the 3 months before the petition was filed. This includes, but is not limited to:
checking
savings
credit cards
money transfer apps
money market funds
certificates of deposit
brokerage
investment
retirement
It can take several days for the documents to be emailed or mailed to you, so contact the sources and request them now. Don’t be afraid to follow up if you haven’t received them by the time the sources estimate or promise you’ll have them.
Garbage in, garbage out. If you wait until the last minute to prepare your financial declaration, odds are your financial declaration will be mediocre, and a mediocre financial declaration is dangerous. Frankly, if you prepare a half-baked financial declaration, you deserve the natural consequences of poor preparation.
iii. Work in and for your best interest.
Do the work. Do it consistently. Do it on time. There is no other way to do it right.
You cannot foist the preparation of a solid financial declaration on your attorney and his assistants. Really, you can’t. Don’t try. It won’t work. It cannot work.
Your attorney and his assistants cannot do it for you. It is impossible. There is information and there are supporting documents only you can provide.
Your attorney and his assistants do not know more about your financial situation than you do.
iii. Your attorney is there to help you get your financial declaration in ship shape, but you have to do the work and supply information and documents that only you can provide before your attorney can be of any help to you.
There is no loophole. There is no magic wand. You will have to do the work and do it consistently in order to put your best foot forward. Time wasted or squandered cannot be recovered.
Explaining each part of the financial declaration and what the court and the opposing party use it for:
Paragraph 1. Statement of whether you are filing a copy of your financial declaration with the court. This paragraph is fairly self-explanatory. Unless there is a hearing on the subject of alimony, child support, or attorney’s fees awards scheduled, or unless the court has ordered you to file your financial declaration with the court, you don’t file your financial declaration with the court.
Paragraph 2. The documents supporting your financial declaration. Your tax returns, pay stubs, loan applications, real estate documents, and financial statements verify the information you provide in the other paragraphs in your financial declaration.
Paragraph 3. Employment. You identify whether you are employed, and if you are, who your employer or employers are, how you are compensated, how often you are paid, and how much you are paid.
Paragraph 4. Gross Monthly Income. You identify all sources of your pre-tax income, whether earned or unearned, and how much you receive on a monthly basis from each income source. If you don’t receive income on a monthly basis, then you identify what the average annualized monthly amount is.
Paragraph 5. Monthly tax deductions. You identify what taxes are deducted from your gross monthly income and how much is deducted.
Paragraph 6. After Tax Income. This paragraph is fairly self-explanatory. In this paragraph you state what your net income is after you deduct the taxes withheld from your gross monthly income.
Paragraph 7. Monthly Expenses. This paragraph is fairly self-explanatory. Here you identify what your monthly personal expenses are. If you have separated and your expenses have changed since separation, then you identify the differences between your “Current” monthly personal expenses and what your previous “Marital” monthly personal expenses are.
You don’t simply state your personal expenses in paragraph 7. You need to be able to verify and justify them too. To do that, you need to provide receipts documenting these expenses as real.
Providing receipts establishes your credibility. They demonstrate that you are transparent and honest about your financial situation. Providing receipts establishes accuracy. They ensure that you do not overstate or understate your financial obligations and they prevent the court from dismissing your personal expense claims as false or inflated. Providing receipts provide context and explanations for specific expenditures.
Paragraph 8. Business Interests. A business could be a marital asset that has value to be divided in divorce. Or it could be separate property. This is why you provide the information about your business interests, who owns the business interests, and the value of business assets.
Paragraph 9. Financial Assets. This is where you identify where your money is kept, as well as information on other financial assets such as stocks and bonds, insurance policies, and retirement accounts.
Paragraph 10. Real Estate. This is where you identify your interests in real estate, such as the marital home, vacation property, rental properties, or other interests in real estate.
Paragraph 11. Personal Property. In this paragraph you identify the personal property that you own, whether you acquired it before marriage or during the marriage. Must you list every shirt and sock you own, every knife, fork, and spoon? No. A fair rule of thumb for what to list in paragraph 11 is that anything valued around $500 or more goes on the list. You can identify things worth less if you want or if you feel it is important, of course.
Paragraph 12. Debts Owed. In this paragraph you identify both your separate and marital debts and obligations. The type of debt, the account number (if applicable), who the debtors are, the balance owed on the debt, and what the minimum monthly payment is (if applicable).
Supporting documents for your financial declaration must be in PDF format.
