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JAMES M. MAGGARD
& ASSOCIATES, P.C.

 

James M. Maggard & Associates, P.C. News

DIVORCE: HANDLING THE “CONTROL-FREAK” 

By:  James M. Maggard - Originally published in the Parker Chronicle

Fortunately, the typical divorce case in Colorado involves individuals who can work together to amicably divide their assets and debt and to jointly determine custody issues in a manner that serves the best-interests of their children.  Unfortunately, however, there are cases that involve one spouse who simply cannot control his or her emotions and that lack of control manifests itself in abusive behavior that makes it impossible to maturely resolve the contested issues in the case.  While no “silver-bullet” exists that can cure the controlling spouse problem, there are legal tools available that can often be effective. 

23 years of legal practice have provided me with the ability to recognize certain distinctively repeating patterns of behavior in certain types of cases.  In divorce proceedings, lawyers frequently see one spouse – most often the male (though not always), who has a personality type that can most charitably be described as “controlling.”  The controlling nature of this individual is often the primary factor that has led to the breakdown of the marriage.  Unfortunately, once the dissolution process begins and a separation occurs, the attempt to exercise that “control” manifests itself in a total breakdown of communication between the spouses.  The net effect of a communication breakdown is an inability of the parties to amicably resolve the issues at hand.  If amicable resolution cannot be reached, it is up to our courts to make decisions on behalf of the divorcing parties which results in more hard feelings, uncertain results and significant legal expense. 

A typical control-oriented spouse in a dissolution proceeding is faced with a situation that cannot actually be controlled.  What that spouse can control, however, is the communication (or lack thereof) that occurs between husband and wife concerning matters related to the children; concerning attempted settlement of contested issues and concerning various day-to-day issues that arise in the split household.  What that spouse can also control is the taking of steps that need to be taken to maintain a household; the paying of bills; the providing of timely payment of support to the family, and similar actions. 

In a perfect world, the divorcing spouses would talk to each other and decide, for example, what churches their children will attend, what medical treatment their children will receive and what school and social activities the children will participate in and their decisions will be based on mutual agreement reached where the best interests of the children is the primary focus.  In a perfect world, divorcing spouses would act responsibly and continue to pay bills, file tax returns and work jointly to fairly divide assets and debts.  Unfortunately, however, where one spouse cannot survive without “controlling” the other, certain repeating problems arise and the world becomes far from “perfect.”   

Divorce lawyers constantly encounter situations where a controlling spouse will exhibit some of the following traits:  Refusal to approve routine medical treatment for the children; refusal to provide financial support to the family; refusal to approve of activities that the child should be permitted to participate in; refusal to discuss issues with the spouse; constant interruptions of the spouse during attempts to discuss and resolve contested issues; name calling; the making of disparaging statements to the children concerning the other spouse; refusal to sign documents; refusal to pay bills; and many, many more similar negative traits. 

There are various legal tools available to help spouses who are subjected to some or all of the types of behaviors described above.  If there are harassing calls, threats of violence or actual violence, restraining orders can and should be sought and issued against the offending party.  If a parent cannot make decisions keeping the interests of the children first and foremost in mind, the court should be asked to limit or extinguish that parent’s ability to make some or all decisions on behalf of the children.  If a spouse refuses to take normal, reasonable steps such as filing tax forms, paying bills or the like, the court should be asked to force that spouse to take those steps.  If orders have previously been issued and the controlling spouse has refused to follow those orders, the Court should be asked to hold that spouse in contempt – a process that can lead to incarceration, fines and/or the award of attorney fees. 

As a final point, whenever the court has to be asked to help correct the wrongful behavior of a spouse, the spouse who has been subjected to that behavior should request that the Court force the offending spouse to pay the legal expenses incurred to correct the “controlling” behavior.  Attorney fees are not always granted, but where extreme negative behavior by one spouse warrants that penalty, our local judges will not hesitate to utilize that tool in an effort to prevent the need to waste court time to re-address problems that arise from wrongful “controlling” behavior. 

