Tips for Protecting Your Client
At the Outset of the Case
By Charles C. Abut
AS AN EXPERIENCED matrimonial attorney, you know that timing can be everything. What happens immediately after (and sometimes immediately before) the filing of a complaint about divorce is crucial. Beginning with whether your client stays in, or leaves, the marital residence, many initial decisions can be dispositive.
You have an ethical obligation to avoid participating in, and affirmatively counsel your client against, impermissible "self-help." However, you also have a concomitant responsibility to protect your client from being the victim of such tactics as the “cleaning out" of bank accounts, the "running up" of credit card and charge accounts, and a variety of similar "steps" all too familiar to the seasoned divorce lawyer.
The following eight pointers are intended to highlight recurring problem areas that frequently present themselves at the onset of marital difficulties. You can tailor them for your own practice, either as a handout for your clients or as a handy checklist for your own use:
Property. The need to protect against the unilateral seizure of liquid assets is self-evident. Checking or savings accounts, certificates of deposit, IRA accounts, and the like come immediately to mind. However, less immediately obvious items must be protected as well. Are there significant articles of jewelry, coins, or bullion? Are there negotiable instruments, such as bearer bonds? Are such items stored in a safe deposit box or vault? If there is any danger that such property might “disappear”, suggest an inventory in the presence of, and photographed by, a reliable and neutral third party. Consider either placing all banks on written notice (at a minimum) or actually impleading them (the safest course of action).
Documents. During times of domestic tranquility, most spouses give little thought to the issue of access to books and records. These may consist of canceled checks and bank statements, personal and business tax returns, insurance and appraisal documents, and titles to real estate, cars or other personal property. While most such papers can be obtained in discovery, there is no substitute for having immediate access. Make sure, therefore, that your client has complete and legible copies of all key documents.
Taxes. Most married people file joint income tax returns. Some do so with a relatively well-informed degree of financial sophistication. On the other hand, many clients have signed a "blank" return, with little regard for the far-reaching consequences. If marital friction is occurring during tax time, explore with your client (and with an accountant, if necessary) the "innocent spouse provisions of the Internal Revenue Code, the fact that joint filings are not required by law and are fraught with peril. If a tax refund is due on the eve of a marital separation, where will the refund check be mailed, and how will the proceeds be divided? Once returns are filed, or checks are issued, it is too late to "lock the barn door."
Private Investigators. There are many instances in which divorce litigation arises out of spousal infidelity or an allegation of financial or other perceived dishonesty. A detective may have been hired to follow your client or to document various activities of your client. Yet, there are appropriate circumstances when your client may need to establish various proofs. You should address video and audio taping ("live" or telephonic), including the possibility that such conduct may violate federal or state law, or may constitute a civil tort, such as invasion of privacy. By addressing these issues upfront, you can avoid the problem of "why didn't you tell me?"
Support. The initial marital separation is a time of extreme emotional stress. Feelings are running at a fever pitch. Cool objectivity and rational analysis are rare. Under such circumstances, some spouses have paid excessive amounts of support, because of "guilt" or other emotions. Based on similar considerations, dependent spouses have "agreed" to accept unrealistically low support, for fear that anger might provoke even lesser payments or the "disappearance" of the payor spouse. Under either scenario, prolonged payments of support are dangerous precedents. After all, if your client agreed to the payments, either as payor or recipient, how difficult is it for the judge hearing the pendente lite motion to find that the amount paid must have been fair and sufficient? The sooner you inform your client about realistic support parameters, the better.
Wills and Insurance. When contemplating divorce or separation, people have been known to radically change their view of what falls within the scope of the "natural objects" of their "bounty." Children or spouses have been disinherited, and insurance policies (including life, homeowner's auto, and disability) have been changed, either as to coverages or beneficiaries or even canceled outright. Do not let your client become the unwitting victim of such "involuntary estate planning." Alert your client to the technique of the restraining order, obtainable by order to show cause, and on an ex parte basis, particularly under emergent circumstances.
Negotiations. Whenever discussions concerning a marital separation begin, it is commonplace to consider an amicable resolution. In the understandable zeal to reach a "friendly" outcome, there may be an offer made, or a counteroffer given, that ultimately proves to be unwise. The typical situation involves a closely-held business, all of the information about which is in the sole possession of one party, who insists on a "quick" settlement, without discovery, appraisals, or experts. Any inducement for the "quick" settlement may prove to be illusory if such assets are either undervalued or overvalued. This can be true even in the more formalized “alternate dispute resolution" avenues of mediation or arbitration. While your client has the right to resolve the matter with no due diligence, be wary of the "rush to settlement," founded on nothing more than unsubstantiated representations. Such "deals" are frequently presented at the outset of proceedings, sometimes with the stated intent of "keeping the lawyers out of it." If your client insists on the "quick" upfront settlement, make sure you document your misgivings.
Experts. During the first consultation with your client, explain that ultimate issues may depend on expert testimony. Explain that a pension may require an actuary, real estate may require an appraiser, tax and financial issues may require an accountant, and custody issues may require a mental health professional. In addition to giving the client an expectation as to what such experts may cost and what time factors may be involved, point out that the adversary spouse may also need the same " type of expert testimony. Unless a "joint" expert is going to be used, the client should understand that the "best" (i.e., most credible and reliable) experts are most likely to be approached first, and may therefore be preempted. Having selected an excellent attorney, your client should retain an expert of the same caliber.
The earlier you review these areas with your client, the better. The maxim "well begun is half-done" is particularly true in matrimonial strategy: do your best to ensure that the game is not over in the first inning
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