More Really Bad Divorce Advice You Must Ignore

This is the second blog on really bad divorce advice that spouses must ignore in order to obtain the best possible results in the case. Although experienced divorce attorneys are seldom surprised at what passes for helpful advice, unfortunately for some spouses it is too late to undo the damage. To avoid making the mistakes that so many others have made. Be prepared for the tall tales and misinterpretations of divorce law lurking in most Beale Street juke joints and coffee houses.

More really bad divorce advice you must ignore

Pretend There Was Domestic Violence

This really bad divorce advice can cause serious problems if not completely ignored: “Get an order of protection when you file for divorce.” A protective order, or restraining order, is appropriate if there is a genuine threat of domestic violence or child abuse. Experienced counsel lasers in on false allegations of abuse which, once they come to light, will be addressed by the court.

Obtaining a protective order, as a tactic intended to put the other spouse on the defensive, is wholly inappropriate in a divorce. In fact, obtaining a protective order on false pretenses can backfire. In Tennessee child custody law, whether a parent made false allegations of child abuse is something the court will consider, among other important factors. False allegations of child abuse could result in restricted parenting time for the party who made everything up. False allegations of spousal abuse will not fool the court either and may also result in sanctions.

Ignore Bad Divorce Advice About Court Proceedings

Many people go through bitter divorces, although it does not have to be that way. Unfortunately, some former spouses learn little, preferring to perpetuate hostilities rather than accepting what is just and equitable for everyone involved, namely both parties and the children.

Mediation

If there are children of the marriage, then mediation will be ordered to help parents with custody agreements. (Mediation is often utilized in divorce and family law cases, not just with child custody.) Some spouses enter mediation armed with bad advice. They become smug, intransigent, and argumentative because “The judge can’t make you agree to anything.”

The court has authority to order the parents into mediation, but it cannot order a party to agree to any settlement terms. However, the judge does have authority to sanction a spouse who does not give mediation a good faith effort. For example, an uncooperative spouse may be ordered to bear the full cost of the mediation instead of splitting the mediator’s fee equally with the other spouse. Although mediation often represents a cost savings when compared to litigation, mediators don’t give out free lunches. When considering the mediator’s expertise, the number of issues to be mediated, the difficulty and time involved, mediation is not a cheap endeavor.

Time to Exact Revenge

Some more really bad divorce advice? One that is counter to public policy and likely to result in court sanctions? “It’s time to exact revenge.” How? By attempting to delay proceedings in order to exact revenge against the other spouse and make him or her suffer as much as possible. Basically, dilatory tactics will be spotted by the other party, opposing counsel, and the judge. Instead of keeping things moving along productively, when a party obfuscates, files seemingly endless motions, will not agree to any reasonably negotiated settlements, or refuses to comply with discovery requests, these are all revengeful tactics that can backfire in a big way.

Attempts to exact revenge against the other spouse by litigating every little thing – revenge through litigiousness – and filing frivolous motions, this can mean paying the other spouse’s legal fees in addition to paying one’s own attorney. Furthermore, the court judges both spouses’ demeanor, candor toward the court, and general character for honesty and truthfulness.

When good character really matters (as when testifying on why the parent should have sole legal decision-making authority), the judge may be less inclined to believe the testimony and the parent’s propensity for truthfulness. Propensity for vindictiveness? Believable. Propensity for honesty and truthfulness? Not so much.

Get Divorced First, Modify Orders Second

Some bad divorce advice has to do with modifying orders after the divorce. Consider child support orders first. When someone says, “You can get child support modified after the divorce, just tell the judge it isn’t working for you,” toss that bad divorce advice in File 13, permanently.

The court has continuing jurisdiction over child support and alimony until those orders terminate, which means it can modify for cause in many instances. So the court may consider a motion to modify child support or motion to modify alimony after the divorce. However, the court’s authority to modify monthly child support amounts is limited by our Tennessee Child Support Guidelines. In a nutshell, any modification of child support requires a showing of significant variance from the original order establishing support. Significant variance is a meaningful term defined in the Guidelines. It’s not a fudge factor. Lastly, a parent is in no position to tell the judge what he or she should do with its order.

Moms Are Primary Residential Parents, Not Dads

Bad divorce advice might reflect what some believe to be antiquated views of the proper parenting roles held by men and women: “Mothers should raise the children, not fathers.” Some women are better than some men at child rearing, and vice versa. Setting all bias aside, in the law of Tennessee law and the U.S. Constitution, no parent has a superior right to raise the children based only upon that parent’s sex.

Here’s more bad advice of a similar ilk: “Split the children up so that Dads get custody of their sons and Moms get custody of their daughters.” Well, no, that is not correct either. Rarely is splitting up siblings a preferred child custody arrangement. Nor is it true that Dads should expect to be awarded only weekend parenting time simply because they are men with jobs. Instead, a different parenting time schedule is always possible with the assistance of a divorce attorney who has substantial trial experience in contested child custody cases.

Best Interests of the Children

In all cases, the foremost consideration for the court in awarding child custody – legal decision-making authority and parenting time – is a parenting plan that is in the best interests of the child. Determining the child’s best interests is an in-depth analysis, often necessitating a report from a mental health professional serving as an independent child custody evaluator.

More bad advice – “Women are nurturing, men are not” – is intended to influence the court regarding who should be the primary residential parent. All too often, the nurturing argument is offered as the main reason why fathers should not get equal parenting time with their children. Of course some parents are more nurturing than others, but many parents still share nearly equal parenting time and their kids are doing great.