The court will not accept documents in any form other than PDF, so all supporting documents must be in PDF form. Here are ways to scan and save documents as PDFs:
Scanner with built-in PDF-creation functionality. Most scanners come with built-in PDF-creation functionality, so you can scan a document and automatically save it in PDF format.
All-in-one multifunction machines: All-in-one machines often have scanning capabilities that allow you to scan documents to PDF files.
Smartphone Apps: There are several smartphone apps that enable you to convert a photograph of a document into PDF format. This is, however, the worst option of all the others. Scanning from a smartphone is time consuming, results in the lowest quality images, and makes it hard to scan multi-page documents. Use your own scanner or have someone else scan your documents into PDF format. You and your lawyer will be glad you did.
Once you gather your supporting documents together, save complete and legible copies of them in PDF format and then email them to your attorney to serve or file them with your financial declaration.
Thank you for watching. Thank you for reading. You’re better for having done so. Because you are now better educated and better prepared to complete your financial declaration fully, accurately, and on time. We hope that watching this video and reading the associated blog post has not only impressed upon you the importance of your financial declaration but has demystified what your financial declaration is and the purposes it serves. We hope you are better prepared and more confident going forward.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Divorce is corrosive. What it does not destroy it almost always affects adversely whatever it touches. The things that survive divorce’s initial devastation are forever changed. This effect is seen most starkly in children. Regardless of your reasons for a divorce, it fundamentally changes the trajectory of a child’s life. In my own experience I can tell you what happens to a child whose parents went through a pretty amicable divorce when I was about 6 years old. This is the story for many children and isn’t all that special. Thankfully for me and my siblings, my parents didn’t have much to fight over by way of property. Most of the contention was over alimony and child support. I did not notice much change in my life initially after the divorce decree was issued. I hadn’t worn much of a path in my own mind or in my own life yet. Being a young child of divorce meant living out of a suitcase as I moved between mom’s house and dad’s house for visitation (which is now called parent-time). As I reached my teenage years, I found that divorce had made me into two different people. I am not talking about a dissociative identity. I am talking about two different paths divorce placed me on. I wore different clothes and used different toothbrushes and combs when with each parent, I had different friends in different neighborhoods, and ate different things depending which house I found myself at on a given day. That wasn’t inherently bad. I still had the same ups and downs most teenagers have; I, however, always had two sets. You probably don’t see the problem at this point. So, what if you had two of everything? ‘Better than none, right? But I was two subtly different people at a time when I was still trying to figure out who I was. It is hard enough coming to terms with one idea of your identity as a teen, let alone two. It was confusing. It was exhausting. It hurt sometimes. It didn’t seem fair. I wish I knew then what I know now. If you are a child in this situation, which path do you choose? If you are a parent, how do you help? My parents supported me but largely let me figure it out on my own. As for a child dealing with this problem, I can offer my advice based upon my own experience and perspective. You have to be one person, not who you believe your parents want, or, in some cases who one or both parents act like they need you to be. You do not have two lifetimes to live. You owe your parents respect. You need to obey their rules, but you have no obligation to be anyone but yourself. Be your best self too, even in the face of life’s disappointments, challenges, and betrayals. You owe it to yourself.
Family law is, for most lawyers, a miserable practice area. You have to have the right personality and constitution for it. If you want to be a family lawyer to “help families,” be prepared for a mostly frustrating (highly frustrating) career. If you want to be a family lawyer to help protect people from the family court system, you will also experience a mostly frustrating career, but not as much as for those who go into family law with the intention of “helping families”—family law is not the best place to expend one’s time, effort, and care, if helping families is your goal. Better to be an excellent pastor, teacher, coach, therapist, social worker (good luck being an excellent social worker if you’re employed by the government—you’ll need it), or something like that. Don’t get me wrong; the world needs good family lawyers, but family lawyers do little to preserve and protect families (and those who try rarely succeed). Family lawyers are there either to victimize through the legal system or to protect people from being victimized by or in the system.
OK, now on to your question. This just my opinion, but I submit it is an educated one:
Law school is intellectually demanding in terms of difficulty, intensity, and volume. Sociology, social work, other areas of study like them are generally and comparatively intellectually lightweight (notice I stated “generally”; there are surely some exceptions, I concede). While it is not impossible for a sociology or social work majors to succeed in law school, I would suggest you major in something that will better equip you for the rigors of law school. English, Philosophy (both the fun and the hard stuff), or hard sciences—disciplines that develop your ability to think, to analyze, and to synthesize. And take classes that teach you to research and write well.
