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Shoulda, Coulda, Woulda, But Didn’t: Three Things You Must Tell Your Divorce Attorney Or Face The Consequences

Every person has done something in their past they are not proud of. Most people have seen or done things they think only they know, things they will not talk about—to anyone, at any time, for any reason. However, in today’s digital world, particularly with skilled forensic private investigators, almost nothing is truly a secret. So, in the ugly world of divorce, even if you do not think it is probable, certain “skeletons” have a remarkable way of coming out of the closet to negatively define your divorce (or paternity case). Once you have lost your credibility with your judge by certain secrets (read the evidentiary equal of a torpedo) or revelations coming out in court, your case turns south. Every seasoned divorce attorney has had this happen. This blog discusses three key matters you should disclose to your divorce attorney so he or she can be prepared if the issue comes up or to deal with the problem at the outset of your case.

One of the most common topics that come up in court is substance abuse, whether it be the abuse of prescription drugs, illegal drugs, or alcohol. This has numerous implications. For instance, if you are contesting custody and your spouse contends you are a drug addict, a host of potential issues arise. Most likely, the court will order the parties to have a drug screen at probation or within a certain number of hours. If you deny the matter, and your drug screen is positive, you may have potentially committed perjury. In addition, this can lead to the supervised visitation of your children because of a physical risk of harm that might occur while under the influence. As another example, depending on the amount of marital money you spend on drugs, the court may view this as dissipation of marital assets, thereby reducing your portion of the marital assets awarded to you. It is extremely important to be upfront and honest if you are asked this question and to advise your attorney in advance of substance abuse issues. There are many ways to address drug use and minimize or eliminate its impact on your case. But if the first time your counsel hears about the matter is in open court and under oath, your case goes from preparation to damage control as there are numerous negative outcomes that can arise. The takeaway is telling your counsel about any drug use—including marijuana. It may be legal in other states, but it is not legal to possess in Indiana.

A more delicate issue—and one which you may not be fully aware of—is mental health. If you have mental health issues, whether it be from anxiety, depression, bi-polar, or a schizophrenia diagnosis, your attorney needs to know about it. This is nothing to be ashamed of as most adults, according to the National Institute for Mental Health, have or will have a mental health problem in his or her lifetime. Your attorney may have you evaluated before you go to court to show this medical condition is managed and is not an issue relevant to the case. There are certain ways to make medical records, and testimony about mental health conditions, confidential so it is not in the public record. Most of us would not want a court of public record to have this information for anyone and everyone to come in and request (and yes that happens). If you do not disclose it and the first time it comes up is in court, then the judge is likely going to caution on the side of error to protect the children and provide custody to the other parent. Most negative outcomes in a divorce can be minimized or avoided with proper preparation. In some instances, if you qualify, you may be awarded spousal maintenance for this disability. So, this is a complex legal issue to discuss with your trial counsel at the outset.

A corollary matter that often goes together with mental health issues is a spouse’s illegal or high-risk behaviors. These run the gambit from drug dealing to tax evasion. High-risk behaviors come in many shapes and forms, but excessive gambling is sometimes the case and can open the door for arguments of marital dissipation of assets. There are many ways to prepare for these facts if your attorney understands the nature and scope of what is going on with you. For instance, if there is proof of illegal activity, your attorney may assert your Fifth Amendment privilege, which may cause potential harm to your divorce case, but may also help you avoid potential criminal liability by testifying under oath you are engaged in criminal activities.

Unfortunately, often the first time an attorney learns of this “secret” or “skeleton in the closet” is from a custody evaluation or trial testimony (where you may be faced with telling the truth and impairing your case or potentially committing perjury). This eliminates any ability for your counsel to put this issue (we all have them) into a proper context or help you take affirmative steps to minimize the downside in court in the future, such as helping you get into an anger management program if that is going to be the issue. The moral of the story is your divorce attorney has heard your secret and worse; his or her job is to advocate for you, but this necessitates a disclosure of the matters, or you face unknown and unnecessary risk.

Ciyou & Dixon, P.C. advocates handle domestic cases with many of these issues throughout the state. These types (and related) issues are only most harmful to your case if you do not relay it to counsel in advance. We hope you find this blog helpful if you face this situation. This blog is written for general educational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.

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