20 Ways People Can Sabotage Their Own Divorce Or Custody Case

1. Lying To Or Withholding Information From The Attorney

An attorney works for their client, and with very rare exceptions (such as child abuse), they have a duty of confidentiality and cannot share information that the client indicates should be confidential. For this reason, clients should feel safe in sharing all of the information with their attorney. Sometimes people withhold information from their attorney because they believe the attorney will not fight for them or believe in their case if they know the whole truth. However, being upfront with the attorney will increase the attorney’s confidence in their ability to work with the client, and the client’s candor will arm the attorney with the information they need in order to prevent the case from later blowing up due to a nasty surprise. The last thing a client wants is for a lie or omission to be revealed at a critical time in court, leaving their attorney flat-footed, and ultimately harming their case.

2. Negotiating With The Other Side, Entering Into Agreements, Or Raising The Other Side’s Expectations Without Legal Advice

Oftentimes, divorce or custody litigants desire to “play nice” with the other side by being conciliatory, or aim to appease the other side in an attempt to keep them calm. This is a laudable goal and can be useful.However, when it is done by raising the other side’s expectations without knowing the legal landscape or consequences, a client can easily make their case more difficult. For example, a client who is unaware of the strength of their own case might agree to give a significant concession to the other side, thereby creating an “expectation bubble” – or unreasonably high expectations in the other side. This expectation bubble may cause the other side to be unreasonable and fail to recognize the strength of the other party’s case during negotiations. In an attempt to keep the peace, one party will very often “give away the farm” to the other side, or will at least raise such an expectation and thereby cause difficulty later on in the case.

3. Not Seeking A Fair Share Of Assets

Generally, one should not give away all of their bargaining chips without reciprocation. It is usually unwise to concede very many issues until the other side has also demonstrated a willingness to make concessions. In other words, don’t “give away the farm” or all of the bargaining chips before receiving something significant in return.

4. Failing To Provide The Attorney The Necessary Information, Failing To Complete Assignments, Or Failing To Stay In Touch With The Attorney

Many clients believe that since they have hired an attorney and paid them a lot of money, they can just sit back and let their attorney do all the work. Other clients feel emotionally overwhelmed and therefore avoid completing assignments. It is important for people to understand that an attorney cannot make something from nothing; unless a client participates actively in their own case, they are likely to get a mediocre result (at best). Furthermore, that result will cost more. The more assignments a client can complete for their attorney, the less the attorney will have to charge the client. For example, if an attorney asks their client to obtain a police report from law enforcement or type a history of the facts, doing so promptly will not only increase the attorney’s likelihood of success but also lower the bill.

For those who feel overwhelmed by the process, enlisting aid and emotional support from friends, family members, or therapists might be necessary. Oftentimes, friends or family members can help with the completion of assignments. Alternatively, an attorney might have a staff member who is available to assist with assignments for a lower hourly rate. The last thing a client should do is ignore the assignments, or fail to stay in touch with their attorney, as doing so could significantly harm their case.

5. Failing To Comply With Court Orders

Judges and commissioners have long memories because they read court files prior to taking the bench. If they recall that someone has failed to comply with court orders, or if someone is currently failing to comply with court orders, then they could be held in contempt, denied any relief that’s being requested, required to pay the other party’s attorney’s fees, and may receive sanctions in other areas. One may argue “to” the court, but once the Judge has made his/her ruling, one should not argue “with” the court. Being defiant with a court order is one way to “paint the judge into a corner” where he/sh no choice but to rule against the individual and sanction them in some way.

6. Mediating Too Early Or Too Late

If mediation occurs early on in a case and allows parties to reach an acceptable agreement, then the parties will have saved themselves a lot of time, money, and aggravation. However, it is possible to mediate too early. If the other party has unreasonable expectations or an “expectation bubble” that is not easy to burst, then they might fail to make reasonable compromises during mediation. As a result, the other party will be left to either (a) “give away the farm” or (b) litigate. In Utah, the court requires parties to a family law case to mediate once. If one attempt at mediation fails, the court will almost always deem that sufficient and will not require further mediation. This means that the only way to resolve a case that cannot be resolved through mediation is often by (a) giving up or (b) taking the case all the way to trial at an at enormous expense and effort.

For this reason, some people choose not to mediate until they have a degree of leverage. There are various ways of obtaining leverage, such as doing well at a temporary order hearing, and engaging in discovery with the other side to obtain the evidence needed to prevail at trial. Leverage can also be obtained by going through litigation only part of the way. For example, the process of formal discovery or temporary orders might create the leverage needed to burst the other party’s unreasonable expectation bubble, thereby causing them to behave more reasonably at mediation. The determination of when to mediate is very fact-sensitive and should be made in close consultation with an attorney.

