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 Four-Way Settlement Conference

 The Child’s Attorney  Hearing on  Meeting with Temporary the Custody  If You Are Orders Advisor Stalked, Harassed,  Financial  Understanding or Spied on Disclosure the Vocational Evaluation  Telling Your Children  Your First About the Mediation Appointment

 Deposition & Trial Testimony

Prepare for Key Events in Your Case: A Client Manual

American Bar Association ABA Section of FAMILY ADVOCATE

FEATURES

4 Grab the Documents From bank statements to children’s artwork, these important papers will tell the story of your By Miles Mason, Sr. Checklist of Documents for Financial Disclosure…9 28 The Child’s Attorney 12 Preparing for a Hearing on Temporary Orders By Carl W. Gilmore Stay Calm & Carry On By Jill C. Jackoboice 32 Meeting with the Custody Advisor By Donald G. Tye & Patricia A. O’Connell Prepare for Key 38 Understanding the Vocational Evaluation Events in Your Case: By Martin A. Kranitz A Client Manual

16 The Ten Rules of Powerful Witness Preparation Your deposition and trial testimony By Daniel I. Small

20 What to Bring to Your First Mediation Appointment The “right” documents, information, and attitude By Gregory D. Kincaid 44 What to Do If You Are Being 23 The Four-Way Settlement Conference Stalked, Harassed, or By Carl W. Gilmore Spied On By Jody M. Meyer 24 Telling Your Children About the Divorce By Sol R. Rappaport 48 Books & More Prepare for Key Events: A Bibliography

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FAMILY ADVOCATE (ISSN 0163-710X) (USPS 481-210) is published construed as representing the policy or preferences of the ABA. © 2012 To order extra copies of this quarterly by the Section of Family Law, American Bar Association, 321 American Bar Association. All rights reserved. This issue and the con- N. Clark St., Chicago, IL 60654-7598. Periodicals postage paid at tents herein may not be reproduced or disseminated, in full or in part, issue (PC 51311003501) or other Chicago, IL, and additional mailing offices. Single copy price for mem- without express permission from the American Bar Association. Please Family Advocate client handouts, bers and nonmembers is $12.95. Quantity discounts are available. send reprint requests to Manager, Copyright and Licensing, via e-mail Authors’ views have not been approved or endorsed by the ABA House to [email protected], or via fax to 312/988-6030. see back cover or go to of Delegates, the Board of Governors, the Section of Family Law, or www.ambar.org/clientmanual the Family Advocate Editorial Board and, accordingly, should not be Excerpted from Family Advocate, Summer 2012 (Vol. 35, No. 1)

www.ambar.org/clientmanual FAMILYADVOCATE www.ambar.org/familyadvocate family. and American advocacy the effective in interested bar are and who bench the of members of thoughtful views of the Section represent the They Law. or Family ABA the of policy official in The articles issues. related family-law other and , custody, child divorce, in professionals involved other and clients, their lawyers, family for articles practice-oriented offers Law, practical, Family of Section Association Bar Advocate, Family POLICY EDITORIAL IL Chicago, Inc., Design TJS DESIGN/PRODUCTION [email protected] 262-619-1335 Fax: 262-619-1334 53403 WI Racine, Street Main S. 1600 Eisel Deborah EDITOR KS Topeka, Elrod, Linda EX-OFFICIO NC Raleigh, Rosen, S. Lee EDITOR MANAGEMENT PRACTICE LAW CO Littleton, Walker, B. Timothy TX Austin, Lehrmann, H. Debra WI Milwaukee, Herman, Gregg AZ Tucson, Haralambie, M. Ann MI City, Traverse Guyot, Bob Gould-Saltman, Dianna FL Miami, Frumkes, B. Melvyn IL Chicago, Feinberg, Joy Barndollar, Filippis De Livia MEMBERS BOARD KS Shawnee, Mann, M. Scott IL Woodstock, Gilmore, Carl EDITORS ISSUE MI Bloomfield, West Robbins N. Norman EDITOR SENIOR NY City, Garden DaSilva H. Willard EMERITUS EDITOR [email protected] 80209 CO Denver, 950 Suite Drive N. Creek Cherry 3773 Hogan A. Kathleen CHIEF IN EDITOR Board Editorial o nee,CA Angeles, Los CT Canaan, New aiyAdvocate Family ulse yteAmerican the by published ontepesthe express not do 2 nYu Case Your in Events Key for Prepare aiyLwt epilmnt the illuminate help to Law Family of Section Association Bar the American by created was manual this client However, case. every of and course each exact the predict can ument doc- written no Similarly, “divorced.” to “married” from transition life-changing this accompanies worry that and stress the eliminate totally can documents written the No or outcome. timing, the process, the longer control no they which in in placed situations are lives own their directing and decisions own their to making accustomed been have who adults functioning and competent initiated, unknown. are intentions and routes other whose with drivers track that fill Then and valleys. hills, turns, twists, full uncharted length of unknown of track dark, a the with in ride bumper-car a person on same that a Place around track. car familiar own her or his driving competently person a Picture this: like process divorce have the clients described Many lives. their of the rest affect may literally uncharted that strange, territory is this desk, the of cases. these of hundreds has handled who practitioner seasoned the for F AIYADVOCATE FAMILY rmthe From hnafml a rceigis proceeding law family a When side clients’ the from contrast, By aiirtrioy especially territory, familiar very are case custody or divorce a in and procedures steps the lawyer, a or www.ambar.org/clientmanual Editor odlglrpeetto.However, for representation. substitute legal a good as intended not is ual stressful. less process the each in make step should behave to how expect and to what about here provided information the be However, not present. will likely investi- lawyer custody your a gator, by visit home evaluator a an or with meeting a as such steps, other a Through or hearing. deposition court a to as such you, accompany will lawyer some your Through steps, case. your of for step lawyer each your with prepare you help to information provide also the authors article, each In com- purposes. its mon and event the of description a both provides an author event, experienced key each For rela- case. domestic tions a in steps or “key events” common most the describe and process. the of but nature goals, the her also or his only not under- stands client the when about come best can participation active engaged. That actively and awake to fully needs be client The process. steps the various in the through get and prepare for to together work client lawyer the and case, relations domestic over. a is In it when patient the awakens and surgery the the performs which doctor in procedure surgical not a are like steps these of Most the process. through step by step moves client the Instead, a process. seldom one-step is case relations domestic goals A your and process The from you lawyer. to your gift special a hand- is This book track. the on drivers the other identify and turns and twists laeke nmn htti man- this that mind in keep Please identify to tried have editors The Y B THLEENA.HOGAN A G O H . A N E E L H AT K experienced lawyers know that clients are often overwhelmed with the amount of information relating to the processes and procedures of divorce. Often clients are trying to absorb that information as they process the emotional turmoil that accompanies a proceeding. As a result, details are often missed or misunderstood. Even the most intelligent clients need “refresher” explanations as the case proceeds. That is where this manual comes in handy. It provides those basic explanations and helps maximize the effectiveness of the lawyer-client relationship. It also helps focus and guide the specific questions you have for your lawyer so that you can spend more time discussing your case and less time on general descriptions of the process. As you review the articles in this manual, keep in mind the following points. • Procedures and terminologies vary some- what from state to state. It is impossible in a publication of this size to identify Dear Divorce Client: and describe all those variations. Your The American Bar Association Section of Family Law has lawyer can fill you in on state-specific created this handbook. It is a special gift to you from your variations in your case. • Not every step described in this issue is lawyer. As you read the articles, consider the advice of our appropriate or necessary for every case. experts. Then talk with your lawyer, think through your On the one hand, the production and options, and make the best decisions you can to launch you exchange of documents is virtually and your family toward a brighter tomorrow. universal in domestic relations cases. On the other hand, a custody evaluation is Our goal is to help you understand and prepare for “key events” obviously not necessary in a case that in your case. We hope that by reading this handbook you will does not involve children. However, it become more comfortable, confident, and capable as you work might not be necessary or appropriate with your attorney through each step of your divorce case. even in some cases that do involve children. Again, your lawyer can advise Best wishes, you as to which specific steps are right for your case. Kathleen A. Hogan, Editor in Chief • Events are described in roughly the order in which they occur in a typical case. However, keep in mind that state-specific and case-specific variations are possible. As well, preparations for various aspects of the case may occur simultaneously. You and your lawyer may find yourselves preparing for more than one event at [Attach lawyer’s business card here] a time. Please read this manual carefully and refer to it often as your case progresses. It is sure to answer many of your questions and trigger important conversations with your lawyer. fa

FAMILY ADVOCATE 3 From bank statements to children’s artwork, these important papers will tell the story of your marriage GRAB THE DOCUMENTS By MILESMASON,SR.

Documents are Documents tell the tale of those choices and and manila file folders throughout your home. the lifeblood of are objective witnesses. Your family law attor- When lawyers say “documents,” they mean . Every day, ney will need these documents to adequately the paper copies (or “hard copies”), the elec- spouses make represent you in your divorce. tronic versions, or both. Today, almost all choices. Those Before assets and debts can be divided, they scanned documents will be in Adobe Acrobat’s choices are first must be identified, classified, and valued. “PDF” format. For example, bank statements documented in Classification means determining what is sep- can be mailed to you, or you may download credit card arate property and what is marital or commu- them online, usually in a PDF format. But statements, nity property. In determining spousal and personal financial management programs, bank statements, , courts look at what the obligor such as Quicken or Quickbooks, may generate tax returns, and spouse (the one who must pay) earns, and that reports of monthly income and expenses. many other records. analysis depends in large part on what the These reports may be printed on paper or Unless altered, spouse’s earnings history has been. Your stored in PDF format. Your lawyer may prefer documents spouse’s income history may be reflected in the to have the electronic versions of these files, don’t lie. many pieces of paper gathering dust in closets and he or she may even ask you to obtain a

4 FAMILY ADVOCATE www.ambar.org/clientmanual copy of the entire personal-finance software program as well. going back around eight years. For less valuable assets and If you can easily obtain the hard copies and the electronic debts, only three to five years’ worth may be needed. It just copies, get both. Save the electronic versions of the documents depends. When in doubt, copy it. But before going to a great to a thumb drive, burn them to a CD, or e-mail them to your deal of expense or effort, talk with your lawyer. Getting the lawyer. Because making copies of voluminous documents can right answer to a quick question can save time and money. be costly, you may want to avoid copying. However, skip pho- tocopying only if you are absolutely sure that the electronic Establishing Credibility versions are exactly the same as the paper copies. Talk with your lawyer about who should Memories fade with time. One particular number or date on make the copies, handle the scan- one particular page among thousands can become very For major ning, and/or organize the docu- important if it validates your testimony or contradicts your documents, ments. To save money, some spouse’s testimony. In divorce, credibility is one of the most lawyers encourage clients to copy important aspects of any case. Once a judge determines a such as and organize documents them- spouse’s statements can’t be trusted, recovering credibility financial selves. Other attorneys will per- can be very difficult. statements, form these tasks to handle them You may need to print or download online banking and within their own document man- brokerage accounts from the Internet. If so, you may need a tax returns, agement system. Who copies, login and password. If you don’t know them and your name and broker- scans, and organizes documents is on the account, call the bank or brokerage firm and ask for age account often depends on the size of the help. If your spouse is a buddy of the banker or stockbroker, estate and the complexity of the you may want to talk with your lawyer before calling to statements, disputed issues. obtain that login information. Sometimes, a call for login Once assembled, take the help and passwords can tip off the other spouse that a you may want divorce is imminent. every single documents to your lawyer. Some clients wait too long, accumulat- page you can ing as many documents as they The Smoking Gun put your can, before they bring in any- Bring to your lawyer any information or documents that are hands on thing. The next thing they know, potentially damaging to your case. Some clients pray the weeks have gone by. Don’t be other spouse won’t find a “smoking gun” document and go afraid to grab a bunch of documents, throw them into a box, to great lengths to hide the document amidst a mass of other and bring them to your lawyer’s office. (Use the checklist on documentation or they simply won’t produce it. This is a pages 9–10.) You can always make more than one trip. In mistake. If you produce five years of credit card statements, some cases, lawyers may only want a copy (or scan) of the hoping to bury one embarrassing statement in a stack of doc- documents and ask you to replace them quickly so that your uments, the opposing attorney will almost always find it. spouse does not miss them. Speed is important. Likewise, if you omit a particularly damaging statement, Some documents contain important information that may the missing page may stick out like a sore thumb. If that page not be apparent when you first locate the document. Dates, eventually gets discovered and turns out to list charges for an times, places, amounts, payees, and other details may become out-of-town trip with a previously undisclosed paramour, terribly important later in the case. The values of assets at the your own lawyer can be blindsided in negotiations or, worse, time of marriage also may be important, especially if the mar- in court in front of the judge. Active concealment of docu- ital or community property to be divided includes apprecia- ments—from your own attorney, as well as from the other tion of separate property. Depending on your state’s law, side—can destroy your credibility. Many experienced family figuring out what amount is separate property may depend law attorneys will tell their clients to assume that the other on the value of an asset as of the date of marriage, the date it spouse will find out everything and, thus, clients need to was received in inheritance, or the date it was received as a share with their lawyer everything damaging to the case. Only gift. This means you may need documents going back in time careful planning with your attorney can safeguard your cred- as far as the date of the marriage. ibility with the judge and minimize any potential embarrass- For major documents, such as financial statements, tax ment and/or financial costs of the divorce. returns, and brokerage account statements, you may want Following is a list of documents to obtain. Your spouse every single page you can put your hands on. For other doc- may receive similar instructions from his or her own lawyer. uments, such as those concerning a major acquisition of a If a particular document is not listed below, but looks impor- business interest seven years ago, you may want documents tant, include it anyway. Always better to be safe than sorry.

FAMILY ADVOCATE 5 tificates, charters, and corporate minutes. For partner- Important Financial Records ships and limited partnerships, look for any documents titled or captioned as an “agreement.” For limited lia- bility companies, search for operating agreements. For “trusts” or “joint venture agreements,” those words may 1. Financial statements. Financial statements are submit- be in the titles or headings of key documents. Know ted to banks and lending institutions to document the that, for any type of business or trust, the documents borrower’s ability to pay back a loan. “Financial state- may be titled or headed using many different combina- ments” is a general term describing statements of net tions of words. If you think your spouse owns part of a worth, balance sheets, profit-and-loss statements, business, even a small part, tell your lawyer. income statements, and statements of cash flow. 8. Resumes. Resumes for you and your spouse can be very 2. Income tax returns. Obtain as many personal, corpo- important if one or both spouses are not earning as rate, partnership, joint venture, or other income tax much money as in the past or are voluntarily under- returns, state and federal, including W-2s, 1099s, K-1 employed or unemployed. forms, and supporting schedules, for as many years of 9. Internet history, e-mails, and the marriage as possible. If a business is involved, also instant messaging records. The try to obtain corporate tax returns and personal prop- A prior year’s Internet has made divorces more erty tax returns filed at any time throughout the mar- final pay stub complicated. If you suspect your riage. Supporting documents are important, too. These spouse has cheated, computer may be attachments, receipts, or schedules, such as can be a records on the family computer depreciation schedules. great source should be one of the first places of income investigated. Forget investigators detail taking photos at a hotel, the lat- 3. Pay statements. Pay stubs often show bonuses, com- est trends are copying hard missions, overtime, retirement benefits, and contribu- drives and e-spying. From experience, your lawyer can tions to 401(k) plans. A prior year’s final pay stub can tell you that e-mail and Internet passwords are never as be a great source of income detail. Pay stubs showing secure as they seem. Never assume that pressing earnings year-to-date will be needed periodically “delete” actually removes the electronic record. When throughout the case. in doubt, consult with an electronics evidence expert. To the extent you already have them, bring your lawyer 4. Bank account information. Copy all monthly bank any electronically stored documents or files, e-mails, or statements, check stubs or registers, deposit slips, and Internet page history printouts. But never hack into canceled checks for all personal and business accounts, your spouse’s computer. Also, never add spyware to any certificates of deposit, and money market accounts computer. Doing either may be a crime. from banks, savings and loans, and credit unions.

10. Stock options. Many spouses have stock options related 5. Brokerage account statements. Obtain all statements to employment as an incentive or part of a compensa- from brokerage and investment accounts held individ- ually, jointly, or as a trustee or guardian. These tion package. Some stock options can be extremely accounts typically include stocks, bonds, CDs, and valuable. To determine the value of stock options, you mutual funds. Also, let your lawyer know if you or may need certain records that are only available through your spouse possess physical stock certificates or bonds. your spouse’s employer. However, some important doc- umentation may be in your possession or your spouse’s. 6. Loan applications. For all mortgages, second mort- To the extent possible, make copies of detailed plan gages, home equity lines of credit (HELOCs), credit descriptions or plan summaries; benefit statements; cards, lines of credit, car loans, and promissory notes, employment contracts; schedules of vested and unvest- loan applications may include personal and business ed granted stock options listing numbers of options, financial statements showing assets, debts, and income exercise dates, exercise prices, expiration dates, and vest- declarations. Because often business owners are person- ing dates; and all company-provided information, such ally liable for business debts, you will want to copy any as employment manuals, brochures, handbooks, and other documents showing why the debt was incurred. memoranda describing or detailing stock options and 7. Business ownership records. For corporations, find all employees’ rights to benefits, including reload and records indicating ownership interest, such as stock cer- replacement provisions.

