Listening to children about how they feel as their parents go through divorce – and afterward – is very important. We need to hear them. Not only their words, but read their demeanor. And we have to remember how well they can hear us. How they can read between the lines to what’s really being said. And we need to be aware of how hurtful it can be.
I can’t tell you how many times I have heard a parent say something like “they’re entitled to the truth” when confronted about talking to the child unnecessarily about the divorce process or speaking negatively about the other parent. First question: Whose truth? Second question: Aren’t they even more entitled to just be a child than they are to either parent’s version of what the truth is?
Here are 5 things a divorced/separated parent should never say to their child:
1. “Don’t tell your mom/dad . . . ” Unfair, people! Do not put the child in a position of having to keep a secret from the other parent. It’s incredibly stressful. Whether the parent doesn’t want the other parent to know what’s going on at his/her house or whether they’re just trying to be the cool parent by allowing something the other parent wouldn’t, requiring the child keep mum or lie about things creates a tense situation for your child that will eventually take its toll.
2. “Ask your mom/dad when they’re going to pay . . . ” Fill in the blank with all those things parents want paid for: child support, medical expenses, child care, extracurricular activities, etc. You think it’s unpleasant for you to ask your ex such a question? You don’t want to deal with an angered response to such a question? Why on earth would you put your precious child, who doesn’t have near the emotional strength you have, to be in that position?
3. ” I can’t afford it because your mom/dad won’t pay their child support.” And of course there is the flip side taboo: “I can’t afford it because I have to pay your mom/dad child support.” There’s nothing wrong with explaining to a child that some things are not affordable – it’s the laying a guilt trip on them because they need to be supported that’s objectionable.
4. “You’re just like your mother/father . . . ” said right before saying a very negative thing about the other parent. Who is really being criticized? Won’t it leave them wondering: “If I’m so much like him/her, maybe I should be over there more often”?
5. “Ask your mom/dad if you can come here (date during the other’s custodial period) so we can do (something incredibly fun).” A nasty strategy used in the hopes that the other parent won’t be willing to disappoint the child by saying ‘no’ to whatever adventure conniving parent has teased the child with. It’s win-win for conniving parent – either they get part of the other’s custodial period or they have shown what a bad guy the other is. It’s lose-lose for the child whose relationship with non-asking party may be undermined whatever the result.
I’ve talked to many children whose parents are going through divorce. I often serve as a guardian ad litem for children – a cross between an attorney for the children and an arm of the court charged with the task of investigating a divorce matter in order to make recommendations to the judge regarding custody and visitation. In the 22 years I have served in this capacity, I have found three commonalities amongst the cases I’ve worked.
First, most children want their parents to stay together. They don’t care that the parents don’t like each other. They want their world, their sense of security, to stay intact. Yes, I know there are exceptions. I, personally, encountered very few.
Second, if they can’t have things stay as they are, they want their parents to be civil to each other. They want their parents to be civil about each other. They do not want to be put in the middle. They do not want to have to choose sides. Again, there are exceptions. I have found that most of the exceptions – a child wanting to choose a side – result from either the child witnessing/being a target of mistreatment by one parent or (much more often) a parent poisoning the child against the other.
Third, the first two truisms transcend gender and age of the children.
Want to hear a child’s perspective? Take two and a half minutes and watch this video – hear a “Dear Mom and Dad” letter represented to be written by a child whose parents were going through a divorce. I can’t verify that it was actually written by such a child, but I can verify it’s a message I have heard over and over again through the words and actions of children I have represented.
Related articles you may find helpful:
There are whole books on testifying in court. There are numerous articles about what to say, what to wear, and how to behave. But there are also things that should NOT be said during testimony – especially in Family Court. Following are my top five things not to say in Family Court.
1. “To tell you the truth.” Or ‘to be honest with you.’ Or ‘frankly.’ Or any other like statement. You are expected to tell the truth, be honest, and be frank. To start a sentence out by announcing you intend to do so makes one wonder about your other other statements.
2. “My children.” It’s a common enough reference when you are speaking about your children to a third party. However, if you are testifying in a custody matter – especially if you are seeking custody and asking that the other parent have less physical time – it sounds dismissive of the other parent. Better phrasing is ‘our children’ or actual use of the children’s names.
