Almost every seasoned divorce attorney has been blindsided in court from some significant evidence (documents or testimony) that has a detrimental impact on his or her client’s case. The conventional thinking may be my spouse does not know about it or would not dare to raise it in our divorce trial. Think again. However, that is almost always not the case. Evidence of some pattern of bad behavior or deviant conduct to illegal activity, if relevant, can change the court’s direction in its award of custody and division of property. The last place your divorce attorney should hear this for the first time is in trial. This blog covers some of the significant secrets you should relay to your divorce attorney so he or she can be more prepared for this at trial.
Tax evasion and delinquency: This topic comes up in many ways in divorces, such as if a party is claiming very little gross weekly income for child support purposes. Common examples come from cash-based businesses where some employees or owners do not report or underreport income. If this is known in advance, depending on the circumstances, it may be able to be explained in the testimony, such as this was a bad year or certain unexpected expenses arose. If that is the case, your counsel can show this by documentary or other evidence to show the income was just low for this period of time. This may well support that your gross weekly income is low in a given year versus underreporting income. In the worst cases scenario, your divorce attorney can advise about your right against self-incrimination and the ability to refuse to testify under oath and avoid making a criminal admission that may later be used to bring a criminal case. There are many variations to this theme. Sometimes a couple divorcing has not filed taxes or has delinquent that create significant issues that may need to be addressed before the divorce is finalized. The take-away is if you have any skeletons in the closet, tell your divorce counsel in advance so he or she can plan for it and determine a protective course of action for you and your case.
Drug use. Perhaps the most common issue faced by divorce attorneys is illegal drug use of prescription or other drugs. While marijuana may be legal in some states, marijuana use is a basis not to be awarded custody. In many cases, drug use is in the past but recent enough that the opposing party may try to use it to claim you wasted marital resources on drug purchases for a different division. More likely, they will take this drug use and claim you pose a risk of harm to the children. If skilled divorce counsel knows about this in advance, he or she can take many steps to address the issue, such as having a litigant evaluated by an addiction expert or have a drug screen taken to present in trial. This may make the issue moot and make your spouse look like a “bad guy” in court if you have addressed this on your own. Again, as with tax issues there are many variations to this the “drug use” card and your counsel has to know about it to minimize or eliminate its impact on your case.
Pornography. All too many divorce lawyers have heard testimony about a spouses’ addiction to porn and its impact of the marriage and the children directly (they observed the material) or indirectly (this caused the using parent to disengage the other party and the children). You know your spouse far better than your divorce counsel ever will. Will he or she make such statements to try to gain an edge in the litigation? If this honest answer is “yes” or “I don’t know”, your divorce counsel needs to be advised to take appropriate action before this unwinds in the courtroom. For instance, if you do use pornography, and it is in an adult-like setting, and has no impact on the children, it is not relevant to custody and subject to objection. But your attorney needs to know the details in advance to be able to present the actual story in court (by your testimony or documents) to place it into context. If not, judges often on the side caution to protect the children.
Ultimately, we have all done things we are not proud of but that may not make any difference in a divorce case if properly clarified in the evidence. To do this, your attorney has to know the scope of the issue before you enter the courtroom. Attorneys do not often spontaneously save the day by asking just the right question when a “bomb” is dropped on their case in trial. They do this by proper preparation in advance—if they know to prepare. Most of this negative evidence can be addressed and minimized or eliminated if your counsel is prepared. If you have “secrets” in your case, make sure to address them with your divorce counsel. This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases throughout the state. It is intended for general educational purposes and is not a solicitation for representation. It is an advertisement.