Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top Maneuvers When Divorce Gets Ugly

INTRODUCTION

In my first book, written almost ten years ago, I emphasized in the introduction that you do not want to become involved in prolonged adversarial divorce litigation. Your life, your standard of living, and most important, your relationship with your children will almost certainly be damaged.

As bad as the situation was in 1997, it is even worse today. Having been a divorce lawyer for twenty-five years, I have seen my share of feuding couples, and even when I started out husbands and wives were at each other’s throats. In the last decade, though, things have changed. Divorce wars seem to break out at the slightest provocation. All it takes is for one spouse to make what the other considers an unreasonable demand, or bring the kids back a little late from visitation, or start going out with someone else, and all hell breaks loose. Sometimes, just filing for divorce is all that’s needed to set off a fight. People who are ordinarily rational and controlled are temporarily transformed by the divorce process. They become vengeful, abusive, and money-crazed. They can’t be in the same room with their spouse without getting in a shouting match and accusing the person of terrible things. Some people insist on an expensive divorce trial because they want to show the world what an awful person their spouse is; they are focused on spending as much money as they possess in order to humiliate their partner. These individuals may love their children, but have no compunction about using them to exact vengeance for the alleged wrongs done to them.

Certainly this type of thing went on before 1997, but it is much more common today, and the wars are more intense and longer-lasting. In a moment, I’ll explain why divorcing ugly has become a trend rather than an occasional occurrence. First, though, let me share a story that will explain my motivation for writing this book.

DAN AND CONNIE

From the moment Dan came to my office seeking someone to handle his divorce, he was furious. Connie, his wife of 14 years, had taken out an ex parte order of protection against him, telling a judge that she feared he might harm her or her children. Under the terms of the ex parte order, Dan was not informed of Connie’s action in court nor was he given the opportunity to present a defense in court. Instead, when he returned to his house after work he discovered that the locks had been changed, his clothes and other belongings were piled up on the front porch, and a policeman was there to make sure he didn’t enter the house.

As Dan explained to me, Connie had filed for divorce a few weeks ago, but they had agreed that for the sake of the children—they had two boys, ages five and nine—they would manage as best they could living under the same roof and he would not hire a lawyer. Dan had hoped they could patch things up and save the marriage. He admitted that he was in part responsible for their problems, since Connie had found out about an affair he’d had with a work colleague. He insisted it was short-lived and all over with, and that it had been prompted by Connie’s growing disinterest in sex.

Dan was also incredulous that Connie was able to obtain an order of protection since he had no knowledge of the court date and there was no evidence of any abuse—he said he had never struck Connie or the kids and had never threatened to do so. He had never been charged by Connie or anyone else with any crime, and the police had never been called to his house because of a domestic dispute. Nonetheless, the order of protection was in effect, and it prevented Dan from even seeing his children.

As the case unfolded, we learned that Connie had hired an attorney who was well known for using this tactic as a negotiating tool. This lawyer routinely counseled his clients to obtain an order of protection and agree to lift it only in exchange for certain divorce terms. Connie’s terms included sole custody, possession of the house, and sufficient maintenance that she would not have to rejoin the workforce until their younger child was in college.

As you might imagine, Dan became even angrier when he realized that his wife was using the order of protection to negotiate settlement terms. Stupidly, and against my explicit and repeated warnings, Dan drove over to the house, violating the order of protection, and began screaming (in front of his children) that he would prefer to have bulldozers level this place than let you have it. As soon as he left, Connie called her lawyer and the police, and Dan was arrested for violating the order. Though he only had to spend a day in jail before he was bailed out, the experience ratcheted up Dan’s fury to a new level. He told me that regardless of cost, he wanted to fight Connie on every issue: He wanted sole custody of the kids, he wanted to make sure she had to get a job, and he insisted that they sell the house. He was adamant on these points—not because this is what he wanted out of the divorce, but because it was what Connie didn’t want to happen.