3.” I allow.” As in: “I allow him to see the children each Tuesday.” or “I let her pick up the kids at 7:00.” Not much red-flags the Family Court Judge to control issues as much as this type of statement. Neither parent – at least in divorce cases – has more legal right to the children or control of their comings and goings than the other until (and unless) a judge rules that one does. If one parent arbitrarily appoints themself in charge, especially if they wield their control like a weapon, it may very well leave the judge thinking the other parent would be the more reasonable parent to appoint as primary custodian.
4. Anything sarcastic. Whether you’re testifying in a pre-trial deposition* or in court, your words are being recorded in writing. Sarcasm doesn’t read well. The attorney asks you if you beat your kids. You sarcastically answer: “Yeah – I beat my kids every day whether they need it or not.” Cute. Everybody in the room hears your sneering tone and knows you mean the opposite. Not so for the reader of the appeal or deposition transcript. In black and white it appears that you have admitted, under oath, that you beat your kids daily. Not so cute.
5. Tone versus words. Don’t use a tone of voice that proclaims you’re a jerk. Does this seem obvious? During the stress of a trial, when it is your turn to testify and the attorney is badgering you or twisting around your statements, it is very easy to get caught up in a hostile moment. Very easy to respond in the same mean-spirited tone that the attorney is using toward you. The better response is to let the attorney continue to look like a bully and you keep your tone respectful while you disagree. Resist the temptation to be combative and use a tone that is argumentative. The judge probably already knows that attorney and his or her regular behavior, but he doesn’t know you. Taking the high road (after a deep breath or two if necessary!) will serve you well.
(*A deposition is testimony of a witness taken under oath prior to the trial for the purposes of discovering information relevant to the particular legal suit pending.)
If you have additional suggestions of what NOT to say during testimony in Family Court, please share them in the comment section below.
In the olden days, couples got divorced and the man paid alimony – it was a given. Flash forward a few decades. Now there are criteria the judge explores before awarding alimony – if alimony is even going to be awarded. And yet, many still think that spousal support (another name for alimony) is going to be automatic – and in the wife’s favor. Not true!
What is the purpose of alimony?
To help support the spouse who is financially disadvantaged in a divorce for a period of time to allow the spouse to attain self-sufficiency. Many spouses do not work, work only part time, or work in a job that does not pay enough to support them. While the parties are together, the situation is often optimal because it allows one parent to be available for the children, frees up a spouse to participate in support for the other party’s career, or just is in keeping with how the parties want to live.
However, when one household becomes two, the spouse earning less often isn’t self-supporting. Alimony isn’t intended to balance the income between households or to punish an errant spouse. it is to assist the financially disadvantaged spouse during a time of (legal term alert) economic transition. In other words, it’s financial assistance while the recipient gets more education, training, or time to find employment that will allow self-support.
What does the judge consider when deciding whether or not to award alimony?
Generally speaking, first the judge is going to look at whether one spouse has a need for financial assistance from the other. The ‘need’ has to be connected to the marriage. For instance, a spouse who doesn’t receive child support for children from a prior marriage may have a need for financial help, but that need has nothing to do with the marriage so it will not be taken into consideration. Need is demonstrated by showing that the seeker isn’t able to cover reasonable living expenses. If the judge finds there is a need, the second thing that must be determined is if the other spouse has the ability to pay.
How much is alimony and for how long is it paid?
Most states don’t have a set formula to answer either question. The judge will take into account factors such as the length of the marriage, the health of the parties, the earning capacity of the parties, the ages of the parties, the cost to educate/train the recipient, the lifestyle the parties had during marriage and other relevant factors.
It’s up to the party asking for alimony to prove there is a need and to demonstrate to the judge what it is and for how long assistance would be ‘necessary’ to get them to a point of self-sufficiency. The judge has a lot of discretion in determining how much will be paid and for how long. Each party will need to rely on the expertise of their attorney regarding how to present information to the judge as well as understanding any biases a given judge may have for or against alimony. (Biases? From a judge? Remember: judges are human beings with their own life experiences that sometimes play a part in their decision-making philosophy.)
Alimony ends at a time set by the judge, remarriage of the receiving party, or upon the death of either party unless the parties have made an agreement to the contrary.
Assumptions about alimony
Don’t make them. Talk to an attorney who is experienced in Family Law in the state you live in and ask how it works there. Based on their experience with the law, their familiarity with the assigned judge, and your particular financial facts, they can often provide you a reasonable expectation with regard to whether or not paying or receiving alimony is likely in your case.
Thursday’s list of what not to take to Family Court may have left thinking you should show up to the big event empty-handed. Not so! There are a few things you can take with you to court that will make you more comfortable – or at least less uncomfortable. Following are five suggestions.
