The Setup

Jan 25

Benjamin Franklin said, “If you fail to plan, you are planning to fail.” In all types of litigation, small wins are the key to achieving big goals. To succeed, you must develop a plan and keep a big picture view of your case. This article shows how an experienced lawyer at Bundy Law can assist you with setting your case up for success.

You should pay child support especially if it has not been established by a court order. If you do not pay child support, even if it has not been ordered, the other parent will use your nonpayment as a complete defense for all their misconduct. And it may work. If you pay child support, you can flip the script and point out that even while they misbehaved, you did the right thing.
Judges are prone to the false equivalence fallacy. If the other parent is engaging in bad behavior and you fall short, even in a minor area that is nowhere near as bad as what the other parent is doing, you make it too easy for the judge to say “You’re both messing up,” diluting the significance of and repercussions for the other parent’s bad acts.
If you are the parent who should be receiving child support and the obligor is late or delinquent, ask them about it (in writing). You do not have to be nasty or threatening. It may seem unfair for you to have to remind them of their basic obligation, but by asking them, you give them two options: 1. pay, or 2. not pay. Either way, you win. You will either get payment, or, in the event that you need to take enforcement action, you can show that they refused to respond appropriately and pay even when asked. And the judge will agree that you shouldn’t have had to ask (but it’s a good thing that you did). A written request for payment of an obligation that is already established is a setup for recovering attorney fees when enforcement action becomes necessary.
You may feel that the other parent withholds child-related information and even your child from you. That may be true, but it is not a license to 1. do the same thing or 2. not communicate. For example, if you learn that the other parent has secretly taken the child to a medical appointment without telling you, ask them about it. If you do not ask them, you cannot later say that they wouldn’t have told you if you had asked, because you are now the one who failed to communicate. If you need to switch your upcoming parenting time schedule due to another obligation or plan, ask them about making an adjustment. You cannot claim that they would not have worked with you if you don’t ask.
By communicating with them (in writing), you put them in the position of having to choose: 1. don’t respond to you at all, 2. respond to you unreasonably, or 3. respond to you appropriately. It is a setup, and you win either way. If they do not respond or do not respond appropriately, you now have evidence for court. If they respond appropriately, then things may work out for your benefit.
A common strategy after a breakup and before a court hearing is for one parent to withhold the children and claim, with no basis, that the other parent should be professionally-supervised. If there is no real reason for a demand for professional supervision, it is naturally an offensive and distasteful suggestion.
Do it. No one messes up professionally-supervised visitation. Legitimate professional supervisors document each visit with a report, and some of them take photos to complement their report. The other parent has effectively created an expert witness for you for court who will say, You behaved appropriately at all times, The child enjoyed each visit, At the end of each visit the child resisted returning to the other parent and asked for more time with you. The supervisor’s reports will be admissible evidence for the hearing. It will be worth every dollar spent.
If you refuse to see your child or children simply because the other parent’s proposed terms or restrictions are offensive, you will unnecessarily raise questions in the mind of the judge about your parenting and judgment. Don’t not see your kids. If the other side is unreasonable, it does not mean that you agree to their terms for court by exercising even the minimum time available to you. Not visiting with your children is more likely to be held against you than temporarily going through supervised visitation or some other conditions for your access to the children.
Gather your financial information. Everything. Debts, tax returns, investment accounts, property deeds and titles, and receipts. Organize it all by date, name, and put it in folders on a USB flash drive or in a Dropbox folder for your lawyer. Remain open to the idea that no matter how much you produce, you may have to gather and disclose more.
Discovery is an important process of every lawsuit that can take on a life of its own. At lawyer conventions, lawyers talk about how much money they make on discovery fights. Most of it is unnecessary if you are transparent with your information.
By putting your information together for disclosure, you and your lawyer can focus on what you really need from the other side and third parties, and you can hone in on settlement negotiations and trial preparation.
If you do not put your information together and rely on your lawyer and experts to find it, you will triple the length of your case and its cost.
