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By Stéphane A. MonPremier
Family Law and Real Estate Lawyer

As an experienced divorce lawyer, I am often surprised by the behavior of family law litigants, prior to and during court proceedings.

Divorces and separations are very emotionally charged. During the relationship, many spouses were the victims of physical or verbal abuse, infidelity, or were emotionally neglected. Such circumstances can understandably cause the fostering of intense negative emotions towards one’s ex-spouse.

The challenge in such circumstances is to remain focussed on the importance of achieving a result which is in your best interest. To do so, the separating spouse must be able to succeed in having the court sympathize with his or her side of the dispute. Judges are human beings. Their sole objective is to render a judgement which is fair, and equitable, within the confines of the existing family law jurisprudence and legislation. Thus, behavior which appears to be spiteful, vengeful, angry, impulsive, unilateral, arbitrary, or generally unfair, will negatively affect one’s case.

Prior to the widespread use of e-mail communications, most disputes between ex-spouses occurred in the context of live conversations, or by telephone. It was more difficult for judges and lawyers to assess whose version of events was closest to the truth. Today, with the use of e-mail and text messages, it becomes much more difficult for parties to misrepresent what was said, or the manner in which it was said.

My advice to litigants is to be mindful that all of your e-mail messages, text messages, Facebook entries, Twitter entries, or other communications will be scrutinized by opposing counsel, your lawyer and the court. Thus, if your intention is to achieve a result which is in your best interest, keep the following rules in mind when communicating with your ex-spouse:

  1. Tell the truth. Do not overstate facts which are advantageous to you, or understate facts which are not to your advantage. Avoid using hyperbole, exageration, absolutes (always, never). You will come across as being credible, and reasonable;
  2. Do not use profanity, or derogatory terms. This seems like an obvious rule, however profanity contained in e-mails during litigation is frequent. It is often the result of an immediate response to an inflammatory e-mail, or telephone message. If you have just received a communication which makes your blood pressure rise, give yourself a day or two to respond;
  3. Do not use large caps and avoid the use of exclamation points. This is the equivalent of raising your voice, or yelling;
  4. Do not make accusatory comments, and avoid using the pronoun ‘you’. Instead, talk about how you felt about what occurred, or what was said (for example: Not being consulted with the choice of daycare made me feel less important as a parent…);
  5. Do not give your ex-spouse orders, ultimatums or create artificial deadlines. This is a surefire way of ensuring that you do not get what you want. Instead, make suggestions, give options and ask when you can expect a response to your inquiry.

These simple rules will facilitate better communication with your ex-spouse, thereby reducing conflict and the need for lawyer intervention. If the matter escalates to litigation in court, or if it is already before the courts, cordial, fair, and reasonable conduct will make you come across as the more credible party. This will endear you you to your lawyer, opposing counsel (whether or not he or she will admit it), and most importantly the court, thereby increasing your chances of success in court.

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