Five Mistakes Every New (and Old) Divorce Attorney Should Avoid

Five Mistakes Every New (and Old) Divorce Attorney Should Avoid 
By Craig M. Witherell, Dixon & Hayes, Ltd.

Published in the Toledo Bar Association Newsletter (TBA News) June 2012 (Vol. 59, No. 10)

Whether you are a new attorney or an attorney new to the Domestic Relations Division, there are intricacies of divorce practice that only experience can teach you. And even experienced attorneys can fall into bad habits when litigating divorce cases. Since no attorney —inexperienced or otherwise—wants to make a “rookie mistake,” here are five areas in which mistakes or oversights can be common.

1. IV-D Applications

When filing a divorce with minor children, a IV-D Application should be filed with the Complaint for divorce. This is a mistake that is common for new and veteran attorneys alike. Even though the Lucas County Court Rules make it clear that a IV-D Application should be filed with the Complaint for Divorce
whenever there are minor children of the marriage, many practitioners wait until filing a 75(N) Affidavit for temporary orders to simultaneously file a IV-D. The Court could reject the Complaint, or could deny the 75(N) request—meaning no support or parenting time orders. While our Court will typically still allow
you to file a complaint and request temporary orders, there is no guarantee this will not change. Besides, no attorney should fall into the habit of failing to abide by the local rules.

2. Minor Child’s Wishes

It is common for parties in divorce cases to assume that the Court will heavily weigh the desires of their
minor children regarding the allocation of parental rights and responsibilities. While this is one factor for the Court to consider under the Revised Code, it falls on attorneys to remember that this information can only be presented under strict circumstances. It is inappropriate to include any indication of the child’s wishes in pleadings, or for a parent to testify as to the child’s wishes. Those wishes can be taken into account, but
it must be through the recommendation of a Court Counselor or Guardian ad Litem, or otherwise through an in camera interview in chambers. Including a child’s wishes in a pleading or allowing a client to testify to the same is a good way to show your inexperience, not to mention drawing the ire of a judge or magistrate.

3. Children & Tax Considerations

There is often confusion in divorce cases regarding the interplay of income taxes and minor children. Misunderstanding tax implications is a disservice to your client, and it could result in unnecessary difficulty in settling the divorce. In determining which parent receives the income tax dependency exemption for a minor child, the Court examines a number of factors under R.C. 3119.82. One of these factors is a determination
of the net tax savings from the exemption. There is a simple and quick method to calculate the benefit for each party. Take a party’s gross income and subtract $3,700.00 for the deduction for each minor child. Next, subtract $5,800.00 for the standard deduction and then apply the applicable tax rate from the IRS Tax Rate Tables. See IRS Internal Revenue Bulletin 2011-2. This will allow you to compare the post-tax
incomes of each party with and without the dependency exemption. Also, the parent not claiming the minor child for the dependency exemption cannot claim that child for the Child Tax Credit. However, the parent can still claim the child for the Earned Income Tax Credit, if the parent is eligible.

4. Child Support Deviations

The Court can grant a deviation from the child support computation worksheet under R.C. 3119.22. However, when preparing a Judgment Entry in a case involving a child support deviation, attorneys commonly overlook the need to state the factors justifying the deviation, and the value thereof, listed in R.C.
3119.23. The Judgment Entry should include all of the information required under Domestic Relations Division Rule 13.02, including the original child support computation amount prior to deviation. The Entry should then include the factors and the monetary value of those factors (that value can be agreed upon

by the parties, but still must be stated). Finally, the Entry should include the amount of the deviation corresponding to the factors and the final child support figure.

5. Your Client is Not Perfect

As attorneys, we all know that some clients will lie to us again and again, even though the truth would assist us in providing better representation. A person’s veracity—or lack thereof—can be strained when emotions, money, and children become an issue. It is no surprise that clients can be less than truthful in divorce cases. What is surprising is that attorneys often fall into the trap of believing a client’s word in its entirety. If what the
client says is true, then conflicting information given by the opposing party to their counsel must be false. This mindset is a hindrance to reaching an agreed resolution, and it makes it difficult to best further your client’s interests. Attorneys need to remember to take what divorce clients say with a grain of salt, knowing full well the information may not be entirely accurate. The truth often is somewhere in the middle of what both
parties would lead their attorneys to believe.

While there are plenty of other bad habits attorneys of all experience levels may develop in divorce cases, these tips should help you avoid some common mistakes that are easily avoided. For attorneys new to the divorce practice, however, much of what you need to know will only be learned from experience.

This article was submitted by Craig Witherell on behalf of the Toledo Bar Association Domestic Relations Court Committee.

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