6 FAMILY ADVOCATE www.ambar.org/clientmanual 11. Pension plans, profit-sharing plans, deferred compen- 15. Real estate. Pull all real estate deeds, closing state- sation agreements, and retirement plans. If any of ments, tax bills, appraisals, mortgages, security agree- these are provided through your employer, request ments, leases, and other evidence of any type of inter- them from the employer’s human resources department est or ownership in real estate, whether as owner, now. The request may take time to process. To the co-owner, fiduciary, trust beneficiary (vested or contin- extent available, obtain the following: gent), partner, limited partner, shareholder, joint • All benefits statements; venture participant, mortgagee, developer, manager, or • The most recent benefits statements, if issued otherwise. quarterly or monthly; • Summary plan descriptions or “SPD”; • The plan’s qualified domestic relations order (QDRO) procedures; 16. Personal property or “stuff.” Assemble all invoices, • Full text of the plan itself, if available; and, receipts, contracts, and appraisals on all personal prop- • Booklets, pamphlets, information sheets, or other erty worth enough to worry with, including furniture, written materials distributed by the plan or the plan fixtures, furnishings, equipment, antiques, and any type sponsor to employees or participants concerning of collections. This includes cars, RVs, motorcycles, rights to plan benefits, types and forms of benefits, boats, and jet skis. For all motor vehicles and watercraft, and options and elections under any plan. you need titles, invoices, purchase orders, contracts, loan applications, appraisals, lease agreements, registra- tions, and payment books. Later, your lawyer may want 12. Credit card statements. For all credit card accounts, photos of valuable or other important assets, such as provide your lawyer with copies of all statements and antiques, china, crystal, jewelry, or artwork. receipts. If there are many, just throw them into a bag. Your lawyer can go through them later, if necessary. If any of the credit cards are issued for your spouse’s busi- ness use, tell your lawyer. You may be able to obtain 17. Employment records, contracts, and explanations of records for those accounts directly from the employer. benefits. Many employees have some form of employ- Also, look for copies of business-expense reimbursement ment agreement or contract, even if it is not formally forms. Sometimes charges associated with boyfriend or labeled as such. It may just be a letter. Your lawyer will girlfriend expenses are placed on business credit cards in likely need documentation of compensation, including an effort to hide them, regardless of whether the amount bonuses, commissions, raises, promotions, expense is likely to be reimbursed by the employer. accounts, and other benefits or deductions of any kind. 13. Other debts. Bring documents reflecting all remaining If you can get an employment handbook or manual, debts and accounts owed by you or your spouse, secured copy that too. and unsecured, including student and personal loans. 18. Wills, living wills, powers of attorney, and trust agree- Your lawyer will need proof showing the name of the ments. Whether they were executed by you or your debtor and/or creditors, the date each debt was incurred, the total amount of the debt, and the unpaid balance. spouse, pull together all records of wills, living wills, Dividing debts can be as important as dividing assets. powers of attorney, and trust agreements or declara- tions, as well as copies of all statements, receipts, dis- bursements, investments, and related transactions. Powers of attorney are special documents that may 14. Insurance. Your lawyer needs copies of all insurance allow a person to act legally on behalf of another. They policies, including, but not limited to, life, annuity, can be very dangerous in a divorce. If you even suspect health, accident, homeowner’s, renter’s, casualty, motor you have signed a power of attorney, tell your lawyer. vehicle of any kind, property, or premises liability You may need to revoke it immediately. insurance. Also, many policies have separate “declara- tion pages” listing the specific names of owners, benefi- ciaries, and key financial information. Finally, make sure to obtain recent statements showing balances and 19. Membership agreements or contracts. For all country premiums due. These statements generally are issued clubs, private clubs, associations, or fraternal organiza- monthly, quarterly, or annually. If appraisals have been tions you and/or your spouse belonged to during the obtained to insure valuables under a homeowner’s marriage, assemble all membership agreements and insurance policy, copy those as well. monthly dues statements.

FAMILY ADVOCATE 7 entries. For example, you may want to research a refer- ence to a credit card charge for Victoria’s Secret from two years ago. 20. Lawsuits and judgments. Give your lawyer copies of all 28. Intellectual property. If your spouse ever talked about pleadings in any legal actions to which you or your receiving royalties from patents, trademarks, copyrights, spouse has been a party, including bankruptcies and trade secrets, or other intellectual property rights, tell prior divorces as well as prenuptial or antenuptial agree- your lawyer. Any records regarding intellectual property ments. and its development, submission, purchase, sale, and 21. Gifts and charitable contributions. Include all records royalties can be very important. pertaining to gifts of any kind. For charitable giving, Fault. income tax returns likely have the necessary informa- 29. Give your lawyer any paper, letter, note, e-mail, tion. But if either spouse has made nondeductible gifts, or card describing or evidencing your spouse’s fault in pull that documentation, too. Include gift tax returns. causing an end to the marriage. This is why you kept your spouse’s “please, forgive me” e-mail. Or if you 22. Medical records. If you or your spouse has a serious wrote one, your lawyer will want to read it, too. medical condition that limits or prevents employment, your lawyer may need records documenting the diag- nosis; the names of treating physicians; evaluation Disputes Over Children reports; and prescriptions for medical, psychiatric, or If you have children, obtain the following documents, notes, psychological treatments. and other valuable records immediately. Even if there appears 23. Cellular phone, home telephone, and long-distance to be no dispute now, one may arise later. It is smart plan- charges. For all telephone lines, detailed records of ning to have a copy of these documents in your lawyer’s file. calls could be important, so grab them. If you have the 1. Report cards and notes. Report cards and teacher’s ability to research outgoing and incoming phone num- notes from parent-teacher conferences can be impor- bers over the Internet, do it and print out those records tant. Your family lawyer may want to determine trends for as far back in time as possible. Even if you think of improvement or decline in your children’s grades. you will never need them, you might. 2. Cards, drawings, and sample photos. Children some- times show love, affection, and emotional ties in their art or schoolwork. If you’ve saved some, a quick look 24. Inventory of safe deposit boxes or in-home safes. Not through them may be worth the effort. A handful of many people keep a written inventory of safe deposit photos of the children enjoying daily living with you is boxes or in-home safes. But if you have one, copy it. If always good to have, too. Plus, in the courtroom, pho- you can easily make an inventory, do it. Go to the tos can demonstrate a level of happiness, stability, and bank, and see what’s there. normality that oral testimony just can’t match. If the 25. Tapes, letters, e-mails, and photos. Never tape a tele- kitchen, bathroom, living room, and children’s bed- phone conversation unless you talk with your lawyer rooms are clean, those photos can be used to defend first. If you have done so already, tell your lawyer. against a claim by the other parent that the kids’ living Gather all recordings, written letters, notes, and e-mails area is unsanitary or filthy. between you and your spouse. If you think a particular 3. Primary caregiver. Which parent has been the chil- photo may be important, bring it, too. dren’s primary caregiver? Any document or item show- 26. Notes or agreements. If you and your spouse ever dis- ing that you provided the children with food, clothing, cussed divorce and any notes were taken, they can be medical care, education, and other necessaries more important. Were any promises made? Promises broken? often than your spouse can be important if he or she is Have you ever signed any legal documents you didn’t claiming to be the primary caregiver. This can include understand? If you kept copies, take them to your anything from notes setting regular dental appoint- lawyer. ments to evidence of scheduling and driving the chil- dren to a tutor. Think about all of the other boring, but 27. Calendars. Personal or business calendars are among the necessary, day-to-day parenting you provide—but that documents you won’t know you’ll need until and unless is so often taken for granted. the case becomes contested. So copy them, just in case. Include calendars stored in computerized organizers, 4. Continuity, stability, and community records. Your smart phones, personal daily assistants, and daily plan- lawyer needs any document or item showing the ners. You may also want to investigate some of the importance of continuity in your children’s lives and

8 FAMILY ADVOCATE www.ambar.org/clientmanual the length of time they have lived in a stable and satis- factory environment. Copy any documents or records CHECKLIST of of the children’s home environment, school activities, and community involvement. Include pictures of tro- DOCUMENTS for phies or awards resulting from academic achievement, sports, church activities, or scouting. Financial Disclosure 5. Preference. Copy any document showing the reason- Financial statements able preference of the children to live with one parent statements of net worth or the other. Ask your lawyer about your state law. balance sheets Depending on the age of the children and your partic- income statements ular judge, this may or may not matter. profit-and-loss statements statements of cash flow Abuse. 6. Assemble any evidence of physical or emotional Income tax returns abuse of yourself, the children, your spouse, or any other state and federal person relevant to your family or the divorce. This can W-2s include photos of bruises, medical records of doctors’ 1099s visits, or police incident reports. K-1s 7. Other adults. Obtain any evidence of the character and supporting schedules attachments, receipts, or schedules behavior of any other person who resides in or frequents depreciation schedules the home of a parent and such person’s interactions with the children. Examples may include embarrassing Pay statements Facebook photos, Match.com listings, and the other Bank account information parent’s new boyfriend’s or girlfriend’s arrest records, bank statements bankruptcies, and lawsuits. Researching backgrounds in check stubs or registers the information age can be remarkably simple and stun- deposit slips ningly fruitful. canceled checks 8. Family calendars. When was that conference in Las Brokerage account statements Vegas? How many teacher’s conferences or soccer games physical stock certificates or bonds were missed? Family calendars could well be important Loan applications sources for documenting events. personal and business financial statements any other documents showing why the debt was incurred 9. Homemaker. Documents showing that the stay-at- home parent’s involvement has been important in the Business ownership records children’s lives could be relevant. Should one parent stock certificates stay at home with the children instead of working? Do charters any of the children have special needs? Is a religious corporate minutes education important? Have there been periods of home operating agreements trusts schooling? joint venture agreements In summation, it generally is a good idea to provide your attorney with as many records as quickly as possible early in Resumes the divorce process. When it comes to your attorney having Internet history, e-mails, and instant messaging records the documents described above, there is no such thing as too Stock options much or too soon. fa detailed plan descriptions or plan summaries benefit statements employment contracts MILESMASON,SR.,JD,CPA, prac- schedules of vested and unvested granted stock options tices family law in Memphis, Tennessee. He numbers of options is the author of The Forensic Accounting exercise dates Deskbook: A Practical Guide to Financial exercise prices Investigation and Analysis for Family expiration dates Lawyers, published by the American Bar vesting dates Association. For more information about his firm, go to employment manuals www.MemphisDivorce.com. brochures handbooks memoranda FAMILY ADVOCATE 9 reload and replacement provisions Pension plans, profit-sharing plans, Membership agreements or contracts Cards, drawings, and sample photos deferred compensation agreements, country clubs, private clubs, asso- love, affection, and emotional ties and retirement plans ciations, or fraternal organizations shown in artwork or schoolwork all benefits statements membership agreements handful of photos of the children most recent benefits statements monthly dues statements enjoying daily living summary plan description kitchen, bathroom, living room, qualified domestic relations order Lawsuits and judgments and children’s bedrooms (QDRO) procedures copies of pleadings bankruptcies Primary caregiver full text of the plan itself, food, clothing, medical care, if available prior divorces prenuptial agreements education, and other necessaries Booklets, pamphlets, notes setting regular dental information sheets Gifts and charitable contributions appointments Credit card statements nondeductible gifts evidence of scheduling and gift tax returns driving the children to a tutor Other debts Medical records Continuity, stability, and community name of the debtor and/ records or creditors records documenting the diagnosis importance of continuity in your date each debt was incurred children’s lives total amount of the debt names of treating physicians evaluation reports stable and satisfactory unpaid balance environment prescriptions for medical, home environment Insurance psychiatric, or psychological school activities policies treatments community involvement declaration pages pictures of trophies or awards recent statements showing Cellular phone, home telephone, and academic achievement, sports, balances and premiums due long-distance charges detailed records of calls church activities, or scouting Real estate Preference deeds Inventory of safe deposit boxes or in-home safes preference of the children to live closing statements with one parent appraisals Tapes, letters, e-mails, and photos mortgages Abuse text messages security agreements evidence of physical or emotional phone messages leases abuse e-mails photos of bruises Personal property or “stuff” medical records for doctors’ visits Notes or agreements invoices police incident reports receipts Calendars Other adults contracts personal and business evidence of the character and appraisals computerized organizers behavior of any other person who photos of valuable assets smart phones resides in or frequents the home Employment records, contracts, and personal daily assistants of a parent explanations of benefits daily planners embarrassing Facebook photos Match.com and other Internet employment agreement Intellectual property documentation of compensation dating listings royalties other parent’s new boyfriend’s bonuses, commissions, raises, patents or girlfriend’s arrest records, promotions trademarks bankruptcies, and lawsuits expense accounts and other copyrights benefits or deductions Family calendars employment handbook or Fault manual Homemaker Disputes over children showing the stay-at-home parent’s Wills, living wills, powers of attorney, involvement and trust agreements Report cards and notes children’s special needs signed documents notes from parent-teacher religious education statements, receipts, conferences home schooling disbursements, and investments improvement or decline in grades —M.M.

10 FAMILY ADVOCATE www.ambar.org/clientmanual ILLUMINATING ANSWERSTO 200+ FAQs Get the Answers You ACLIENTMANUAL Need Now. What are common visitation arrangements? Should I move out of the house? What are mediation and arbitration? Does the loser have to pay the winner’s fees? Who decides how much child support I pay? How can I prove that I am the better parent? What happens to my insurance? Can friends testify? FAQs: Frequently Asked Questions About Divorce How long PC513-1100-2801 will the divorce take? Nagging questions Published by the American Bar Association Section of Family Law, this handbook is about divorce can written by lawyers, accountants, and mental keep you awake health professionals. It provides answers to at night. the 200+ most commonly asked questions Illuminating Answer to about the divorce process, , 200+ Frequently Asked property division, settlement, and more. Order Questions About Divorce: Questions are organized by topic, and the yours today! A Client Manual will clear and concise responses will answer many See back cover help you sleep more of your concerns about divorce in general and or go to soundly. help you to focus future conversations with your lawyer on the unique problems at issue www.ambar.org/ in your divorce case. clientmanual. STAY CALM &CARRY ON PREPARINGFORAHEARINGON When you“ get to TEMPORARYORDERS the end of By JILLC.JACKOBOICE your rope, tie a knot OST PEOPLE NEVER IMAGINE THAT THEY COULD ONE DAY GET A DIVORCE.THE DECISION TO DIVORCE and hang USUALLY COMES AFTER THE LONG-TERM EMOTIONAL STRAIN OF AN UNHEALTHY, UNHAPPY MARRIAGE. on. At the outset of divorce proceedings, people are often Franklin” D. angry, sad, or anxious about their financial future and Roosevelt the well-being of their children. They are hardly in the best intellectual or emotional state to start the marathon of divorce litigation––a Mrace that will take them into the unknown. If you find yourself in this situation and you have hired counsel, take comfort in the fact that your job is to provide your attorney with information about your life, most of which is readily available to you. Your attorney will know how to use this information, apply the law, and persuade your estranged spouse or the court to resolve the case based on your point of view. At the commencement of a divorce action, either spouse can ask the court to enter various temporary orders to help the family manage its affairs throughout the divorce process. If there is disagreement regarding the terms of the temporary

12 FAMILY ADVOCATE www.ambar.org/clientmanual orders, the court will set a each party can function day violence an issue; and, any child in a credible manner. hearing on the matter. to day as the case progresses. other topic raised by either Present your attorney with Many people have no prior Be ready to discuss these party. a recent photo of each experience with litigation questions with your attorney Although the list of possi- child with his or her name, and are uncomfortable when you meet to prepare ble issues seems overwhelm- current age, and grade in facing this new experience. for your hearing on tempo- ing, few cases have more school clearly marked on Fortunately, preparing for a rary orders. than a handful of these. the back. Provide your hearing on temporary orders Educate yourself about the attorney with a written is a matter of presenting and Your To-Do List issues in your case and be proposed parenting schedule confirming what you do Most people appreciate a to- prepared to talk about them that clearly states when know––the trick is to do it do list to keep them focused with your attorney. children will spend time in a way that streamlines during this tumultuous with each parent. Obtain a the process for your attorney process. Following are my  Outline the informa- copy of the school calendar and helps the judge in your suggestions. tion that is important to for your attorney to share divorce case understand the your children. This infor- with the court. information provided and  Meet with your mation will be important to Be ready to tell your agree with your proposals. attorney in advance of the judge and will provide attorney and the court The most common your hearing and inquire your attorney with the about your child’s activities. purpose of a hearing on about the topics to be ability to talk about your If your daughter attends temporary orders is to ask covered. Ask your attorney the court to establish some why a hearing has been three-ring binder is your ground rules regarding the scheduled and what topics Get new best friend. It is also actions of each spouse will be discussed and decid- Organized A a cost-effective and time- during the divorce case. ed. While this may be out- efficient tool for gathering the In some jurisdictions, tem- lined in the pleadings filed information your attorney needs to porary orders are entered with the court, it is helpful advocate on your behalf. One of to review the agenda when ex parte (on behalf of one the problems with hearings on preparing with counsel. party), simultaneously with temporary orders is that there is the initial filing of the case. These topics may include never enough time to cover all In those jurisdictions, the whether any asset owned by issues. Another problem is that because the hearing purpose of the hearing is to either spouse should be happens so early in the case, important information, change the terms of an ex frozen by the court; should which the court needs to make a good decision, is often parte temporary order previ- the court enter an order missing. The more accurate and organized the informa- ously entered by the court. prohibiting the change of tion, the more your attorney will get accomplished. Either scenario prompts any health or life insurance All of this is really not that difficult to do, consider- the same analysis. How can beneficiary or other term of ing you likely have this information at your fingertips. the status quo be main- policy; should the court Prepare three notebooks, label one for your children, tained during the divorce limit spending or access to another for family income and expenses, and a third for case? Should the status quo liquid assets owned by assets and debts. Most jurisdictions have specific forms be maintained, or should either spouse; which spouse for divorce litigants to use in outlining their assets, the court change the status should remain in the family debts, income, and expenses. Ask your attorney if there quo to protect the parties, home; whether family mem- are specific forms and, if so, use them to help your the children, or the marital bers should attend counsel- lawyer prepare for the hearing. estate? Who will reside in ing; what schedule the Complete the forms in detail, compile relevant the family home? When will children should follow to documents regarding each of these topics, and organize the children spend time maintain with both them into an indexed three-ring binder, complete with with each parent? Who will parents; how much spousal a table of contents so that your attorney can find each pay ongoing family expens- and child support should relevant document quickly. Familiarize yourself with es? Are there assets that need be paid; which bills will be this information so that you can effectively educate to be protected? Does each paid by each spouse; your attorney about your specific situation and imme- spouse have the funds to whether either spouse is in diately (and accurately) answer any questions posed to properly prepare his or her need of funds for legal fees you during the temporary hearing. Review the note- divorce case? or other expenses; whether a books with your attorney in detail when you meet to These questions need custody evaluation should prepare for the hearing. — J. J. immediate answers so that be ordered; is domestic