7. Putting All Of The Eggs In One Basket Without A Plan B, Or Waiting Too Long To Pursue A Case

As alternative forms of dispute resolution (e.g. mediation) have become more common, going to trial has become less common. This is generally a good thing, but also means that some attorneys fail to develop trial skills because they only rely on mediation to resolve cases. Such attorneys are not confident in their ability to proceed to or prevail at trial, and may gear their entire case towards mediation without paying attention to the steps necessary to prepare the case for trial. Once mediation fails, they will be unprepared to proceed, and the deadlines to conduct discovery and other trial preparation may have already passed. More experienced attorneys will have a backup plan and will simultaneously pursue settlement negotiations and trial preparation.

8. Being Shortsighted And Not Taking The Long View (e.g. Giving Up Too Soon Or Taking A Short-Term Gain In Exchange For A Long-Term Loss)

Sometimes a client will suffer a loss at a temporary orders hearing or other pretrial hearing, and become discouraged and give up as a result. Litigation and success in court can ebb and flow over time; just because one loses a short-term battle does not mean they have lost the war, so to speak. Very often, trial becomes the great equalizer; and losses that occur at pretrial stages can be made up at trial, depending on the evidence in the case. Other times, giving up too soon is similar to selling one’s stock at the lowest point of a recession rather than riding the recession out and waiting for the gains to be made up again. Another way to be shortsighted is by ”giving away the farm” in exchange for a short-term gain when negotiating with the other side.

9. Posting Harmful Content On Social Media

All too often, social media posts become evidence. For example, a picture of someone engaging in ridiculous, illegal, or otherwise sketchy behavior could end up as evidence for the other side. Making comments which disparage the other side, railing against the judge, or engaging in other conduct that the court might find abhorrent or distasteful could also be used against someone in court. I often tell my clients to review their social media accounts and make adjustments as needed.

10. Not Being Involved With Your Children

Courts often maintain the status quo, which means if a client’s status quo is to let the other parent do all the work and spend all the time with the children, then that may very well stick permanently. As a result, the client could be left with a second-class relationship with their children and a larger child support payment.

If a party’s lack of involvement is severe enough, the court may determine that they have abandoned the child, failed to protect the child, or failed to support the child; if this is the case, then the individual’s right to further or unsupervised contact with their child could be endangered.

One of the best pieces of advice any custody attorney can give his or her clients is to spend as much quality time with their children as possible. Sometimes, I have clients who give up because the fight to obtain sufficient time with their children is difficult emotionally and financially. If they give up completely, they will inevitably regret that decision on an emotional level, as well as suffer negative legal consequences as a result of that decision. For example, the other parent could use the abandonment or semi-abandonment to increase their parent-time and decrease the other parent’s parent-time, to get the other parent’s time supervised, to increase child support, and/or to harden the child’s feelings against the other parent. There are rare occasions when spending less time with child would be appropriate, but in my experience, those occasions are few and far between.

11. Letting Emotions Rule the Day, Playing The Victim

My most successful clients are able to feel the emotions caused by the difficulty of their situation, but they do not let their hearts overrule their heads when it comes to good decision-making. My least successful clients let their feelings rule them – giving up what they want most for what they want now. It is important to appropriately work through the difficult feelings these cases generate to avoid changing minds and lack of vision regarding the long-term consequences. It is also important to sometimes allow the emotional or relationship aspects of a case to determine its outcome. However, if the decision-making is purely emotional, and not guided by solid reasoning and analysis, the ultimate outcome will tend to be mediocre at best, and devastating at the worst.

12. Trash-Talking The Other Parent

Parties who disparage their co-parent cause harm in a variety of ways. First, they create a loyalty conflict for the child, which the child is mentally ill-equipped to handle. This causes numerous psychological problems for the child, short-term and long-term. Sometimes, parents think they want their child to reject the other parent. This viewpoint is shortsighted because it fails to take into account the damage that is being done to the child as well as the damage that is being done to their own case.

Few things upset judges, custody evaluators, and other third-party professionals than seeing clear proof that one parent is disparaging the other parent to, or in front of, the child. That kind of conduct may result in findings of contempt, sanctions, changes in custody, orders for supervision, or other negative consequences. Thus, from both an emotional standpoint and a strategic one, disparaging the other parent to, or in front of, the child, is never a good idea.

13. Seeking Revenge

Similar to disparaging the other parent, seeking revenge has both negative-emotional consequences and negative legal-consequences. I have yet to speak to a mental-health professional that would support the idea of obtaining revenge, or engaging in tit for tat negative behavior with the other party, to help a person emotionally. In fact, it tends to do the opposite. It also reduces their credibility with the court, and result in sanctions and denials of important motions or other similar negative consequences in court.