1. Communication tools. You don’t want to try and talk to your attorney while the hearing is going on because it can be distracting as well as cause the attorney to miss something important that was said by a witness. But you definitely want to be able to communicate with him. Have your own notepad, a pen, and an extra pen in case the first one rolls off the table and can’t be reached no matter how far you extend your foot. A highlighter and sticky notes can also be helpful to point out things on documents when you cannot talk. Women often have a ready-made parcel carrier they can use to transport these items. Guys, you’ll have to be a little more resourceful. If you’re not willing to get a man-purse (which will actually be called a ‘satchel’ if you carry it under your arm) you can simply use a three-ring binder in a masculine black or an I’m-very-secure-with-myself-neon color.
2. Layered clothes. Judges often wear heavy robes and it’s not uncommon for their courtroom temperatures to be low enough to keep them cool – a frosty result for the rest of us. But don’t just wear that heavy pullover – you may end up in the courtroom where the air conditioner is out.
3. A bottle of water. The silver carafe on a tray surrounded by water glasses is movie stuff. I rarely even see a water cooler with cone cups available. Even if you can’t keep it on the table, it’s nice to have it nearby to alleviate a dry throat on a break while saving you the search for the vending machine and the two or three dollars you’ll need to put in it.
4. Breath Mints. It is generally frowned upon to chew gum or suck on candy in the courtroom, but having a little mint you can discreetly pop can moisten your mouth and stave off stale breath. Bring enough to share – you’ll be in close proximity with your attorney and witnesses and there’s no telling what they’re going to have for lunch. Personally, I’m too paranoid to turn down the offer of a mint. I’m always amazed at the confidence with which others say “No thank you” to such an offer. It may be my imagination, but it seems like the more confidence in the response the higher the garlic content on the breath!
5. A healthy dose of respect for the judge and the process.* This is not the time to display your brilliant wit or your savvy knowledge of the legal system. This is the time to help the judge understand the big picture regarding your children, your family dynamic, and your financial situation to enable the judge to make the most informed, appropriate decisions possible.
*This was a direct quote from friend, Jeanna W. who has a behind-the-scenes understanding of the process (thanks, Joanna!)
Appearing in Family Court can be a nerve-wracking experience. Our focus is on what we want to tell the judge, what others might say, and how things will turn out. It’s easy to forget details that can matter – like showing up with things that won’t help your case. Following is a list of 8 Things you should leave at home when you go to Family Court.
1. Your children. Not alone, obviously – unless you want to make it really easy for the judge to decide who gets custody. Most judges will not allow children in the courtroom – and not just because of the distraction. No child needs to hear the details of the parents’ conflict. (This holds true in and out of court.)
2. Your nosering. It’s hard for the judge to see the sincerity in your eyes when she’s staring at your nose.
3. Your attitude collection. This includes, but is not limited to: smart-ass, self-righteous, holier-than-thou, know-it-all, and negative. The exception to this rule is if you have a positive one. Dust it off, if necessary, and bring it with you.
4. Anything that jangles/clacks/squeaks. We’re talking noise-making distractions here. Things like multiple chain necklaces, pockets full of coins, squeaky shoes, unsecured dentures.
5. Anything that will get you stopped by security. Guns, knives, other weapons, and alcohol are all things that you won’t be allowed to pass through security with. If you attempt to do so, you will probably end up having to make a choice between giving it up or being late for court because you have to take the item back to your car – which is sure to make a wonderful first impression on the judge!
6. Your cell phone. Okay – we both know that’s not happening. You probably won’t even agree to leave it in the car to avoid temptation. At least leave it off when in the courtroom. Not low, not vibrate – off. No good will come from the unexpected tones of your phone spewing out the theme from The Good, the Bad, and the Ugly while the judge is talking.
7. Your cleavage. I know I mentioned in a previous post that this was a way to impress the judge, but you knew I was kidding, right? You don’t really have to leave it home, just cover it up. Remember that even a ‘bit of cleavage’ can be dramatically magnified by sitting down or having someone looking down at you (say, from the judge’s bench). Keep everyone in the courtroom focused on your expressive face and compelling testimony by wearing clothes that don’t distract.
8. Your cheerleading squad. One or two friends or family members for moral support can be a good thing. Filling the courtroom with a mob that glare at the opposition and high-five as you head up to the witness stand will not serve you well. Negative behavior from your courtroom guests will reflect on you.
