Ten Mistakes Not To Make In Your Family Law Case

By Daniel H. Glasser, Partner, Pollock Begg Komar Glasser & Vertz LLC

January 02, 2015 | Blog, Family Law News

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Divorce, support and custody matters are fraught with numerous procedural steps, all of which can result in missteps, mistakes and wrong strategic moves. To address every situation and every possible strategy would be a monumental undertaking; however, over 20 years of experience has shown me that there are some common mistakes which opposing parties and counsel make in pursuing their family law case.  Here are the top ten to be avoided:

  1. The general practitioner who handled my boundary dispute or prepared my will can handle my family law matter.  Family law is a cross-disciplinary practice.  It encompasses a number of different substantive areas of law, including property rights, contract law, substantive laws of divorce, custody, support, business valuation and numerous other areas of law.  Most importantly, the procedure in family law matters is different than that in civil matters.  General practitioners who “dabble” in family law are generally not the best choice to handle your family law matter.  Instead, someone who concentrates in family law would be best suited to know all the ins and outs of the Rules of Civil Procedure governing family law, as well as the tendencies of various judges who handle such matters and the nuances, missteps and strategies.  You would not choose a general medical practitioner for your eye problem or for your heart problem.  A practitioner who concentrates in family law is your best choice.  At Pollock Begg Komar Glasser & Vertz LLC (“Pollock Begg”), we concentrate almost exclusively in family law matters and are well suited to handle nearly any situation which may arise in divorce, custody, support, prenuptial or any other family law matter.
  2. My case will settle so I don’t need a trial lawyer.  Family law matters are replete with multiple phases of litigation.  Any particular family law case can result in a series of motions, conciliations, hearings, and trials.  While it is always the strategy to pursue litigation only as a last resort, hiring a lawyer that does not litigate is a grave mistake.  Many cases settle because of the threat of litigation and the fact that you have employed an aggressive litigator as a deterrent to litigate the matter.  Lawyers who are afraid to, or do not, litigate have a major disadvantage in negotiations.  Therefore, although it is certainly the goal to settle your case without litigation, having an aggressive litigator in your corner is a powerful resource.  At Pollock Begg, we use all reasonable efforts to settle your case; however, if litigation does ensue, we are certainly not afraid and, indeed, are very comfortable in the courtroom.  All of our lawyers have substantial courtroom and trial experience which we call upon to gauge appropriate ranges of settlement or to litigate zealously on your behalf if it becomes necessary.
  3. My lawyer doesn’t understand tax law, but that is something the accountants can handle.  The tax consequences of divorce and support are major substantive issues which must be considered in determining the fairness of any settlement.  These consequences are statutory factors in divorce and are of major consideration in support matters.  Even if your case litigates, it cannot be assumed the court will automatically consider and take these matters into account.  Instead, courts count of the lawyers to educate them in these matters.  A lawyer who does not understand taxes and cannot anticipate the tax consequences of a property award in divorce or the extent to which support awards are deductible, are doing a disservice to their clients.  Pollock Begg lawyers are well educated in tax matters incident to divorce and support and often teach seminars on these issues to other lawyers, judges and hearing officers.
  4. I want a divorce.  So, the first thing to do is file a divorce complaint.  Filing a divorce complaint is often necessary to effectuate a separation date when no other separation date is clear, to seek injunctive relief or negate certain support defenses; however, depending on the timing of your divorce action, filing a divorce complaint can often be a major strategic mistake.  It can put the other party in control of the timing of the action – how quickly the case moves forward or drags on.  It could give the other party certain rights which he or she might not otherwise have.  Moreover, if the other party is the first to file a divorce complaint, it can often result in strategic advantages to you.  Therefore, such a seemingly simple decision must be analyzed in terms of its effect on the timing of the action, possible support claims and other relief you may wish to seek under the Divorce Code.  A lawyer who automatically recommends filing of a divorce complaint and cannot explain the strategic advantages and disadvantages of doing so is likely not your best choice.  At Pollock Begg, we consider these strategic choices in your case.  Divorce, support and custody are not rote procedures and making the right decision in how to proceed and whether to proceed, can make the difference between a favorable economic settlement and a disastrous one.
  5. I’m not sure my spouse is paying me the right amount.  So, I’ll file for support.  Like the decision to file for divorce, a decision to file for support is also a strategic one.  An analysis of the amount being paid and a comparison of the after-tax benefit of filing for support versus the after-tax benefit or receiving voluntary support is crucial in maximizing one’s economic settlement.  There are other strategic issues related to filing for support which may negatively impact your case, such as triggering the other side to seek legal advice as to the amount of support, the structure in the amount of support or opening oneself up to certain defenses related to support.  After the cost of litigation, many litigants find themselves worse off after they file for support.  At Pollock Begg, we will analyze what payments you are receiving and whether it makes sense, economically, to file for support or simply collect the amount you are being paid either voluntarily or through contributions to a joint account.
