December 13, 2014 • By Dennis Beaver
Santa Maria family law attorney Bob McDermott has a stern warning for anyone planning on doing their own divorce:
“Understand the risks and be aware of your rights and responsibilities. For someone unfamiliar with the law and legal procedure, there is no such thing as a simple divorce.
“The consequences of not knowing what you are doing can be tragic, financially and where children are concerned. Remember, the judge and opposing attorney are not there to help you. The last place you ever want to be is in court and not having any idea of what to do or how to protect yourself,” he cautions.
Common mistakes are costly
“Most people realize that they have a right to at least a portion of money in a bank or savings account. But often, retirement, pension accounts or life insurance are not even thought of, and steps are not taken which preserve your rights to those funds. Fail to protect yourself and years down the road money you thought would be yours goes to someone else.
“Support and custody issues are another trap for uninformed, resulting in a rip off of one parent where the parties agree that the court will not order the payment of child support since both have similar earnings and will share custody on a 50/50 basis.
“Soon it’s clear that one parent scammed the other, keeping the kids much less than 50 percent of the time, and, with no order of support, doesn’t have to pay a cent. This requires going back to court, requesting a modification, which you might not get.
Risks of being ruled against by just sitting there
“It is in a courtroom where the pro per is really at a disadvantage, beginning with not bringing necessary financial documents, such as bank statements, pay stubs, W-2 forms, profit and loss, tax information and so on.
“You may think that the affair or fact that your ex has a new romantic interest is important, but the judge doesn’t care, so don’t go there,” McDermott underscores.
“Next, few know how to conduct an examination of witnesses, if any are called. They just do not know what they are doing and rely on the court to tell them–which rarely happens– as the judge cannot be seen as showing bias. Often, a pro per who does not know what to do just sits there, failing to put on their case and are ruled against.
Approach a divorce from a business standpoint
“It’s best to approach a divorce from a business standpoint, for that’s all that is left. The relationship is over. He doesn’t want to be married to her, or she doesn’t want to be married to him, so let’s get a realistic view of the property, a handle on income to set or not set support, and simply move on with your life,” he strongly advises.
“But often, one party won’t and is stewing over the fact that the other now has a new love interest. Sometimes the new boyfriend or girlfriend is getting in the middle of custody and visitation issues and telling the parent ‘You shouldn’t let your ex do this or that.’ They are often a big source of the problem.
“Most lawyers want to resolve these cases out of court, so if your spouse is represented, do not be afraid to call their attorney and go in and meet. You may hear some things you do not like, but negotiating a settlement is a two way process. And do not storm out of the office. Understand this is a realm you do not understand and have likely been told absolutely incorrect information by certain people.
View the lawyer as part of the solution
“Family law is emotionally charged, at times, dangerously so. Often both sides will not agree to something, even knowing the lawyer’s advice is correct, but refuse to follow it because they are angry and want to hurt each other, running up the bill, and making things tough for each other. They don’t care about what is right, or wrong or what we advise, proving an old saying correct:
In divorce you see good people at their worst. In criminal law, it’s bad people at their best.
“Finally,” McDermott points out, “Family law can be one of the most unpredictable in terms of how long things will take, or what it will cost. If the case seems complex going in, it is normal for a lawyer to request an adequate retainer.”
To that, we add a fact of financial life: Facing brain surgery, it’s a good idea to have paid your doctor. You may like vegetables but don’t want to become one.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.