(10) You will learn how much you DON’T know (don’t be an Ostrich!).
Whether a stay-at-home Dad or a jet-setting executive, we all work hard, have stress and are busy. One way we deal with this is to “divide and conquer” at home. Maybe in your household – your husband manages the bills and finances, while you organizes the children’s schedule… Maybe you convert all paper to electronic files and manage the family records, while your wife handles groceries and cooking… we do this because it is a survival mechanism… because “no one can do it all,” right?… well, if you are contemplating divorce, you will start to need to “do it all!”
The problem with “divide and conquer” arises when you begin to contemplate divorce, and you realize you have no idea what the current mortgage balance is, or how to locate the last 5 years of tax returns… or whether you are “on the title” or the loan for the family vehicles… or who your son’s asthma doctor is. It can be humbling and overwhelming to realize how much you don’t know.
If you are contemplating divorce – take your head out of the sand and start educating yourself! Build skills (so you are capable of managing your own finances or cooking for yourself through the divorce) – and gain information. Make sure you know how to access records and make copies for yourself. If you’re worried about your spouse hiding documents once things “turn sour” – make sure you have access to the data you need. If you’re planning to leave the family home (and you can do so safely), make copies of the records you need before you go. Convert documents to a digital format so you can put them on a thumb drive or save them on the cloud. Know passwords and account numbers.
Avail yourself of as much information as possible so you are prepared… you will need to have an accurate picture of your finances (assets, liabilities, earned income, benefits, etc.) – this will likely be one of the first questions any attorney will ask. Seek advice as soon as possible on HOW to collect or preserve necessary information (it may not be proper for you to access your spouse’s password protected accounts – make sure you know what you can access and how to do it). Third party vendors (accountants, financial advisors, school administrators, etc.) may be a great source of information – but before you ask, make sure you are clear on the person to whom they owe a duty (can/must they disclose information to your spouse?). Share with your attorney what information you have NOT been able to gather and develop a plan for getting that information.
There are MANY potential pitfalls regarding information/data management through divorce (keep an eye out for our coming article on “information management”) – you may be under an obligation to preserve your own data and records – so make sure you understand your responsibilities through this process. This is one of the most important reasons to hire an attorney (maybe sooner rather than later.) Also, just because a document exists, does not mean it will be “admissible” in Court – discuss this with your attorney – make sure you understand what information you need (in what format) and how to get it.
(9) Erase what you THINK you Know about Divorce.
Divorce is a common topic in pop-culture. We’ve all seen TV shows about the “ironclad pre-nup” and read People Magazine articles about Hollywood divorces. We also have assumptions based on rumors or norms about divorce. Much of “common wisdom” regarding divorce ends up NOT being true – or maybe it is true somewhere and for someone but not YOU.
First, the process and law on divorce varies from state to state. For example, we read a lot about “Irreconcilable Differences” in Hollywood divorces – but this is not a valid legal ground for divorce in Maryland. We read about “legal separation” but in Maryland there is no document or court filing necessary to effectuate “separation.” Your lawyer can help you understand the process in your jurisdiction, but be prepared to abandon some of your preconceived expectations.
Some of the most common misconceptions we hear are:
- “Of course courts prefer moms in custody disputes” – this varies from jurisdiction to jurisdiction, but generally, courts no longer prefer moms in custody disputes. Instead, the “default” position for most courts is shared custody between parents (though there are many exceptions – ask your attorney if any of these apply to your case).
- “My husband cheated so I’m going to take him to the cleaners” – many judges don’t give much weight to facts related to adultery. To you, your spouse’s affair is devastating and shocking – you feel betrayed and want his hypocrisy exposed. This may be possible, but it may not help you much in the financial outcome of your case. Talk to your attorney to ensure you have realistic expectations. Perhaps the most important part about your spouses’ affair (as it relates to your divorce case) may be to ask yourself what ELSE he/she was lying about (hidden assets? Marital funds spent on his/her paramour? Etc.)
