We tell our clients that the most valuable thing they have in their case is their credibility -- their credibility with their lawyer, with their children, with social workers or the GAL, and especially with the judge. "The moment your credibility is called into question, even slightly, is the moment you start to lose ground in your case," we warn. "The judge has only a very short period of time to get to know you and form an impression of you. If the judge hears one inconsistency, one lie or untruth, it colors everything else you have to say."
Of course, sometimes a client might honestly forget about a tiny retirement savings plan from three jobs and 15 years ago, or about a small plot of property in the woods that his great-aunt left him 20 years ago. But don't try to tell your lawyer -- or a judge -- that you forgot about that offshore bank account you set up two years ago, or about your part-time job as a carpenter. And even if it's an honest mistake, it makes you look bad if the other side's lawyer brings up something you have not mentioned. If your wife knows about it, she probably told her lawyer. At trial is not the time to find out that she paid better attention to your financial affairs than you thought she did.
Two Types of Men
Some clients don't provide any information at all. Two types of men seem to fall in this category. One type doesn't want a divorce. We tell them what we need, over and over, but they simply don't give it to us. They think that if they don't hand over that bank statement or don't produce those tax records, maybe this whole nightmare will go away. They're in denial, and thereby denying their lawyer time to review the information and plan the case. Further, they are only delaying the inevitable; opposing counsel will obtain the information by subpoena eventually.
The other men who drag their feet on providing information are the high-flyers, often professionals or executives. Maybe they don't like the idea of someone telling them what to do when we insist that they "get those records for us." Maybe they think it's beneath them; that it's something that an administrative assistant should handle. Well, we don't care. Have an administrative assistant handle it. Just get it to us. If you say you can't find your bank records, we can contact the bank and get them for you, but it is going to cost you time and money, and add significantly to your legal fees. (Most lawyers really do work hard to keep fees down. We profit more by keeping fees down and getting more referrals than by running up avoidable costs.)
I've had men try to hide their gambling problems, or "forget" to mention that little detail about a DWI arrest. Inevitably, those things come back to bite us -- and surprise us, to make matters worse -- at a trial. If your wife knows something about you, then you'd better assume her lawyer is going to know it, too. And if your wife and her lawyer know something about you, they may use it against you. If you once threw a shoe at your wife, I want to know about it -- even if you missed her on purpose -- because she might cite that as an example of your violent tendencies. If you once said, "I wish I was dead," I want to know, because she could claim you are suicidal. If you once stuck a few free samples of Claritin in your pocket in the examining room when your doctor's back was turned, I want to know, because she might cite it as an example of your dishonesty or your reliance on drugs. You might think those are ridiculous examples, but they're not. Your lawyer needs to know anything and everything your wife might say about you to hurt you or your case.
Even if you are sure it's something your wife doesn't know about, tell us anyway. I once had a client who was absolutely sure his wife did not know about a bank account he kept secretly on the side. He had used the money in the account to fund a number of affairs over the years, paying for dinners, drinks, and hotel rooms with his girlfriends. If the client had told me about the bank account, we would have had to include it in the financial statements, and his soon-to-be-ex-wife would have been entitled to half of the money in the account. But the client didn't tell me. He figured there was no way his wife could have found out about it. But she did. One of his ex-girlfriends was angry with him for dumping her, and she told the wife about the account. The wife's lawyer sprung it on us in court. As often happens when a judge finds out that a guy is trying to hide assets, the judge awarded the entire amount in the account to the wife.
It's Not Always "Case Closed" After the Decree
Some men think that if they can hide an asset until the divorce decree becomes final, they're in the clear. Not so. I had a client who sold a lot of stock when he realized a divorce was on the horizon. He sprinkled the proceeds into a bunch of bank accounts here and there. He disclosed a couple of the accounts, but not all. His wife's lawyer hired financial consultants -- which is not unusual in cases involving a lot of money or complicated holdings -- to go through the books. The consultants found almost everything, except for a couple of offshore accounts that had a combined total of about $100,000. I asked the client if what the wife's consultants found was everything and he said yes. The two sides reached a settlement that was approved by the court, and the case was closed. The client figured he had saved himself about $50,000, since his wife hadn't found the $100,000 in offshore accounts and avoided having to give her half.
About six months later, a statement from an offshore investment house came to the client's former home address, where his ex-wife still lived. Puzzled, she handed it to her lawyer. Her lawyer handed it to the financial consultants, who quickly tracked down the account. My client was busted. He came dragging back to me crying for help, but there was nothing I could do. He had lied to his wife, the financial consultants, to the court, and to me, his lawyer. The ex-wife's lawyer petitioned the court and the case was re-opened. The settlement decree was altered and my former client was ordered to give his ex-wife an additional $100,000 plus her lawyer fees in reopening the case. Why lie and risk losing not only your self-respect but twice as much as it would cost you to tell the truth?
