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
Executive Summary
Approximately one in three married physicians will go through a divorce. According to a 1997 Johns Hopkins study, the divorce rate for physicians is 32% (although the study’s authors note that they examined only Johns Hopkins medical school graduates from 1948 to 1964, whereas today’s society has a greater acceptance of divorce). Compared with professionals in other fields, physicians’ financial exposure in a divorce may be significantly greater because of their greater earning potential. When a physician or a physician’s spouse files for divorce, the physician needs legal counsel as a guide through the process, since many issues—such as child support, alimony, or the division of property—may affect the physician for many years after the divorce is final.
Mistake 1 Failing to Consult with an Attorney
Some physicians consider it a waste of time or money to retain a lawyer for their divorce and attempt to work matters out for themselves. Divorces are procedurally and legally complicated and often have long-term consequences for both parties that are not readily apparent to a layperson.
Action Step A physician contemplating filing for divorce should consult with and retain experienced counsel before doing so. If it is the physician’s spouse who has filed for divorce, the physician should consult and retain counsel immediately and not act without the advice of an attorney.
Mistake 2 Using an Attorney As a Therapist
Clients often talk with their lawyer about personal problems, trying to use the lawyer as a therapist, especially since the lawyer is closely involved in the divorce proceedings. Although lawyers allow clients to vent and to discuss personal problems, they typically charge fees for such time, and often have no advice to offer regarding their clients’ personal problems.
Action Step Lawyers are not typically trained to help clients with nonlegal issues. Physicians should talk with their spiritual adviser, a licensed therapist, or someone qualified to render personal advice.
Mistake 3 Having Unclear Objectives
Sometimes, parties to a divorce go through the litigation process without clearly defining their goals. Instead of taking an active and planned approach, they have a “knee-jerk” reaction to issues as they arise.
Action Step Physicians should set goals in the litigation process by first determining which issues matter most and defining their objectives regarding such issues as division of debts and equities, child custody and visitation, and alimony.
Mistake 4 Failing to Consider Tax Consequences
Often, physicians fail to consider the tax effects of a court award or the concessions that they may make after the divorce is filed. Physicians involved in a divorce often overlook such issues as capital gains tax, dependency exemptions, taxable basis of properties, and the tax consequences of alimony versus child support.
Action Step Physicians should hire a tax consultant to work with them and their attorney regarding the potential tax consequences related to the divorce.
Mistake 5 Failing to Make a Complete Inventory
Often, physicians do not have a complete mental grasp of what they own and what they owe. During a divorce, failing to have or make a complete inventory of assets and liabilities may have devastating consequences. If the physician inadvertently fails to disclose an asset to the court, for example, the court may take the view that the physician is purposefully trying to hide assets.
Action Step Physicians should make a complete inventory of all assets and liabilities in the physician’s name, in the name of the physician’s spouse, or jointly in both parties’ names.
Mistake 6 Getting Advice on Divorce from Friends and Family Members
Typically, friends and family members want to help someone going through a trying time, such as a divorce. They often have anecdotal advice based on their own experiences or on second-hand information. Regardless of the source of their information, they are typically not objective in their views, nor may they have the professional background necessary to render such advice.
Action Step Physicians should not rely on the advice and observations of friends and family members, but should instead seek the counsel of a licensed attorney.
Mistake 7 Trying to Win Back a Spouse by Being Too Generous
Sometimes, physicians who are not ready for their marriage to end believe they can win back their spouse by giving generously to the spouse in excess of what the court would award or what is fair. If a physician gives away everything by agreement, then it may be too late to reverse that action in court. Similarly, a physician who is too generous during the divorce may be setting a precedent that the court could follow later when making its award.
Action Step Physicians should separate their emotions from their finances and resist the temptation to try to buy back their spouse. Instead, they should follow the advice of legal counsel and be fair. Physicians who want to save their marriage should do so by suggesting that both parties attend couples therapy or marriage counseling.
Mistake 8 Trying to Punish a Spouse through the Legal System
Too often, when married parties allow their emotions to get the best of them, including feelings of anger, they may attempt to use a lawyer and the legal system to punish their spouse. Ultimately, they may find themselves spending more money fighting about the case than the case is worth. When the divorce is final, they often realize that the thousands of dollars spent on attorneys fees to punish a spouse did not buy them satisfaction.
Action Step Although it may be difficult in the heat of the moment, physicians should try to be pragmatic about their goals and needs and consider the cost to themselves when they choose to fight over certain issues.
Mistake 9 Being Too Anxious to “Get It Over With”
Physicians who believe that the sooner the divorce is over, the quicker they can heal emotionally and financially and get on with their lives are often willing to make too many concessions to avoid the cost and time associated with a divorce. Such shortsightedness can lead to dire future consequences.
Action Step Physicians should have patience during the divorce process. Barring an appeal, there may be only one opportunity to handle properly the financial and family issues that are important to the physician. Instead, the physician should make decisions cautiously, giving careful consideration to the long-term consequences.
Mistake 10 Putting the Children in the Middle
It is easy for children to become caught in the middle of their parents’ divorce. Often, children are made to feel that they are partly to blame for the divorce or that they must chose sides between their parents. Children are also used as messengers between their parents or are pumped for information about the other party.
Action Step The divorce, in and of itself, puts a significant emotional strain on most children. Placing them in the middle only causes further emotional damage and, ultimately, may permanently hurt the physician’s relationship with the children. The physician should do everything possible to assure the children that the divorce is not their fault. Also, the physician should not make disparaging remarks about the other parent nor act in a way that puts the children in the middle of the divorce.
Conclusion
As soon as a physician decides to file for divorce, he or she should seek legal counsel. Physicians who rely on the advice of their attorney, set goals for the divorce, and take steps to avoid these mistakes are more likely to move on professionally, financially, and emotionally than physicians who do not take such steps.
Written by:
Stephan V. Futeral, Esq.
Peer reviewed by:
Jennifer S. Brookshire, Esq.