14. Not Including The Other Parent In Making Important Decisions Regarding Their Child

Courts listen to mainstream psychology and mental health professional, who often tell courts that a child is better off with extensive involvement by both parents. That is, if it can be done safely, without too much parental conflict and without other serious risks to the child. Decision-making, regarding the child, is part of that dynamic. Good co-parents may not like each other but are able to treat one another civilly even when they disagree. Courts trust parents who treat their co-parent with respect and civility much more than they trust parents who are petty or vindictive. From the perspective of a judge, it’s much easier to give custody to a parent who treats their co-parent respectfully and includes them in decision-making, than to a parent who tends to dismiss the children from their co-parent. This does not mean that you have to agree with your co-parent regarding the decisions. However, it does mean that a good faith effort should be made to discuss important issues with the other parent, even if the disagreement is likely. Sometimes, going through that process will feel futile, but the courts believe that it is necessary, and trust parents more to make the effort.

15. Being Deceptive Or Dishonest

Apart from the moral implications, being deceptive or dishonest is a very bad move legall. If a court finds the party “not credible” due to deceptive or dishonest practices, the court is much less likely to grant motions or petitions on their behalf. This does not mean a party must immediately divulge all the negative aspects of their case. How, where, and when to divulge information will depend on the circumstances, and clients should follow their attorney’s advice in this regard. However, being deliberately dishonest with the court will substantially negatively impact a party’s case.

16. Not Cooperating With The Court Or Your Lawyer

Certain clients sometimes wish that their lawyer be a “hired gun,” a bulldog, rather than an advisor and a counselor. Those clients tend to either change their attitude fairly quickly, or they are no longer represented by me. One reason for hiring an attorney is to seek legal advice based on training, education, and experience. Failing to adhere to sound legal advice is usually harmful. It is usually a bad idea not to follow the advice of your lawyer, as long as that lawyer is experienced and well-informed.

Failing to cooperate with the court by following court orders and directives can be even more dangerous. If a party violates the court order, they can be held in contempt and sanctioned. If a party is found in contempt, of “unclean hands” – which may prevent that party from receiving “equitable relief,” or fairness when they need it from the court. That party could be ordered to do community service, lose their driver’s license, or serve jail time. Good judges read the court’s file prior to taking the bench, which assists their memory. Therefore, judges often have long memories about whether they have held someone in contempt in the past.

17. Insisting On The Wrong Priorities For The Wrong Reasons

It’s okay to have a list of priorities of assets one wants to keep and hold. However, there are times when emotional attachments to, say, the marital home or other assets results in poor decision-making. For example, if one party chooses to trade their retirement in order to keep possession of the marital home that has a high mortgage, they may end up losing both the home and their retirement if they are unable to pay that mortgage. Or, they may impoverish themselves unnecessarily by holding on to such an asset. Other times, I have clients who are so invested in keeping their retirement that they “give away their farm,” so to speak, and end up impoverishing themselves too much on the front-end. If one becomes too attached to a particular asset, they lose flexibility in negotiation strategies. Their options become more limited in how they can settle their case.

18. Romantic Involvement With The Wrong Person Or At The Wrong Time

If involved in a custody or parent-time dispute, do not get involved with somebody who has ongoing substance abuse problems, significant mental health problems or personality disorders, who tries to take over your parenting of the children, who commits domestic violence, or has substance abuse issues. I have seen parents sometimes not only lose custody but also receive supervised parent-time simply because of who they are living with. It is also important to demonstrate stability to the court. Some clients feel uncomfortable unless they have a romantic partner, or feel that they are unable to support themselves financially, so they go from partner-to-partner-to-partner, thereby demonstrating a concerning lack of stability, which will concern a court. On the financial end, it’s usually an error to move in with someone during your divorce when you are seeking alimony. Cohabitation will prevent an alimony claim. Getting too involved with a romantic partner too quickly may, at times, detrimentally impact a relationship with the child, if that child has not yet processed his or her parents’ separation or divorce.

19. Moving Far Away With The Children Without Really Good Reason

Generally, mainstream psychologists will say that a parent having extensive contact, both in terms of frequency and in terms of quantity, is important for children, even if the parents dislike each other. If a parent moves far away for a reason that does not outweigh the importance of the children’s relationship with the other parent, the court will take a dim view of that decision. Sometimes, that will result in a change of custody. If the move is necessary due to family, employment circumstances, medical matters, or other legitimate reasons, the court may support the move even if it separates the children from the other parent by a long distance.

20. Engaging In Substance Abuse And/Or Domestic Violence etc.

This category should require no explanation.

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