4 Mistakes to Avoid when Facing a Divorce | Sterling Law Offices, S.C. 4 Mistakes to Avoid when Facing a Divorce | Sterling Law Offices, S.C. global $post;
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DO NOT Move Out of the House

One issue that cannot be avoided, is where will everyone live? This is one of the first issues that must be addressed after the decision to separate or divorce has been made.

IMPORTANT: Do not move out! If you want the house or primary placement of the children Do not move out!

A short-term and a long-term plan must be thought through, discussed, and agreed upon. This is an important decision and will impact your case. Consult the help of your legal representative. Representation can assist you in understanding where you stand, as well as, understanding your options.

Why NOT Moving Out is Important

Living in the same house during a divorce can be complicated and it will likely not be easy. A common saying in the legal world is, "possession is 90% of the law." Remember, If you want the house or primary placement of the children DO NOT move out of the marital residence.

If you move out it will give your spouse "proof" you do not care about the house or the children.

When children are involved in a divorce is is vital your are not viewed as a absent parent. When custody is argued between spouses understanding the intimate details of the child's day to day life is crucial to obtaining custody.

We have seen many cases where one spouse moves out, because they thought it was the right thing to do, but then tells us they want the house, children, or both. Moving out of the house will affect your ability to get the house and or primary placement.

If you Need to Leave

If you really need to leave the marital residence there is an option, but it needs to be done correctly and requires some patience.

As an option, you can get temporary orders set.

Temporary orders will require you to deal with several issues: child placement, child support, living arrangements and maintenance/alimony.

A temporary hearing should never be taken lightly, even if your attorney tells it is no big deal. Temporary order set precedent. Anything you concede to in the temporary orders will be seen as proof of such agreement being acceptable to both parties.

If you want your children do not relinquish 50/50 custody or placement during the temporary hearing.

BOTTOM LINE: Don't Make the Mistake of Moving Out

Men & Women DO NOT Play the Same Child Custody Game

If you want custody of the children you need to prove through actions, not just words, you really (really, really, really) want custody. What does this mean specifically?

Custody is NOT a Contest

The first mistake many parents make when going through a divorce is make getting the kids a contest and keeping score. This is especially true of men.

The fact is this is not a contest as the rules and culture are different for men and women. What the law says and what is communicated by judges and attorneys is custody is based on what is in the best interest of the child.

What is embedded deep in that statement is stereotyping.

If Custody was a Contest Men & Women Score Differently

Women, by no fault of their own, have an advantage. Single mothers are honored by society, so subsequently they are given more leeway.

Single men with children have been stereotyped as absent fathers and dead beat dads. This means men have a significant disadvantage culturally and are not given any leeway.

Practically speaking a mother who misses a basketball game because she was working will not be seen as not doing her job as a mother. A father who misses the same game will be seen by culture as uninvolved. Right, wrong or indifferent this is the society we live in. Since we cannot change the rules we must play the game as it is presented.

Make a Plan and Stick to the Plan

These facts do not mean there is not hope.

The key is creating a plan and sticking to that plan. When you appear before the judge ensure the judge knows you are serious about being involved in the child's life. Create a parenting plan of your own, stick to the commitments you made. Do not get lax and keep score.

If you are already involved with your kids, get more involved. Knowing the intimate details of their lives goes a long way in deciding custody.

  • Do you know what your child likes for breakfast?
  • Do you know what they eat for lunch?
  • Do you know what they like as snacks?
  • What are their best subjects in school?
  • What subject do they struggle with in school?
  • Who are their friends?
  • Who are their friends parents?

The list goes on.

Knowing the intimate details will prove to a judge you know your child and understand their needs. This is a win-win situation, you are more involved with your child's life and you are in the best position possible to get custody.

BOTTOM LINE: Stay Involved and Do Not Neglect your Children

DO NOT be Sloppy with Financials

It may surprise you, but many clients do not keep good financial records. The result is always the same - confusion, bitterness and anger when they give their soon to be ex-spouse large portions of their net worth after a divorce.

Wisconsin is a community property state, which means everything brought into the marriage and acquired during the marriage is owned equally by both parties. However, there are nuances to the law.

