The Truth Will Set You Free: Why Credibility is Currency in Divorce and Custody Cases

AvatarErik Arena, Principal

Most of us have done things we are embarrassed about or ashamed of — things we would rather not share in polite company, for fear of being judged.  We omit, shade, deflect or deny for the sake of maintaining appearances. 

This tendency surfaces frequently in family law courtrooms across Maryland and the District of Columbia, where judges and magistrates are, in fact, tasked with assessing the fitness and credibility of spouses and parents every day. Spouses and parents must decide, sometimes rather quickly, whether or not to tell the unvarnished truth about themselves, or a glossier, filtered version. All too often, they choose poorly. 

Why? For two reasons:

  1. Each lie of avoidance, omission, or denial erodes your credibility with the Court, which can be very hard to overcome in totality

Of course, the goal is to put yourself in the best light. However, that is done by being honest – not be being beyond reproach. Simply put, it is better to present to the Court as an honest, flawed person, than one who is untruthful. This applies to just about everything not otherwise protected by the 5th Amendment privilege against self-incrimination. 

Believe it or not, the Court has heard it all at one time or another. And none of us is perfect. A few lies, denials, or omissions, particularly those that are verifiably false, can be enough to taint the Court’s impression of your overall character for truthfulness and place a cloud over all of your testimony [and future testimony in future actions]. That can be far more costly than the embarrassment, humiliation, or damage done by admitting your mistakes. 

  • In family law cases, many important facts cannot be corroborated by independent testimony or documents, meaning key issues can be decided solely based on the credibility of the parties. 

Trying to wallpaper over character flaws with deceit can have grave consequences for other important factual determinations that, oftentimes, must be based solely on a party versus party credibility assessment [due to the absence of corroborating testimony or documents]. 

So, what kinds of critical fact determinations can end up being made solely based on credibility? I have listed a few examples below to illustrate their magnitude:

  • Who did the majority of the parenting during the children’s formative years;
  • Whether or not you told your spouse it was ok not to go back to work;
  • Whether or not the money you received from your spouse’s parents to buy your first home was a gift to your spouse or to you and your spouse;
  • Whether or not your or your spouse’s spending was a cause for friction during the marriage;
  • Whether or not you had an affair years ago, or even recently (for more on this, check out the blog post from my colleague Liz Estephan: “You Committed Adultery. Now Tell Your Divorce Lawyer.“;
  • Whether or not the cash you withdrew from your joint checking account was spent on family expenses or other, less beneficial purposes;
  • Whether or not the money you wired to family was discussed with your spouse prior to so doing;
  • Whether or not you drank to excess or used illicit substances;
  • Whether or not you humiliated or belittled your spouse or children in private. 

As you can see, being dishonest in some areas, or several, can call into question the credibility of the testimony you will give on other, more weighty facts critical to the Court’s determinations of property, alimony, or child custody. 

So, when faced with telling the (perhaps) ugly truth or saying what you think the Court wants to hear, there really isn’t a choice. Only by being truthful can you mitigate the damage done to the Court’s assessment of your character and, consequently, the merits of your case. The slope is far steeper and slipperier for those lacking in candor.

For more information, contact Erik at eparena@lerchearly.com or 301-657-0725.

Litigation vs. Negotiation – Which Path Is the Right One for You?

Chris RobertsChris Roberts, Principal

Most of us have seen one of those dramatic courtroom movies that glamourize the court process – perhaps Tom Cruise’s fiery cross-examination of Jack Nicholson in A Few Good Men, or Gregory Peck’s moving closing argument in To Kill a Mockingbird

But litigation, the contested court process by which parties resolve their differences, is nothing like the process we see in our favorite legal thrillers. It is a long, slow, and expensive process. Many people consider it the most painful, difficult process of their lives.

What does the process entail?

Unless the parties can resolve the disputed issues in advance of trial, litigation usually culminates in a bench trial, where a single judge considers the evidence and arguments presented, and issues a ruling. 

