Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Physicians are not spared from life’s problems. One such problem physicians often face is their relationship, or lack of relationship, with their spouse and family. Physicians often find the demands of their occupation to adversely affect their martial relationship. As a result of longer work hours and time away from their spouse and family, physicians can find that their marriage is strained or coming to an end. This section identifies the 10 biggest legal mistakes physicians make when their marriage is strained but before divorce proceedings have been filed.
Mistake 1 Failing to Periodically Assess the Marital Relationship
Physicians who have just been served with a summons and complaint informing them that their spouse is seeking a divorce shouldn’t be surprised. If they are, it is likely that they are unprepared for the actions of their spouse, which means their spouse probably has the upper hand.
Action Step By periodically assessing their relationship with their spouse and family, physicians are better able to spot and maybe prevent marital problems that lead to divorce. Physicians might consider having a monthly meeting with their spouse and other family members to do nothing but discuss problems and how to solve them. In family and marital relationships, an ounce of prevention is better than a pound of cure.
Mistake 2 Not Seeking Counseling
Physicians should ask themselves the following questions: Am I often stressed out from the rigors of my work? Do I have a spouse who understands or is my spouse too busy to understand my problems? Does my spouse have his or her own problems? Am I too proud to discuss my own problems or my marital problems with another professional? Physicians are highly trained and educated. They probably could even put a label on the mental or emotional problems that they, their spouse, or other family members may be experiencing. Just as lawyers would be foolish to represent themselves, physicians would likewise be foolish to diagnose and treat any mental or emotional problem that they or their spouse may have, or in their marital relationship. Just as lawyers should hire other lawyers for their own legal problems, physicians should likewise be open to seeking professional help for such mental, emotional, or marital problems. If divorce is contemplated but the couple wants to try to work things out, they should seek professional marriage counseling immediately. Divorce is always stressful and involves the deepest emotions of the physician and his or her spouse and other family members. Physicians who are in the process of divorce, their spouse, and their children can only benefit from counseling. Physicians need to be mentally and emotionally healthy not only for not their children, but also for themselves. They need to show to the court that they are mentally and emotionally stable. In fact, the judge will evaluate the demeanor of physicians (e.g., courtesy to the judge and opposing counsel, and how they respond to questions) every time they appear in court.
Action Step Physicians should recognize the benefits of obtaining professional help when necessary for their mental and emotional well-being, as well as the well-being of their spouse and children.
Mistake 3 Not Being Aware of the Marital Estate
Many physicians have nonworking spouses. These spouses often pay the marital bills and other debts and often have a better knowledge of the marital estate than the physicians do. In this regard, physicians should ask themselves the following questions: Can I accurately state, within $5,000, how much money my spouse and I have in savings? Does my spouse have a separate account and if so, how much is in it? Which credit cards are in my name and which cards are in my spouse’s name? What are the credit limits on our various accounts? Where all the marital assets located? What are our marital debts? Not being aware of the marital estate can hinder the ability of a physician’s attorney to discover the value of the physician’s estate. Not being aware of the marital estate encourages and enables a physician’s spouse to hide money and marital assets. The court can award a physician a fair share of the marital estate only if the physician knows what the marital estate is.
Action Step Physicians whose marriage is strained should strive to make copies of all tangible documents showing debts and assets of the marriage. These tangible documents are inclusive but not limited to the following: income tax returns for the preceding years; all of the physician’s business records; all of the spouse’s business records if they can be obtained; copies of monthly billing statements on debts; a list of all stocks, the companies that issue them, and the names of the relevant agent or broker; copies of all retirement plans; copies of deeds to all property; copies of the spouse’s driver’s license number and Social Security card; the children’s Social Security card numbers; copies of the physician’s birth certificate and those of his or her children; and pictures of the contents of the marital household (which are also good for insurance purposes in case of a burglary or destruction of the home). The physician should keep these financial records in a location that the spouse does not have access to.
Mistake 4 Not Protecting an Interest in the Marital Estate
Most physicians and their spouses have joint banking accounts. This means that spouses have access to money with which to hire a lawyer. A spouse could remove all of the money in the banking accounts if he or she has the desire to do so. Physicians who have a large savings account should check with the local branch manager to find out what restrictions can be placed on the account (before trouble arises in the marriage) to prevent all or most of the account from being depleted. Failure to act promptly when a spouse has closed an account and removed all of the money can have far-reaching consequences.
Action Step Physicians should be prepared to close all joint bank and credit accounts immediately, as well as to revoke durable powers of attorney pertaining to their spouse. Also, they should immediately change their will. In addition, they should open up a separate banking account and move one half of the assets into that account, as well as secure credit in their name only. But foremost, if their spouse withdraws large sums of joint assets, physicians should immediately consult with their attorney.
Mistake 5 Failing to Select a Divorce Attorney
These are litigious times. Physicians who do not have a family attorney need one. Physicians who have a family lawyer who does not handle divorce cases should ask that lawyer to recommend a list of divorce attorneys. Prompt selection of a divorce lawyer is very important, and physicians should not wait until their spouse has filed for divorce to consult with a divorce attorney. Failing to choose a lawyer is the most important mistake in this list of legal mistakes. Physicians must be able to trust and respect the lawyer they choose. They must feel comfortable talking to their domestic attorney to such an extent that they can divulge all relevant information about their marital history.
