How to win a divorce case. That is the question. And does the answer to the question depend on the definition of the word “win?” To some couples going through a divorce, the victory can be a reasonable settlement that is fair to both the husband and wife and allows both of them to move forward with their lives. To others, a victory is actually prevailing in court on contested issues between the husband and wife.
In this article, we are going to eliminate some myths about how to win a divorce case and also help you better understand what a victory can and should mean depending on different situations that husbands and wives may have in a divorce. This article is not legal advice nor is it intended to apply to your specific situation.
How to win a divorce case that involves child custody
Child custody cases range from very simple to the most complex. The simple cases involve two parents who not only care for their children but are willing to work out a custody and parenting time schedule consistent with the children’s best interest without getting lawyers over-involved or the courts to make decisions for them.
In such cases the “win” in the divorce case is truly the compromise and custody agreement between the parents. Why? Here are some reasons:
1. The children not having to experience the friction and hostile emotions between the parents.
2. The children obtaining stability quickly in the custodial arrangement, giving them the ability to adapt to it rather than being at the mercy of a family court.
3. The time both parents save and can dedicate to their lives and that of their children by not having to deal with custody litigation.
4. The money both parents save on attorney fees in the divorce which can be better invested in their own lives and that of their children.
Not every case can be simple and winning a divorce case that involves custody does sometimes require courts intervention and a deeper lawyer involvement as a result.
How to win a divorce case against a parent who acts against the children’s best interest
How to win a divorce case that involves child custody against a parent who is abusive, makes false allegations of abuse, abuses drugs or alcohol or otherwise acts inconsistent with the children’s best interest depends on the degree of the parent’s misconduct.
Child custody cases that involve serious abuse, neglect or domestic violence often require court intervention or, at a minimum, the appointment of appropriate experts by the court to investigate the allegations. Such custody experts include court appointed forensic psychologists.
You win a divorce or child custody case in such situations by making sure that the facts and evidence are properly presented to the Court.
In a case that involves child abuse, any witnesses to the abuse, any documentation that confirms the abuse such as medical records, photographs and even admissions of the abuser if such admissions have been made by the perpetrating parent in emails, text messages, to other people and so forth should be gathered.
In addition, child-abuse cases often involve a social services agency such as child protective services. Such agencies, although they are far from perfect in their investigations, can provide vital information that may be important to the court about their investigation and findings.
How to win a divorce case that involves property disputes?
Property issues should be easy. If something is California community property, it can be divided 50/50 through a buyout, offset or a sale.
But what happens when a property (real estate, business, accounts, etc.) may be community, separate or a combination?
Cost versus benefit becomes a big part of community and separate property litigation in a divorce case when dealing with the concept of winning or losing. The balancing test becomes how much the property, business or account is worth, how much is disputed (the entire value or part of it) and how much will it cost to determine the nature of the separate vs. community property claim. Such cases often involve the use of expert witnesses, the most common of which are appraisers or forensic accountants.
How to win a divorce case that involves child and spousal support?
Child and spousal support are sometimes highly contested issues in divorce cases, especially those that involve disagreements about the California date of separation, marital lifestyle and standard of living, the income of one spouse, the ability of the other spouse to work (generally resulting in support disputes about imputation of income), and even the amount of time each parent spends with the child (which directly affects child support and which can then affect spousal support).
Cases that involve child and spousal support disputes and which center around the higher income earner’s actual self employment income sometimes require the assistance of a forensic accountant to conduct an income and what is often called (and sometimes improperly labeled) “controllable cash flow” analysis.
For the higher income earner, this process can be cumbersome and expensive. Providing the information to your spouse’s lawyer early and voluntarily can save you a lot of money in attorney fees. In addition, working closely with your forensic accountant and providing him or her with your income information to allow your CPA to come to an analysis early on in the case will allow you to make settlement offers consistent with the law.
For the spouse seeking support, an attorney fee motion may be your first step if there is an income disparity, you are not being paid support in an amount sufficient to pay for your own fees and you don’t have the same access to cash or bank accounts to pay for your attorney fees. An attorney fee request for order can be based on need and ability to pay or as a sanction and, under either scenario, can level the playing field between you and your higher earning spouse and allow you to retain and maintain legal counsel on the case and hire a forensic accountant.
If the issue involves earning ability or capacity (something we often see in cases where one of the spouses in a divorce is a stay at home mom), a vocational evaluation can be retained to determine whether the stay at home parent has the ability and opportunity to work. From a cost v. benefit analysis, the higher income earner should determine how much of a difference it will actually make in his or her support even if the stay at home parent is imputed income. That is how the higher income earning parent can avoid wasting time and money putting up a fight on something that is not worth either.
Issues such as date of separation, marital lifestyle and similar factually intense cases involve witnesses, documents and evidence that goes beyond two differing opinions of divorcing spouses. To give yourself the best chance to win a divorce case with such issues, careful planning and a strategy can go a long way. Working closely with your divorce lawyer is the first step in that right direction.
We hope you enjoyed this article. For some additional reading, check out related articles on questions to ask a divorce attorney, which will help you in the selection process and help with how to find a divorce lawyer.