Eventually, we managed to get Connie to withdraw the order and try to negotiate a settlement. During this time, Dan was given visitation, and on his first visit with his children he realized that his five-year-old was afraid of him. Apparently, Connie had told the children that the order of protection was why their father had not seen them for a while, and the five-year-old had also witnessed Dan’s threat to level the house. Dan tried and succeeded in allaying his child’s fears, but he was so resentful of Connie’s action that he began telling both his sons that their mother was responsible for the divorce and that he wanted to keep the family together, that Connie was impossible to live with, and that he felt bad leaving both of them in the hands of someone who isn’t playing with a full deck.

Dan revealed to me that his trump card in the negotiation was his knowledge that Connie had been diagnosed with depression, and that when the children were little she’d been hospitalized and placed under a suicide watch. After trying a number of antidepressants, one had finally worked, but every so often she stopped taking her medication and fell back into a depressed state. Dan said their kids knew nothing about this, and that his threat to tell them would force Connie to agree to what ever terms he proposed.

Fortunately, I was able to convince Dan not to carry out this threat or tell his kids about their mother’s condition. Eventually we reached a settlement agreement, even though on more than one occasion the case threatened to blow up and go to trial.

I was horrified by the stunt that Connie and her attorney had pulled; the worst thing about it was that it had damaged Dan’s relationship with his children. I was equally upset, however, by Dan’s behavior—he was vengeful and abusive to the point that he was willing to cause emotional harm to his kids in order to hurt his wife.

This wasn’t an isolated case. In recent years, I’ve represented both men and women who have said and done things that turned their divorces ugly. The cumulative result of these cases is this book. I want to make people aware of the divorce wars that are raging out of control and offer advice about how to prevent these wars, or at least manage them so they do as little damage as possible to both husband and wife, and especially to the children. As I think you’ll agree, this type of advice is needed now more than ever.

WHY PEOPLE ARE FIGHTING MAD

AND FIGHTING MORE

In the past, the prevailing emotions during a divorce were usually sadness and regret. Today, anger is the dominant emotion. People are angry at their spouses, at their spouses’ parents, at their spouses’ new partners, at the legal system in general, and judges and lawyers specifically. They are angry at what they have to give up as part of the divorce and what they receive. All this anger translates into words and deeds that make the divorce process more costly, stressful, frustrating, and lengthy than in the past. Let’s examine some of the factors that are fueling this anger and turning divorces into battles:

Blurring gender roles. For society, these changing gender roles may be a good thing, giving women the opportunity to pursue all types of careers and men the chance to spend more time with their children. In terms of divorce, however, they have generated many divorce court fights. The growing number of stay-at-home dads are demanding joint or sole custody. The growing number of high-earning moms means that courts are not routinely making men pay support and maintenance (and in some instances when dads get custody, they are asking women to pay child support). Even though moms’ and dads’ roles are changing, they still retain traditional expectations about divorce. Thus, working moms fight to receive money from men who don’t work or who make less than they do, and stay-at-home dads demand custody because the primary caregiver usually receives it. Many divorce fights revolve around who has to go back to work (or who has to try to get a better-paying job) versus who has to stay home with the children.

Polarizing gender groups. I have had clients who were members of women’s groups and others who were members of men’s groups, and some of these groups encouraged these individuals to fight, to refuse to compromise, or to assert their rights as a mom or dad. Many gender-based groups do a lot of good, but some are hostile to members of the other sex and exacerbate anger during the divorce rather than help people manage it. As a result, some clients are convinced they are being taken advantage of because of their gender and see bias and discrimination where there is none. They fight as if they were being victimized because of their gender. Such conduct can also cause the courts to be skeptical of pleas for help from real victims of gender bias, having heard people cry wolf once too often.

Media-communicated myths. Everyone picks on the media these days, but in this instance certain elements of the media deserve to be picked on. I cannot count how many television dramas and movies with legal themes have given the impression that every divorce involves a trial where one person is clearly in the right and the other is clearly in the wrong, that it is necessary to play tough and sometimes unfairly in order to win a case, and that divorce has everything to do with the two spouses and very little to do with the kids. These myths infect divorcing couples, making each person believe that he must be right and she must be wrong (or vice versa). If you’re sure you’re right and the other person is wrong, you’re going to act with self-righteous indignation that allows for no compromise. Similarly, divorcing couples feel they must use every dirty trick in the book to win a case, overlooking that these dirty tricks often hurt their kids (as in the previous story of Dan and Connie).