FAMILY ADVOCATE 13 gymnastics every Thursday, and how best to accommo- whether additional training meet with your attorney. the judge will likely want to date his needs within the or education will be neces- Your list may be full of accommodate her continu- terms of the . sary. Prepare a budget for holes, especially if you are ing to do so. Provide docu- yourself and estimate a not the party who has access mentation to your attorney  Have a proposal in budget for your spouse. to account statements, in advance of the hearing mind for sharing income Often, it is helpful to appraisals, or balance sheets. about the cost of your and expenses during the review previous bank and Rest assured that any holes children’s health insurance, divorce case. Your first credit card statements to will be filled once your work-related child-care step is to identify every determine how much your attorney obtains the neces- expenses, private school source of income for the family spends each month sary information from your tuition, or other ongoing household, as well as every and where the money goes. spouse or third parties expenses. These issues may expense for both spouses Meet with your attorney in through the discovery affect child support. and the children. Ask your advance of the hearing and process. You can obtain this infor- lawyer whether a specific provide an overview of this When you meet with mation directly from your form is used in your juris- information. Ask your your attorney, review this list employer’s human resources diction and, if so, use it to attorney to calculate how and discuss your concerns, department, daycare, or document your gross and much maintenance and proposals, or questions school. If you think your net take-home pay. Obtain child support will be ordered regarding each asset and child would benefit from the same information from in the case. If the topic of debt. Identify which assets counseling, be ready to your spouse, either through your hearing on temporary are liquid and discuss with explain why and have a list records you have at home orders is spousal or child your attorney how those of recommended counselors (tax returns, bank state- support, you and your assets should be spent or near your child’s home or ments, and pay stubs) or attorney need to know preserved during the divorce school. Educate yourself as from records your lawyer the nuts and bolts of your case. Consider whether the to the cost of the counseling obtains from your spouse. If income and expenses as family home should be you want the court to order. you have not been employed well as your spouse’s income awarded to one party or If your son has special outside the home, assess the and expenses to support the prepared for sale. Discuss needs, be prepared to edu- amount of time it will take argument your attorney will which party should assume cate your attorney and the for you to return to the be making on your behalf. the debts. Anticipate that court about his condition workforce, including if a party receives an asset  Prepare a summary encumbered by debt, such of your net worth. Work as a vehicle, that person will Dress for our appearance and demeanor with your attorney to deter- be required to assume the in court is almost as important mine whether you need to accompanying debt, such as success Yas what you say. I always suggest ask the court’s assistance in the monthly car payment that my clients dress as if they are going preserving the net worth of and related costs. Help your to church, but not a wedding or a the family, valuing various attorney become familiar funeral. In other words, be generic. This assets, or gaining access with your family net worth is not the time for a fashion statement, to or possession of specific and ask for guidance in revealing clothing, or flashy jewelry. assets. The first step in protecting and preserving For men this means slacks, a shirt this regard is to identify assets and your credit rating. with a collar, and a sport coat. Women every asset owned and debt should wear a blouse and slacks or a incurred by either party. Identify which issues skirt. If your spouse will likely make an allegation about  Most jurisdictions provide are likely to be contest- you during the hearing, try not to look the part. If your a specific form to assist ed so that you can start husband will contend you are a party girl, don’t wear a divorce litigants in this working on them now. short skirt or a low-cut blouse. If your wife will portray process. Complete this form If the fair market value of you as physically or verbally abusive, don’t wear black from head to toe. in as much detail as possible the family business will be Your appearance will make an impression on the and provide it to your attor- an issue, provide your attor- judge. Make it a good one. If you show up in jeans and ney prior to your hearing. ney with ample information a tube top, the bailiff may smile broadly, but the court Prepare a one-page list of (if available to you) to is not likely to view you as credible. (See also Do’s and each asset and debt, includ- discuss the issue with the Don’ts on page 30.) —J.J. ing your estimate of values court at the beginning of and amounts owed. Use this the case. You want to know list as a reference when you what the judge finds most

14 FAMILY ADVOCATE www.ambar.org/clientmanual helpful or convincing in do things by a certain date. may even conduct the hear- Show respect for the this regard. That being said, if dates ing in your absence if you  court. Stand when the In some jurisdictions, the and deadlines are being are tardy. The court will judge enters the room. Turn court is willing to provide set, make sure you can assume your case is not a off your cell phone. Be quiet helpful direction to the meet them. Speak with your priority for you, and your when other cases are being parties and their counsel attorney if suggested dates absence will make your discussed. If the judge says on these types of topics. If and deadlines are unwork- attorney nervous and likely something you do not like you and your attorney have able. The court’s ruling less affective. You know or rules against you on an discussed hiring an expert regarding any temporary yourself: if you are the type issue, keep your game face witness, your attorney orders will be in place until of person who always runs on. You don’t want the may request that funds be the case is disposed of. ten minutes late, then judge to remember you in released from liquid assets Absent another hearing, plan to get to court thirty a negative light in the event to retain your expert. Be there may be uncertainty minutes early. Tardiness you must appear before this prepared to tell the court about when the case will be will harm your case. judge in the future. which expert you want to finalized. If the court is With organization and hire and the estimated cost willing to do so and your  Don’t expect the careful planning, your of doing so. attorney believes it is judge to be on time. hearing on temporary orders If child custody will be appropriate, obtain a status Cases usually take longer should provide some short- an issue, your attorney conference or trial date. than the time allocated. term stability for you and may request a child custody This ensures that your case Don’t be surprised or your family in that assets evaluation or a home study. will keep moving, with a frustrated if your hearing will be preserved and pro- If mediation is required in target date in sight to resolve does not start on time. tected, a parenting schedule your jurisdiction, the court the case on a permanent Make sure to block will be set, spousal and child may select a mediator at basis. Despite advances in sufficient time from work, support will be ordered and your hearing and order you technology, it is still easier arrange childcare, and plug paid, and other short-term and your spouse to attend. to get something scheduled the parking meter with emergencies will be satisfac- Pay close attention to what when everyone is in the coins to maintain your torily addressed. the judge says during your same room. availability for the hearing. The suggestions above temporary hearing. If the are designed to ensure that court directs you or your Prepare yourself for  Expect a crowded your experience with the attorney to do something, the unfamiliar environ-  courtroom. This is a court family-law court will be as make sure you adhere to ment of the courtroom. appearance, not a dental positive, informative, and that order and that you Find out where the court- appointment. You are not as reassuring as possible. do whatever is asked in a house is located and where the only case on the docket. However, your role is essen- timely way. to find your specific court- There is likely to be a tial. Do your best to gather, room. Inquire about the courtroom full of attorneys, organize, and provide all Ask your attorney best route to take, as well as  litigants, and staff. Don’t be relevant information to whether the court will your best parking option. discouraged. This is normal. your attorney, so that he or enter a scheduling order. The stress of unanticipated When the court calls your she can proceed in a cost- If so, be prepared to one-way streets, heavy case, no one else will be effective and timely manner participate in the scheduling traffic, and full parking paying attention to you. and achieve the best possible aspect of your case by garages is not something They have their own issues outcome to your hearing on having your work, travel, you want to deal with on to fret about. temporary orders. fa and family schedule at your the morning of your fingertips. Since both parties hearing. You need to know and counsel are present in where you are going and court, your attorney may how long it will take to JILLC.JACKOBOICE practices exclusively in the area of family law in Missouri and ask the judge to set dead- get there. Kansas. She is a partner in the law firm of lines for the exchange of Jackoboice & Fisher. In 2005, Ms. Jackoboice Be on time. Better information, designation of  was the recipient of the Congenial Counselor experts, closure of discovery, yet, be early. The judge Award from the Kansas City Metropolitan Bar etc. Your case will move will not look fondly on you Association and was included in The Best Lawyers in America in along more smoothly if if you are late to court. 2008, 2009, 2010, and 2011. She was designated as a Missouri specific deadlines are set, Judges want to run their and Kansas Super Lawyer in 2007, 2008, 2009, 2010, and 2011. mandating that both parties dockets in a timely way and

FAMILY ADVOCATE 15 Litigation has two “sides,” each trying to pull “the truth” their way THE TEN RULES OF POWERFUL WITNESS PREPARATION Your deposition and trial testimony

By DANIELI.SMALL

OT SO LONG AGO, persuading dangerous world. In this world, C.J. is intelligent and articulate. people that they needed it’s not just about experience and She is clearly nervous and angry extensive preparation before intelligence. It’s about preparation about the situation––and takes it out testifying in a legal proceed- and understanding the audience, the on counsel by being sarcastic, uncoop- ing was a battle. Many confi- rules, and the “core themes” of the erative, and not eager to take advice. dent, articulate executives case. Even executives who have spent Counsel is trying to make her under- were convinced they could years mastering the corporate world stand the need to prepare. Then, in just “go in and tell my must, nonetheless, understand that this the middle of talking about what story,”N and they were insulted by the takes commitment, time, and effort. happened, counsel stops, and there is notion that they needed some lawyer roughly the following exchange. to prepare them. Too many experi- enced lawyers didn’t push back. This Is Not a Conversation Counsel Do you know what time it is? Then came an explosion of high- Several years ago, the television series, C.J. Sure, it’s 4:30. profile lawsuits and investigations, and West Wing, had a series of episodes Counsel You’ve got to get out of the with them a parade of highly success- about a scandal in the White House. habit of doing that! ful executives who proved to be very The president had multiple sclerosis, C.J. Doing what? bad witnesses. Gates, Stewart, Libby, and he and his advisers did not dis- Counsel Answering more than Kozlowski, Lay––the list goes on. close it. The news has now broken, was asked! (Pause) Now, people faced with the prospect and an investigation has been Do you know what of being a witness may wonder if there launched into whether top aides broke time it is? (Long Pause) is some reason this happened and if it the law in covering this up. The presi- C.J. Yes. could happen to them. The answers dent’s press secretary, C.J., has been Counsel Now we’re making progress. are “yes” and “yes.” It happened subpoenaed to testify and has been We’ll take a break and meet because people failed to understand called to meet with the White House again later today. that they were entering a different and counsel to prepare. If as a witness you learn nothing

16 FAMILY ADVOCATE www.ambar.org/clientmanual else, learn the answer to the question, through, and control the pace. heard, or did.” Hard to do. “Do you know what time it is?” The Lawyers want rapid-fire Q&A, but right answer is the difference between if the lawyer makes a mistake, no Be relentlessly polite. This will a conversation and testimony. In a one cares. If the witness makes a 4feel personal. They’re attacking conversation, the answer “yes,” the mistake, it is “the gift that keeps you––or your employer or col- accurate answer, the precise answer, on giving.” From the very first leagues. But remember that a wit- is a bad one. That’s not what the question, slow it down. Do it ness who is angry or defensive isn’t questioner meant. That’s not where mechanically, consistently, and thinking clearly and isn’t control- the conversation is flowing. In the for the right reason: This is ling the language or the pace. unnatural and precise testimony important! Lawyers know that. A few garbage environment, it is the right answer. questions and off we go. It’s a That is a core difference between a Remember, you are making a scam. Don’t fall for it. Kill them normal conversation and testimony. 2record. You are dictating the first with kindness. Be relentlessly Testimony is not a conversation. It and final draft of a very important polite, positive, and focused. does not “flow” or entertain. It has its document, with no rewind or own language and its own rhythm. erase buttons, so slow down and Don’t answer a question you “Question, Pause, Answer, Stop.” think about language. Certain 5don’t understand. Is it vague Guessing, interrupting, and volunteer- words can take on special mean- language, strange phrasing, or ing are common in conversation, but ings––good or bad. Learn what distorted assumptions? Is it just often inappropriate and dangerous in they are in your case, remember- too long to be clear? It doesn’t this narrow and artificial world where ing that words can have different matter why the witness doesn’t every word is taken down under oath meanings to different people. understand a question. Don’t and may be picked apart. There will be only one transcript. answer it. Just say, “Please rephrase In this world, the questioner Make sure you understand and the question.” Then hold your appears to be in control. It’s an illu- control the meaning. ground: Trying to impose that sion, but even the most accomplished discipline will generate several witness can fall victim to it. Don’t do Tell the truth. We think of wit- standard “wiggles and squirms” it. Remember, the witness has the right 3nesses taking an oath to tell the from the questioner. Know what and the responsibility to take control. truth, but they don’t: You take an they are and prepare for them. We all participate in meetings. We all oath to tell, “the truth, the whole know the best way to control a meet- truth, and nothing but the truth.” If you don’t remember, say so. ing is not by shouting the loudest, but There are three parts to the oath 6Answer clearly. Just say, “I don’t by utilizing some clearly established for a reason. Oscar Wilde said, recall,” and stop. Don’t try too techniques or rules. Testimony is just a “The plain and simple truth is sel- hard, and don’t worry about what different type of meeting. dom plain, and never simple.” you don’t recall. Understand how Litigation has two “sides,” each different this is. In a conversation, trying to pull “the truth” their if one person doesn’t remember, The Ten Rules way. Like a tug of war, if the wit- the other person will move on. True witness preparation is an exten- ness doesn’t understand which way Not so here. Don’t change your sive and intensive process. At its core the questioner is pulling, and pull answer just because the question are ten rules for taking control: for back, the result is a distortion of is asked over and over. leveling the playing field and commu- “the truth.” The “whole truth” nicating effectively and safely in the includes both the good and the Do not guess. Much of what language of question and answer. bad stuff. This is not the time to 7makes people good conversational- We may spend hours working through be coy: The record should reflect ists and intelligent, intuitive, peo- them and practicing them with a both the good things you’ve done ple involves guessing. But guessing witness, but here they are, in rough and any problems. “Nothing but or assuming are inappropriate and summary. the truth” is a reminder that in dangerous for a witness. That this artificial environment––with includes hypothetical questions. Take your time. This is, amazing- every word under oath, recorded, Remember the great Jack 1ly, the most important rule and and picked part––truth is a nar- Lemmon scene: “Never assume! the one from which everything row concept: not what you guess If you ‘assume,’ you make an ‘ass’ else follows. Slow it down, think it or infer, but just what you, “saw, out of ‘u’ and ‘me!!’”

FAMILY ADVOCATE 17 Do not volunteer. “Question, the questioner, or the witness. long as it gives a clear sense of the 8pause, answer, stop.” We are not Never waive that important right. process. However, the tougher and used to silence, and questioners Most of these rules are difficult more realistic it is, the more helpful it know that. Practice the “stop.” A to master. They are contrary to will be to the client in the long run. I witness must become comfortable what we are used to, and often often have another lawyer in my office with the silence of waiting for counterintuitive. But if they are ask the questions, both to make it less the next question. Don’t do the practiced, they can impose a awkward for everyone in role-playing questioner’s job for him. degree of discipline and control and to show witnesses how I might act on the process that makes it in representing them. Be careful with documents. significantly more fair and Do a dry run and you will be 9Documents are just written productive. amazed at how productive it is. After versions of what someone you’ve gone through all the back- believed. Treat them mechanically. ground information, reviewed the There is a simple, unvarying The Preparation Process facts, and the “ten rules,” see it in three-step protocol that witnesses When I work with a witness to pre- practice. Ideally, a dry run should be should follow. If you are asked a pare for a deposition or an investiga- recorded in some fashion, if practical, question that relates in any way to tion, the witness often expresses and if covered by the privilege. This a document: (1) Ask to see the surprise at the length of the process, does not need to be that elaborate or document. Don’t allow anyone to saying something like, “I was deposed expensive. It can be as simple as draw you into a debate with a before, and my lawyer just told me to borrowing a tape recorder or video document that is not in front of meet him an hour before the deposi- camera and finding someone who you. You can’t win. (2) Read it. tion and we’d prepare.” That’s not works at home to transcribe the tape. There are three issues with any preparation. That’s more like malprac- Adapt the dry run to the proceed- document: credibility, language, tice. True witness preparation is an ing. If you are preparing for a deposi- and context. You cannot carefully extensive—and intensive—multi-step tion, you may want to have a tran- consider each of them unless you process. It demands a good deal of script of the dry run prepared, since read it. Read all of it, slowly and time, energy, and effort from both the goal of a deposition is to produce carefully. If the questioner has client and counsel. One of the keys a clear and accurate transcript. This chosen to ask you about a docu- to that process is a realistic “dry run,” will emphasize the strengths and ment, he or she has chosen to that is at least as challenging as the weaknesses of the testimony, allow the give you all the time you need to real thing, hopefully more so. witness to appreciate the final prod- read it. (3) Ask for the question Some years ago, I helped teach my uct, and address any weaknesses. Most again. It’s basic fairness. The ques- twin girls to ride a bicycle, with all witnesses have never seen their spoken tioner has read the documents the scrapes and bruises and tears that words in print. It’s a revelation. and picked out one little piece to came with that process. It was trau- ask about. Now that you’ve read matic. Try as I might, I could not it, the question will be clearer teach them to ride a bicycle by just Make an Impact (and you may get a better talking to them. Sooner or later, they Some years ago, a colleague of mine question). had to get on the bike and try it asked for my help in a divorce case. themselves. All I could hope was to be His client, the wife, had testified in a Use your counsel. Listen to there to help cushion the blow when deposition for one day, but had not everything that is said, under- they fell and console and teach them finished and was now scheduled for a stand what objections mean for when it happened. The same is true second day. However, my colleague you, ask questions when you can, for teaching someone to be a better was on trial in another case, had and take breaks before you need witness. already postponed this second day them––not after. No amount of discussion can fully several times, and was afraid that the Also, remember that counsel’s explain the question-and-answer court would not give him another role––and yours––doesn’t end process. Like anything difficult and extension (opposing counsel had when the deposition stops. In unnatural, doing it right takes prac- already refused). Would I step in on most states, the witness has the tice. The best approach is to do a dry short notice and represent her at the right to read and sign the deposi- run so the witness can experience the continued deposition? tion, to make sure there are no process firsthand. It doesn’t need to be When I read the transcript of the mistakes by the court reporter, formal or cover all possible topics, so prior deposition, I was disheartened.