Now that you are basically stripped down to a turtleneck and a positive attitude, you’re probably wondering if there is anything you should take to Family Court. Check back on Saturday for the short list.
I spend a lot of time debunking myths about divorce from callers who have gotten bad information from a myriad of sources. Sometimes it’s a poorly written article or folklore. Often it’s from a well-meaning friend/relative/acquaintance who had a bad experience or dealt with a different fact pattern in their own divorce. Here are five of the misconceptions I hear frequently.
1. Living together 7 years equals married. Not so. Less than 20% of states even recognize common law marriage anymore, and those that do don’t base the status on how long the parties have lived together. The behavior analyzed to determine whether or not a common law marriage was formed in such states generally include having intent to be married and holding each other out as husband and wife. Where things get sticky is when parties really don’t intend to be married, but do things like file joint tax returns because they’ll get more money back. Then the relationships takes a bad turn. One party claims they’re married (usually the one asking for alimony) and the other says they’re not. The denier is now in the position of explaining to the judge whether they are lying in court or they lied when they swore under oath to the federal government they were married on their tax return.
2. Mother gets custody of the minor children. There was a time when this was a foregone conclusion, but in most places those days are gone. In many states, judges are prohibited from taking gender into consideration when awarding custody. The courts generally determine what custodial arrangement is in the best interest of the children by looking at factors such as parents’ relationship with the children, employment situations, geographical distances between the parties, if the parties can get along to make joint decisions and whether one party is more likely to facilitate good relations between the other and the children.
3. Joint custody means no child support. Joint legal custody is generally about making decisions together and not necessarily the division of time each parent has the child. How child support is calculated varies from state to state, but most take into account discrepancies in income and the physical custody arrangement. It is disheartening that sometimes financial need conflicts with one party agreeing to more expansive time between the children and the other parent – a situation that often lands in court. But in many cases, agreeing to, or receiving an order for, joint custody does not preclude the parent with the lesser income from receiving child support.
4.The wife in a long-term marriage will get alimony. In the days when women generally didn’t work and when they did their wages were cute, this was a truism. While length of marriage is still factored into an alimony decision, the judge will first look at whether or not there is a need by one party to have assistance transitioning into a more self-sufficient economic position. If there is a need, and if the other party has the ability to pay, the judge then looks at length of time assistance will be needed, the age, health and earning capacity of the parties, as well as other case-specific facts. Notice I didn’t say the ability of the ‘wife to transition’ and the ability of the husband’ to pay? Gender neutrality is required in making alimony decisions.
5. There is a magic age where a minor can choose which parent to live with. This misconception has probably gained footing because many states have a given age where a child can testify, or a child’s testimony will be given deference in stating a preference of where they would like to live. I could have said “with whom” they would like to live, but having represented dozens of children, I have learned it’s often about “the where.” Generally 12 is an age where courts assume a child has reached a level of maturity to put forth a well-reasoned position. As children get older, more deference is given to their opinion. However, as has been stated over the years, the whims and wants of a child shall not be the deciding factor. Sometimes (believe it or not) a teen-ager is more likely to pick the less restrictive parent – or the one with the swimming pool – over what is in their best interest. The judge takes the child’s preference into consideration as well as the other factors necessary to review when making a custodial decision.
If you are facing the possibility of divorce, or trying to support someone who is, don’t buy into the myths floating around. Don’t make assumptions about how custody and alimony work based on the experience that others – people with different facts, different judges, at a different time – have had. Many attorneys have free consultations to explain your rights and answer your questions about how custody, alimony, and divorce procedure work in your state. Take advantage of that service – it’s time well spent.
Your family law attorney has given you plenty of tips about how to behave in court – keep your cool, let him do the talking unless you are asked a question, dress conservatively. Really? How is that mundane behavior going to get the judge to notice you? And if she doesn’t notice you, however will she know that you are the righteous one and that your spouse is not to be believed on any given subject? Following are sure-fire ways to get yourself noticed by the judge.
You now have all the tools you need to have your family law judge remember your colorful self. Using any of these tools assists the judge in making their final decision. When it comes time for the judge to decide which parent should have primary custody or which party is more credible in their presentation of the facts, you have made it easy for the judge to choose between you and the predictable stability and mundane respectfulness of the other side.
Do you have any other ideas to impress a family law judge? Please share them in the comment section below.