- “We decided I was a stay-at-home spouse, so I expect alimony forever” – no matter how long you have been out of work and how affluent you are, the Court will likely require you to make efforts to support yourself and earn income (there are a few exceptions – ask your attorney if these apply to you). Make sure to talk to your attorney about whether you are under an obligation to search for work (and what happens if you fail to become employed). Even if you are entitled to alimony, this likely won’t last forever – so make sure you talk to your lawyer not just about amount of alimony but duration.
- “My spouse has problems so she’ll NEVER get custody” – courts make a real effort to ensure both parents can play a meaningful role in children’s lives. Even drug addicts, alcoholics and those suffering from physical or mental illness can gain meaningful visitation or even custody of their children once they can demonstrate their ability to provide a safe environment. Talk to your attorney to make sure you have realistic expectations.
- “Can you give me odds of winning on issue X? 60%? 80%?” Clients always want odds on how often a certain judge rules in favor of mom… on their likelihood of getting more than $10,000 per month in alimony… or the chances of getting a certain result. Keep in mind that the nature of the judicial system (especially in family law) is VERY fact-driven… so there has NEVER been a case exactly like yours. Because of this, it is difficult to impossible to predict with precision exactly what a judge is going to rule in your case – the only way to ensure an exact outcome is to negotiate a settlement. If you go to trial, you are ALWAYS taking a risk of an adverse outcome. Ask any experienced family law attorney – in divorce, there are few (if any) “slam dunk” cases. Even if yours seems like a “slam dunk” now – facts could change before the trial that alter your odds… so be VERY weary of expecting a certain outcome through litigation. Litigation is ALWAYS risky.
- “My daughter spends the nights with her mother, but she spends more hours with me – so I should get custody/child-support” – in some states, hours are relevant for custody/child support – other states (like Maryland) focus on “overnights.” Make sure you discuss this with your attorney and understand how this affects your custody case.
- “but my friend said…” – when I tell a client that their spouse’s offer of X in alimony is within the range of what a court would likely award … I inevitable hear “well, I spoke with my friend whose spouse makes the same income and she got 3 x X in her case?” No two cases are alike. This bears repeating: NO TWO CASES ARE ALIKE. Maybe your friend got (3 x X) but only for 3 years (vs. 10)… or maybe he/she got a smaller portion of the assets… or maybe they owned fewer assets (or their assets were heavily encumbered with debt). There are many nuanced factors that will affect the numbers in your case – be weary of thinking that numbers in your friend’s case tell you anything about the numbers in your case.
- How much alimony will I get? In many states (including Maryland), there is no binding alimony formula – and the analysis is fact driven and based on multiple factors. Because of this, it is difficult to predict what a court would rule on this issue.
There are many other misconceptions, but these are the most common. Even if you think you know a lot about divorce because your best friend just went through it or you talked to your brother-in-law who is a bankruptcy attorney in Michigan (you live in DC)… or you’ve “done a lot of research” – it’s important to hire competent counsel (sooner rather than later) and talk to them about the specifics of YOUR case in YOUR jurisdiction.
(8) Assume EVERYTHING is “discoverable.”
Look for our future post on “information management in divorce” but in the meantime, know this: everything (and I mean EVERYTHING) may end up being introduced as evidence in Court. This includes private text messages to your best pal, Facebook “chats” with your cousin, instant messages on Gmail… and e-mails to your mom. What you think is private may not be private! Talk to your attorney about any data that you may be worried about, but here is a good rule of thumb: before you hit “send” on ANYTHING – ask yourself if you would be comfortable reading the message aloud in Court. If not, don’t send it. Of course, talk to your attorney about the specifics (and know that your correspondence with your counsel is privileged – so it is generally the exception to this rule)… but assume anything in writing may become public.
(7) Protect your Credit.
