In today’s episode, we’re going to cover the top mistakes to avoid during your divorce.
Top mistakes to avoid during your divorce
First of all, you should never underestimate your spouse’s vindictiveness.
One of the things that I find interesting about this work, and also very sad, is the extent to which people act crazy because they really want to hurt their spouse. For example, I had one case where I had two executives that were getting divorced and they had young children. They had been using the same nanny to care for their children since their second child came home from the hospital. This was the nanny who was at the hospital the day their daughter was born, took care of the baby, took care of their older son for years, and was an integral part of the kids’ lives. Throughout the divorce process, the parents decided that a really important thing for them was to keep this nanny because they wanted to maintain consistency for the kids. So a week after the judgment of divorce was entered what happened – the dad unilaterally fired the nanny. And just for extra fun, took the car keys to the car that the nanny had been using to transport the kids to and from all of their activities, so that she literally could no longer perform her job. So even if mom had wanted to keep the nanny for the benefit of the kids, it was almost impossible for the mom to figure out a way to do that.
This is a good example of a spouse who was just really focused on hurting their former spouse more than focusing on what was best for their kids. And I would just say, you’ve got to really focus on your kids and what’s best for them, and think about how your behavior is going to affect them. These two little kids were devastated. Not only were they having to deal with their parents being divorced, and they’re having to deal with living in two different households, but at the same time, they had the caregiver that they had been used to having for years ripped out of their lives. It was just really, really heartbreaking that this parent decided to make that choice. So if you’re thinking about doing that sort of thing to get back at your spouse, think again, because it’s going to come back to hurt your kids, and you shouldn’t want to hurt your kids.
If you’re on the other side of it, and you’re dealing with an ex who is emotionally abusive or unwilling to put your kids first, you have to try to protect yourself. If you know you’re dealing with that kind of a spouse when you’re going through a divorce, you’ve got to consider not sharing the nanny in the first place. Or figuring out a way that you can control who takes care of the kids during your parenting time, so that you’re not dependent on the potential unilateral and irrational actions of your ex-spouse.
I had another case where the wife destroyed the husband’s motorcycle, it had been a big bone of contention in their marriage. It was an issue about how often and how frequently this husband was off riding his motorcycle with his buddies, so the wife decided it would be a really good idea to destroy that property that was so important to her spouse. There are other examples that I’ve experienced of people keying the car of their spouse, scratching shameful words into the side of a vehicle, breaking into their ex-spouse’s house and disabling the security system to take things that your spouse particularly cares about.
These are examples of people that are just so bitter and upset that they’re going through this divorce. You really have to think about how to secure your valuables, change your passcodes, change the code to your garage, make sure that you’re changing all of the codes that your spouse may have access to, in order to prevent these types of damages to property taking place.
Another thing that I’ve seen happen is an upset vindictive spouse who threatens to get the other spouse fired, or just generally tries to destroy their healthy relationships with friends and family. For example, I had a client where she had misstated on her resume one of her credentials about her level of education, and it was the resume that she had used to get the job that she was currently working in. During the divorce process, her ex wrote a letter to the head of her company and basically called out this discrepancy in her credentials and was on a mission to get her fired. I had another case where one of the spouses was intent upon disparaging the other spouse to the spouse’s family and friends. They went on a mission to write letters and sent mass emails about how the divorce was all the wife’s fault and the family members really needed to be aware of all of the issues that were happening and how it wasn’t the husband’s fault – essentially trying to get the wife’s family to turn against her.
Another example I’ve seen is a case where the husband decided that he no longer wanted his wife to use the same financial advisor after the divorce. So they had a financial advisor for 12 years throughout their marriage and they had really relied on this person to help them with their investments. Toward the end of the divorce process, the husband told the financial advisor that if he was going to continue to support the wife’s finances, and he was going to continue to provide financial advice to his soon to be ex wife, that he the soon to be ex husband was going to pull all of his resources from the financial advisor’s firm. So say what you will about the ethics of that financial advisor in that particular circumstance, but the moral of the story is that there are a number of different ways that if your spouse is bitter and upset, they can go out of their way to make your life more difficult.