18 FAMILY ADVOCATE www.ambar.org/clientmanual Here was an obviously intelligent, mechanically: Count to five in your the first hour, the husband’s lawyer honest, caring person who had never- head after every question. Over and was clearly in trouble. What many theless been a disaster as a witness. over, I insisted on that discipline in witnesses—and lawyers—don’t realize The marriage and divorce were both preparation. The mock deposition left is that just as anyone can be a bad ugly. The husband had been mentally her repeatedly in tears. Changing old witness if they are not prepared, any- abusive and dominating during the habits is hard in the best of circum- one can question a bad witness with- marriage. She had responded by stances. Much more so here. out much effort or preparation. always trying to “fix it,” by being ever y the time of the mock Questioning a witness who is prepared nicer and ever more helpful, until her deposition, I knew that and disciplined is far more difficult husband finally left her. Both of their she understood the rules and, at the very least, requires of the characteristics carried over into the intellectually. Still, I was questioner a much higher level of divorce and depositions. The husband not sure that she could preparation and discipline. This hired an old family friend as his pull it off emotionally. lawyer (like many questioners) was lawyer, which devastated her, and then When we walked into neither capable nor prepared enough pushed the lawyer to play hardball at opposing counsel’s confer- to deal with this new, highly disci- every turn. enceB room, both the husband and his plined witness. Worse still, in her deposition testi- lawyer were there and clearly feeling Through four hours of testimony, mony, she was still trying to “fix” this good. Why shouldn’t they? The first she remained consistent: polite, firm, mess by being helpful and by trying to day had gone so well for them; the well paced, and precise. After two give them what she thought they second day would surely be even more hours, the husband’s lawyer was liter- wanted. In doing so, she had commit- fun. If they could have sold popcorn ally squirming with discomfort. By ted all the classic witness mistakes: for the event, they would have. the end, it was clear to all (including she tried too hard, she didn’t listen We were all in for a surprise. Most the husband) that the deposition, as carefully, she talked too much, and of us are stronger than we––or oth- an effort to get her to say things they she was totally undisciplined and ers––give us credit for. Often, we can could later use against her, had been a imprecise in her answers. Mostly, she rise to great challenges, if we put our complete failure. She had given them just talked too fast; between her ner- heads and our hearts into it. My client nothing to work with and fixed many vousness and her giving nature, she had found that strength, and the of the problems of the first round. We couldn’t wait to try to be helpful. result was extraordinary. From the walked out in quiet triumph, with my I was not easy on her when we very first question (“Please state your client still being her demure, refined met. I told her that she was not going name.”), she sat up firmly and politely self. Out in the parking lot, though, to “fix” this litigation by being too in her chair, hands folded on her lap, she shrieked with joy, flung her arms nice in a deposition. She was only looked the questioner straight in the around me, and exclaimed, “That’s going to give her husband the ammu- eyes, counted slowly to five in her the first time in twenty-five years that nition to abuse her again. She was an head, gave the simplest possible I’ve been in control of that son of a intelligent, mature woman who had answer (“Anne”), and then stopped bitch!” been taken advantage of in a bad mar- and waited for the next question. What had she done? She took her riage and was now going to be taken By the time she had done this same time, she followed the rules, and she advantage of in a bad divorce if she thing for the first several questions in took control. There was no magic to did not take control of her future. The a row, everyone in the room (yes, I it, just hard work and concentration. first step toward taking control of her confess, including me) was stunned. Any witness can do it. But not with- future was to take control of this When she kept at it consistently for out hard work and determination. fa deposition. The first step toward doing that was to slow down.

We went at length through all the DANIELI.SMALL, a trial lawyer and partner at Holland & rules: Don’t guess, don’t volunteer, and Knight’s Boston and Miami offices, handles complex civil litiga- so on. However, the one we kept com- tion, white-collar criminal matters, and witness preparation. He is ing back to was rule one: “Take your a former federal prosecutor and former general counsel for a time.” The need to regain control of national healthcare management firm, and he was a Lecturer on the process was so dramatic that we Law at Harvard Law School. He is the author of several ABA books clearly had to focus on building a on litigation, including Preparing Witnesses (3rd ed., 2009), and a frequent media strong foundation with this rule. It commentator. was so important that we did it

FAMILY ADVOCATE 19  What to Bring to Yo ur First Mediation Appointment The “right” documents, information, and attitude

By GREGORYD.KINCAID

LITIGATED DIVORCE CASE IS RARELY AGRATIFYINGEXPERIENCEFORBOTHSIDES. HOLLYWOOD DRAMA ASIDE, MOST DIVORCE TRIALS ADO NOT END WITH ONE SIDE CELEBRATING VICTORY. At best, there is a sense of resolution. At worst, one and sometimes both spouses feel let down and disappointed by an outcome that is inconsistent with each party’s view of what is “fair.” Mediation, on the other hand, strives to find win-win solutions. It can be a faster, less intrusive, and less expensive alternative to trial. My experience has taught me that healthy and wise fam- ilies often gravitate toward mediation. They inherently have more trust in a cooperative (not competitive) structure for problem solving. The fact that you are reading this article and seriously considering mediation should give you some assurance that you are likely to achieve a satisfactory divorce outcome. I call this a sensible or “adult” divorce. Candidly, however, one spouse rarely achieves “the best possible outcome” through mediation, because “the best possible outcome” for one spouse too often comes at a hefty price for the other spouse or the children. In media- tion, the needs of the individual are often subordinated, or at least tempered, by the needs of others. At bottom, when we are doing this—fairly balancing the needs of others against our own legitimate self-interests—we are process- ing our divorce in a healthy, mature, or “adult” way. Congratulations for seeing the wisdom of this approach and being willing to come to the table. Now, the next step, how best to prepare?

20 FAMILY ADVOCATE www.ambar.org/clientmanual There are three distinct parts of the preparation statements to verify balances and account names. At process: (a) assembling documents; (b) familiarizing some point, the attorney or the mediator must draft oneself with the mediation process and family law; and agreements allocating the assets between the parties (c) adopting a helpful attitude. The first two are rela- and, if there are account statements, there will be no tively easy. The third part, which is probably the most confusion over which accounts are being described or important, can also be the most difficult. their exact values. Most mediators and attorneys have a list or a form you can use for this purpose. See also What documents Divorce Forms: Fact Gathering to Help Your Lawyer on should I bring? the back cover of this issue. In general, if you have children, most divorces are In addition to financial documents, if you and your going to involve five fundamental issues: a parenting spouse have already agreed upon a parenting arrange- plan (where the children reside), child support (How ment, be prepared to discuss that arrangement. If you will expenses for the children be allocated?), mainte- have not started the discussion, it might be best to nance (called “” in some states), division of allow the mediator to help you. Typically, this area is assets, and division of liabilities. emotionally charged and difficult. The first step in your preparation should be to assemble all the reasonable documents that you, your What should I know mediator, and your spouse may need to address these about mediation and five issues (three issues if there are no minor children). family law? For instance, child support is typically driven by the Mediation is an entirely voluntary process. The focus income of both parents. For many families, both par- tends to be on dialogue and not debate, consensus ents’ incomes are obvious. However, for some families and not competition. Typically, the first session is and, in some states, it’s not always as simple as one exploratory. might assume. For instance, should bonus income be Good mediation reminds me of arranging furniture included in the child-support calculation? How about in a new house. You set things down where you think car or cell-phone allowances? they might work, but you won’t know where things These are issues that will be resolved in the media- finally fit best until all the pieces are in place and tion process, and the more of this information you can you’ve lived with it for a while. Mediation is similar. Because mediators typically charge by the hour, it’s not productive to have lengthy discussions about whether one party is making $80,000 or $85,000 a year. It’s easier to simply say, here’s my W-2 bring to the meeting, the quicker the mediator and Don’t plan on making binding agreements at the first your family can move along. Because mediators typi- meeting. Instead, focus on possible solutions. Once cally charge by the hour, it’s not productive to have you’ve explored those possible solutions and allowed lengthy discussions about whether one party is making them to settle in your mind for a week or two, then it’s $80,000 or $85,000 a year. It’s easier to simply say, more appropriate to think about moving from negoti- here’s my W-2, here’s our tax return, or here’s a letter ation to settlement, which typically happens in the from my employer that sets out my exact compensa- second and subsequent meetings. tion and benefits. One of the responsibilities of the mediator is to In addition to your income information, it can be help the family define their priorities. Accordingly, it helpful to have a budget prepared for the anticipated may be productive for each spouse to think about and expenses of both spouses in their new post-divorce discuss what is really important before starting this homes. It may be too early in the process to complete process. Keep it general. “No matter what, let’s agree a budget in great detail. But if you have Beverly Hills to put the children’s needs first.” in mind, you may want to have a budget handy so the One of the most attractive features of mediation is feasibility of that address can be examined. its ability to be creative. You only get to this realiza- Finally, you need to make a list of all assets and lia- tion, however, if you enter the process with an open bilities. It’s most productive if you can have account mind and a willingness to explore all the alternatives.

FAMILY ADVOCATE 21 If, for instance, your husband indicates that he is not always possible to show up with the right attitude absolutely unwilling to pay maintenance or alimony, or to even know what the right attitude would look be patient and hear the entire concern before reacting. like if it were staring you in the face. Eventually, how- He may be willing to relinquish extra assets in lieu of ever, you should be able to accept the divorce without making monthly maintenance payments. In other feeling like a victim or engaging in blaming or fault- words, a husband’s interest may not be in denying his finding. The healthiest outcomes seem to come when wife the stream of payments to which she may be enti- families share a common goal of helping each family tled. It may very well be more about the painful member adjust to the new divorced-family structure. process of having to write a check every month. In Having the right attitude is not always easy. Some many instances, a lump-sum payment could actually patterned ways of thinking get many family members be advantageous. into trouble. These are some of the attitudes to avoid if you can. Please do not negotiate like Donald Trump trying to buy an office building at a steep discount. This is not business as usual. What sounds like a “good” deal to you may very likely sound like a “bad” deal to your children or your spouse. This is a personal relationship that requires interpersonal skills far more than busi- EFORE YOU ARRIVE FOR YOUR ness acumen. Leave the chisel at home. first meeting, have a beginner’s understanding of the An example might help. Assume it is clear that you Blegal issues that need to be resolved. Mediators are owe $1,400 in child support. Telling your spouse that generally required to advise you to have your own you might be willing to pay $1,000 for your children, lawyer. Your attorney should be able to give you a gen- but not a penny more, is likely to result in a post-medi- eral assessment of the law and some reasonable expec- ation call to your doctor. There is only one right answer tations. Remember, too, that a mediator is a neutral in this situation, so don’t try to negotiate. “I will always party and cannot give legal advice. support our children above and beyond what I am Feeling rushed, pushed, and controlled is not the hallmark of a cooperative process. Patience is helpful––in heaping doses. If you arrive at mediation knowing nothing about required to do. What can we talk about next?” family law, your mediator will not be irritated or frus- Feeling rushed, pushed, and controlled is not the trated. This happens. In ten or fifteen minutes, your hallmark of a cooperative process. Patience is help- lawyer can pass along the nuts and bolts you need. You ful––in heaping doses. Don’t expect too much from the will not, however, win the much-coveted “Client-of- first mediation session. Please don’t forget that you may the Year” award by arriving at the first session with a have been processing this divorce in your head for lot of misinformation. So, please try to avoid the free months or even years. Everyone else is not necessarily tutorial from Karl down at the gym. What Karl won’t on your timeline, so let the rest of us catch up. Just tell you is that he was divorced in 1964––in Sweden. because you are very eager to get out of this marriage Knowing next to nothing is far preferable to knowing does not mean that it’s smart to act like it! Let your Karl’s law or, for that matter, mom’s law, or Cousin spouse know that you’ll take the time necessary to do it Betty’s law! right, not just for you, but also for your whole family. Be open to the possibility that what you think is What’s the best attitude to terribly important may not be. For example, I’ve seen adopt about mediation? blood pressure shoot off the chart when one family The most important thing you need to bring to your member understates––or as the mediator in me wants first mediation session is the best possible attitude, or to say, conservatively depicts––his or her income. I’ve what I’ve described above as your adult self––capable had families become quite agitated over whether a of pursuing your own legitimate interests without spouse’s income was $85,000 or $90,000 a year, only ignoring the interests of other family members. to find out that the difference between those two Because of all the normal feelings of loss, anger, and incomes amounts to only $2.50 a month on a child disappointment that so often accompany divorce, it is support worksheet. Try to keep an open mind and

22 FAMILY ADVOCATE www.ambar.org/clientmanual simply allow the mediator to explore different options with you, based on various assumptions. Look for areas where you can let go and not dig in. Mediation can be a very creative process. That’s a good thing. So be creative. Try to focus on your interests, and don’t get stuck in a partic- ular position. There’s a famous mediation story that drives home the distinction between posi- tions and interests.

Position versus interest Two children are fighting over an orange. Not surprisingly, their mother chops the orange in The Four-Way half and gives one-half to each child. Both were unhappy. As it turns out, one child wanted the Settlement peel to make a cake, and the other child wanted the fruit to make a salad. Their mother’s resolu- tion to the conflict, although expedient, allowed Conference A settlement conference is a chance to try to resolve your case. neither one to get what was really needed. A Sometimes, a judge will sit in. At other times, the conference is more thoughtful analysis of their true interests between the parties and their lawyers, and possibly other key people. ––as opposed to their stated need of one fresh It is important to be ready for the conference. orange––would have allowed the decision maker Here are some tips to help you prepare. to reach a more helpful resolution. Likewise, for families, stating what you want is typically not as Before the conference helpful as clearly defining your interests. Making  Prepare a game plan or demands about what we want tends to foster  Schedule an appointment strategy with your inflexibility in negotiations with your attorney to plan attorney and make sure Try also to avoid platitudes. It’s not uncom- the settlement conference. you understand it. mon, for instance, for one parent to state that a  Give yourself enough time to  Discuss with your attorney consistent parenting schedule and not “bounc- provide documents or other whether the conference is ing kids back and forth” between houses is in the information that your lawyer confidential. children’s best interest. Although this certainly may need at the conference.  Assign who will talk about sounds laudable, the practical translation of it by  Share all papers that you which topics during the the other parent is “So what you are really saying intend to bring to mediation conference. Stick to your is that the kids should stay with you and never with your lawyer before the assignments. see me!” conference. The preparations suggested above should not  Make sure you have all During the conference take more than a few hours and are time well reports from experts or eval-  Refer to the child as “our” spent. If you can follow these simple steps, your uators, and ask your attorney child, not “my child.” chances of a reasonable outcome are high. any questions you may have. Use your lawyer if you do Mediation is a powerful process that has worked   Your lawyer may want to not understand something. successfully for many, many families. For more prepare any spreadsheets or Ask questions. information about the mediation process, talk schedules, such as asset-debt Be polite. No name calling. with your attorney or a local mediator, or ask spreadsheets or parenting-  Do not argue. Let the your lawyer for a copy of ADR Options: A Client time schedules, so have this other side talk without Manual, a publication from Family Advocate (see information available. back cover of this issue). fa interruption. Make a list of issues upon  Keep an open mind as to which you feel there is  settlement possibilities and GREGORYD.KINCAID agreement. is an attorney and family principles. Participate in law mediator who has  If there is something you good faith. have not told your lawyer, practiced for thirty years in  Listen. Johnson County, Kansas. tell it now before the meeting. —CARLW.GILMORE

FAMILY ADVOCATE 23 Te l l i ng Yo u r Children About the Divorce By SOLR.RAPPAPORT

Telling your children about your divorce is one of the most emotionally challenging and difficult things you will ever do. Most people who want a divorce spend months, if not years, thinking about it and how and when to tell their spouse. They don’t spend nearly as much time thinking about how and when to tell their children.

et, the manner in which parents tell with your children about what the future may hold. The their children about the divorce will set emotional upset that often accompanies divorce is normal, the stage for how the children perceive but not conducive to reassuring your children. and interpret everything that will hap- Second, you may not have all the information you need pen over the coming months and years immediately upon learning about the divorce. Your chil- relative to the divorce. This day will for- dren will want to ask lots of questions (even if they don’t ask ever alter your children’s lives. So think carefully about how them), and you need to have some answers before talking and what you will tell them and plan it out. You are setting with them. Ythe stage for how your children cope with your divorce. Third, the timing of when you tell your children will, in part, depend on the ages and developmental stages of each When do I tell my kids? child. A three-year-old won’t understand what you mean Despite your immediate impulse, do not rush out and tell when you say, “We are getting divorced in one year, and your children about the divorce as soon as you find out. You there will be lots of changes.” are not likely to be in the calm emotional state needed to sit And fourth, your children really don’t have a need to down with your spouse and talk openly and supportively know until a change in their lives is imminent. This means