If you are contemplating divorce, the LAST thing you may be thinking about is your credit… but it is likely linked to your soon-to-be-ex and will be an important tool to secure your financial future – so you need to pay attention. You may have joint credit cards, joint loans, joint bank accounts, etc. and if things turn sour, inability to agree on certain financial matters may result in unpaid bills, therefore affecting your credit. Look out for our future post on “Protecting your Credit through Divorce” – but in the meantime, know your credit, understand your credit score and monitor your credit so that you understand when and if it changes. There are many online resources (often free) to help you do this.
(6) Everyone has their own grieving process (not just you!)
The loss of a marriage and a shared future feels like the loss of a loved one. Divorce often involves a process similar to Elizabeth Kubler Ross & David Kessler’s 5 stages of grief: denial, anger, bargaining, depression and acceptance. Many divorcing parties experience some or all of these phases during their marriage, often in isolation, before the public hears words like “separation” or “divorce.” Often one spouse is farther down the evolution of feelings related to divorce – perhaps you have reached the acceptance phase and your spouse is still in denial. But the fact that divorce involves its own cumbersome grieving process is likely not surprising.
What often comes as a surprise is the grieving process of others. Parents, children, siblings and friends go through a grieving process too… and just because you have arrived at “acceptance” doesn’t mean that even your MOST supportive loved one is going to be ready to embrace the decision to get divorce with open arms. Particularly if there are any religious or cultural stigmas associated with divorce (but even if there aren’t) – it may take loved ones time to understand why and how this is the right path for you. They often are not privy to the intimate details that led to divorce and it may take time for them to process this new information (and reconcile it with their own personal experience with your ex).
Even in the most dysfunctional marriages, we try to protect our spouse’s reputation and “put on a good face” to the outside world. Trying to understand divorce is often a learning experience for close friends and family who may have come to love your spouse over the years – and have been sheltered (probably by you!) from your spouse’s worst traits/moments. There is a way to be honest without trashing your spouse and it starts with taking responsibility for your parts of the failure of the marriage.
Try to be honest – but also be patient. Give your loved ones time to experience the grieving process at their own speed. Be respectful of this process – don’t bring your new boyfriend home to mom two weeks after breaking the divorce news… just because you’re ready to move on doesn’t mean that she is. You may have had years to process the information before “going public” – but remember that for others, the information may be brand new and freshly painful. You will need to rely on the support of friends and family through the divorce process, but don’t forget that they may need to lean on you too.
How to deal with children when your soon-to-be-ex spouse is a co-parent (or even a step parent) presents a whole separate and more complex set of challenges. There are many resources that provide guidance on this matter, including: “The Truth about Children and Divorce: Dealing with the Emotions so you and Your Children Can Thrive” by Robert E. Emery PhD and “Putting Children First: Proven Parenting Strategies for Helping Children Thrive through Divorce” by JoAnne Pedro-Carroll, PhD.
(5) You should still ROOT for your spouse’s success!
If your relationship with your spouse has devolved, you may be thinking – she’s spending so much time with her new boyfriend that she’s going to lose her job and it will serve her right! Or, my spouse violated his employer’s policy on Y and I’m going to turn him in to his boss… before you let your anger get the best of you… recognize that your spouse’s failure (losing his/her job, getting investigated for wrongdoing, etc.) may also be bad for you! If your spouse loses his/her job, you may be ordered to provide support… or his/her support of you may cease… if he/she gets audited or investigated for tax evasion, you may be on the hook if you signed joint tax returns… before you take any action that could negatively affect your spouse, consult competent counsel regarding your legal duties and obligations – and make sure you understand the potential impact for you and your children.
(4) Adopting a new & updated set of expectations
In marriage, we develop certain expectations of our spouse – expectations driven by our shared vision for the future of our family. We expect our spouses to live up to our established standards for communicating, organizing, disciplining children and maintaining our home – even diet and appearance. It is appropriate to hold our spouses to a higher standard than what we might expect from a friend or a house-guest. You may get upset with your wife if she doesn’t take her shoes at the door and therefore tramples mud through the house… or your husband if he grows his hair too long, but you likely wouldn’t chastise a friend for doing the same thing.