So, what are the lessons in this? Well, I would say one of the things I often tell my clients is that it’s not against the law to be an asshole and really you have to police that for yourself. So if you’re thinking about being the jerk or the asshole in the situation, then I would ask you to consider the big picture. Consider whether it’s really worth the time and energy that you’re spending to make your spouse suffer and think about what impact is going to have on your kids. Now, there may not necessarily be anything illegal about these actions, but just really focus on the big picture and think about whether this is really how you want to handle the situation.
And if you’re the one whose spouse has gone down this path already, one thing you can do is to think of each example of vindictiveness as a reminder of why you’re getting divorced in the first place, and try to move forward with as much grace and resiliency as possible. That can be really hard because a lot of the things that the spouse may be doing in their vindictiveness, as they’re dealing with their pain, can really be causing you direct, hurtful consequences. But you’ve really got to try to rise above that and just know that you’ve made the right choice in moving on with your life.
Another thing that I see people do, which is really disappointing in this process is they will call the police or they will call protective services on their spouse in a way that is just not warranted. Obviously, the police and Child Protective Services exist for a reason, and if there is a legitimate reason why you should be calling them and asking for their services, then, obviously, you should do that. The number of people that I see going through the divorce process that think it’s going to make their spouse miserable if they call and make a complaint because then all of a sudden, their spouse is going to be under investigation. They do it to try to gain litigation advantage, or they do it to try to scare their spouse. Or in some instances, they do it to try to put the kids in the middle and they try to do it so that the kids will be more on their side than on the spouse’s side. This is just a horrific tactic that I see people use. And it just never has the desired effect that you think it’s going to have. It undermines the whole system. If there are frivolous complaints being made to these entities, then the entities that are receiving the complaints don’t even take the complaints seriously. I have cases where I serve as a guardian ad litem, and the child protective services people who are on the receiving end of the complaints just get to the point where they don’t even take the complaint seriously anymore because they know that ‘Oh, it must mean that there’s an upcoming hearing next week,’ or ‘Oh, here we go again. Here’s mom, once again, claiming the dad’s doing something inappropriate.’ When in reality there’s nothing going on with the kids, the kids are fine. But the parents are just doing it to try to create an advantage that never really gives them an advantage.
Apart from vindictiveness, the second thing I would recommend you think about is that you should really avoid thinking that you can outsmart the system. I have a number of examples of clients who just think that the rules don’t apply to them, they think that they’re going to outsmart the judge or they think that they’re going to hide assets from their spouse. And it never goes well. The first example is a client I had who decided that two weeks into the divorce process, he was going to run out and purchase a Mercedes Benz motorhome that slept eight people, top of the line, and costed $100,000 because he was going to use it as a camping tool for after the divorce happened. He was going to take the kids on all these fabulous vacations and I think part of him thought that…Oh, if I buy this now then, you know my wife isn’t going to leave me and she’s going to really want to be part of this post divorce camping extravaganza…but it really didn’t play out that way. In this particular case, the judge had ordered a status quo, which means that the judge had put in place an order that required the parties to maintain their financial status quo throughout the divorce, which basically means you can’t take on any new debt or sell any major assets. So his purchase of the hundred thousand dollar RV was basically a direct violation of that order and he really lost a lot of credibility with the court. He was fined by the court and held in contempt by the court for having violated the status quo order. I’m not really sure what this particular client was thinking, but he made a really big purchase, and there was no question that violated the court’s order. Whether he did it to get back at his wife or not, it really didn’t have its intended effect and he really looked silly and he put himself at a disadvantage.