24 FAMILY ADVOCATE www.ambar.org/clientmanual that if you decide to get divorced, but will live together for six months until someone can move out, there is no need to Exactly what do I say? tell the children right away. Although you want to give them Following are some things you may wish to say in some notice, you may choose to wait until you are closer to discussing the divorce with your children. making a change in their lives. Again, let the ages and devel- “ “ opmental level of your children guide your decision. Your mom/dad and I are The divorce is not your getting divorced.” or fault. There is nothing you “We are getting divorced.” could have done to prevent Why can’t I tell them right away? “ it and nothing you can do Sitting down with your children to discuss the divorce in a You know we have been to change it. It’s not about calm and reassuring way may simply be too difficult. arguing a lot for a long time. you.” We tried our best to make it Furthermore, refraining from blaming the other parent or “ in some way letting the child know that you didn’t want the work, but decided we need This isn’t about either of us doing something wrong, it’s divorce could be extremely difficult. to get divorced. While we about us not being happy Parents often say, “I don’t lie to my children; they need know this may not be what you want, it is what we together for a long time to know the truth.” But children don’t need to know the must do.” and realizing that to be truth about everything. Just as parents want their children happy we need to be to enjoy the excitement and joy of Christmas and thus tell “This has nothing to do with apart.” them that Santa comes down the chimney, so too should you. I know you may think children learn about the divorce without hearing all the this is your fault, but it’s not ” You may think gory details about your spouse’s affair and your hurt feel- in any way. this is your fault, ings. There is no benefit to exposing your children to inti- “We both love you and will but it’s not in mate details about the breakdown of your marriage. And it make sure that you get to certainly is not in your child’s best interest to worry about spend a lot of time with any way. these things. both of us.” “We both love you very Think about what your goal is in talking with your chil- “You are going to be living much. Anytime you have dren. Is your goal to tell your child the whole truth or is it with me during the week, questions about what is to help your child cope with the coming divorce and foster and see your mother/father happening, don’t be afraid the best possible relationship with both parents? It’s up to every other weekend, from to ask. We may not know you. However, research clearly shows that children do best Thursday to Monday, and the answer, but we will in the long run when they have ongoing loving relationships see him/her at other times always be here to talk with with both parents and there is minimal family conflict. as well.” Don’t use the you about it.” Before you sit down to talk with your children about the word “visit”––you don’t visit “I know you wish we would coming divorce, have as many answers for them as possible. with a parent, you see them stay married, but this is a Your children will want to know where they will live, with and live with them on some decision your mom/dad and whom they will live, and will they still see the other parent. days/nights. I have spent a lot of time They may ask, “Why are you getting divorced?” and “I making and we are not know this is really hard ” “Whose fault is it?” They will want to know where their pets for you.” going to change it. will stay, where their bed will be, and will their grandparent “Sometimes children think if “I’m really sorry this is still take care of them on Mondays. What about school and they just act better and happening.” friends? They will want to know about both. While you don’t get in trouble, that may not know all of the answers to these questions, you “I’m going to be staying here moms and dads will stay should be prepared to answer some of them or explain when at home, and your mom/ married. That won’t happen you will have answers to their questions. Think about all of dad will be moving to an because our decision to get these decisions ahead of time. apartment in a month.” The a divorce is not about you. As word of your divorce spreads among family and other parent may add, “I’d Nothing you did had any- friends, you want to make sure that your children hear it like you to come with me to thing to do with our getting from you. When to talk with your children will depend on a store in a few days to help a divorce. We love you very much and tried very hard to each child’s age and developmental level and when changes pick out furniture for your new room.” Although stay together, but we are in family living arrangements are expected to occur. Older divorce is not fun for not going to stay married. children may need to know sooner than younger children. children, they can still be We love you, and you will In addition, older children understand time better than part of the process in a way always be able to talk with younger children. They understand what it means when that gives them a sense of either of us, no matter you tell them that mom or dad will be moving out in one, control and allows them to whose house you are at.” two, or three months. Older children also need to plan for have a little fun. —S.R.R.

FAMILY ADVOCATE 25 the future, so you don’t want to tell a teenager the news a their parents together, and 45% of them reported learning week before his or her life is about to change. Yet, with very little, such as “Daddy is leaving.” Only 5% felt that they young children, such as a three-year-old, you may wait to were fully informed and could ask questions. You want your discuss the divorce until a couple of weeks before the change. children to be in this 5%. In preparation for talking with your children, you may wish to consult with a therapist. A therapist can help you What if there is a custody evaluation? plan both what to say and when to say it, based on the chil- Unfortunately, some parents are unable to resolve parenting- dren’s needs and capacity to understand at different ages and schedule disputes through meetings with their attorneys or developmental stages. In looking for a therapist, make sure mediation. Although attempting to resolve most issues to tell your lawyer and to select someone who has experience without going through a custody evaluation is encouraged, working with divorcing families so that he or she under- at times it is not possible. A custody evaluation is conduct- stands not just what you are going through, but what your ed by a mental health professional who will meet with par- children will be going through as well. You and your spouse ents and children to help come up with the best possible should meet with the therapist together, if possible, to come plan for the family. So what do I tell my children if I have up with a plan. to participate in a custody evaluation? It’s actually not com- plicated. The best thing to do is to explain to your children How do I tell them? that you and their mother/father are having a hard time First and foremost, if you can, both parents should talk with deciding which days/nights you should be with each of us. their children together. As difficult as it may be, your job is “We both love you and want to spend as much time with to do what is best for your children. Even if you are angry you as possible. As a result, we are going to be meeting with with your spouse, you blame him or her for the divorce, or someone who will help us figure it out. He or she will want you just can’t stand your spouse any more, you still must to meet with you as well. She/he is going to give us advice think about what is best for your children. In most cases, it as to what might be best so that we can make sure we are is sitting down together and telling them. doing the right thing.”

Conclusion When you discuss When you are ready to discuss the divorce with your chil- the divorce with your children, dren, remember that the most important rule is that your children’s needs come first. Think about what is best for remember that your children’s your children in terms of when you tell them, what you tell needs come first. them, and how you tell them. While the above suggestions are general guidelines, there are situations in which general Your goal in telling them is to help your children under- guidelines may not be the most appropriate ways to handle stand that you are getting divorced, that you both love them the situation. and always will, that the divorce is not their fault, and that For example, if a spouse is going to be incarcerated or they can ask questions about what is happening. Letting one or both parents has a serious substance abuse problem them ask questions doesn’t mean telling them the unbridled or a history of , it is strongly recommended that truth about everything (e.g., marital infidelity). you consult with a therapist to discuss what to tell the chil- Parents are often afraid to let their children ask questions dren, when, and how. (You may need only a couple of ses- because they are not sure how to answer those questions. In sions.) Although meeting with a therapist might delay your one study, 23% of seven- to seventeen-year-olds said that no talk with the children, you and your spouse will be in a one had talked to them about their parents’ divorce. Of much better position to help your children cope with the those that were spoken to, only 17% percent were told by divorce. fa

SOL R. RAPPAPORT, PH.D., is a Licensed Clinical Psychologist specializing in forensic psychology at the Northern Illinois Institute of Forensic Psychology and Counseling Connections in Libertyville, Illinois. He has been appointed in more than 500 custody evaluation over the last sixteen years and has testified throughout Northern Illinois. He speaks nationally on custody-related issues and also consults with attorneys on custody-related matters. In addition to his forensic practice, Dr. Rappaport is a co-founder of a therapeutic day school for children and adolescents with autism. He also performs educational testing and risk assessments for school districts.

26 FAMILY ADVOCATE www.ambar.org/clientmanual FAMILYABA SectioADVOCATEn of Family Law Successful

Manual Coparenting

ss Requires a Plan From Family Advocate Your Parenting Plan: y A Client Manual

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any parents need help in How to: structuring an effective Structure a time-sharing plan and workable time- Share parenting and juggle sharing plan to meet the needs of M schedules their children. Your Parenting Plan: A Client Manual, a 48-page Stay focused on what’s best for the kids handbook for parents, offers expert $12.95 each. Quantity discounts advice on strategies and schedules Anticipate children’s available that have worked for other families. developmental needs Resolve conflicts without To order, going back to court see client manual order form on Share parenting across town back cover or across the country or call 1/800-285-2221 Communicate when or visit tensions flare www.ambar.org/ clientmanual  EARLY EVERY STATE PROVIDES FOR SOME TYPE OF LEGAL REPRESENTATION FOR CHILDREN. Some court systems provide for “attorneys for children,” whereas others provide for “guardians ad litem.” Still Nother states provide some form of hybrid representation. The roles of these representatives, as well as the THE rules under which they represent children, differ from state to state. Child’s Making matters even more con- fusing is the fact that courts and lawyers use these terms interchange- ably or use one term to mean Attorney several things. By CARLW.GILMORE Regardless of terminology, how- Classifying representatives the positions the child ends up ever, these representatives share a ² There are essentially three classes of taking. few things in common. First and foremost, they do not represent children’s representatives. The names During the case, you may or the parents—you or your spouse. are used interchangeably. Do not may not speak with the child’s Second, any communications you dwell on the title of the attorney. attorney. Due to the nature of the share with any of these legal repre- Focus instead on his or her function. representation, the child’s attorney sentatives may not be privileged, 1. Child’s attorney––The first class cannot talk with you unless your that is, the representative can use is commonly called an “attorney attorney approves, and many what you say against you. Third, for the child” or “child’s attorney.” divorce attorneys will not approve. the representative’s communications This type of attorney represents Sometimes the child’s attorney will with your child may or may not be your child in the same way that speak with you only in a deposi- privileged. your attorney represents you. tion, hearing, or settlement confer- In some cases, the child’s repre- He or she cannot divulge what ence. These representatives will not sentative acts as a traditional lawyer the child says and is required to testify in court, and you may not who will investigate the case and attempt to achieve the child’s know their conclusions until the may engage in formal discovery. stated goals and objectives. For trial. He or she may call witnesses during example, if your child says that he 2. Guardian ad litem or best-inter- a trial. Most important for you to or she wants to live with your ests attorney––The second type of know is that the child’s representa- tive is not necessarily on your side. spouse, the child’s attorney cannot representative is called a “guardian In some jurisdictions, especially tell you and will work to place the ad litem” (GAL), “child’s attorney,” where this person is a “guardian child with your spouse. This attor- or “best-interests attorney.” The ad litem,” he or she acts more like ney will not simply take the child’s only difference between an attor- a witness, providing a report to directions at face value, but will ney acting in this role and the one the court. discuss different positions with the described in number one above is child and counsel the child. that the child’s directions and  However, an attorney acting in wishes do not bind the best-inter- this role must generally advocate ests attorney. The best-interests

28 FAMILY ADVOCATE www.ambar.org/clientmanual attorney will generally communi- each child may have a representa- provide useful information and allow cate the child’s wishes to the court, tive appointed, or one attorney may the attorney to form personal opin- but may advocate a different posi- work for all the children. These ions about you. Again, discuss any tion––one the attorney believes is issues and others, such as who pays communication with your lawyer first. in the child’s best interests. the costs, will be determined by the 3. Court advisor or GAL—The third appointing order. ²Talking with the GAL type of representative is called a Each of these representatives In many jurisdictions, the court advi- “guardian ad litem” or “court may want to talk with you. sor or GAL (as described in number advisor.” This person may or may Regardless of the type of question- three above) will meet with parents not be an attorney. The function er, you are entitled to have your and the child. Your refusal to meet of a court advisor or GAL is often attorney present. with the GAL is often ill-advised. It to make a recommendation to will deprive the GAL of your side of the court, but in some states, no ²Talking with the child’s the story, and, worse, the GAL and recommendation is submitted. attorney court may conclude that you are In many cases, the court advisor Discuss with your attorney whether uncooperative. The court may even or GAL will file a report or testify you should talk with the child’s legal order you to cooperate. If the GAL or do both, but not always. How representative. Knowing the type of files a report or testifies, your refusal this person interacts with the child, representative will be very important to cooperate can be harmful to you. the court, and the parents is deter- in reaching a decision. If you are Even if the GAL cannot testify or mined, in part, by whether he or unclear as to which type represents offer an opinion, his or her summa- she is a lawyer or a nonlawyer and your child, ask your lawyer. Make sure tion of evidence may be harmful to by state rules that govern the role of you know the function of the child’s you if the evidence suggests your lack the court advisor or GAL. attorney. If he or she is a child’s attor- of cooperation. If you do meet with In many states, an attorney ney (as described in number one the GAL, having your attorney pre- acting in this role is not allowed to above), an informal meeting will have sent is usually the best course. testify or offer an opinion, but may little utility. There will be no record of Keep the following in mind if you provide legal services, such as ques- an informal meeting, other than your decide to meet with any type of child’s tioning witnesses or making argu- own notes, and probably no report representative. ments based on evidence presented. will be made to the court. However, ‚ Meet with your attorney before- On the other hand, a nonlawyer your child’s attorney can talk with hand. Your attorney will want acting in this role often is allowed you through a deposition and other to discuss any major issues with to testify and to make a recommen- discovery, which creates a record and you and may be able to provide dation, but may not provide legal thus can be used in court. If the a practice session. services. child’s attorney elicits any testimony ƒ Make sure to tell your lawyer Think of this GAL as an arm of favorable to you, your own lawyer anything that may be harmful the court to assist the court in ren- can bring it to the court’s attention to your case. dering a decision that will serve the through his or her questions. „ Before providing any docu- child’s best interests. This GAL For these reasons, your lawyer ments to the child’s representa- generally serves as a neutral investi- may suggest that you not meet with tive, ask your attorney to review gator. There is not likely to be a child’s attorney other than at a them––even if you think you confidentiality attached to any deposition. On the other hand, if the have already shared them with communications with the child or child’s attorney perceives that the your lawyer. others. Appellate courts in some child’s objectives and goals are not in At the meeting, do not offer states have upheld a guardian the child’s best interest, the attorney information. Answer the ad litem’s reliance on testimony or may counsel the child to pursue questions asked and no more. facts that otherwise may not be another outcome. In such a case, you The representative can ask a admissible in court. do not want to give the attorney the follow-up question; let him. In some cases, more than one impression that you are not cooperat- † Use your lawyer. In this context, attorney may be appointed. For ing or have something to hide. it is entirely permissible to ask example, an attorney for the child Because the best-interests attorney your lawyer about an answer may be appointed to advocate the (as described in number two above) before you give it. child’s position, while a best-inter- makes an independent determination ‡ Limit your discussion to ests attorney also is appointed. of the child’s best interests, talking what you know. If you are not Where there are multiple children, with a best-interests attorney may 100 percent sure, say you don’t

FAMILY ADVOCATE 29 know. For example, if you are time to clean your home, and your ing and air conditioning units. taking medication, it is OK to attorney is unlikely to be available. ‡ If there is a swimming pool or talk about your medication. Failure to allow the home visit will other open water, make sure the But what led to your taking result in charges that you are obstruct- cover is operable and there are medication is something your ing the process. A lawyer acting as a locks to prevent children from doctor knows, and you may not. child’s attorney or best-interests attor- entering the area. ˆ Representatives do not like it ney should not make an unannounced ˆ Fix any loose boards on when parties’ attorneys talk visit that results in direct contact with stairs, nails sticking out, loose during a meeting. Too bad. If you without the permission of your carpeting, holes in walls, etc. your lawyer starts to talk, you attorney. This could be an ethical ‰ Make sure you have hot and stop talking. If your lawyer says violation for that lawyer. cold running water. not to answer a question, do not It is a good idea to go through your Š Make sure your heat is working, answer. house and make sure it is in good as well as your refrigerator. ‰ Do not treat this as an opportu- repair before the child’s representative ‹ Keep the home neat and clean. nity to unload on your spouse, is appointed. Your house need not When dealing with the unan- but rather as an opportunity to look like it should be featured in nounced visit, answer only questions provide constructive feedback Architectural Digest, but it must be safe dealing with the visit, your home, and and solutions to your children’s and sanitary. Look for and fix the home furnishings, such as “Where is problems. following: the bathroom?” and “Which is junior’s Take notes or ask to tape record ‚ Smoke detectors should be in bedroom?” Respond to any questions the meeting. This is an opportunity working order and have fresh about the legal case with “I am to identify facts, assumptions, and batteries. Install carbon monox- uncomfortable answering this question conclusions the representative is oper- ide detectors if you do not have without my attorney present. I will be ating under. These facts, assumptions, them. glad to ask him to provide an answer, or conclusions may be wrong. ƒ For young children, move all if advisable.” Do not promise or com- Compare notes with your attorney medications to a locked cabinet mit to providing anything. Do not afterwards to plan a strategy for or high on a shelf where allow a child’s attorney to use this visit countering any such misconceptions. children cannot reach them. as an opportunity to investigate you. „ Tools and household chemicals ² Home visits should be locked up or placed ²Documents Sometimes the representative, out of reach. Ask your attorney to review all items especially a GAL, will visit the Make sure that your outlets are you intend to provide to the child’s parents’ homes. Often these visits are not overloaded. representative. Items may be used for unannounced, so you may not have † Change the filters on your heat- any purpose, not just the one you

Do’s & Don’ts  DO look respectable  DO NOT display  DO NOT wear for Appearing and respectful. underwear or earrings if you are undershirts. male. in Court DO wear a sport coat  DO NOT and tie or business  wear jeans  DO NOT emphasize casual—accepted with holes. body piercings, other courtroom attire. than in the ears.  DO wear shoes, but not sneakers.  DO wear a sport or  DO NOT chew gum. knit shirt or blouse if  DO NOT wear you are not wearing a flip-flops or sandals.  DO NOT wear hats or tie and jacket. sunglasses indoors.  DO wear simple,  DO wear pants, but no discreet jewelry. A  DO cover all tattoos. baggy or below-the- watch, ring, and simple waist pants. earrings for women are —C.G. acceptable.