Action Step Physicians should incorporate the following when choosing a lawyer to handle their divorce:
- Get referrals from friends and relatives who have used a lawyer in their divorce;
- Call the local bar association for a referral to a divorce lawyer and check with the local better business bureau (some lawyers are listed with this service);
- Attend divorce court to find a lawyer or to evaluate lawyers who are potential candidates (look for lawyers who appear well trained and have a good rapport with the court and other lawyers);
- Choose a lawyer whose personality and presentation style the physician finds appealing;
- Schedule an initial consultation with the lawyers who appear to be good candidates (before this initial consultation, find out what the consultation fee will be);
- Prepare questions for the lawyers and be prepared to give a complete marital history;
- Discuss the lawyer’s fees and how the lawyer will handle the case; and
- Ask about the lawyer’s availability to take and return the physician’s telephone calls and his or her availability after being retained by the physician.
Physicians should trust their instincts about the lawyer. Most domestic judges encourage settlement because the physician will almost always be happier with a mutual agreement than with a decision made by a judge. Therefore, it is important for physicians to look for a domestic relations lawyer who has good negotiation skills.
Mistake 6 Continuing an Affair or Having an Affair While Separated
Physicians who have been having an affair should cease seeing their paramour until they are divorced. Adultery is a fault ground for divorce in, for example, Alabama. Even a physician who is separated and no longer living with his or her spouse should not have an extramarital affair. Although domestic judges place more emphasis on extramarital affairs that happen before separation, those that happen after separation are still unlawful and can be used against a physician. A spouse may have hired a private investigator to watch the physician’s activities. Physicians who choose to have an affair or to continue having an affair give the domestic relations judge a reason to award to their spouse a higher amount of alimony and a disproportionately favorable property settlement. Extramarital affairs will anger a spouse, hinder reaching a mutually acceptable agreement, and more often than not increase attorney’s fees and lengthen the time to dissolve the marriage.
Action Step Divorce cases can often be resolved in about 12 to 18 months. Abstaining from an extramarital affair will not only net a better division of the marital assets, but will also keep down the attorney’s fees and the amount of alimony that might be awarded to a spouse.
Mistake 7 Not Hiring an Investigator
People get divorced for many reasons. The three most common reasons involve abuse (either mental or physical), financial factors, and third-party relationships (extramarital affairs). While a physician is working 12 hours a day, the physician might wonder what his or her spouse is doing with their children and others. An investigator can help a physician find out what is going on in his or her absence. The evidence that can be acquired from an investigator could result in the physician obtaining custody of his or her children. An investigator could obtain evidence that would reduce or terminate the physician’s risk of having to pay alimony or child support.
Action Step Physicians should consult with their attorney about the usefulness of an investigator. Most lawyers would suggest hiring an investigator to those who can afford one. The physician’s lawyer should be able to suggest investigators whom he or she has used in the past and be able to estimate the cost of employing their services. At the very least, by hiring an investigator, a physician will have confirmed whether his or her spouse is honest and faithful. Having such peace of mind will make resolution of the divorce case easier.
Mistake 8 Not Recording Conversations with a Spouse
It is legal in the state of Alabama, for example, to record conversations with a spouse even if the spouse does not know that the conversation is being recorded. A spouse may make statements to a physician in person or on the telephone that he or she might later recant in the courtroom.
Action Step Physicians who are in a strained marriage should record conversations with their spouse. They should be aware of what they say during those conversations because their spouse will have the right to acquire copies of the recording at a later time, and those recorded conversations can be introduced into evidence for many purposes.
Mistake 9 Not Keeping a Calendar of Events Concerning a Spouse or Children
Keeping a diary or a calendar with notes is evidence that a physician may be able to introduce at the divorce trial. Even though physicians are well educated, without a point of reference, they sometimes forget important information that could have been introduced at trial had they not forgotten it.
Action Step Physicians in a strained marriage should begin keeping a calendar of events or diary concerning their interactions with their spouse and children. Physicians may be allowed to use these documents to refresh their recollection on the witness stand if they forget major points that they intend to bring out in the trial. Often, the domestic relations judge assigns greater truthfulness to recorded events than to testimony alone.
Mistake 10 Failing to Document Required Communication with a Spouse
Unfortunately, physicians who are married and are sharing the household bills, childrearing, or both must have some communication with their spouse. Because both the physician and his or her spouse may be emotional in their interactions with each other, there is a great need for the physician to follow up on communications with a spouse in a letter confirming their conversations. Such letters are evidence that the physician may be able to use at trial to clear up disputes. Circumstances that might need to be documented include visitation periods, attempts to arrange visitation, and other issues involving children or assets.
Action Step Physicians should get used to writing confirmation letters until the divorce is over, the children are grown, or there are no more ties to their spouse.
Physicians should be mindful of these mistakes and take steps to avoid them. By taking these steps, the physician will be best positioned to receive an equitable division of assets and time with their children.
Lois R. Beasley-Carlisle, Esq.
Peer reviewed by:
Terry L. Carlisle, Esq.