Children do best when both parents are deeply involved in their kids’ day-to-day lives. Not merely residing with one parent, but spending parenting time with both parents. That is what is most beneficial. Therefore, it is important that parents spend the time necessary to hammer out the details of their parenting plan. Lawyers can greatly assist in this. Mediation may be very helpful, too.

Child Support

Whenever the topic of support comes up, expect some really bad divorce advice like this: “Hide income if you want to pay less child support.” Ignore that advice because relying on it can cause major problems. In divorce, full disclosure of finances is required. No exceptions!

Tennessee Child Support Guidelines calculate support based upon both parents’ income from any and all sources. Parents do not have the luxury of picking and choosing what to include as gross income and what financial resources to conceal from the other party and the court. Every income stream must be put on the table because, once again, child support is in the child’s best interests.

Don’t be confused by bad divorce advice. Consult an experienced divorce attorney.

The Longer Divorce Is Delayed, the Less Child Support Is Paid

Some people will offer bad divorce advice about when to file, in an effort to avoid child support. “Child support doesn’t start until the divorce decree is entered” – that advice is just plain wrong, so completely ignore it. In Tennessee, child support is retroactive to the date of the parents’ separation. A parent can seek unpaid child support right up until the child turns 18 or graduates from high school if later. Is the youngest child a minor? Then child support will be ordered and, according to the Guidelines, retroactive child support will be ordered from the day of the parents’ separation.

Just Keep Saying ‘It’s What’s Best for the Kids’

A lot of really bad divorce advice focuses on using the children to gain advantage in the proceedings. Parents should never use their children as tools to obtain more in the divorce, whether it be in the division of property, in seeking a more favorable alimony award, in obtaining legal decision-making authority, in scheduling parenting time, or in calculating child support obligations. (Child support is for the benefit of the child, but the entire household benefits, too. So be it.) Using children strategically for the best interests of the parent is against public policy. When it backfires, the judge sanctions the parent who tries this in the judge’s courtroom.

Bad Advice About Property Division in Tennessee Divorce

At least two things can be dangerous in divorce. One, ignoring the threat of domestic violence may be physically dangerous. And two, failing to obtain attorney advice on the division of property in divorce may be financially dangerous.

Worthless divorce tips for property division flow abundantly over water coolers and Starbucks. Here are a few tidbits of free bad advice not worth the price of admission:

1. “Negotiate a property settlement directly with your spouse.” Except for the pots and pans, pillows and bedding, the sofa and similar household items, negotiations with the other party should be conducted through counsel. But not face-to-face where a dominant spouse can control the negotiation (and the outcome). Negotiation is an integral part of divorce. For there to be equal bargaining power, negotiation needs to be done at arm’s length with attorney assistance. Be mindful that all property must be identified, classified, and valued before it can be divided in divorce.
2. “Your spouse gets half of everything.” No. That is not right either. Tennessee is an equitable distribution The court is not required to divide the parties’ marital property equally in divorce. Instead, the court divides the marital estate equitably, or fairly, between the spouses. Understand that an equitable distribution is not the same as an equal distribution. See T.C.A. § 36-4-121(c).
3. “Hide as many assets as you can.” This is such bad divorce advice. Concealing property, hiding assets, funding secret accounts with marital money, and manipulating documents to prevent the other party and the court from learning the full extent of the marital estate will have consequences when discovered. All assets and debts must be disclosed. How else might the court equitably distribute property in the divorce? If not charged outright with fraud, concealing assets is almost certain to result in sanctions and will also damage the spouse’s case. He or she has displayed a propensity for untruthfulness and a lack of credibility, which means the other spouse is far more likely to be believed on all matters before the court, not just the property division issue.
4. “Possession is nine-tenths of the law so grab all the money in the joint accounts as soon as you decide to divorce.” Again, this bad advice could not be further from the truth. Absconding with marital funds not only makes that spouse look bad to the court, he or she has no greater right to more than half the marital assets than does the other spouse. There is an exception, however, if the other spouse agrees in writing. Say, for example, that the spouses have two joint bank accounts containing approximately the same amount of marital funds. The spouses sign a written agreement that Account-A shall be his and Account-B shall be hers.
5. “If your spouse refuses to leave, then change all the locks.” If the other spouse has refused to leave, then there is one instance where changing all the locks on the house to prevent his or her re-entering may be justified. If the home is not a marital asset and is the separate property of the remaining spouse, then the owner has a superior right to the premises. More often than not, though, the family residence is a marital asset and not separate property. In that instance, neither spouse has a better right to possession and control of the premises. What can be done to keep the other spouse away from the marital home? Especially if there is domestic violence, obtain a court order prohibiting the other spouse from entering the premises.
6. “Leave the marital home and get your stuff later.” This is more half-truth because a spouse does have the right to collect his or her separate property. In general, unless there is domestic violence, do not leave the marital home if staying is more desirable. After a spouse leaves and divorce is pending, he or she may have to wait for a court order before going back in to collect things. There will be limited time to gather personal items, maybe with a police officer present. The risk is that the separate property will no longer be there upon return.

Be aware that it is more difficult to go back for important records and separate property after leaving the marital home. Prepare for the earliest stages of divorce by reading our free e-book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.

There is one piece of divorce advice that is always worth seeking: “Can you recommend a really good divorce attorney?” Beyond that, divorce advice – solicited or unsolicited – should only come from an experienced family lawyer.