Sociology, social work, and public health treat some of the subjects that family law treats, but not as much as you might believe. In my personal opinion, the sociological, social work, and public health evidence that the courts consider isn’t very reliable or consistent or even all that accurate. You can find a “study” to support any position. Which is a shame because it tars the truly scientific and accurate studies with the broad brush of hackery characteristic of so much of the rubbish.
One thing that might be of extreme value, however, would be to major in sociology or social work in the most intellectually and scientifically rigorous program you can get into, get a master’s degree in it, then go to law school, and then become a family lawyer who stays apprised of and specializes as an expert in the science that is relevant to family law issues. That would be a hard, expensive, time-consuming pathway to becoming a family lawyer, but you’d be one of the best as a result.
My answer to your question is going to be a generalized answer to a hypothetical question. Before you take any real-life legal action in relation to real, existing laws, you will need to ensure you understand now the real, existing laws are construed and applied. And you would likely benefit from consulting with an attorney in your jurisdiction who is familiar with the law there. With that stated:
If I understand your question correctly, you are asking a question involving this scenario:
A divorce law currently exists.
The law may change or you know it is going to change.
Under the current law, you could benefit from its provisions.
You want to take advantage of the benefits that the current law provides before those benefits disappear after the change to the law goes into effect.
So, your question is, can you file for divorce now to take advantage of the benefits of an existing law before the law changes? You certainly could. It is not uncommon for people to take action under the provisions of laws that are about to change, so that they can take advantage of the provisions in the old law that will no longer exist after the changes go into effect. This happens with tax law frequently.
If you filed for divorce under an old law’s provisions to obtain the benefits the old law bestows and if your decree of divorce was granted before the law changed, it is likely that the new laws would not apply to your case. You would, however, still want to ensure that the changes to the law do not operate such that the changes are not retroactive or invalidate any pending divorce actions filed under the old law.
It does not matter whether or how the legal system could support or better support parents who lose child custody cases because it is not the purpose of the legal system to provide support to parents (custodial or noncustodial). The legal system hears and decides legal disputes. The legal system does not implement its decisions (its orders). It is up to those who obtain the orders to take the steps necessary to enforce them (and to enforce them lawfully).
While parents who lose child custody battles often suffer and need or could benefit from help, it is not the role of the legal system to provide help. In other words, you’re asking the wrong question. The right questions are, “What kind of help do parents who lose child custody disputes need?,” and “How can those who want to help these parents help them (and help them best)?”
Another good question is, “Are parents who lose a child custody dispute entitled to help?” We have all been—and will be in the future—unable to meet all our needs independently and have needed help from others. We are all morally obligated to help our fellow human beings. There is a difference, however, between moral obligations to help others and others’ claims to entitlement to other people’s help. Parents who are grieving or suffering from the loss of a child custody dispute are justified in asking for help from others, but not justified in demanding it from anyone.
Now, don’t confuse “he has every right to ask for receipts” with “he has every right to receipts”.
If a child support payor (known in some jurisdictions as the child support obligor) has reasonable articulable bases for suspecting that the child support payee (known in some jurisdictions as the child support obligee) is not responsibly spending the child support funds for the support of the child, then the payor has every right to raise the concern and to ask for proof to the contrary.
But if a child is hungry, mal-nourished, wearing clothes too small for him/her or wearing worn out clothing or wearing flip flops in the snow, has no blankets or even a bed to sleep in, etc. and yet the child support recipient parent is receiving hundreds (sometimes thousands) of dollars per month intended to meet those needs of the child, the child support payor has every right to raise concern with the court and every right to request that the court audit the payee and require the payee to prove that he/she is being a good steward of the child support funds.
In Utah, we have a statute on this very subject:
Utah Code § 78B-12-218. Accountability of support provided to benefit child — Accounting.
(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.
(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.
(3) The obligor may petition for the accounting only if current on all child support that has been ordered.
If this statute has ever been implemented in a child support case, I have yet to see it. Whenever I’ve asked a court to implement it, the courts’ are offended that my client would have the audacity to be concerned over child support payee malfeasance.
Most lawyers who have tried being divorce and family lawyers hate it and abandon it for other practice areas.