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If you owned property or a business before the marriage, you cannot take anything for granted. You need a trial lawyer and you need an expert. Your soon-to-be ex spouse has at least three viable angles of attack to claim your premarital property: 1. Claim you “did something” during the marriage with your premarital property to make it marital, 2. Claim they or you expended effort during the marriage that enhanced the premarital property in a way that makes the increase in value (the enhancement) divisible, and 3. Claim your otherwise separate property should be used to pay them alimony. These are all legitimate legal claims and you will need to make a strong defense. They are also not mutually-exclusive, so your spouse may make a claim for enhancement and alimony from the rest of your share. We have seen people take it for granted that their premarital property will remain separate so they make bad decisions about who to hire as legal counsel and not to hire an expert, then they end up with an expensive mess at the end. Don’t let that be you.
If you have a financial claim such as spousal support or damages due to injuries to you, hire appropriate, qualified experts as early as possible. Do not take shortcuts in building your case. If you say, “I’ll do it later,” you are signaling that it doesn’t really mean that much to you. The more time and effort you spend on the front end, even before your lawsuit is filed, the better your position will be for mediation and trial.
Don’t stop working if employment is an option for you. Unemployment rarely improves a child support or support alimony claim. If you are in contested litigation, there is almost never enough cash, so you will need all that you can get. If you are seeking spousal support, by not working you will raise questions about how much you really need and how much you will need if and when you find employment. If you are not working and not seeking employment, you make it easy for the other side to claim that you are lazy or merely looking for an unfair windfall. If you are working, you can show that you are making your best effort and still need financial support.
When it is time to make a settlement offer, don’t just send a letter or an email with a few high points. With your lawyer, write a complete proposed final judgment so that if the other side agrees and accepts it, all they have to do is sign it.
Making a settlement offer doesn’t mean giving up on what’s important to you, and it doesn’t mean the other side will necessarily agree to it. Too many offers only address a few terms and raise more questions than they provide solutions. By writing a proposed final judgment, you can address all the important and minor details. It is a show of strength through preparation and it is a show of sincerity in the offer. Writing a proposed judgment positions you for mediation. You can send it to the mediator with your mediation position statement to show that you have carefully considered the issues, you are serious about your position, and you have buy-in to the mediation process. Writing a proposed judgment is also part of trial preparation, as in some cases you may include a proposed final judgment as an exhibit or an aid to the court.
If the judge appoints a guardian ad litem (attorney ad litem in Arkansas), attorney for the child, or a parenting coordinator, you should reach out to them as soon as you learn of their appointment. Make sure they have all your contact information, ask about scheduling your first meeting, and ask if they have any intake form or other papers that you need to fill out. If you complete an intake, make sure your lawyer gets a copy of what you filled out.
It is a dirty little secret that serving as an ad litem or parenting coordinator is a volume business. To do that work in a way that makes financial sense, the attorney needs a lot of cases.
You will not get away with saying, “I tried to call them.” If you call them and leave a message, follow up with a nice email that contains your email and phone number in the body of the email, every time. If a meeting is scheduled, confirm it with them in writing. If you have witnesses or collaterals that they need to talk to, email them the contact information for each person, and likewise share their contact information with each person that they need to interview. Put them together. Make it easy for them to reach you and your witnesses. If they tell you they’ll call you back, give them a few days, then call them and email them.
If it’s not in writing, it didn’t happen.
This sets them up to either 1. do their job well and have all the information they need to be an asset to your case or 2. to arm your lawyer with powerful cross-examination information to show that their work was deficient and should not be given weight.

Using these strategies, we have obtained extraordinary outcomes for clients. We have had custody awarded to parents who faced allegations of parental unfitness by disarming the other parent’s ability to complain about them. We have responded to discovery within hours rather than months, resulting in the other side folding and agreeing to our settlement terms. Our clients have been awarded attorney fees — reimbursement for what they paid us — because the judge viewed our discovery, settlement negotiation, and trial practices as reasonable and fair. Other lawyers, including competitors, refer their clients to our website to learn how to export texts and emails for court, how to keep a record of parenting time, and how to prepare for mediation.

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