Unwritten Rules
Whether contested or uncontested, family law matters are full of traps for the unwary. A careful researcher may be able to find and circumvent some of the obstacles, but there are unwritten rules for specific circumstances that only veteran attorney practitioners know about.
Investment Decisions
Divorce proceedings involve a thorough examination of each spouse's current and past financial dealings and status, including investments. The review of finances is invariably skewed by hindsight bias: an action, or inaction, is judged based on its outcome rather than by the information known at the time the decision was made. Even if one or both spouses are sophisticated businesspeople with significant financial acumen, investment decisions made during a divorce are viewed skeptically. This is especially true for investment activity performed without advance knowledge or consent of the other spouse. Suppose a spouse makes an investment decision during a divorce that results in a loss. That spouse may be held entirely accountable by reducing their share of the marital assets and imposing an additional compensation requirement to make their spouse whole for the loss.
On the other hand, if the same investment decision results in significant gains, they will not necessarily be rewarded. A substantial profit will not result in a premium payment for the transacting spouse. The court's primary concern is ensuring a fair and equitable distribution of marital assets, not maximizing the returns on those assets. A spouse considering an investment during divorce is exposed to extraordinary risk. This enhanced risk means that potential adverse consequences often outweigh the benefits of an investment’s best-case scenario. If investment decisions are necessary, the transacting spouse must consult with a financial advisor and legal counsel to ensure that all actions are performed prudently and transparently.
Courtroom Appearance
It is said that 90% of human communication is nonverbal. Attire and courtroom behavior convey unspoken messages to the judge. Generally, a litigant appearing in court should dress comfortably and consistently with their profession and the position they are taking in their case. For example, a homemaker seeking financial support will be wise to leave her finest jewelry and largest designer handbag at home. Likewise, a man who claims he is indigent and cannot pay any support should not wear an expensive timepiece or a designer belt. Careful consideration should be given to how one will respond or react in the courtroom, both on the witness stand and off it. A visible argument or tension between a lawyer and their client shows that not all is well, and the judge sees all.
Conversations With Your Child
There are no laws governing what parents may discuss with their minor children. At a certain age and level of maturity, a child may voice a preference as to where and with whom they want to live. It is self-evident that the child would convey such a preference to an adult, such as a parent. However, judges often view such conversations critically even when no law or court order prohibits a parent from discussing legal matters with their minor children. Courts recognize the potential for such discussions to be harmful to a child's well-being and to interfere with the court's ability to make impartial decisions in child custody cases.
Children are impressionable and may be easily influenced by their parents. When parents discuss adult matters with their children, they risk putting undue pressure on the children to express a preference. It is generally assumed that children want to please the parent they are with. A child’s statement to a parent that the child wants to live with that parent will invariably be viewed with skepticism. Judges are concerned that parents may use such discussions to coach or manipulate children and affect their relationship with the other parent. Children may feel caught in the middle of their parents' conflict and may experience emotional distress as a result of these discussions. A parent whose child has disclosed a preference to them should consult with an attorney to learn how the child’s preference may be presented to the court in an acceptable, objective manner.
These unwritten rules and others are only unveiled over time through both experience and advanced training. The risk of assigning your family law representation to a general practitioner or an inexperienced lawyer is that they may not even be aware of these issues, much less how to address them when encountered. Excellent lawyers have inadvertently walked their clients into these traps simply because they did not have the benefit of handling volumes of family law disputes for many years. Recognition of Aaron Bundy and Kathleen Egan by The Best Lawyers in America® 2024 and Danya Bundy by Best Lawyers: Ones to Watch® in America 2024 in Family Law reflects the time, energy and care they bring to every divorce, child custody and civil lawsuit.
