Having practiced divorce law for over 30 years, I have been amazed by the number of clients who have uttered the same prophetic statements year after year, each one acting as if they were announcing the discovery of some new scientific truth for the first time. In no particular order, here are five such things that you should never say to your divorce attorney:
- “I shouldn’t have to give her anything – I was the one who worked and paid for it all; she didn’t contribute a dime to the marriage.” This sentiment arises from an archaic viewpoint. It is also one of the most deeply entrenched attitudes held by divorcing parties. While historically the law once provided that money and property acquired by the toil and labor of one spouse was that spouse’s sole property (except in community property states), that concept has largely been abandoned. Marriage is now generally viewed as a co-equal partnership between spouses with each spouse having an interest in the income and assets acquired by both “partners” during marriage. States today will generally follow one of two broad approaches to dividing income and assets in divorce: a community property approach or an equitable distribution approach. In either case, the court will usually (with a few exceptions) treat income and property acquired by spouses during the marriage as “marital property” subject to “equitable” division. “Equitable” usually means “equal” unless there are overriding considerations of fairness that justify an unequal division.
- “He shouldn’t get anything – he was a lazy SOB during the entire marriage while I worked my butt off and now he’s run off with our nanny – that should count for something.” Sorry – welcome to the world of “no fault” divorce. Almost all states have now basically adopted a “no fault” approach to divorce. Under “no fault”, the court will not hear or consider complaints about who is at fault for the demise of the marriage or one party’s bad character or behavior (unless it has something to do with money or property). I warn clients that raising such issues will only raise the ire of the divorce judge and will brand the party raising such claims as an emotionally scarred spouse with a vendetta against their soon-to-be-ex. Fair or not, this is not a good look. Under a “no fault” approach to divorce, the court is an amoral administrative system where “justice” is limited to dividing the parties’ money, property, and kids – usually with a meat cleaver. (Note, however, that misconduct or bad behavior involving the misuse, hiding, or dissipation of marital income or assets is always of interest to the court. Additionally, some states – primarily in the South – still retain some element of “fault” by punishing infidelity that leads to the demise of the marriage, usually by means of a waiver or grant of spousal maintenance/alimony or an unequal division of property.)
- “Between you and me, I want to starve her into submission – she’ll come around if we keep the pressure on.” Aside from the moral and ethical problems attached to this litigation strategy, the practical reality is that it never works. I have had a number of clients (always male) who have tried this tactic in their personal dealings with their spouse only to have it blow up in their face when their less than subtle text messages, e-mails and/or voice mail messages are submitted as exhibits in court. This is a good approach for getting sanctioned.
- “I AM the business – if I quit tomorrow it wouldn’t be worth anything!” This statement is uttered by the professional client (CPA, doctor, dentist, attorney, etc.) or sole proprietor who is faced with having to pay his/her ex-spouse for the appraised value of their practice/business. Granted, in the real world there may not be much of a market for a professional practice or particular small business. However, in the Alice in Wonderland divorce world, your professional practice/business has a value and you will need to pay your spouse for that value (to the extent it was created during the marriage). The value of the practice will generally be appraised as of the date the divorce was filed/served. Threatening to destroy the practice by quitting won’t change anything – it’s the same as threatening to burn down the house. A burnt up house is not going to have much value either – but you’re still going to pay your spouse half of what it was worth before you burned it down.
- “He’s lying.” Of course he’s lying – it’s a divorce. During trial, I give my clients a pad of paper and tell them to write notes to me during the other party’s testimony. However, I tell them I don’t want to get a note that says “he’s/she’s lying”. The court expects that everyone lies in a divorce case. I had a judge tell me that he saw more dishonesty among parties in the divorce court than he saw in the criminal court. Because the court takes as suspect testimony from the parties, neutral third-party witnesses and independent corroborative evidence is extremely helpful in litigating a divorce case. Otherwise, it’s simply a game of he-said/she-said. Consequently, establishing your (both the party and the attorney) credibility with the court is critical. Once the court accepts that one party is more credible than the other, the battle is either half won – or half lost.
Bonus: “Can I repossess those breast implants? I paid for them.” This is actually a question that I have been asked a number of times – sometimes facetiously; sometimes quite seriously. The answer is “no” – but, under certain circumstances, you might get reimbursed for half the expense of the procedure – especially if the procedure was done right around the time the wife filed for divorce.