The process typically begins with a scheduling hearing, where the case is scheduled in calendar-like fashion, including deadlines for the completion of the discovery process, perhaps a date by which the parties must participate in mediation or another alternative dispute resolution process, and a trial date.

Depending on the jurisdiction, the process can take a year or longer. And it is invasive. Discovery alone can include dozens of document requests, written questions that must be answered under oath, and potentially depositions of the parties, which in Maryland can last as long as seven hours straight.

At trial, each party presents his or her evidence, including witness testimony and the introduction of documents. At the conclusion of the trial, the judge renders a ruling and, ultimately, a divorce decree.

So why would anyone subject themselves to this?

You might be thinking, “This process sounds terrible, why would anyone subject themselves to this?”

For one, it guarantees an end to the process. If your spouse or co-parent is unwilling to engage in an alternative process to resolve your issues, litigation might be your only option. The court process may be slow, but it moves predictably and inexorably to a final result, after which you can go on with your life.

In some cases, there are issues on which the parties truly cannot reach agreement. In the child custody realm, this could include child support, a parent’s relocation, mental health or substance abuse issues, or physical or psychological abuse of a child. In a financial context, there may be a dispute about alimony, a party’s actual income, the value of a party’s business, or whether a party’s trust interest or inheritance should be considered in the resolution of financial issues.

What are the alternatives?

Parties are always free to resolve their issues without resorting to a contested court process.

There are a number of alternative dispute resolution tools. Some of the more common approaches include:

  • A traditional negotiation involving attorneys, where parties develop settlement offers with the assistance of their counsel, who then negotiate on behalf of their clients to resolve the issues
  • Mediation, a voluntary process where the parties meet with each other and a neutral, third-party mediator, often with counsel present or advising them
  • Arbitration, in which a third-party decision-maker considers a presentation of evidence and argument from each party and renders a binding decision

All of these approaches are generally less expensive and quicker than the litigation process. And this is not an exhaustive list of the out-of-court approaches available to people to resolve their divorce or child custody issues.

Which process is right for me?

In almost all divorces, parties are well served in the early stages to consider an out-of-court process.

Which process will work best for you depends on a multitude of factors, including the dynamic between you and your spouse or co-parent, the substantive issues in the case, the financial issues and wherewithal of one or both parties, any external time pressures that might be involved, and the professionals assisting the parties.

Do I have to pick just one process?

No. Typically, it makes sense to stick to one out-of-court process at a time, and hopefully your first attempt at alternative dispute resolution does the trick. But if not, you can always move to another process, including litigation.

It is important to understand that you can continue in a non-litigation process at the same time a litigation is pending. In fact, courts encourage these continued efforts to resolve the issues out-of-court, even as the court process unfolds. Think of negotiation and litigation as running on parallel tracks. They are separate and distinct processes, but they are connected, and one process often can impact another, ideally in a way that benefits your position and hastens resolution.

Welcome to Your Source for Divorce Law

The Divorce/Family Law Group at Lerch, Early & Brewer is proud to present our new Divorce Law Source blog.

In an age where Google searches and web browsing are the go-to for most people to find information about everything, we are thrilled to provide an easily accessible one-stop shop for all things family law and divorce.

Featuring content authored by each of our accomplished and skilled family law attorneys, we encourage you to use this forum to find the answers to commonly asked legal and practical questions our clients confront pre- and post-divorce, review explanations and analyses of pertinent legal concepts and principles, and receive updates on new practices, rules, laws, and the family court system in Maryland and D.C. We will be featuring new posts and content each week. We look forward to welcoming many regular followers and invite you to recommend desired topics for future posts. Please subscribe to the blog on the right-hand side of this page.

Lerch Early’s family law attorneys represent clients in every facet of family law including divorce, custody, child support, alimony, property division, modifications of custody, child support, and alimony, prenuptial and postnuptial agreements, litigation, divorce and custody settlement agreements and alternative dispute resolution, guardianship, and adoption. For more information, please check out our website.

We hope to see you soon on our blog!

In Health,

Heather Collier and Erik Arena
Co-chairs, Divorce/Family Law Group