Some Property is Separate Property

The reason we encourage clients to take a very detailed look at their property and debts is not all property is considered community or marital property. If you owned property or debt before marriage this property will remain your property, under certain circumstances. An example:

John and Jane got married in 2003. John was 29 and Jane was 32.

Before marriage Jane built up a substantial 401k. She worked at Kohl's corporate in the IT department as a programmer. She was there until she was 30 when her and John got pregnant with their first child.

She always maxed out her contribution and Kohl's matched up to 5% of her salary. She had well over six figures in her 401k account.

During college her parents purchased a duplex for her to live in with friends and told her if she maintained the house, paid the taxes, and rented out the other unit she would own the house outright when she graduated. She graduated and since kept the property maintained and paid for using only the funds made from tenant payments.

When John and Jane decided to get a divorce in 2014 the duplex and her 401k account need additional evaluation. Should it really be split equally between John and Jane?

THE DUPLEX: Since she made the payments, kept the rental property income in a separate business account, and never used marital assets to improve the property, it may be determined this property is separate property.

JANE's 401k ACCOUNT: As for the 401k, the same story will likely be true. Jane never did anything with the account after she left Kohl's to be a stay at home mom. Since she never put income made during the marriage into the 401k account. Subsequently it may be viewed as separate property. 

JOHN's 401k ACCOUNT: The same does not hold true for John's 401k account, not because he is a man, but because the time he built his 401k was during the marriage period. Since John came into the marriage without a 401k, but established the account during the marriage, his retirement account may be seen as marital property and split evenly. 

DO NOT Gloss Over Financial Information

When filling out financial papers for a divorce be sure to take care. Most of the numbers will not matter, but a few small details could influence how you live the rest of your life. Imagine if Jane did not disclose and prove the 401k and income property were hers alone, she would be forced to split the assets equally with John.

These details given by Jane will influence the place she lives in, the kind of car she drives, the vacations she can go on, and what type of life she can give to her children.

BOTTOM LINE: Take Your Time, Give Financial Records Your Full Attention

DO NOT Reveal Too Much Online

If you use the internet in 2014 it should not surprise you anything you do online is tracked, recorded, and documented. Most of the data is completely useless and irrelevant to a divorce proceeding, but what you do online can be used to build a case against you in court. See what happened to John.

How the Internet can be Used Against You

John never thought the internet could be used against him. During the entire divorce proceeding he appeared to be the reasonable spouse. After 12 months of getting no where the divorce went to trial because John would not budge on the primary placement issue.

John, as expected, stayed with his narrative. He demonstrated throughout the process he was reasonable, responsible adult. The judge saw the same thing. What happened next John never imagined. Lisa's attorney hired a private investigator to scour John's internet history. What the report included was the following:

  • John had been actively dating online for over two years
  • John posted pictures of himself with other women on the Facebook account
  • John posted picture of himself clearly drunk and partying on the Facebook account
  • John was a member of the Facebook group "I Hate My F***** Wife"
  • No picture of his kids ever surfaced on the Facebook account

You can probably guess how this story ends. Yes, John lost all credibility in front of the judge that day. What started out looking like a good chance he would get the children ended up a nightmare for John.

None of these activities are illegal.

The difference in this case was John's credibility. John was a great father. John did give his ex-wife nearly everything she asked for financially. John was trying to do the right thing. John lost the kids, because the image he portrayed during the entire process did not match the image Lisa's attorney portrayed at trial. John also neglected the children on his Facebook account.

What this looked like to the judge is John really did not want the kids. He was more concerned with having fun and finding another relationship. The judge concluded it was not in the best interests of the children to give John primary placement. John got every Wednesday night and every other weekend.

What you Should Do

Facebook/MySpace/Instagram/etc. - delete any picture of yourself which you would not show your grandmother

Online Dating Sites - Shut down until the divorce is over

Email - Create a new email account. Also change the password and security questions

All Internet Sites - Change your username and password. Your spouse knows and they know the answer to your security questions, so change those too.

You can continue to use the internet, but be cautious. Everything you do leaves a bread trail. Simply deleting your web history does not remove the trail either, so do not be cavalier with this advice. We tell clients to be cautious. Use the internet as if your grandmother was watching over your shoulder.

BOTTOM LINE: Your internet usage can be used against you, proceed with caution.

Dan Exner, J.D.

Family Law Attorney

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Sterling Law Offices, S.C.
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