There is never a time in one’s life that his/her conduct, words and appearances are more judged and scrutinized than during a litigated matrimonial action. This is particularly true when child custody is a contested issue. While a contested divorce action is emotionally and otherwise difficult, and individuals may seek outlets to alleviate the stress that ensues, logic dictates that any outlets chosen or decisions made during this process can adversely affect the outcome of any given issue in your divorce. Thus, while it is imperative to maintain a sense of sanity during what may appear to be chaos during your divorce, there must be an awareness that any misstep will likely appear in your spouse’s application to the Court or brought up during a court conference.
Common and potentially adverse errors in judgment include, include, but are not limited to the following:
• sending questionable and/or aggressive texts, e-mails or other communications (including voicemails) to your spouse and/or his/her friends, family or employer;
• oversharing pictures or information on Facebook, Instagram or other social media platforms;
• overuse of alcohol or prescription medications or use of illegal drugs;
• engaging in acts which may constitute a crime or family offense;
• prioritizing your social life over the needs of the children (ie – staying out late on a regular basis; having paramours stay overnight in the presence of the children, etc).
While the avoidance of the above may seem to be common sense, individuals, when under stress, may lose his/her practicalities, and get caught up in the “heat of the moment.” Generally, these moments, while sometimes lasting a mere minute, can have long lasting and dire consequences. As is the general rule for communicating with someone in any circumstance, do not do so in a rash or emotional moment. Always assume that your texts, voicemails and e-mails will be saved by your spouse. In this regard, never communicate something that would cause you harm if it were to be presented to the Court. Furthermore, in the event that you have face-face interactions with your spouse (ie – pick up and drop offs for parenting time), assume that there may be a video recording of the interaction. The bottom line is always try to be your best self, and stay on the side of the angels. While many allegations in a matrimonial tend to be of the “he said-she said” variety, a text, voicemail, post, picture or video can make or break a judicial determination.
Always keep your “eyes on the prize.” The inconvenience of any unwanted scrutiny should be inordinately more tolerable than the consequences that may result if you act impulsively during the litigation. While being under the watchful eye of the Court during a divorce action may seem somewhat restrictive, it is important to remember that in lieu of a settlement between you and your spouse, it is the Court that will determine significant custodial and financial issues that will likely have long lasting effects on your life and that of your children.
If you have difficulty deciding whether a course of action is a good idea, first consult with your attorney, who will generally be aware of how a court will usually react to such conduct. Another helpful strategy is to place yourself in the other person’s shoes: if your spouse engaged in said conduct during the divorce, would YOU urge your attorney to address it with the Court? Sometimes this type of objectivity is helpful and can shine a reasonable and discerning light on whether you should or should not pursue a certain course.