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.

Getting Divorced? Get off Social Media!

Erin KopelmanErin Kopelman, Principal

“Privacy is dead, and social media holds the smoking gun.” – Pete Cashmore, CEO of Mashable

Eighty-one percent of lawyers find social media networking evidence worth presenting in court, and 66% of divorce cases use Facebook as a principal source of evidence, according to a recent law review article. These are striking numbers worth paying attention to if you’re considering divorce.

A Real World Issue

Your social media posts can and will be used against you.

Just imagine you are on a dating website before you separated from your spouse. Or, in a moment of anger or frustration you post about your divorce and/or your spouse. How might this affect what a judge decides about the custody of your children or your finances?

Now imagine that you claim because of a back injury you cannot work and need alimony, but there are pictures up on the internet of you dancing on a bar, horseback riding, or doing a cartwheel. What might that do to your alimony claim?

Obtaining Social Media Evidence is Easier Than You Think

A person can usually download the profile and postings of others with whom they are “friends” on the site. If your spouse has “un-friended” you, you can ask someone else to secure your spouse’s social media.

Some people going through divorce “un-friend” their spouse and their spouse’s friends and family on their social media, feeling a false sense of security that their spouse is not going to see their profile and posts. Not only does this hurt their relationship with these people, but if someone sees something on your profile that they find interesting, you’d be surprised how quickly it makes its way back to your spouse.

Be aware you can also ask for enforceable discovery requests for the other side to download and produce their social media account profiles and postings. And, your spouse can also subpoena your social media profiles, accounts and postings directly from the provider. 

If you’re posting on social media, you must assume that whatever you post will be seen by your spouse, and if you don’t settle, a judge. If you are considering a divorce, immediately consult a lawyer and stop posting social media. There are rules about the destruction of evidence, which may include social media. When meeting with a lawyer provide them full disclosure about what there is online about you. 

And, going forward, the best way to protect yourself is to not post.  

Are You a Stay-at-Home Parent?

In a Divorce, You Should Consider These Five Tips

AvatarDonna E. Van Scoy, Principal

In the event of a divorce, the stay-at-home parent often feels the negative impact of the decision of who stays with the kids.

Marriage is hard and requires continued work to be successful. Even with hard work and commitment, not every marriage succeeds. According to Earth & World, 46% of marriages in the United States fail. If you are going to be the stay-at-home parent who becomes the financially dependent spouse, consider the following tips to protect your future (and your children’s future).

  1. Manage the family money/assets or at the very least be fully aware of the family money/assets. Communicate regularly about the finances and assets (monthly or quarterly is best).
  2. Where possible be sure all assets are joint assets with both names appearing on accounts, titles, and deeds.
    1. Find a vehicle to establish a retirement account for yourself.
    2. If your family works with a financial planner, establish at the beginning that all communication are to be sent to both you and your spouse and that you both will be involved in any meetings (including phone calls/texts).
  3. Read and fully understand your state and federal tax returns before they are submitted. If you have questions, make sure they are answered.
  4. If you have a profession, take the steps to remain relevant in your field.
  5. Maintain or create contacts outside of your spouse. Be aware of your spouse’s work world and participate where appropriate.

Being an active spouse in the financial part of your marriage helps to ensure you have the necessary knowledge to assist your attorney, allows you to contribute to settlement discussions, and ensures your ability to move forward in the event of a divorce.