The divorce is on. Not what you had planned when you said “I do” way back when. The hostility has grown to the point of avoiding even being in the same room together, let alone actually speaking to each other. Every communication takes multiple steps as it is relayed and translated through attorneys. Costs are mounting. Emotions are escalating. Both sides are suiting up – ready to play hardball. Family members, co-workers, neighbors are dragged into the game and renamed “witnesses.” Each side wields a heavy bat – ready to knock the other side clean out of the ballpark with a mighty swing.
How do we take that BAT out of the BATTLE?
One good option is enlisting the help of a trained, objective third party – a mediator – to help the parties resolve their differences through negotiation and creative problem-solving. The process is called mediation. The mediator is not a decision-maker – he or she assists the parties in making their own decisions.
“Tell me one good reason that I should sit in the same room with that *#%! unreasonable spouse of mine whose face I can barely stand to look at right now and attempt to make agreements,” you say – probably while stamping your foot.
Well, I’ll give you five reasons. And they’re all good.
The costs of mediation vary widely depending on the mediator and the area you live in. The same tips set forth in last month’s post How to Find a Divorce Lawyer could be used to find a good mediator.
If you are interested in getting you and your children through the difficult divorce process with less cost and chaos, try mediation. There is no 100% guarantee that you will reach a settlement in mediation. But there is a 100% guarantee with a trial that you won’t have a deciding vote in the outcome. It’s the end of the game, both parties are out, and bases are loaded with issues in conflict. Who do you want to take the final bat – you or an unknown?
If you have had an experience with mediation or have suggestions for using mediation, please let us know in the comment section below.
We have wiped out close family and friends, new bar members, and the best deal in town, so what’s left? I promise you there are other options. Better options. How do you find them? And how do you know the one you find is a good fit? Read on!
Word of Mouth/Referrals. For the few who are personally close to a Family Law attorney, the same attorneys who are too close to represent you are great go-tos for referrals because they will be familiar with their peers. An attorney you know and trust but doesn’t do family law may also be able to suggest a divorce attorney that has a good reputation in the community.
If you don’t know an attorney, ask friends/family members/co-workers who you know have had a divorce which attorney they used. Most will be pretty quick to let you know whether they had a positive or negative experience. For those who had a good experience and are recommending their attorney, ask if they knew the attorney prior to being represented. (If they used their own best friend/sister/dad you may want to get some more objective feedback.) Ask if they were kept well-informed throughout the process, if the attorney was receptive to questions, if the attorney seemed prepared at meetings and in court, and if the attorney’s bills were clear about what was charged for and how much was charged for each service.
If your source had a negative experience with their own counsel, ask what they thought of opposing counsel. Really. I am surprised how often I get calls that are referrals from one of my own client’s exes. Often the reason people don’t like the attorney they used is because the attorney their former spouse used came across as more professional, prepared and effective.
Professional listings. On-line lists and old-fashioned phone book listings still exist for a reason. This is a way to narrow the search from attorneys in general to attorneys who practice family law. Keep in mind, just because they say they do it doesn’t always mean they know how to do it or they are actually doing it. If your state has court cases listed on-line (your state bar association can tell you that) search for the prospective attorney’s name in that site and look at the type of cases they have had. Have they done quite a few divorces? Have they dealt with issues that you will be dealing with, such as contested custody, alimony, high assets, or large debts?
Once you have found a prospective attorney, check out their website – most will have one. Often the website will have basic information about divorce, answer frequently asked questions, and provide contact information for the firm. You can sometimes get an idea about how service oriented they are from their site. If you are still interested in them, contact them in the requested way, if one is indicated. Some attorneys offer a free consultation, some charge a fee to avoid people casually attorney-shopping who aren’t serious about hiring. A consultation without the commitment of hiring is an opportunity to meet the attorney and get basic questions answered about options, legal procedures, and the costs of the action. Make sure you are honest with the attorney about all the issues – good, bad, and ugly – so that you will receive relevant information and realistic costs. Be wary of any attorney who makes guarantees about outcomes or tells you your case is a slam-dunk – there is a difference between being confidant and being cocky.
If you are uncomfortable about hiring a particular attorney – whether it’s because you didn’t like the way they responded to you, you don’t care for their office atmosphere, or some vague feeling you can’t quite identify – go elsewhere. Just because they are a good attorney does not mean they are a good fit for you. It’s important that you hire somebody that you can work with because you will be a team – you know your spouse and the facts, the attorney knows the law. You need a marriage of both to obtain the best results in divorce.