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Showing posts with label STRATEGIES. Show all posts
Showing posts with label STRATEGIES. Show all posts

Saturday, December 18, 2010

THE RIGHT TO DUE PROCESS

This may be a surprise to those of of you who are caught in the jaws of a high conflict divorce against an abuser where you face injustice daily, but you actually have a constitutional  right to "due process" when you are in court. 

According to the free dictionary dot com, this means that you have "A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property." 

It also includes "a constitutional guarantee that a law not be unreasonable, arbitrary, or capricious." 

The right to due process has its basis in the due process clause of the 5th Amendment (ratified in 1791) which asserts that "no person shall be deprived of life, liberty or property without due process of law" and applies to the actions of the Federal Government.  The due process clause of the 14th Amendment (ratified in 1868) limits the actions of State Government declaring "Nor shall any State deprive any person of life, liberty, or property, without due process of law."   

Apparently, according to the free dictionary dot com, the concept of due process originated in English Common Law with the rule that "individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves." 

This concept reappeared in The Magna Charter signed in 1215 by the infamous King John and stated "No free man shall be seized, or imprisoned...except by the lawful judgment of his peers, or by the law of the land." The phrase "law of the land" was eventually replaced by the phrase "due process of law" and, by the 17th century, the American Colonies were incorporating the phrase "due process of law" into their legal statutes.  

From there the concept of Due Process is then divided into categories:  1. substantive due process and 2. procedural due process.  Substantive due process has to do with creating, defining, and regulating the right to due process, whereas procedural due process has to do with enforcing those rights or seeking redress when they are violated. 

So, why am I bringing this up? 

Well, I am bringing this up because due process is violated all the time when you are in Connecticut Family Court and I want you all to know what it is so you can protest when a violation of due process occurs in any of your cases.  If you do, you may get some very successful results.  Because, after all, let's be reasonable, the judge knows all about due process too.  It's just he was hoping you wouldn't know anything about it.  Once you show that you are familiar with the concept, my best guess is he or she will at least try to behave a little bit better.

Like many of you, I was so ignorant when I started out in family court that it went right over my head when I was denied due process, and it only occurred to me that my right to due process was being consistently violated after a couple of years had gone by in my case. Once I started to speak up and point out that my due process rights were being violated by such behavior, that's when the incidents were, not totally stopped, but at least reduced substantially.

Just so you don't have to wait a few years like me before you figure out what due process is, here are some situations where you can find your right to due process violated and you need to protest. 

How about, you walk into Court for a hearing on child support and the opposing attorney hands you a Motion to Reconsider Alimony (or something like that) within minutes before the hearing and then demands that the Judge discuss the motion, even though you haven't ever had a chance to see it before. 

How about, you are actually in the middle of a hearing, and the opposing attorney starts to hand out a Motion on a totally different issue, sometimes even accompanied by a Memorandum of Law and you have never seen either before.  Wait a minute!  You have the right to due process, which means that if you haven't seen a motion or memorandum of law prior to the hearing, you have the right to request a continuance so that you can prepare your response. 

Absolutely. 

How about, you are in the middle of a hearing and the witness on the stand begins to make accusations against you and you have never heard these accusations against you before.  Again, you have the right to have the opportunity to prepare your response to any new accusations and so you can request that the hearing be discontinued until you have the opportunity to prepare a response to the new accusations that you haven't heard before. 




In other words, in the State of Connecticut, according to Costello v. Costello, 186 Conn. 773, 776-777, 443 A.2d (1982) "It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved."

Litigants, supposedly--I mean this is Connecticut Family Court, after all, where junk happens all the time--can't bypass the rules, they can't jump ahead of the procedural line in order to railroad their opponents so that they end up losing life, liberty or property.  That is what is meant by fairness. 

Every time you go to court, think about fairness, think about what the regulations state about how matters are to be handled.  Is what is happening unreasonable?  Is it arbitrary? Is it capricious? Do you feel that you are being bullied and pushed around?  If so, speak up!  Consider using the right to due process as a means to fight back!  Say, "Your honor, what is going on here is a violation of my right to due process because..."  Hey, it never hurts to try.  Trying is what it is all about!

Friday, October 22, 2010

SURVEILLANCE

There are many situations where you may need to contact a private investigator or go to a surveillance store and consider buying their products in order to safeguard your interests during your divorce.

This could arise, for example, in a situation where, like me, you did not receive exclusive use of the house and/or your ex is not decent enough to leave and live elsewhere. Then he decides to use his access to the house in order to harass and bully you.