As previously stated, the tools described herein will not always work; moreover, those tools require time and expense when they are utilized.  Nevertheless, not addressing the errant behavior of a controlling spouse will only lead to more of the same behavior.  Consequently, when faced with a “messy-divorce” where a controlling spouse is present, one must secure the services of a competent attorney who is willing use the tools available to “control” the controller.

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I HAVE TO GO TO COURT, HOW DO I ACT?

 By:  James M. Maggard - Originally published in the Parker Chronicle

During the course of our lives, most of us will be faced at some point with the prospect of having to go to court for one reason or another.  Whether appearing to respond to a traffic citation, a criminal offense, a divorce proceeding, a civil lawsuit, in response to a subpoena requiring us to testify as a witness, or simply appearing in response to the receipt of a jury summons, most of us will “wind up in court” at some point during our lives. 

As an attorney, the mechanical process of going to court comes as “second nature” and does not require a great deal of thought.  However, in preparing for my trials and hearings I am often faced with questions from witnesses as well as my clients that have nothing to do with my case or the expected testimony.  Specifically, I am often faced with basic simple questions concerning what to wear, how to act, where to go, and when to be there. 

As can be gleaned from watching television shows and movies that focus on court proceedings, there are certain proper etiquette issues inherent to any court appearance.  The largely unstated rules of courtroom etiquette encompass proper behavior, proper dress and the showing of proper respect for the tribunal in question. 

One of the most obvious rules relates to behavior in court when a judge or magistrate is present.  When the judge assumes the bench, or leaves the bench, everyone present in the courtroom is expected to stand.  Additionally, at any point in time when anyone is speaking to the judge or magistrate, they are expected to stand as well unless the judge instructs otherwise.  When addressing a judge or magistrate, it is also proper and expected to use the term “your honor.” 

Although there is no stated dress code in our courts, the wearing of hats, sunglasses, tube-tops, halters, extreme plunging necklines, bare-midriff blouses, short pants, muscle shirts and/or T-shirts with inappropriate messages all are distinctly frowned upon and, depending upon the judge or magistrate, could form the basis for expulsion from the courtroom. 

A recent phenomena that rates very high on the “irritation list” for our judiciary involves the presence of cell phones.  My strongest advice is for people, attorneys, clients, witnesses or courtroom observers, to leave their cell phones at home or in their cars.  Absolutely nothing appears to anger judges, in my experience, more than individuals who arrive with cell phones and/or pagers and fail to turn them off prior to entering court.   

Children in the courtroom represent another annoyance for which little tolerance is displayed.  Unless the presence of a child is required, and this is a rare instance indeed, my strongest advice would be to leave children at home.  Beyond the inherent disruption that can be caused by the presence of children in court, the children themselves risk being exposed to emotions and conversation that can often be highly inappropriate and which can be very detrimental, disturbing and confusing to a child.  Beyond all that, the courtroom is a stale and boring environment for a child that will, in my experience, lead to fidgeting, crying and, of course, disruption. 

The last quality or attribute that needs to be addressed is patience.  Our courts in Douglas, Arapahoe and Elbert counties are currently locked in one of the most significant budgetary shortfalls that I have witnessed in my nearly 23 years of practicing law.  The net effect of the budget crises is that there are currently far too few clerks, far too few judges and far too few magistrates.  This has resulted in lengthy dockets, incredibly long and frustrating waiting periods spent in lines to file documents, long periods of time spent waiting to speak with court officials, and long periods of time spent in the courtroom awaiting the call of a court case.  Until present circumstances change, the public must arrive at court with an abundance of patience. 

Whether a judge or magistrate is making decisions concerning incarceration, contract disputes, dissolution of marriage matters, dependency and neglect issues, probate issues or otherwise, those decisions, most often, dramatically affect the lives of the people involved in the case.  As such, the courtroom is properly a serious forum that deserves observation of the simple rules of conduct outlined, above. 

Provided that proper decorum in court is maintained, participation in courtroom proceedings should not, and likely will not, result in an unpleasant experience to be feared.  Moreover, in my experience, people appearing in court that follow the simple rules of etiquette described above will nearly always find that our judges, magistrates and court clerks respond by displaying reciprocal courtesy and respect thereby making the entire legal process more pleasant and appropriate for everyone involved.

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