30 FAMILY ADVOCATE www.ambar.org/clientmanual intend. If you provide a photograph „ A list of possible witnesses and report to the court, your work has not to show a bruise on your child’s arm contact information, including ended. You can still provide additional and there is a pot pipe on the table, telephone numbers and address- information. If the report includes the representative might focus on the es. Review this list to make sure mistakes, provide information that drugs, not the child. Do not shoot that all witnesses are willing to corrects those mistakes. You may also yourself in the foot by providing a testify, are aware they may be want to update facts that have document that turns the attention contacted, and will speak posi- changed. The art of this process is in of the representative to something tively about you. deciding what to call to the attention detrimental to you or creates a A list of activities your child is of the representative and what to keep negative impression of you. involved in or has been involved in your back pocket for trial. This is Items can be provided in three in. You might also consider a your lawyer’s job. Realistically, few ways. First, documents, such as list of activities you feel your representatives will later change their motions, responses, and affidavits, child should be involved in minds if you have been given the may be provided to the representative and why. opportunity to provide information

Let your attorney determine what is helpful to you and what is not. Err on the side of providing too much, rather than too little, information to your attorney. immediately. Your attorney should do † Police reports. and have not done so. So always pro- this. Second, the representative may ‡ Notes, e-mails, text messages, or vide any new information to support conduct discovery or an investigation. other communications regard- your case. Work with your attorney to determine ing the child. eep in mind that the child’s what should be provided according ˆ Log books. representative is just that: to the rules. Third, you may wish to ‰ School records, especially any the child’s representative–– provide items that are not requested individualized education plans. someone whose charge is in formal discovery. These documents Š Medical records. If there are to let the court see the case may exist, or you may create them. sign-in sheets, obtain them. through the eyes of the For example, you may put together Talk with your attorney about child. That representative a written list of concerns regarding providing consents to doctors may, in the end, take a visitation. Review and consider pro- or dentists so that the child’s positionK similar to your position, con- viding anything and everything. representative can talk with trary to your position, or somewhere Think out of the box. Include them. in the middle. Although judges often photos, text messages, prescriptions, Let your attorney determine what place a great deal of weight on the cards and letters, computer files, is helpful to you and what is not. Err opinion of the child’s representative, e-mails, Facebook pages, websites, or on the side of providing too much, the judge will consider all evidence other physical evidence. In one case, a rather than too little, information to from all parties. Do not make an wife provided a bag of dog poop left your attorney. enemy of the child’s representative on her doorstep by an angry husband and do not attempt to manipulate to show the husband’s frame of mind. ²After the report the child’s relationship with his or her Consider providing the following If the child’s representative submits a representative. fa additional items to your attorney. ‚ A comprehensive family sched- ule showing your child’s activi- CARLW.GILMORE is a member of the Family Advocate ties, appointments, and events, Editorial Board. He is the author of Illinois Parentage Law as well as yours and your (Illinois State Bar Association 2002) and the editorial consultant spouse’s. for Disputed Paternity Proceedings (Lexis). Gilmore practices all ƒ A list of people important to types of family law and general civil litigation with Woodstock your child—doctors, dentists, Legal Consultants, Woodstock, Illinois, and is licensed in Illinois teachers, day-care providers, and and Wisconsin. His firm can be found at woodstocklegal.com. others.

FAMILY ADVOCATE 31 Meeting with the CUSTODYADVISOR By DONALDG.TYE & PATRICIAA.O’CONNELL

It is 11:45 p.m. on the ishes are piled high in the sink, the the parent unwittingly presents as little more night before your first pile of dirty laundry is fast approach- than the “least distressing alternative,” rather ing your waist, and various organisms than as a parent who consistently has his or in-home meeting areD happily multiplying in the bathroom. Your her children’s best interests at heart. Parents with the evaluator, fifteen-year-old daughter still isn’t home, who fare well in custody evaluations: (1) appointed by the court, forty-five minutes past her curfew. You haven’t focus on the various needs of the children; been able to find the children’s report cards. (2) demonstrate that they are attuned to, and to recommend the You haven’t even had a second to warn your can readily meet, those needs; and (3) in custodial arrangement sister, who lives on the opposite coast, that the most circumstances, show that they are will- that would best serve evaluator would be calling her to garner some ing and able to foster the children’s relation- the interests of your feedback on your parenting skills. None of this ship with the other parent. really bothers you at the moment, however, It is crucial to put your best foot forward in three children. because you are almost finished with a 42- a custody evaluation. The evaluator is page, footnoted, meticulously detailed mani- unaligned with either parent; as such, the festo that demonstrates precisely how and why court will typically grant great deference to his your spouse makes Charlie Sheen look like or her impressions and recommendations. The Father of the Year. And that’s what it will take evaluator is, in effect, the judge’s own private for the court to decide that the children investigator—retained to peer into the win- should live primarily with you, right? Wrong. dows of your home. In effect, you’re now the It’s largely a matter of emphasis. All too star of a reality show that you probably never often, a parent facing a custody evaluation wanted produced. With sufficient preparation focuses almost exclusively on the other par- and the correct emphasis, however, you can ent’s perceived shortcomings (both as a par- make sure that the custody evaluator likes ent and as a romantic partner). In doing so, what he sees.

32 FAMILY ADVOCATE www.ambar.org/clientmanual What does he evaluator wants to happen upon a parent children and laugh with them. The evaluator wants the custody who has the understanding and ability to to find a parent who can work with the other parent evaluator meet all of the children’s needs—physical, in an effective manner, who has moved beyond hos- like to see? Tmental, and emotional. She wants to see a parent tility, and who does not equate being a “bad partner” who interacts lovingly with the children and can with a “bad parent.” empathize with them. The evaluator wants to find To maximize your chance of conveying this someone who can provide a calm, stable home for impression, you will need to work closely with your the children––a parent who can both discipline the attorney and prepare accordingly.

What can o be adequately prepared for a custody eval- tal history, developmental stage, and academic func- I expect uation, you need to know what to expect. A tioning of each child; the physical and mental health from a custody evaluation occurs when a family of each parent and each child; the overall stability of custody Tcourt judge appoints an individual to investigate and the home environment provided by each parent; a evaluation? report back to the court on the custody and/or par- description of the relationship between each parent enting plan for the parties’ children when the par- and each of the children; a discussion of each par- ents cannot themselves agree on the appropriate ent’s concerns about the other parent’s parenting arrangement. A custody evaluation is usually, but style or abilities; and a discussion of the parents’ abil- not always, performed at the request of one parent; ity to co-parent effectively. In essence, the evaluator sometimes the court will order a custody evaluation must summarize the history of your family—with all sua sponte, meaning of its own volition. The timing of its nuances—in a concise report for the court. of a custody evaluation varies according to the com- plexities of the issues involved and the schedule of The evaluation process varies by jurisdiction, but the appointed evaluator. In most instances, however, usually includes the following: the process will take several months. • The evaluator will meet with and interview each The background and qualifications required to party alone, usually two to three times during the serve as a custody evaluator (often called a guardian course of the evaluation. Meetings usually take place ad litem or GAL) vary by jurisdiction. Sometimes a in the evaluator’s office or the parent’s home. lawyer is appointed by the court to perform the eval- • The evaluator will meet with and interview each uation, usually when the case does not present spe- child alone, usually two to three times during the cial circumstances (allegations of substance abuse, course of the evaluation. The length and format of , sexual abuse, special needs, etc.). the meetings will vary based on the age of the child. If cost is an issue for the parents, then sometimes the A five-year-old child, for instance, may be casually court will appoint a probation officer, family service “interviewed” while playing with toys at home. A officer, or other member of its staff to perform an teenager, on the other hand, may face more pointed investigation that is relatively limited in scope. Most questions while sitting across the table from the eval- often, licensed psychologists and other mental- uator in an office setting. health professionals are appointed as evaluators, due • The evaluator will observe parent–child interac- to the specialized knowledge they are able to pro- tions, usually at the parent’s home. vide. If possible, your attorney and the other parent’s • The evaluator will interview various “collateral attorney should try to agree upon a mutually-accept- sources”—i.e., people who have observed a able individual to conduct the evaluation. parent’s parenting strengths and weaknesses. Each Regardless of background, the evaluator is party usually provides a few collateral sources for the charged with reporting to the court his or her evaluator to question, such as extended family mem- impressions—good and bad—regarding the custodi- bers, teachers, coaches, or clergy. These interviews al arrangement and/or parenting plan (i.e., visitation may take place either in person or by phone. schedule) that would be in the best interests of your • The evaluator will usually review any relevant children. As such, the evaluator will weigh in on the pleadings that have been filed with the court. history of the parents’ relationship, both before and • The evaluator will usually review documents after the birth of the children; each parent’s ability to and records provided by the parties or their counsel care for the children and meet the children’s various that may be relevant to the evaluation. These records needs; and any impediments that could hinder a may include a child’s medical records; a child’s report party’s ability to care for the children. A thorough cards and attendance records; police reports; com- evaluation will address the social, marital, and par- munications exchanged between the parties concern- enting history of each parent; the employment sta- ing the children, voicemail recordings, and pho- tus and history of each parent; the age, developmen- tographs. In addition, the evaluator may request that

FAMILY ADVOCATE 33 What can each party sign consent forms that may be necessary the court’s order, the final report may have recom- I expect to release medical, psychological, or school informa- mendations on custody; the parenting plan; therapy from a tion. for parents, children, and/or the whole family; the custody • If the evaluator is a licensed psychologist, he or appointment of a or mediator evaluation? she may conduct personality testing (such as the to help resolve parenting-related disputes. It may also continued Minnesota Multi-Phasic Personality Inventory or the contain specific provisions relating to the issues that Rorschach test). However, personality testing usually may have “caused” the need for an evaluation, such occurs only upon specific order of the court when a as allegations of substance abuse or violence. mental illness or personality disorder is suspected. You may think that the custody evaluation starts • After conducting all necessary interviews and when the judge appoints the evaluator and the afore- reviewing the relevant pleadings and documents, the mentioned process begins. Focusing almost exclu- evaluator will prepare a final report that addresses his sively on how you handle yourself during the inter- or her observations. (Sometimes, if the evaluation is view process would, however, be a mistake. How particularly complicated and lengthy, the evaluator you handle yourself prior to the formal evaluation will provide an interim report and recommenda- can be just as important as how you handle yourself tions). Depending on the requirements set forth in during the evaluation itself.

Pull nce the court orders a custody evaluation in your statements from “accusations” to facts. Don’t be together your case, immediately begin to gather afraid to mention positive occurrences as well— the paper- “reading material” for your lawyer to pro- acknowledging the other parent’s strengths will afford work Ovide to the evaluator. If possible, give the evaluator a you credibility with the evaluator and the court. positive first impression of you and your parenting Begin gathering any documents relevant to your skills before you even meet. Provide information that case. Look for documents provided by the other par- portrays you in a positive light as soon as possible ent that will undermine his or her position or advance after his or her appointment. your own. For example, a card that describes you as As an initial step, your attorney should draft a let- “the best mother ever” would undercut the opposing ter providing the evaluator with an overview of the party’s sudden claim that you are largely uninvolved case and your position. He or she should detail your with the children. Also gather any other materials that parenting and marital history, the history of the legal may lend credence to your concerns about the other proceedings, any concerns you have about the oppos- parent’s parenting of the children—for example, ing party’s parenting skills, and the outcome that you reports of social service agencies, police reports, pho- believe would advance the best interests of your chil- tographs that are compromising, etc. Gather your chil- dren. Your lawyer should furnish this introductory let- dren’s school and medical records—most custody eval- ter along with copies of all relevant pleadings filed uators will want to review attendance records and with the court. Ask to review the letter for accuracy report cards, at the very least. If you think that a doc- before it is sent to the evaluator. ument could possibly be relevant to the investigation, Next, it is usually helpful to prepare a chronologi- show it to your lawyer; you don’t want to make the cal history of your relationship with the other parent mistake of burying potentially helpful material or and your parenting of the children. While you do not unknowingly providing damaging material. want to chronicle the souring of your relationship Finally, compile a list of third-party “collateral” (“He was always flirtatious with other women.”), pro- sources that can attest to your parenting history and vide details that could have a bearing on a custody abilities or to the other parent’s deficiencies in that case. If you frequently felt neglected by the other par- regard. Make sure your list provides the individual’s ent because he was always working 13-hour shifts, for name, address, phone numbers, and e-mail address. instance, that recollection could call into question his The key here is quality, not quantity. It is much better ability to be a primary caretaker for four children. to have a few people who can provide positive, sub- It is a good idea not only to prepare a history, but stantive information, than a veritable phone book of also to maintain a daily diary that documents any rel- individuals who can offer little more than “he seems evant conversations, incidents, and stories pertaining like a good dad.” Relatives are often looked upon as to the children. If the other parent is consistently late biased sources of information, so use them only if they in returning the children, keep track of the date and provide a unique perspective. And, by all means, make time of each episode of tardiness. If a toddler usually sure that you ask the person for permission to use his returns home overtired and grumpy because the other or her name and ascertain that he or she will, in fact, parent ignores naptime routines, record your observa- provide positive information when the call comes. tions while fresh in your mind. Your ability to provide There is nothing worse than being hung out to dry by corroborating detail for your concerns may transform someone you thought was on Team Mama.

34 FAMILY ADVOCATE www.ambar.org/clientmanual Be on f you have even the slightest inkling that you real friends will know anyway, and chances are that your best might end up litigating for custody of your chil- the captain of your high school football team does- behavior dren, you may need to modify your behavior n’t really care anyway. What’s more, near-constant immediatelyI —long before an evaluator is appointed. posts on Twitter and Facebook about your various Consider whether any action you take, or any com- personal interests and causes may undermine your munication you make, could be characterized as argument that you spend all of your time “focused contrary to the best interests of your children in any on the kids.” Don’t overshare. Please. manner, shape, or form. In a general sense, you • Make sure your parenting time is actually your should ask yourself: What would Jerry Springer do? If parenting time. If you are seeking custody of the the answer is, “Ask me to be on his show,” then you children, but don’t presently have custody, use need to cut out that behavior immediately. babysitters as little as possible. Likewise, don’t let In all seriousness, keep the following tips in mind the TV or Xbox babysit your children. You want to in the months leading up to a custody evaluation: be able to show the court that you make the best • Do not interfere with the other parent’s access use of all the time you have been allotted. Schedule to the children or do anything to undermine the your dates with your hot new neighbor when the other parent’s relationship with the children. twins are staying at their mom’s/dad’s house. Be There is nothing—nothing—that family court sure that your parenting time includes overnight judges hate more than a parent’s efforts (whether visits, particularly if you are a “breadwinner” dad active or passive) to distance or alienate children who is now seeking 50/50 custody of the children. from the other parent. Never copy the children on angry or accusatory e-mails to the other parent. • Don’t make a bad situation worse. Divorce is a Never talk badly about the other parent to your pretty good sign that you and your spouse just children. Never involve the children in the details don’t get along. While your spouse may never like of your marital conflict. Never prevent the other you, try to get him or her to hate you as little as parent from seeing the children, or even allow the possible. Now is not the time to be on the other children to think that it is “up to them” whether or parent’s bad side. Be the bigger person and act not they will see the other parent. On the contrary, civilly and respectfully toward the other parent. encourage the children’s relationship with the Don’t provide him or her with the “gift” of pro- other parent and be reasonably flexible regarding fanity-laced e-mails and voicemail messages that parenting time. This should go without saying but, will be used in future court proceedings. unfortunately, it does not. • Do not discuss litigation with the children. You • Anticipate the other parent’s criticisms of you should, however, explain the upcoming investiga- and try to ameliorate them. If the other parent is tion at a level that is consistent with each child’s likely to tell the evaluator that you party all the age and ability to understand. Explain that they’ll time, it may not be the best time to book your trip have a couple of meetings with the evaluator, who to Hedonism III. Tone it down. will want to ask them some questions. Remind them that they should be honest. Do not try to • Don’t leave a paper trail that could be used coach the children—i.e., “if you want to live with against you. If the other parent will claim that me, you need to say this….” Skilled evaluators are you spend too much time gambling, you do not trained to detect this kind of coaching. want to have credit card statements showing mul- tiple trips to Vegas. Don’t allow a sullen teenager to • Be careful about introducing new romantic miss school due to “cramps” and unwittingly cre- partners into the mix. Divorce lawyers see it all ate a trail of questionable absences from school. the time. Parents seem to be getting along well and co-parenting with relative ease. Then one parent • Use social media sites sparingly. More and more enters into a romantic relationship with another frequently, social media posts are being used as evi- individual, and everything basically explodes. Your dence in family law proceedings. Angry status safest bet would be to delay introducing new part- updates on Facebook pertaining to your ex-part- ners until after the custody evaluation is complete. ner—whether overt or not-so-subtly implied— will not help your effort to be perceived as a par- • Meet with your lawyer and role play. It is always ent who has moved beyond anger and is capable of a good idea to meet with your lawyer prior to a co-parenting effectively. Posting photos of drunk- custody evaluation so that he or she can “prep” you en escapades will not help you to portray a calm for your interactions with the evaluator. Those bill- and stable home—whether or not it was your for- able hours will be far more valuable to you than tieth birthday. There’s no need to advertise your the hours your divorce lawyer devotes to reading new “single” status on your Facbook profile; your your e-mailed missives against your ex-spouse.