I can tell you why I chose to be a divorce and family lawyer:
it’s one of the few practice areas where I can provide value for the fees I charge for the work I do. Not every divorce attorney provides value for the money (Lord knows), but for attorneys who are honest, decent people, it’s easier to provide a good value as a divorce attorney than it is in any other practice area I’ve tried. Fighting for your kids is worth it! Divorce and family law practice is very hard work (there are much easier ways to make good money as a lawyer), but I don’t feel like a thief doing the work. If there’s a better way to provide value for the money than as a decent, honest divorce attorney, I’d love to know (I really would) what it is.
I have a talent for divorce and family law practice, and I am wired to handle what drives other attorney’s mad about divorce and family law practice.
Why I don’t like general civil litigation: When people ask me why I chose to be a divorce attorney I tell them the story of how people would come to me with problems like this: “X charged me $20,000 for _________, but _________ is defective, so how much would it cost me to sue X for this?” And I would tell them, “It’ll cost you about $20,000 to sue X, and even if you win AND collect the judgment (which is hardly guaranteed), then all you would do is break even. And collecting the judgment will usually cost you several thousand dollars more in attorney’s fees to find and obtain the money.”
Why I don’t like criminal defense: I found criminal defense work to be too discouraging because A) I don’t like defending guilty people; and B) I don’t like seeing innocent people get railroaded by the system (it happens more than I’d believed possible).
Why I don’t like criminal prosecution: Far, far too often it’s about getting a conviction, not getting to the truth.
Why I don’t like bankruptcy law: See why I don’t like criminal defense work.
Why I don’t like personal injury plaintiff’s work: Personal injury practice is cynically opportunistic and, in my opinion, is largely wealth confiscation masquerading as legal activity. Why I don’t like personal injury defense: It is, in my opinion, too often a game of trying to ensure that deserving people get little to nothing.
Why I don’t like collection work: See why I don’t like personal injury work.
Why I don’t like transactional legal work (things like writing contracts and estate planning documents): I thought that’s what I’d end up doing as a lawyer when I started law school, but when I participated in mock trials (which I did just to see what it was like), I found to my surprise that I liked it, and liked it a lot more than transactional legal work. I find the transactional work too boring to keep me engaged personally. We need good transactional lawyers, but it’s not work I’m best suited for myself.
Your spouse must be served with the summons and divorce complaint or petition before the case can proceed.
In my jurisdiction (as I believe it to be the case in all jurisdictions (you’ll need to review the law regarding who can serve the summons and divorce complaint or petition to be sure) you cannot serve your spouse yourself. A non-party to the case is required to serve the summons and complaint/petition.
Any time any lawsuit is filed against a defendant or respondent, the defendant/respondent must be served with legal process to ensure due process of law. What does “served with legal process” mean?
Black’s Law Dictionary defines it this way:
service of process. The formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process
processn. (14c) 2. A summons or writ, esp. to appear or respond in court <service of process>. — Also termed judicial process; legal process.
“Process is so denominated because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer.” 1 Joseph Chitty, A Practical Treatise on the Criminal Law 338 (2d ed. 1826).
Being served with process is essential to due process of law. What does due process mean? Black’s Law Dictionary defines it this way:
due process (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. — Also termed due process of law; due course of law. See FUNDAMENTAL-FAIRNESS DOCTRINE.
“The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice;
“Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections … The notice must be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950).
One of the hardest documents for a Utah divorce litigant to prepare is the financial declaration. I am amazed at the number of clients who don’t take this document and its preparation seriously.
If you file for divorce or your spouse files for divorce, your divorce case will require you to provide a lot of documentation for various purposes as your life (and the life of your spouse and children, if you have minor children) will come under the magnifying glass. To avoid being fried like an ant, you need to produce complete and completely accurate documentation in preparing your financial declaration.
How is this done? It is a little comical, but it really comes down to accounting as best as you possibly can for every penny that comes in and that goes out. Every meal out. Every oil change. Every gasoline fillup. Every utility bill. Every dollar earned from every source.
Why should you worry about every red cent? Because you will be nickeled and dimed by opposing counsel and even by the court. Opposing counsel quite often (more often than not, frankly) wants to misconstrue confuse your income, expenses, and debts for his/her client’s benefit. The court often assumes that you are lying and/or wants to side with your spouse or against you. They are looking for any reason to call your credibility into question. And if you carelessly prepare your financial declaration, fail to provide an accurate financial declaration, and fail to support your numbers with verifiable documentation, you give opposing counsel and/or the court weapons to use against you.
