He Said, She Said – Preparing for Divorce

There are often many heated words exchanged between couples going through a divorce or separation.  Now whether the court should consider those words prior to making a decision in your case is something you should discuss with your attorney.  Unfortunately, it is not always sufficient to merely tell the court what your ex-spouse said to you in the heat of the moment.  It is always better to have documentation of the exchanges you have, especially in a high-conflict case.  The two people in family court are usually at odds with one another, so the court looks upon both people with some degree of suspicion.  

Not all cases require the constant documentation of disagreements or other discussions you have with your spouse.  But, if you happen to be involved in a particularly hostile family law matter, it is important for you to discuss how and what to document with your attorney. There are a few circumstances in which you should put it in writing.  

Domestic Violence Matters.  Although proving a domestic violence case in the family law courts requires a lower burden of proof than the criminal courts, it is just as important for you to have documentation to support your claims to the court.   A common misconception is that you can videotape or audiotape conversations and present these as evidence to the court.  This is not the case.  Unless you have explicit permission from the other party being video/audiotaped, or you are doing so openly and not secretly, this type of evidence is not admissible in court.  It may be a criminal law violation to record communications someone else thinks is confidential.  There is also another exception if you have permission of the court in a restraining order allowing you to make recordings.

There are other types of evidence you can use to substantiate your case to the court.  For example, copies of any threatening emails or text messages should be provided to your attorney.  Your attorney may use these emails and or text messages in your declaration that will be provided to the court.  They may also use them to discredit the opposing party on the stand.  Keep thorough records!

Divorce, custody and visitation matters. During high conflict cases, many attorneys may suggest instead of having verbal conversations with your ex to put it in writing.   There are a few different avenues available to you to keep documentation in writing.  The most obvious being text messages and emails.  Another alternative that is highly recommended by many attorneys is an application called Our Family Wizard (“OFW”).  This application/site is available to you at a minimal cost and is much like using text or email with added benefits.   Another similar option is called Talking Parents.  These applications keeps track of your communications, notify you when communications are received/read, and the messages are available to print in an easily readable format.  This format is easier for Judges and attorneys alike to follow.  

General tips for communicating with your ex.  We understand that even in the lowest conflict cases, it is incredibly difficult to “keep face” with your ex.  Whether you communicate verbally or in writing, it is important to remember to try your best to keep it civil—especially if you have children!  Anything you say to your ex could be used in front of a Judge or as a leveraging tool from the opposing party.  A good way to keep yourself in check would be to think, “Would I be ok with a Judge reading this?” before sending anything in writing to your ex.  Remember when the courts get involved, your life is put under a magnifying class.  If you let your emotions get the best of you, it could come back around to you.  

When in doubt, talk it over with your attorney.  Not quite sure how to handle a situation or something your ex says to you?  Do not be afraid to discuss the matters with your attorney.  Although they cannot always tell you what to do, they can advise you on the best course of action to benefit your case and your situation.  Ultimately it is your job to keep the peace, but your attorney is there to help guide you in the murky waters of your family law matter.