I have another situation where I represented a client who initially didn’t say anything at all about stock options that she was going to be entitled to as part of a promotion that she got with her company. As we got into the specifics of her employment a little bit more, I started asking questions about what her compensation was like, and her bonus structure. I learned that stock options were available. So we talked more about it and I said, ‘Well, you know, when did you get these? And when do they vest and might your spouse be entitled to them?’ And I got some very vague answers. So while the stock options themselves were disclosed as part of the divorce settlement, what my client knew but didn’t disclose to me at the time, because she wasn’t telling me the whole story was that there were certain requirements around the stock options that once her company got sold, these options were going to be evaluated at a very, very high-dollar value. She knew but no one else did, that the company, at the time of the divorce, was in the process of going through the due diligence to be sold. So that information was not disclosed. And of course, even though she thought she could outsmart the system and withhold this information about the stock options from her spouse, it turned out that a tax event occurred after the judgment of divorce was entered and the spouse learned of this information, came back and filed a motion to set aside the judgment. It ended up costing this particular person hundreds of thousands of dollars, that she would have saved herself had she been upfront and honest about the full extent of these options and what percentage of it her spouse would have been entitled to. So it’s just another example of thinking that you can outsmart the system. Even though this is the first time that you’ve gotten divorced, the system has been at it for a really long time, and it’s very unlikely that you’re going to be able to hide assets from your spouse without consequences and it will likely end up being very financially expensive for you.
I had another situation where there was a client who did not get the marital home in the settlement of his divorce, but he decided that because he didn’t get it and he was upset that his wife got it, he was going to sell it to his cousin before the judgment of divorce was final. Of course, that didn’t work either. That sale did not go through, it caused this client to lose a lot of credibility in the eyes of the court, and to be held in contempt of court for having violated the divorce settlement agreement. So again, it’s really important to not think that you can outsmart the system.
The third thing I would say is a big mistake I see a lot of clients make is they move out of the marital home without a plan for what they’re doing. Don’t move out of the marital home without consulting with your lawyer. There’s a number of reasons why you should not do this. The first reason applies if you have minor children. If you move out of the marital home, and the kids are still there, it impacts your ability to create a parenting schedule with the kids that you really want. And one of the things that I always tell my clients is that you should never agree to a parenting schedule on a temporary basis that you wouldn’t agree to on a permanent basis. If you’re going to be moving out of the home, unless you’ve already got everything nailed down, which if it’s early on in your divorce process, you probably do not have everything nailed down. Unless you have it all nailed down, the minute you leave, the kids are staying there with the parent that stayed in the home, and you have just really undermined your ability to have a meaningful parenting schedule with your kids. The other things that could immediately kick in once you leave the marital home is that you may be required to pay in term child support, or you may be required to pay in term spousal support or alimony. In some states, it’s called maintenance. It can also impact your ability to be awarded the marital home. If you’ve left your spouse there with the kids, and you’ve already moved to a different location, then your claim to the home may be undermined. So there’s many reasons not to do it. And you should certainly not do it without consulting with your lawyer first so that you really understand what the consequences are of leaving the space where you’ve been living with your family.
The fourth thing is the mistake that I see people make all the time and that is they cannot commingle funds that are inherited from family. What does that mean? So let’s say your father dies or your mother dies, or your great aunt dies, and as a part of their estate, you inherit money from them. If you take that money, and you use it in a joint account with your spouse to pay for things that are marital expenses, like your mortgage or stuff for the kids, or you’re using it to pay utilities or using it to pay off credit cards…if you use inherited funds in a way that gives your spouse joint access to those inherited funds, then your ability to claim later that those inherited funds should be kept separately from your spouse is completely undermined. This is the case in many jurisdictions, even if all you’re doing is living off the interest of those inherited funds. So let’s say you take steps to put those inherited funds in a separate account that your spouse does not have access to. That’s a good step one for keeping it separate from your spouse post-divorce, but if during the marriage even though it’s in a separate account, you decide that you’re going to live off the interest from those inherited funds, or you’re going to use those inherited funds to pay for your living expenses or your kids expenses or your credit cards or your mortgage…then your spouse will have the argument that even though you’ve kept that money in a separate account it’s been commingled in the eyes of the law. So if you’re really thinking about how to keep inherited property separate, obviously make sure that you contact your attorney in your jurisdiction so that you can understand how the specific rules in your state apply. But at a minimum, make sure that those inherited funds are kept separate from your joint accounts and kept separate from an account that your spouse also has access to.
So those are the top four things that you have to look out for and to avoid when you’re going through the divorce process. Join us for our next episode, which will cover sex and divorce. Until then, be kind and stay true to yourself.
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