We have different expectations of people depending on their level of closeness to us. Our spouses and children are the top level – so we feel justified in critiquing or correcting certain behaviors (telling your daughter her skirt is too short to wear to school or advising your husband not to buy himself $300 sunglasses because it’s an unnecessary extravagance). We all recognize, at the same time, that these critiques would be inappropriate if offered to the neighbor’s daughter – or a work colleague.
In divorce, your spouse is getting ready to drop a few levels – to someone who is more of a friend and/or a co-parent, rather than your spouse. Therefore, it may no longer be appropriate for you to weigh in on the same things you used to. It will be necessary to re-define your relationship with one another and establish new boundaries and methods of communication. Challenge yourself to ask BEFORE you say something out loud “is this still appropriate?” or “am I over-reaching?” Both of you will need time (but also some patience with one another) to reach a new equilibrium.
(3) Need for Healthy and Secure Resources
Because your text correspondence with your sister or Facebook chats with a friend may be discoverable, it is important that you have secure and private spaces in which to “vent” through the divorce process. In almost every case, some text or e-mail exchange surfaces and my client wishes he had never sent it. We end up having to strategize about how to “deal with it” in Court. To avoid this painful conversation, try to avoid sending those types of correspondence in the first place.
There are secure spaces in which you can vocalize your thoughts – including counselling/therapy with a professional or correspondence with your lawyer. These two examples will often constitute “privileged communication,” meaning that enjoy certain protections against being introduced as evidence. Make sure you speak with your therapist, attorney or other professional to make sure you understand whether your conversation is “privileged” and whether they are under a duty to keep your correspondence confidential. Understand where and with whom you can have safe/private communications. Carve out these spaces. Utilize them. When you are outside of these safe spaces, choose your words wisely.
(2) Beware of the “over-promise” as you interview lawyers.
Analogous Example: You think your home is worth $1M. When you decided to sell your home and start interviewing realtors, 4 out of 5 suggest listing your home between $1M and $1.3M… a fifth suggest you list the home for $1.8M. The fifth number sounds great, but you know that your house will never sell for that… so you immediately eliminate the fifth realtor.
The same is true of attorneys. Beware of the attorney who promises you a MUCH better outcome than you hear from others… they may be over-estimating your chances of success to get your business. Look out for our future article on how to interview/hire an attorney for more details on this subject.
(1) “Not taking sides” feels like taking sides.
Two dear friends of mine divorced fairly amicably. I was friends with both the husband and wife and made an effort “not to take sides.” I felt confident at the time that I was doing the mature thing and honoring both friendships. Years later, when I went through my own divorce, I realized how hurtful “not taking sides” can feel – and finally understood that my earlier behavior probably hurt one or both of my friends.
If your soon-to-be ex is trashing your name (or flaunting his/her relationship with a new significant other) – or engaging in any number of other hurtful behaviors (whether intentional or not), it is difficult to see neutrality by a shared friend or family member as anything other than a tacit endorsement (or at least acceptance) of that hurtful behavior. “How could Sally remain a true friend to me if she’s going out to dinner with my ex and his girlfriend days after I confided in her about how devastated I was that he is dating so soon?” Even in the most amicable of divorces, there are bumps in the road and growing pains as two people try to untangle their lives and redefine their relationship with one another and their respective senses of self. You may not want to take sides – but be realistic about what message your “neutrality” is sending. By “not taking sides” you may actually be hurting everyone.
Whether the person contemplating divorce is you or your friend or brother, remember that “not taking sides” often feels like taking sides. Someday, you may be able to be friends with both parties, but through the divorce process – you’ll probably have to pick a side. This doesn’t mean you should trash the other party, give them the “cold shoulder” if you see them at the grocery store or fly a “Team Jennifer” flag to publically state your allegiance… but be sensitive to the fact that remaining neutral can feel like a betrayal… and if you are going to serve as a confidant, you may be better off picking one side (not both!).