  6. I want my custody order in writing, so I’ll file for custody.  A parent who has control of the custody – that is, has de facto primary custody – and can dictate to the other party, at least in part, custody arrangements, is usually making a mistake in filing for custody. That is not to say you should not consult a lawyer to determine whether this is an appropriate option and/or what steps you can take to document the existing custody award without a court order so it is enforceable later.  It does mean, however, that simply because you want a written custody order is not a good enough reason to file for one.  There are certainly times when filing for custody is more than appropriate, such as when you entitled and wish to have more time with your children, when an order is needed for school or medical care or where there are concerns related to the other party, such as mistreatment of your child or drug or alcohol abuse.  At Pollock Begg, we analyze your current custody situation, your wishes and desires, whether they can be realistically obtained, the cost of litigating these matters and whether, overall, filing for custody is the right choice for you.
  7. I’ve always been the children’s primary caretaker.  Therefore, I can move with them.  Pennsylvania has rigorous procedures for allowing a parent to move with a child if such move affects the other party’s custodial rights.  Even if there is no existing custody order, all of the factors of such a move must be taken into consideration.  Whether you can move or not requires an analysis of these factors and certain notice procedures required under the statute.  If the other side disagrees and follows the appropriate procedures, a hearing may be necessary.  Pollock Begg lawyers can advise you whether it is realistic for you to move with your child, or for the other parent to move with the child, and how you can effectuate such move, or stop it, as the case may be.  If litigation ensues, we regularly try relocation trials and are well versed in not only the law, but how to factually prove or disprove the relocation is in the child’s best interest.
  8. The court will punish my spouse for cheating on me by giving me more money/custody.  At Pollock Begg, we care about our clients.  But caring about our clients doesn’t necessarily mean emphasizing matters which might not be beneficial to the end game – achieving an appropriate custody order or the best economic settlement.  While it is true that marital fault, such as cheating on a spouse, is a factor in determining whether a fault based divorce would be granted, one of seventeen factors in alimony, and a possible defense to a support action, it is not a factor in determining the property division.  We will help you place the proper emphasis on matters in your case to achieve the best possible result.  Lawyers who want to assert matters simply because the client wants to assert those matters may be doing the client a disservice.  Although, ultimately, you will be the decision maker, Pollock Begg will help you analyze the factors in your case and determine where concentration and emphasis is properly placed to allow you to achieve the maximum result.
  9. I’m not going to try to work/I’ll quit my job so I can get more support/alimony.  Interim support and, to a lesser extent, alimony, is driven by each party’s income.  Therefore, lawyers and their clients often make the mistake to artificially lower their income, either by not appropriately seeking work or voluntarily decreasing or eliminating their income.  This is almost always the wrong move.  It presents you in a negative light to the court and you will still likely be imputed the income which you could have earned.  Of course, there are situations when it does not make sense to seek work.  A long unemployed spouse who has always been the homemaker with little children at home where it would cost substantially more in child care to maintain employment might be one of those situations.  At Pollock Begg, we can help you determine when it make sense to seek work or not seek work and assist you in making good decisions with regard to income and support matters so you can achieve the most economic benefit or the least economic impact as the result of a support order and/or alimony award.
  10. No cost benefit analysis.  Although it is true that the clients make the ultimate decisions, the lawyers at Pollock Begg will help you make decisions based upon the cost and benefit.  One of the biggest mistakes clients and other lawyers make is that they assume that the other party will be paying their attorneys’ fees.  Although the Divorce Code and Judicial Code do provide for an award of attorneys’ fees and to the other party in various instances, counting on these awards is a mistake.  Instead, decisions should be made with regard to the benefit to be achieved, the probability of that benefit and the cost, including counsel fees, to obtain that benefit.  We at Pollock Begg will help you make those decisions, including whether to litigate or settle, whether or not to file a motion, whether or not to oppose a position by opposing party and other decisions which will help you make sound economic decisions.  In a divorce, of course, not each and every decision is driven by economics.  Often times, the goal to be obtained, such as in custody cases, defy an economic analysis.  Still, analysis of what strategy to pursue will help clients get, where possible, the most benefit for the least in cost.  Hiring a lawyer who can help you make these decisions is your best choice.

All of these ten mistakes have one thing in common.  They are mistakes made by clients and lawyers who either do not concentrate in family law or do not adequately strategize or analyze decisions.  At Pollock Begg, you have a powerful, experienced ally who can help you make the right decisions in your family law matter.  No position is fool proof and no decision is always the right one.  Pollock Begg’s clients, however, will make each decision knowing of the possible consequences, with their eyes wide open and with the benefit of sound legal advice.

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