Nothing but the Truth MEANS Nothing but the Truth
Speaking of perjury, clients do ask us about that. Sometimes they have done something wrong, and they want to know if it's all right to shade the truth while under oath. I think they expect us to wink at them, or give them some sort of signal that it's okay because this happens all the time in court. Well, we're not going to do that. We're not going to encourage or endorse or in any way approve any sort of testimony that is not accurate. Under oath, in response to questioning from your wife's lawyer, you can answer the questions as narrowly and precisely. But you must tell "nothing but the truth."
We were recently involved in a case where the wife was independently wealthy, an heiress, and she was asked questions specifically about her trust fund. The heiress answered artfully. She made it sound as if the trust fund was her sole source of income, about $500,000 a year. When it eventually came out on cross-examination that the heiress actually had two other trust funds paying her more than $1 million a year, she ended up paying through the nose, and her lawyer ended up on the wrong end of an ethics investigation.
Revenge and Punishment: Two Traps
Men often misjudge the importance of one particular fact: cheating wives. As lawyers, we try to be sympathetic and listen. We know it's tough any time someone you love has betrayed you and wants to leave you for someone else. You were good enough for her once, but not anymore. She's found someone better. That used to matter much more, years ago, in divorce law. If one party committed adultery, that party was at fault, and that was cause for divorce. But things have changed. Many states have no-fault divorce, and even states that still ascribe fault tend to downplay infidelity. In truth, in most divorce cases, and especially in terms of dividing the property, the law and the courts don't much care if somebody had an affair as long as the children weren't harmed or marital funds weren't misused.
But some guys can't get over it. They want revenge. They need to make it public, they need to punish her, and they need to make her suffer. I remember we had one client who simply couldn't let it go. "This is the worst thing she could have done to me," he told us. "Killing me would have been better." He said this made her a horrible person and a horrible parent. He wanted full custody and wanted her to see their kids as little as possible. It took the judge about two minutes to shoot down that whole rationale. Having an affair typically doesn't mean the mom is a bad parent. It means she fell out of love, or she found someone else. It happens, it's human. The law has become less and less interested in the emotional side of divorce and more and more focused solely on the contractual aspects. If that client had been running the case, he probably would have showed himself to be angry and irrational; his wife might have won full custody. Instead, we finally got him to focus a little on other aspects of his wife's life -- she mishandled their money, she kept getting fired from jobs, she didn't get along with his parents -- and we built on a series of small things to the point where we were able to get the guy shared custody.
Sometimes in divorce cases both parties have skeletons that they'd like to keep in the closet, and they tacitly agree not to bring them up. She won't mention that he hit her, and he won't mention that he hit her because she was waving a butcher knife. I once had a client who told me that he and his soon-to-be-ex had been swingers. They would go to parties where they'd swap partners with other couples and have sex orgies, sometimes with multiple partners over the course of the evening, one after another, and sometimes multiple partners at once, threesomes and foursomes. His soon-to-be-ex told her lawyer, too. They were involved in a custody battle, but everybody sort of reached an unspoken agreement not to mention the wife-swapping -- "don't ask, don't tell" -- since both were equally involved. It never came up during the proceedings. I've got to tell you, though, that throughout the proceedings, the soon-to-be-exes often looked at each other with blazing, angry eyes, and then looked away. I wondered if they were thinking (a) hey, I could destroy him or her if I told about the wife-swapping, and then, (b) oops, I'd be destroying myself, too. It was like a staredown. I, for one, was glad neither of them blinked.
The bottom line is that we know it's impossible for a client to tell his lawyer everything. A wife might bring up something the husband said seven years earlier in the heat of an argument, and it hadn't made any difference then or any time since then. But she might bring it up. The important thing is for a man going through divorce to at least hit the highlights of things that might work against him, and then let the lawyer explore the various topics if necessary. If you cheated on your taxes or with another woman, tell your lawyer. If you sometimes holler or sometimes get sullen, tell your lawyer.
Don't make a stupid mistake: Tell your lawyer everything that might work against you.
This article has been edited and excerpted from the book The 10 Stupidest Mistakes Men Make When Facing Divorce And How To Avoid Them by Joseph Cordell, Esq. Copyright © 2010. Published by Three Rivers Press. Joseph Cordell is founder, with his wife, Yvonne, of Cordell & Cordell, P.C., one of the leading law firms in United States representing men in family law cases. He is also the creator of www.DadsDivorce.com. For more information, visit www.cordellcordell.com.
Certified Divorce Financial Analyst
Business Valuators / CPAs