I started to consider these options when my ex put nails in the tires of my car when I parked it in the garage. Also, he was sabataging our heating system and our air conditioning system in the basement. Furthermore, he systematically removed any property that wasn't nailed down from our house, including valuable paintings and art objects.

So, here is the story, as soon as you file for divorce, or even well before, take photographs of everything that you own in order to document they exist. Then have your lawyer send copies of the photos to the opposing attorney at the beginning of the action in order to obtain mutual confirmation of the existence and location of these items.

Also, remember the nanny cam with the camera in the teddy bear? If you suspect that your ex is doing things behind your back, order a few of those nanny cams online and place them strategically around the house. If you can catch your ex doing this kind of garbage on video, then you can protect yourself.

Always carry a tape recorder on you and switch it on whenever your ex is near you. Perhaps all he ever says is junk, but you want to be ready if he makes a statement you can use. Such tape recordings are ordinarily not admissible in court, and because of the iffy legality of making such tape recordings, be sure to consult with an attorney regarding how you go about it. However, tape recordings can be quite influential with your attorney and any other interested parties, such as the GAL, outside of court. And some of the most important negotiations you will be involved in take place outside of court.

Of course, with all of these things you have to keep in mind that your ex could do the same to you. I heard of one woman whose ex put a listening device in her car. I have also heard of a woman whose ex listened into all her conversations on the house phone and tape recorded them. So whatever you do or say, be sure you behave, because if you don't you might regret it later. Always assume you are being watched and recorded and behave as if you are always under observation. That way, you won't make any mistakes.

When it comes to surveillance, you can really take it as far as you feel it necessary to go in order to protect yourself and make sure the truth comes out in your case. Go to a surveillance store and look at the products they have available. Talk to a private investigator and see what they are capable of doing. Don't end up suffering because you didn't take the chance and use your opportunities when you could and now no one believes you.

Thursday, October 21, 2010

DOCUMENT! DOCUMENT! DOCUMENT!

It is very important to keep track of when you get phone calls from the important players in your divorce and write down what they say and do and when they say and do it.

You don't have to limit the use of your message pad to phone calls. You can also use it to document incidents, conversations with professionals or other witnesses that did not take place on the phone--anything you eventually might find important in your case.

The best way to do so is to purchase a message pad from your local office products store. You can get different styles and sizes of message pads, so choose the one that seems right to you. What you want to get is one that provides you with a rip off original copy, plus a pink copy that remains permanently in the book.

This means that you can take the original with you if necessary, or clip it to another document that is relevant to the content of the conversation, but the pink copy stays in the book and you can refer to it when necessary.

Always keep that message pad by the phone with a pen ready to take notes whenever you get a phone call from a family member, a school official, a lawyer, your ex husband, anyone who could play a potentially important role in your case.

If you are on the road, write your notes on an extra pad you keep in your purse and when you get home, transfer those notes to your message pad. Always include the date and time of the phone call or the incident.

Then when you are preparing to go to court and your lawyer asks you when did you get an important phone call, or what was the sequence of conversations that led to a particular incident, or if the judge asks you, when did your ex husband make that statement to you, then you have the relevant information on the message pad and can be factual, accurate, and reliable when it comes to your report of what happened, what was said, and when.

There is nothing better than being a credible witness to the people who work with you on your case and to decision makers who are going to be deciding what your future will be and that of your children.

Monday, August 30, 2010

TAKE THE MONEY AND RUN!

If I were to look back at the early days of my divorce, the one mistake I made was listening to my attorney when he said to be restrained about taking money from the joint accounts I held with my ex.

My attorney said only take 50% of what is in there. Well, let me tell you, my ex was never so restrained. He took it all! And he was never held accountable for doing so. What I regret now is that I didn't grab the money when I had the opportunity.

Another strategy I should have considered was during the entirety of my marriage and certainly in the months leading up the divorce when I began to realize that something was going wrong, I should have regularly taken twenty dollars here, twenty dollars there, and placed it in a hidden location, simply as a "just in case".

And by hidden, I mean hidden. That means don't use any bank account that you may have to report later in your financial affidavit. For example, one that bears interest which has to be reported on your taxes, or any kind of account that your ex could stumble across if he had a supoena to the bank and requested all acounts under your social security number.

Many divorces in Connecticut take over a year to litigate. Frequently, if you are a woman the court will provide you with very little if any support and there is nothing you can do about it. In that case, having a little nest egg to tide you over can make the difference between holding on until you get the financial agreement you want or utter desperation which leads you to sign a bad agreement just so you can get access to any money at all to survive and feed yourself and your children.

Don't be stupid. Think ahead. Take the money and run!