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NEW YEAR, NEW YOU? THREE COURT-CASE RESOLUTIONS TO KEEP

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New Year, New You? As you prepare to ring in the new year, with weight-loss programs, sitcom debuts and end-of-the-year-gotta-buy-it-now car sales advertised everywhere you turn, divorce may be the last thing you associate with "a new you." A slimmer you, maybe. A you who watches that new show on Wednesday nights, maybe. A you driving a brand new Mustang, more than maybe. But a new divorced you? Forget about it, right?

Not so fast. How about a richer you? A calmer you? A you who just won his custody case because you were prepared?

As you reflect on the year that has passed and plan for the year to come, you should take time to think about where you are in your case, how far you have come and where you want to go, too. If you are considering divorce, make a list of the reasons why and brainstorm ways to fix them. If divorce is inevitable, write down important information you will need to copy, such as your tax returns, and your goals for your case. If you are in the middle of divorce, reflect on the significant events that have occurred in your case, the outcome for each, and what you learned. If you have finished your divorce, review your documents and determine what you need to do to ensure you receive the property awarded in your decree. Talk to your attorney, or contact one specializing in family law like Cardelli Lanfear, and resolve yourself to make this new year a better year for your divorced or divorcing family, your wallet and your sanity.

No matter what stage of the divorce process you are in, these simple resolutions will help you avoid a messy divorce in the new year:

RESOLUTION #1: I WILL KEEP A PARENTING TIME JOURNAL

This one is for you parents. Your son or daughter probably tops the list of the most important people in your life, and you may have even uttered the words I will do whatever it takes to win custody to your attorney. As a family law attorney, I commend you. It takes a tough father to ask why? of the often unstated, but still dominant, assumption that children should reside primarily with their mothers. But, also as a family law attorney, I can tell you that not every disagreement or problem you have with parenting with your wife or ex is significant enough to call your or her attorney. We want to hear and know about every problem, of course, but calling for each one will have you racking up a hefty legal bill and forgetting them when they do matter, at a hearing or trial. Instead, you should write them down so that you can discuss them with your attorney together and remember them when the time comes to testify.

I recommend my clients keep a parenting time journal. For a few dollars to purchase a notebook and a few minutes a day journaling, you can keep a valuable timeline for your case. If you are computer savvy, you can keep an electronic journal (just be sure to password-protect it). If you are a writer, you might update it every day. If you are not, you might just jot down notes when problems arise. Keep the journal in a secure place, such as a lock box, out of your wife's or ex's and your child's reach. These notes are for you and your attorney only, and they can easily misinterpret them if you write in particularly venting passage, which you may. Some clients write "Attorney-Client Log" on the cover and address passages to me so that the entire journal is more likely to be treated as attorney-client, and therefore confidential, communication.

Be careful with what you write, if you intend to use your journal when you testify. Testifying is a bewildering experience, what with the formality of the courtroom and an opposing attorney grilling you, and you may forget important details about events that you journaled. If you can refresh your memory by reading a passage, you may request to review it. If you cannot refresh your memory but are certain that your memory was accurate and the event new when you wrote in your journal, ask to use your journal as evidence of your recorded recollection. In most courts, you may use your journal for these purposes. However, your opposing attorney may also be entitled to read the passage you referred to and offer it into evidence-- including any rambling curse words you included when, for example, your ex denied your parenting time. That journal could turn from helpful to damaging. So, if you intend to use your journal to help you testify, always write as if the judge is watching.

Of course, always call your attorney for an emergency.

RESOLUTION #2: I WILL COPY WORK, MEDICAL AND OTHER IMPORTANT RECORDS

In a divorce, these records have a way of, mysteriously, disappearing. Sometimes, they make their way to your opposing attorney's office. Sometimes, they get stuffed in a box with "move out" belongings. Sometimes they turn up in the trash. Or they just got lost. Whatever the reason, you may very well find yourself searching for documents your attorney requests, only to come up empty handed and have to pay for a third party, like a bank, to provide copies.

Make copies of local, state and federal tax returns (ideally, all of them, and at least the past 5 years so that you can establish an earning history); pay stubs (both yours and, if possible, your wife's or ex's); bank and credit union statements (ideally a full year); IRA, 401(k), 403(b), pension and other retirement account records (ideally, for the history of your relationship); investment and stock records; deeds; appraisals; health, dental and optical insurance cards; birth certificates, passports and Social Security cards; and any other important records that identify you, your family and/or the property you acquired during and before your marriage.

Your copies will keep you and your attorney organized, and that is one of the easier ways to save money. You will not have to pay your attorney's office to read and sort stacks of crumpled papers, subpoena third parties for what is missing, and weed out the relevant from the illegible or irrelevant ones. More importantly, you and your attorney can reference records during a hearing or trial with ease.

While you are making those health insurance card copies, be sure to note your coverage and speak to your provider upon the continuation of coverage upon your divorce. Before your divorce, use the health insurance available to you! (Strategically, I recommend my clients do this before we file for divorce so that any debts for co-pays, lab costs, etc., are more likely to be treated as marital debt to be divided between the spouses, rather than separate debt to be foisted on one party) Go to that annual check up. Fill your prescriptions. Have your eyes examined and your teeth cleaned. Talk to your doctors about your immediate and future health needs, what insurance to obtain and whether low-cost substitutes (e.g., generic medicine) are available.

The more organized and informed you are now, the less scrambling you will have to do during the divorce or post-divorce process.

RESOLUTION #3: I WILL NOT SAY WHAT I THINK, I WILL THINK BEFORE I SPEAK

One slip of the tongue can be the death knell for your case.

But isn't an out-of-court statement hearsay? Not if it is your and your wife or ex offers it against your case. This is an admission.

An "admission" is a party's out-of-court statement or assertive conduct used against him or her. For example, defendant wife's e-mail to her husband that she under-reported profits from her resale shop is an admission if plaintiff husband offers that statement against her (e.g., to prove that she earns more than she claims an is, therefore, not entitled to alimony). All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the offering party need not find one of those tens of hearsay exceptions to apply before offering it into evidence.

The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-driven plaintiff wife's lawyer could admit an e-mail of remorseful defendant husband apologizing for "gambling away our savings" or "taking that trip with my secretary because I didn't care what you and the kids did at Christmas," which husband thought wife would appreciate, this sincere apology, to prove that husband gambled the parties to debt or cares more about his new girlfriend than his children. Or, lawyer might have wife testify that husband often bragged about the cash he received under-the-table for cash sales at his family business to prove that he earns more than he says he does. Or, lawyer might print husband's status updates and tweets, in which he ranted about "having to go to court with that B****" and "refusing to give her a dime" to prove that husband disparages his children's mother.

Even if they are inaccurate, untrue or heat-of-the-moment and poorly-thought-out comments, these admissions will do considerable damage to your case. Once the judge or jury hears them, that is it. Although your lawyer may request a limiting instruction so that the statements apply for some things (e.g. the speaker's credibility) and not others (e.g., the truth), it is impossible to forget a damaging statement. As the saying goes, "You can't un-ring a bell." Once they're heard, they will not be forgotten.

Once your wife or ex hears them, you can bet she will not let you forget, either. Better to bite your tongue than exhaust your resources with letters between attorneys' offices clarifying "what you really meant" or time in court explaining yourself away.

Always think before you speak, Will this sound good in court?

As the year comes to an end, resolve yourself to make these three changes - keep a journal, make copies of your records, and think before you speak -- and you could very well safe yourself time, money and stress enough to afford that new car and become a brand new you in the new year.

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