FAMILY ADVOCATE 35 COMMUNICATINGWITHTHEEVALUATO R: What not to do

he custody evaluator is Don’t act in any manner that your spouse, resulting in a simple jealousy, rather than going to be consider- suggests that you are seeking negative effect on the family). serious concern for the ing your reasons for custody as a means of revenge You don’t want the evaluator to children’s welfare. wanting custody. Don’t assume upon the other parent. think you’re seeking custody to T Don’t barrage the evaluator the evaluator is your friend or gain financial leverage or avoid Beware of appearing like a confidante. There is no “privi- paying child support. with phone calls or demand “helicopter parent”—that is, a lege,” and anything and every- additional meetings. In addi- Don’t confuse the dissolution thing you say can end up in a parent who hovers over his or tion, don’t place the evaluator of your marriage with parenting report. As such, you should do her child, tries to control all of “on the spot” by asking what issues.“He left us.” your best not to raise any red the child’s actions, and general- he or she is planning to recom- flags, as follows: ly fails to provide the child with Don’t take extreme positions, mend. If you have any concerns, space to individuate. For these such as “I did all the parenting” let your lawyer be in touch with Don’t be the parent bent on parents, an award of custody or “she would never help them the evaluator. “vindication,” i.e., getting the may be more about fulfilling with homework.” court’s approval of your own their psychological needs than —D.G.T. & P.A.O. personal parenting style or Don’t exhibit resentment providing for the children’s best philosophy. In most cases, the toward your spouse’s new interests. court will address the strengths romantic partner. Generalized and weaknesses of both parties, Save the financial discussions statements, such as “I don’t regardless of who gains for the lawyers (unless you are want my children around her, physical custody. alleging economic abuse by she’s a bad influence” suggest

Don’t assume the evaluator is your friend and confidante. Anything and everything you say can end up in a report.

Tips for ost custody evaluations include a visit to glass of water, coffee, or tea. After the initial pleas- in-home each parent’s home. The evaluator will antries, invite the evaluator to look around the house. observa- want to make certain that your residence When you are ready to begin answering questions, tions isM suitable for the children and will likely want to invite the evaluator into a comfortable and quiet observe your interactions with the children in the spot. You want the evaluator to have positive memo- home. If you’re the star of this “reality show” for the ries of your home. evaluator, you need to make sure that the stage is set If your children are home during the in-home appropriately. visit, the evaluator will be observing your interac- Do your best to make sure your home is neat, tions. Make sure that the kids aren’t staring blankly at clean, and hospitable. Move that clutter into the clos- the television or completely immersed in a video et. Open the windows, let the fresh air in, and try to game. If possible, have them involved in an activity get rid of any odors. Sometimes an evaluator will that will highlight the family dynamic (such as play- look into the refrigerator or pantry, so stock up on ing a board game or shooting some hoops). healthful foods. Don’t feel the need to start fawning over little It is also a wise idea to double-check that your Tom, Dick, or Harry. You want to seem warm and home is absolutely age-appropriate for the children. loving with the children, but not over the top. If infants or toddlers are residing in the home, for Trained mental-health professionals are generally able example, spend time on the necessary baby proofing. to figure out when affection is authentic and when it Have toys and games readily accessible for school- is not. aged children. If your children are teenagers, make What if your child acts up during the evaluator’s sure any alcohol that you may own is not accessible. visit? Think of it as an opportunity to demonstrate to When the evaluator arrives, warmly invite him the evaluator your use of age-appropriate discipline. into your home (even if you are annoyed that an However, you should avoid raising your voice or investigation is necessary) and take his jacket. Offer a engaging in any sort of corporal punishment.

36 FAMILY ADVOCATE www.ambar.org/clientmanual Tips for • Make a good first impression. Show up! Be on her draw her own logical conclusion. Alerting the your time, if not early, to meetings at the evaluator’s evaluator to the other parent’s arrest record on interviews office. Give yourself plenty of time to navigate multiple charges of drunk and disorderly conduct? with the traffic, park your car, and straighten yourself out in That’s fine. Proceeding to call him a “disgusting, evaluator the restroom prior to the first meeting. loud-mouthed drunk”? Not so much. • Be honest. Don’t lie, or even stretch the truth. Just • Own up to your emotions—but don’t let them as important, be reasonable and fair—that is, be own you. It is normal to feel nervous. willing to own up to your weaknesses and recog- Acknowledge it. If you start to cry, that’s OK. It is nize the strengths of the other parent. Good cus- also common to feel sad about the end of your tody evaluators can tell when a person is not being relationship, scared about losing custody, and genuine. It is better to say, “Parenting can be real- angry at the other parent. You just need to show ly challenging sometimes, but it is so rewarding” that, even in the midst of real emotional difficulty, than to say, “I love every single minute of being a you have the ability and self-control necessary to Dad!” always put the children’s needs ahead of your own. • Answer the question and be thoughtful. Don’t • When in doubt, talk about your kids—not your use the question as an opportunity to launch into ex. Remember that a custody evaluation is not something else you want to talk about (such as the some sort of contest to determine who is the “best” weaknesses of the other parent or your take on parent; it is merely an effort to find a child-cen- extended breastfeeding); just answer the question tered and workable response to a difficult situa- asked, or risk being deemed evasive. You will have tion. All too often, custody evaluators are forced to plenty of time to convey your side of the story to sit and listen to each parent offer a tirade against the evaluator (and, the carefully composed history the other parent. The interviews become a cathar- that you prepared in advance also will help). tic experience for the “unloading” parent, rather • Take your time. Don’t be afraid to consider your than an information-gathering opportunity for the answer. You want to appear thoughtful, but not evaluator. Your focus should not be on highlighting reactive. It is OK to say, “I don’t know.” for the evaluator each and every perceived defi- • Show the evaluator that you know your child. ciency in the other parent. Rather, your focus Don’t be the parent who can’t name the child’s best should be on discussing the children’s needs and friend or favorite food. Show that you know your your (unique? historic? tireless?) ability to meet child’s likes and dislikes, medical history, sleep pat- those needs. terns, names of teachers and coaches, names of • Show the evaluator that you are supportive of friends and the parents of those friends, hobbies, the children’s close relationship with the other and classes. Your knowledge of these basic facts is parent. You are emotionally healthy. You haven’t even more important if you have not been the pri- let your anger and resentment about the failure of mary custodial parent. your relationship cloud your ability to see that the • Articulate your concerns about the other party’s children benefit from a strong relationship with parenting as objectively as possible. Remember the other parent. You do not equate the other Dragnet? “Just the facts, ma’am.” Use it as your parent’s having left you with his or her having “left mantra. Provide the evaluator with facts, and let us” (i.e., the children, too). Show it.

Conclusion t goes without saying that divorce is one of DONALDG.TYE is chair of the Domestic Relations Practice Group at Prince Lobel Glovsky & Tye in Boston. He has more life’s most stressful events. The prospect of a than 30 years of experience as a trial attorney, guardian ad custody fight makes matters even more emo- litem, master, mediator, and arbitrator. He is a member of tionally charged, particularly if a parent doesn’t I the Family Law Section of the American, Massachusetts and know what to expect from a custody evaluation. Boston Bar associations; is an editor emeritus on the Board Many parents focus excessively on the perceived of Editors of Massachusetts Lawyers Weekly; and has lec- shortcomings of the other parent. In doing so, tured and written extensively in the areas of trial practice, these parents fail to emphasize their own divorce, and child-related issues. PATRICIA A. O’CONNELL strengths and ability to meet the children’s needs. is an associate with Prince Lobel’s Domestic Relations Practice If you follow the aforementioned tips and focus Group. She handles all areas of family-law litigation and on the best interests of your children, however, negotiation, including complex divorce, modification, you will be well-positioned to make your case in paternity, custody and removal, and reproductive technology an effective and child-centered manner. fa cases.

FAMILY ADVOCATE 37 Understanding the Vocational Evaluation

An interesting phenomenon occurs when people are getting divorced. Promises once made with the best of intentions take a backseat to new, less pleasant

sentiments and By MARTINA. emotions. KRANITZ

N IMPENDING DIVORCE OFTEN LEAVES PEOPLE FEELING HURT,  The As the parties ANGRY, AND SCARED. In addition to these quite normal emotions is a vocational prepare for litigation, startling new financial reality: two people cannot live apart as cheaply evaluation/ discussion turns to as they lived together. Parents begin to worry about how they will assessment support (alimony provide for their children after the divorce. This too is normal, reality and child support). based, and very scary. Both sides charge that the other can In many families, one parent, often the mother, stayed at home to earn more money and contribute more raise children, and the other, often the father, worked outside the home to the family’s well being. When this toA provide financial support. When a separation occurs, there is no longer happens, one or both lawyers (and enough money to sustain this arrangement, leaving both parties feeling disad- sometimes the court) will request a vantaged. The homemaker, who may have been out of the job market for years, vocational evaluation or assessment. fears being uprooted from the children and forced to return to the workforce. The goal is to explore a person’s The income provider regrets having spent so much time away from the children, employment and earning potential. a personal sacrifice that is now being used against him in custody proceedings. That is, to assess the kinds of work a As the divorce process unfolds, the homemaker may take a part-time job to person can do (given age, education, jump-start an income stream; whereas, the breadwinner cuts back on work work experience, and other factors that hours to spend more time with the children. Both spouses see the other’s might enhance or limit ability to work), actions as too little, too late, creating even more problems and adversity in the salary potential (income), and employ- divorce. Everyone feels used, upset, and unappreciated. ment opportunities in the area.

38 FAMILY ADVOCATE www.ambar.org/clientmanual  How In a vocational evaluation, a vocational pages listing the jobs. The pages will have dates at the bot- does an expert (VE)/consultant/counselor, inter- tom to document your ongoing efforts to find work. Keep evaluation views the individual and may do some track of not only your applications, but also your inter- work? vocational testing. The VE asks about the views. Bring copies of letters you have sent to and received person’s age, education, work history, and from employers. The goal here is to demonstrate that you health. He or she also explores what “work-like” activities have been looking for work, trying to get a better job, or (volunteer) and recreational activities the individual enjoys, can explain why you can’t work. along with what steps the individual has taken to find work The VE will not be interested in hearing that you do and what resources are being using to locate job opportuni- not want to work or don’t think you should have to work ties (in the case of the breadwinner, what steps have been because your spouse makes so much money. The VE is taken to maximize income). only concerned with whether you can work, what kind of It is the VE’s job to look at an individual’s strengths and work you can do, your chances of employment, and how limitations and to form an opinion about employability much you can earn. and earning potential. Sometimes people suspect that the If you have a medical condition or several medical con- party who hires the expert is likely to get the assessment he ditions, come to the interview in your normal or average or she wants. However, the vocational assessment should be condition. That is, get your regular amount of sleep and the same whether the VE is employed by the person being take your regular medication. Do what you usually do, so evaluated or by the other side. that the VE can see you in as “real” a way as possible and can provide the most useful, objective opinion and projec- For example, I once sat in the back of the courtroom waiting tion possible. to testify in a divorce case. Both sides had used different VEs to evaluate the same individual.The other VE was also in the What After asking your name, address, tele- courtroom, sitting not far from me.When it came time for a  will the phone number, birthday and age, the VE vocational expert to testify, the judge said to both lawyers, vocational normally will ask about your education. “Counsel, I have read both reports.There is no need for expert How far did you go in school? What was vocational testimony since these reports are mirror images. ask? your GPA? If you finished high school, Your experts have reached the same opinion and made was it college prep, vocationally oriented, projections for income that are within $500 of each other or special education? Have you attended college or attained annually. I do not need to hear their testimony. Counsel, a degree? What work have you done since? Name of you may excuse your experts.”We (both VEs) stood, smiled employer? How long did you work there? What did you at each other, and left the courtroom, knowing that we had do? Why did you leave? Did you like the work? How is done a good job, a neutral job, and an ethical job since the your health? Do you have any health issues that would reports were essentially the same. interfere with your ability to work full-time? What do you do for fun? What is your ideal job? What kind of work  How to Before meeting with the evaluator, make prepare a list of the jobs you have had since high have you been looking for? How much looking have you for the school, actual tasks (job descriptions) and done? Do you have a job application log or can you con- evaluation length of employment. Include how struct a list of all the jobs/businesses you have contacted much you have earned in your most for employment? How have you gone about looking for recent jobs (for the last 10 to 15 years). Also include what work? What resources have you used? What essential kinds of “work-like” activity (volunteer) you have under- requirements must the job include? taken. For example, if you ran a Little League program or Where claims are made of physical, medical, or emo- helped with a fund-raiser for your church or synagogue tional limitations, the VE may request copies of reports that raised a lot of money. (Selling Girl Scout cookies with (if not already provided by counsel) to verify the existence, your daughter is important to you and your child, but not severity, and longevity of these limitations. On occasion the what we are looking for here.) VE may recommend that a Functional Capacity Evaluation Next, make a list of health-related issues that might (FCE) or other professional evaluation be done to gather interfere with your ability to work. If possible, and only if more information on the person’s physical/neurological/ your lawyer approves, bring copies of medical reports, doc- mental and emotional strengths and weaknesses. umenting health issues and limitations. These limitations A lawyer once called me about a client who previously may be physical, mental, or emotional. Bring records of worked as a nurse. She had physical limitations that would any hospitalizations, or at least when and where you were preclude her from working in a hospital or nursing-home set- hospitalized. ting. She really wanted to work and did not want long-term Finally, detail what steps you have taken to look for support from her husband, but did not know what to do.After work. It is not enough to say that you peruse the want ads reviewing the medical documentation and interviewing the once in a while. Keep copies of the ads to which you have woman, I suggested that she consider taking some additional responded. If you have applied online, print search-engine courses in the area of medical billing. This would allow her to

FAMILY ADVOCATE 39 use her medical knowledge in an office environment that work (or work at a higher level) and what kind of jobs, if would not be so physically taxing. Alternatively, she might con- any, may be suitable. If the VE feels that an individual can sider medical case review (compliance review) for an insurance work, the VE will then begin to explore resources (often company. My report included a section on additional education online) to determine what job openings exist and what for medical billing, and the lawyer was able to negotiate sup- income might reasonably be expected. port that allowed the client time to attend community college, Alternatively, if the VE feels there are limitations so obtain employment (with the help of the college), and begin an severe that they would prevent (or limit) employment, income stream that would lead to independence. the VE may conclude that work is not possible or that In another case, a cardiologist, with 10 years of experience, full-time work is not possible or that work with certain claimed to be making only $48,000 in income annually, which restrictions or limitations can be considered. he could document. Research at a nearby medical library I once was presented with a case in which the husband revealed that cardiologists generally were earning close to suffered a “closed head injury,” resulting from an automobile $300,000 a year. I later found out that the cardiologist in ques- accident. He looked quite healthy and capable and could carry tion had been working at a clinic owned by his girlfriend, hence on conversations, talking about the children or news head- the demonstrably low annual income. lines with reasonable clarity. However, if one listened careful- Are there other reasons why full-time work may not ly, there were a number of limitations.The client could talk be appropriate? Are there other responsibilities or activities about news headlines if he had just read the paper, but could that may or should take precedence over working full-time? not remember them an hour later. He could watch a TV pro- gram, but could not remember it an hour later. In reviewing In one case, a lawyer for the husband asked me to do a voca- his medical records, including a neuropsychological exam, and tional evaluation of the wife.The evaluation took place in the talking with the psychologist who administered the exam, it family home, where the wife was caring for their 12-year-old became apparent that this was an individual with severe daughter who had brain cancer.The wife explained that the memory loss. He could learn a new task, but would forget it daughter required care 24/7 and had special food require- as quickly as he had learned it. He would have to be retrained ments. The wife acknowledged that, in fact, she could work every single day in a work situation.The head injury had outside the home and possibly earn a decent income. She occurred almost three years earlier. The prevailing wisdom at pointed out, however, that home healthcare of the sort need- that time was that no significant improvements were likely ed for her daughter with a skilled nurse to monitor vital signs after two to three years of recovery. I interviewed family and prepare the special diet would cost in the neighborhood members who dealt with him on a regular basis, and they of $65 an hour.While recognizing that she could work, it was confirmed a number of limitations that were described in the apparent that she would not earn $65 an hour. More impor- psychological report. The man was quite intelligent (he had tantly, the soon-to-be teenager was in a very delicate situa- been an engineer) and had a great deal of difficulty accepting tion emotionally, very uncomfortable around strangers, and his limitations. He also had a great deal of difficulty remem- very unhappy with the caretakers that had been provided in bering to look at the lists he made to remember things. In the the past. I talked with the lawyer and pointed out that clearly end, I wrote a report saying that he was capable of work, but the wife/mother could earn a reasonable income, but would would be better suited to a day-activity program designed for not earn anything close to $120,000 a year. Additionally, I people with similar brain-injury limitations. pointed out that the quality of life for the daughter would be greatly affected (negatively, in my opinion) if the mother were  The A vocational assessment is similar to a not available to provide the loving care this young girl so vocational vocational evaluation, except that the greatly needed. Both the lawyer and I understood that it was assessment VE does not meet with the individual not my place to make value judgments about whether an (usually counsel refuses to let the client individual should or should not work. I indicated that I would meet with the VE). The VE gathers information from the be ready to write a report or testify to the wife’s employabili- documents listed above and any other sources (often the ty and income potential. I also wanted him to see the larger other spouse) before forming an opinion about the individ- picture. He appreciated my input and talked with the husband ual’s ability to work. In cases where counsel denies access to about settling the case in a way that worked for everyone. the client, counsel who hired the VE may petition the court for access to that client. In these cases, the client who After the interview, the VE will usually do a review of is denied access to the VE loses the opportunity to have an the documents provided by counsel or client, often includ- impact on the vocational report. ing answers to interrogatories, deposition information, The VE will often write a report that reflects the find- medical reports, resumes, job application log, and any ings of the vocational evaluation or vocational assessment. other information that may have a bearing on the individ- It is important to understand that the VE is impartial and ual’s vocational potential. After all the information has objective. It is not the VE’s job to form an opinion about been reviewed, it is the VE’s responsibility to form an whether an individual should or should not work, only opinion about whether the individual in question is able to whether the individual is able or not able to work and, if

40 FAMILY ADVOCATE www.ambar.org/clientmanual The vast majority of these cases settle before going to court. This is a good thing. Unfortunately, sometimes they settle on the courthouse steps. This is not such a good thing.