“Ah,” some of you say, “but I want my financial declaration to be inaccurate so that I appear a lot poorer than I really am!” That way, if I’m the one who might pay alimony, I will pay less. And if I’m the one who might receive alimony, I will get more. Truth be told, it’s possible to lie in your financial declaration and get away with it. Truth be told, it’s harder than most people think. Truth be told, most people who lie (or who don’t lie but instead provide a half-baked, crappy financial declaration) get burned by it. Better to take the hit for being honest than risk an even bigger hit for lying. And do bear in mind that being honest is not a matter of “no good deed goes unpunished”. When you are honest, thorough, complete, and accurate in your work, that builds your overall credibility in your case. The person who owns up to his/her sins and sincerely repents gets due credit more often than not. The court thinks, “He/she was scrupulously honest in his/her financial declaration (even when he/she might could have fudged and escaped detection), so he/she is probably honest about the other things he/she tells me.” That’s more valuable than you know.
Now, if being honest always “won,” nobody would lie. You may experience your spouse lying through his/her teeth and getting away with it. It can and does happen. Still, it doesn’t justify you doing wrong or taking the risk of you being the one who gets caught in a lie or who gets hurt by turning in an incomplete and inaccurate financial declaration.
Some do (if you can imagine an attorney doing something like that, it’s probably already been done), but they’re outliers, and they are violating both the law and the rules governing fitness to practice law if and when they do so.
If an attorney is actually (actually) violating the law or violating the rules governing the practice of law, you are not obligated to suffer it. Notify your attorney and bring the misconduct to the attention of the court, the police, and the bar.
That stated, one cannot simply and subjectively brand an attorney of being a stalker or of engaging in harassing behavior and thus establish the attorney as a stalker or harasser. It’s common for sore losers to make false accusations of harassment against an opposing party and his/her attorney. Why? Because it’s a cheap, risk-free way to cast aspersions and demonize and neutralize (if the accusations stick to any degree) the opposing party and/or his/her attorney. Don’t be that guy/gal. If you think you may feel “stalked” and/or “harassed,” before your start accusing, be honest with yourself and ask whether you’re truly being stalked and harassed or just feeling defeated, hurt, angry, anxious, and afraid and wanting to lash out.
The term for representing yourself in court is “pro se” or “pro per”.
Can you navigate the legal system successfully without a lawyer representing you in your case?
Before I became a legal assistant, I thought the answer to that question was, “Well, it won’t be easy, but how hard could it be, if I tried my best?” You’d be forgiven if you think that way too. Many people do. With the exception of a few who are so rare as to make them statistically insignificant, however, going pro se is a recipe for failure.
To win a case, you need admissible evidence and enough admissible evidence. Do you know (really know) whether you have admissible evidence and enough admissible evidence? If not, proceeding pro se puts you at risk of losing.
To win a case, you first need to know whether the law supports your position. Do you know the law? Can you cite the sections of code and what rules of civil procedure and rules of evidence that apply? Do they support your position? If not, proceeding pro se puts you at risk of losing.
To win a case, you need to present your evidence and your legal argument in compliance with the rules of court and in an engaging and persuasive manner. Do you know how to do that? If not, proceeding pro se puts you at risk of losing.
Even if you went up against a brand new, inexperienced lawyer, who would you bet on? Someone with a college education, plus three years of law school (maybe more), or someone who read some blogs and watched some YouTube videos? Now add 5 to 30 years of experience to the lawyer’s side of the ledger. Do you really think you’re on a level playing field?
Would you go into unfamiliar terrain without a guide? The legal profession, the legal system, and court proceedings are all unfamiliar territory, and you can easily get lost and hurt in unfamiliar territory.
And then there’s the problem that is not so intuitive: you’re not in the club. Most judges and lawyers resent people who believe they can do what legal professionals do. Even pro se litigants who have the evidence, the law, and the arguments down can still lose just because the judge and lawyers don’t want you getting uppity.
Pro se is a path that is not for the faint of heart. It will be an uphill battle at best. If you go the pro se route, you will face people who are more knowledgeable, more experienced, and more skilled than you are or can reasonably ever hope to be.
Your attorney cannot do what only you can do. Your attorney cannot answer questions posed to you until you provide your attorney with the information and facts needed to answer the question. Your attorney cannot produce your documents requested in the discovery process without you first producing those documents to your attorney.
The documents your attorney tells you that you must prepare for your case are, in fact, documents that you must prepare for your case. Failure to prepare them and to prepare them fully and accurately can and likely will result in severe damage to your case and you.
If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.