Going through the divorce process can be frustrating, especially when you feel like the other side is taking positions or engaging in behaviors that fuel rather than resolve current issues. In addition, co-parenting with an ex-spouse after the divorce may also raise concerns. Although there are many ways in which your legal team can support you during your divorce, there are also things your legal team will not be able to accomplish. Understanding what is beyond the control of you or your legal team is helpful. Here are a few of the things your legal team cannot control.
Force the other parent to exercise their parenting time. Your legal team cannot force a parent to exercise parenting time. However, be mindful that a chronic neglect of parenting time may be a basis for modifying your parenting plan. Tell your attorney if the other parent is repeatedly failing to exercise their parenting time.
Force the other party to respond to a settlement proposal. Your attorney may send proposals or make requests to opposing counsel; however, there is no duty to respond. After repeated follow-ups without a response, it may be clear no response is coming. At that time, your attorney will decide whether the issues merit court action. Both parties must agree on all terms for a case to be settled without a trial. If one party wants to proceed to trial, even over a single issue, he/she will be able to do so.
Control the tone of communication from opposing counsel or communications from the other party, or the other party’s family members. Unfortunately, communication from the opposing attorney may sometimes appear rude, condescending, or demanding. Your legal team cannot stop an attorney from using these tactics.
Absent a pattern of harassment or if an order of protection is in effect, your legal team cannot stop your spouse from contacting you. If you do not want the contact, talk with your attorney about how to best handle the situation. Of course, appropriate communication regarding your children is always encouraged.
Ask the court to compensate you for every wrong done to you by the other party over the course of your marriage. Although your attorney will empathize that you do have valid complaints, please understand that focusing on the most important issues will yield the best outcome in the end. Raising numerous small issues may distract from your most important goals.
Remedy poor financial decisions made during the marriage. With few exceptions, the court’s duty is to divide the marital estate as it currently exists. The judge will not attempt to remedy all past financial wrongs, such as overspending or poor investments by your spouse. If there is significant debt, consult with a debt counselor or bankruptcy lawyer.
Control how the other party parents your children during his/her parenting time. Each parent has strengths and weaknesses. Absent special needs of a child, most judges will not issue orders regarding bed times, amount of TV watching or playing video games, discipline methods, clothing, or diet. Of course, any suspected abuse should be reported immediately to the appropriate authorities.
Demand an accounting of how a parent uses court ordered child support. Absent extraordinary circumstances, the court will not order the other parent to provide an accounting for the use of child support.
Leveraging money for rights regarding your children. Tactics oriented toward asserting parenting rights as leverage toward attaining financial goals will be discouraged. Your legal team should negotiate parenting issues based solely on considerations related to the best interest of your child, then, separately negotiate the financial considerations.
Guaranteed timely payment of child support and spousal maintenance. Enforcement of payment of support is only possible when it is court ordered. However, even with a court order, you may experience inconsistent timing of payment due to job loss or a refusal to pay. Talk with your attorney if a pattern of repeated missed payments has developed.
Collect childcare and uninsured medical expenses if provisions of the decree are not complied with. If your decree requires you to provide documentation of payment of expenses to the other party and you fail to, you could be prohibited from collecting reimbursement for those expenses. Follow the court’s orders regarding providing documentation to the other parent, even if they don’t pay as they should. Always keep records of these expenses and payments made by each parent, and keep copies of communications with the other parent regarding payment/reimbursement. It is much easier to keep these records on an ongoing basis than to get copies of old checks, daycare bills, medical bills and insurance documents at a later time.
About the Authors:
Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.
Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.
Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.