so, what kinds of work are possible, potential earnings, and Also of interest are websites such as monster.com, the availability of work. kforce.com, careerbuilders.com, and usajobs.gov. These are general information websites that post job openings  Qualifications Generally speaking, a VE has experi- by type and location. VEs also use employer websites, i.e., of a VE ence in the field of vocational assess- company websites that hire within selected industries. ment and placement. Many VEs have For example, medical jobs would be listed on hospital or an advanced degree and work experience in counseling, laboratory websites. Education-related jobs might be listed rehabilitation, or psychology. These are not requirements, on a board of education website (or private school website), however. VEs may be licensed by the state or may have and sales jobs would be listed by malls, big-box stores, or local or national certification, often provided by profession- manufacturers. al organizations that deal with rehabilitation/vocational Where appropriate, VEs also call employers and talk counseling and/or vocational assessment. Advanced with human resource specialists to gather further insight degrees, work experience, or certifications can help reassure into jobs, job accommodations, etc. On occasion, and the court that the individual does have specialized knowl- where a medical release has been provided, the VE may edge and experience in the field of assessment and/or place- talk directly with a medical provider to get insight into ment. The VE does not need to have special knowledge limitations that may affect an individual’s ability to work. about the divorce process or divorce law. The vocational assessment/evaluation is the same for people who are get-  Courtroom The vast majority of these cases settle ting divorced as it is for someone out of work or with testimony before going to court. This is a good physical or emotional limitations completely unrelated to thing. Unfortunately, sometimes they the divorce process. settle on the courthouse steps. This is not such a good thing. These settlements often are stressful for the parties,  What Vocationally oriented tests may include: as is the idea of someone else making such important resources tests of intellectual functioning, reading decisions for them, such as the judge, or that they might are used? and math achievement, aptitude tests, actually “lose“ when the judge hears the case. and interest inventories. The scores on When these cases go to trial with a VE as a witness, the these measurements do not, in and of themselves, prove expert is usually sequestered (kept out of the courtroom anything, but combined with information gathered during until the time for testimony), although on occasion I have the interview (and a knowledge of past employment and been asked to sit in the courtroom and listen to testimony, education), they help the interviewer focus on the kinds of because it is the first opportunity I have had to see and work an individual may perform in light of past experience hear the person I have assessed. In these situations, the or expressed interest. A number of “work samples” are lawyer who has hired me will pose a series of background sometimes used in an evaluation. These are hands-on questions to the individual I have assessed, to give me activities that measure an individual’s ability to function in firsthand experience with his or her answers. In most cases, a more “real world” setting/experience. At the most basic however, I will have met with the individual before the level, these may include sorting and filing kinds of activi- hearing. ties. At a more advanced level, these include assembly or When it is my turn to testify, the lawyer who hired me disassembly of mechanical parts used in various machines will ask a set of background questions concerning my edu- or demonstration of knowledge in the use of computer cation, work experience, and other courts in which I have programs. been qualified to testify. Then, the lawyer turns the floor The VE may use a number of websites as resources for over to the other lawyer who will cross-examine me on my job-specific annual income information. These include the background and qualifications. Some lawyers will stipulate U.S. Bureau of Labor Statistics, the Guide for Occupational to the VE testimony, and others will try to challenge the Exploration, the Occupational Outlook Handbook, labor testimony (or challenge the report) to prevent the VE from statistics published by the various states and websites, such testifying. as salary.com. When I testify, I explain what I know about the individ-

FAMILY ADVOCATE 41 Divorce is difficult emotionally and financially. Two people—two families—simply cannot live apart as cheaply as they lived together

ual I have evaluated or assessed, how I gathered the infor- people—two families—simply cannot live apart as cheaply mation, what documents I have reviewed, and what other as they lived together. In many cases, this means that both resources I have used in forming an opinion. I then general- spouses will have to work to make ends meet and take ly give my opinion and often the rationale for that opinion. care of the family if they hope to approach their former When my initial testimony is complete, opposing coun- standard-of-living. sel then has the opportunity to question my opinion, the Many clients come to me angry and quite resistant to a rationale, and the resources. Most do this gently and vocational evaluation. They are upset about having to be respectfully. A few are quite aggressive and unpleasant. It is put through one more hoop and one more challenge. They my experience that the lawyers who are aggressive generally find thinking about work difficult when they are dealing are not prepared or recognize that my opinion is reasonable with emotional issues surrounding the breakup of the (and conservative) and thus they want to distract from it family and litigation. through courtroom theatrics. After opposing counsel cross- I try to be reassuring that things will get better and examines me, I will sometimes be questioned briefly by the easier after the divorce. I know this because former clients lawyer who hired me, to clarify any questions that may have come to me after the divorce (even the opposing have arisen during cross-examination. spouse) and thanked me for my help. They have come to realize that my opinion made sense and, in fact, they later  Conclusion Vocational evaluations/assessments are acted on the recommendations in my report. tools used by counsel in divorce cases The vocational expert can be an asset to both sides of (and other income-related matters) to provide information the litigation and to the judge. The vocational report can about a person’s ability to work, the kinds of work that help a client see when he or she is being unreasonable or they can do, the kind of income that can be derived from unrealistic with regard to income and job availability, or the the work, and the availability of that kind of work. inappropriateness of work for a spouse who has physical, Vocational evaluations/assessments are used by lawyers to mental, or emotional limitations. This is true for both present, defend, and help settle the case. On occasion, sides. vocational in-court testimony is necessary. In this instance, The vocational report (and sometimes vocational lawyers present the judge with objective information that testimony) can help the judge make a more thoughtful, may be used in reaching an opinion and making a decision useful, and fair decision, tailored to the needs of the partic- concerning alimony or child support. ular family. The vocational evaluation also can provide It is important to keep in mind that these are just tools. some very useful information to the person being evaluated The VE does not form an opinion about alimony. The as he or she moves ahead on a path toward independence VE does not suggest how much or how little support an and fulfillment. fa individual should pay or receive. The VE does not guaran- tee that an individual can earn a certain amount of money or be employed. The VE opines that if an individual wants MARTIN A. KRANITZ has a B.S. and M.A. to work and follows the necessary steps in obtaining work, degree in psychology and has worked as a he or she will find work even in this day and age of high vocational consultant in private practice for unemployment. over 35 years. He has been a vocational When testifying in court, I am often asked by opposing expert for the Social Security Administration counsel, “What if my client does not want to do the kind since he entered private practice and of work you are suggesting?” My response is always the currently provides services to offices in Maryland, Virginia, same, “That’s why they call it work.” Not everybody gets to and Illinois. Martin is also a trained/certified facilitative do the kind of work they like. mediator who specializes in separation and divorce issues. Divorce is difficult emotionally and financially. Two

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By JODYM.MEYER

When one hears the word “stalker,” one immediately thinks of celebrities, such as Lindsay Lohan, Justin Timberlake, Halle Berry, or David Letterman. While these types of stalkers and situations are real, they do not reflect the typical experiences of average people.

stalker can be, and very often is, someone willfully and maliciously harassing another per- you know. Your stalker might be a son and making a credible threat with the friend, a casual acquaintance, a intent to place that person in reasonable fear current or former boyfriend or girl- for his or her safety. New York classifies con- friend, a former spouse, or a stranger. duct into varying degrees of stalking, harass- According to U.S. Department of ment, and unlawful surveillance. Justice statistics, however, nearly These legal definitions may not, however, three in four stalking victims know be helpful. Generally, stalking is a pattern of Athe offender. In many cases, the stalker and harassing or threatening conduct by one per- the victim are or were romantic partners or son toward another. In certain circumstances, it spouses. The risk of being stalked is highest for is obvious when you are being stalked or harassed. those who are divorced or separated, and women That is not always the case, however, especially are at greater risk than men. when you are in the middle of an intense romantic pursuit or the demise of a meaningful personal · WHAT IS STALKING? relationship. In such a case, it can be easy to lose Although all 50 states have laws addressing it, perspective on what is and is not appropriate. the legal definition of stalking varies from state Further, various technological advancements pro- to state. Kansas, for example, defines stalking as vide stalkers new ways to contact and harass their “an intentional harassment of another person victims. that places the other person in reasonable fear for that person’s safety” and harassment as “a · WHAT CAN I DO? WHAT SHOULD I DO? knowing and intentional course of conduct Although being stalked or harassed can be ter- directed at a specific person that seriously rifying, you have the power and the means to alarms, annoys, torments or terrorizes the protect yourself. One of the most important person, and that serves no legitimate pur- things to remember is that the stalker’s behav- pose.” California defines stalking as willfully, ior is not your fault and that you deserve to maliciously, and repeatedly following or be protected from such behavior.

44 FAMILY ADVOCATE www.ambar.org/clientmanual Stalking G Showing up uninvited at G Posting threatening G Using GPS devices or hidden your home or workplace or messages or personal cameras to track your Behaviors perhaps at your children’s photographs on Facebook, whereabouts. school or sporting events. MySpace, Twitter, etc. G Discovering information G Repeated and unwanted Opening your personal mail Tracking or monitoring about you through public telephone calls, instant G G or e-mail messages. your computer, e-mail, and records; online searches, messages, text messages, Following you or maintain- cell-phone use. such as Google; hiring or e-mails. This contact may G ing formal or informal Sending unwanted gifts, private investigators; going have an innocent explana- G surveillance of you. flowers, letters, cards, through your trash; or tion, such as “I just want to Threatening harm to you, e-mails, etc. questioning your friends, talk about the children.” G your children, family, or G Damaging or vandalizing family, neighbors, or pets. your home, car, or other co-workers. property. —J.M. 25 Practical Steps to harassing behavior. Once you have done so, do not reply to any follow-up efforts to contact you. Do not Protect Yourself engage in lengthy discussions. Despite his or her plea, the stalker is not entitled to an explanation. If you are in imminent danger, go to a safe place and call 911. 5 Ignore this person’s attempts to contact you or arrange 1 If you have an attorney, let him or her know immedi- some interaction. One way a stalker may try to control ately what is going on. Behavior initially seen as annoy- and harass you is by baiting you into a discussion or an ing might be a sign of something more serious. Talk argument. Even negative feedback can give the stalker with your lawyer about the best course of action to take. what he or she wants and may continue or escalate the 2 Carry your cell phone with you at all times. A phone behavior. Do not try to reason with or appease a stalker. that can record both audio and video is useful. Program 6 Tell your friends, family, neighbors, landlord, and co- emergency numbers into the phone and make them eas- workers what has been happening, and show them a ily and quickly accessible. Change your home and cell- picture of the stalker. Stalkers typically thrive on priva- phone numbers. Some landline and cell-phone carriers cy and secrecy. The more people know about your sit- will even do this for free if you explain the circum- uation, the more eyes and ears are watching out for stances. Get caller ID and an unlisted telephone number. you. Tell your neighbors and co-workers to keep an eye 3 Clearly state to the person (including your ex or soon- out for the stalker in your neighborhood or workplace. to-be ex) that you are not interested in and do not want 7 Instruct family and friends not to give your contact his or her attention or contact. As with Lauren Holly information to anyone, no matter how innocent the and Jim Carrey in the movie Dumb and Dumber, if you inquiry may appear. respond to an unwanted overture with anything other than a categorical “no,” your pursuer may optimistical- 8 Take all reasonable measures to avoid encountering this ly conclude that “one out of a million” means “there’s a person and his or her family. A stalker’s family or chance.” If you and your ex have children together, the friends can unwittingly contribute to the problem by situation becomes a little more difficult. It is almost passing along information about you to your stalker. impossible to end all contact with the parent of your Do not travel alone. A stalker will be much more like- children. Make it clear to your ex that your only contact ly to leave you alone if you are in a group. with one another should be to communicate about the 9 File a formal report of all incidents with your local children. When you exchange the children, it might be police or sheriff’s department. helpful to use a public location, a supervised exchanged center, or a neutral third-party. Use e-mail or texting to 10 If you continue to receive unwanted contact or atten- communicate with your ex, rather than in person or by tion, file a petition for a restraining order. In almost telephone, and keep a written record of the purpose and every state, such forms are available at your local court- outcome of the conversations. Frequently, stalkers and house. This can be done with or without an attorney. harassers use the children as an excuse to have contact Some free legal aid agencies work specifically with vic- with their victims. tims of stalking and can provide advice and assistance. If you already have an attorney who is assisting you 4 Tell the person, preferably in writing (letter, e-mail, with your divorce or custody matter, consult with your text, IM, etc.) that he or she must cease the stalking or lawyer prior to filing an action yourself.

FAMILY ADVOCATE 45 11 Keep all text, IM, and e-mail messages, these online venues provides a stalker as well as any other relevant physical evi- easy access to your personal information. dence, such as letters and gifts from the If you do choose to share personal infor- person and photos of property damage. mation online, set up your profiles so Obtain and record the names and phone that only those you approve can see your numbers of persons who witness any personal information and posts. Tell your harassing behavior. friends not to post any of your personal information or tag you in photographs. 12 It may be possible to record and retain Also consider blocking the stalker. all phone calls from the person. Your ability to record conversations with 21 If you think your stalker is stealing your another person varies by state. In some mail, get a post office box. states, you can record conversations if 22 Sometimes a stalker will use the legal one party consents. In other states, you system to try to force contact with you can only record conversations if both by requesting court hearings, mediation, parties consent and/or you advise the joint counseling or therapy, and unsu- other person you are recording the pervised exchanges of children. Make phone call. Speak with your attorney sure your attorney is fully advised of the about the law in your state before taking situation so that he or she can notify the any such actions. court and take appropriate action. 13 Keep the doors and windows to your 23 If you think your e-mail account has house and your vehicles locked at all been compromised, close it and open a If these measures times. new account with a free service, such as do not keep the 14 Install security systems at home and on Gmail or Hotmail. Select usernames and stalker at bay, file your vehicles. Use a timer to turn your addresses that are nondescript and gen- lights on and off periodically. Ask your der-neutral and that do not contain any a petition for a local police department to drive by your identifying information. Do not share restraining order house occasionally. your password with anyone. Do not give this new e-mail address to anyone that against the person. Park your vehicle in well-lit, heavily 15 you do not trust implicitly and instruct trafficked areas. This process is anyone who has it not to provide your typically very 16 Do not follow the same daily routine. address to others. Also consider chang- simple and can Take your breaks at different times of ing your passwords to all accounts. Your day and vary your routes to and from be handled with ex may remember a password to your work, as well as your destinations. account or easily ascertain your pass- or without an 17 Contact support agencies, such as word if you use children’s names, birth attorney. domestic violence and rape crisis hot- dates, or anniversaries. lines, domestic violence shelters, coun- 24 Handle personal business only on com- seling services, and support groups. puters you know to be secure and proper- 18 Keep a log or journal of events. If you ly equipped with anti-spyware software. need a restraining order, ask for one. Understand that it is possible for a stalker Keep a journal of pertinent dates, a brief to install software on your computer to summary of events, and the names and record every keystroke, the websites you phone numbers of any witnesses. visit, your IM conversations, etc. Consider making copies and giving 25 Use Google or a similar search engine to them to a friend or family member or find information about yourself on the placing them in a secure place, such as a Internet. Consider using a service like safety deposit box. www.reputation.com to monitor others 19 At work, have someone screen your conducting searches about you. phone calls. Only open mail and e-mail If these measures do not keep the stalker at from addresses you recognize. bay, file a petition for a restraining order 20 Consider deleting any social networking against the person. This process is typically sites to which you belong. This may seem very simple and can be handled with or with- extreme in the age of Facebook, Twitter, out an attorney. While state procedures differ, and MySpace; however, participation in generally the process starts with a petition or

46 FAMILY ADVOCATE www.ambar.org/clientmanual THERE IS ANOTHER WAY… ADR Options: A Handbook for Clients Explore your alternatives to trial. • Mediation • Arbitration • Collaborative Divorce

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or some couples, it is possible—with help—to shift To find out more, the focus of their divorce from confrontation and ask your lawyer for a F litigation to a mutually agreed upon settlement. This handbook explains which couples are most likely to copy of this handbook succeed using ADR—alternative dispute resolution—and and for an appointment how such options work. to discuss whether ADR Find out more about: • What mediation is might be right for you. • How collaborative law works See back cover for price and • When arbitration is appropriate ordering information or go to • Who gets the final say www.ambar.org/clientmanual. motion setting forth the reasons you need a restraining case, a motion may be filed in that case for similar relief. order. The office of the clerk of the court and local law It is important to discuss with your attorney the options at enforcement agencies have forms for this purpose, and there your disposal. It may be possible to have the stalker undergo generally is no filing fee. a psychological evaluation, particularly when children are Most jurisdictions have at least one judge on duty at all involved. It may be possible to have a guardian ad litem or times to review promptly any such petitions and determine mental-health professional appointed for your children if the whether a restraining order should issue. If there are suffi- impact of these activities is causing anxiety for them. Your cient grounds, the court will issue a temporary restraining attorney will know how to proceed in your area. Although order and arrange for it to be served personally upon the you may not ultimately file an action for a restraining order, stalker. These orders typically keep your address and contact it is important for your attorney to retain documentation of information confidential. The temporary restraining order these actions as the information may be relevant to your typically may be issued initially without notification to the divorce case and to protecting you in the future. fa stalker and can provide for such things as a “no contact” restraining order, custody and support of minor children, JODYM.MEYER is a supervising attorney with Douglas and possession of a residence. A hearing also is usually sched- County Legal Aid Society, Inc., in Lawrence, Kansas, which uled at this time. At such a hearing, each party has an oppor- is also a clinical program of the University of Kansas tunity to present evidence. The court then determines School of Law. She is currently president-elect of the whether a permanent restraining order should issue. If there Family Law Section of the Kansas Bar Association. is already a pending divorce or other domestic or family law

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