A growing sense of entitlement. Baby boomers, especially, act as if they are entitled to the house, the kids, and whatever else they feel they deserve. They refuse to recognize that divorce often requires compromise and lifestyle changes. As a result, they fight irrationally, unable to accept that divorce may mean they have to return to the workforce or sell the house so there’s sufficient cash for both parties and the kids to get by. Many people in their forties and fifties who are divorcing believe that they can have it all, and so they fight for all the property, children, and other assets they can get their hands on.

A flawed legal system. Some lawyers and judges make a bad situation worse. One of the most disheartening trends is the proliferation of marginal or incompetent attorneys practicing family law. Some of them are under the same impression as their clients—that to be a good divorce lawyer, they must be tough, aggressive, and intimidating. In certain instances, you want your lawyer to fight for you, but not to the point that the lawyer’s actions cause the other side to fight even harder and escalate the pain and cost of the divorce. Nor do you want your lawyer to fight so hard that the kids are hurt in the process; a lawyer who battles to prevent good parents from seeing their children or seeing them often is not doing anyone a service.

    Similarly, judges who are biased in favor of either moms or dads often render judgments that are blatantly unfair. They deprive moms of maintenance they deserve and need, or rob dads of joint custody that would be in the best interest of their children. One of the fastest-growing areas of the divorce wars is post-decree litigation, and these biased judgments are often responsible for legal fights that continue long after the divorce is done.

Given all these factors, it’s surprising that every divorce doesn’t turn into a war.

DEFINING WAR: WHY UGLINESS

IS IN THE EYE OF THE BEHOLDER

A divorce war to you may not be a war to someone else. For example, some people have a high tolerance for vituperative arguments. Perhaps these arguments characterized their marriage from the start, so they aren’t stressed out by the fighting that takes place during settlement negotiations or a trial. Some people might feel they’ve been in a divorce war only if the case goes to trial. For others, the war may be characterized as the verbal or physical abuse that goes on during negotiations or in exchanges with a spouse outside of the legal process.

It’s therefore important that we define our terms. A normal divorce generally involves some disagreement over children, property, and so on, but it never crosses the line that separates anger from outright and prolonged hostility. In other words, you may disagree about who gets custody of the kids; you may argue about it, and the negotiations around this issue can be tense. Ultimately, however, no person becomes angry enough to threaten to run away with the children if the other person fails to agree to joint custody or brings in a therapist to testify that the spouse is likely to abuse the children (knowing that this is untrue).

In a normal divorce, people generally play by the rules. In a war, people feel that any tactic is justified if it helps them achieve their goal. During settlement negotiations, a man may physically or verbally threaten his wife in order to get her to sign a document giving him what he wants. A woman may hire a private detective to shadow her husband, gathering information about illegal practices in his business, and use this information to blackmail him. People will often use kids as pawns to achieve their objectives; they may say something to the effect of I’m going to tell little Jimmy about how you had an affair and ruined our marriage unless you agree to my visitation terms.

To a certain extent, war is a matter of degree. While most divorces contain their share of acrimonious exchanges, divorce wars involve continual and excessive acrimonious exchanges. In a war, some divorcing spouses can’t even be in the same room together without going at it, either screaming threats and accusations or physically assaulting one another. They often relish taunting the other person: A dad may return his child late from visitation just to aggravate his wife, and a mom may parade her new boyfriend in front of her husband and let him know that the boyfriend is richer, smarter, and a better lover. Neither one misses the chance to get in a dig at the other.

A war also lasts longer than a normal divorce battle. As an all-out, no-holds-barred conflict, a divorce war may include a lengthy period of interrogatories and depositions, testimony by expert witnesses, exams by therapists, forensic accountants who sort out a complex marital estate, orders of protection, various motions, and a trial. Not only does all this take a long time, but it costs much more than a normal divorce. A war may also continue after the court grants the divorce and involve post-decree motions for years to come.

In a war, at least one of the parties involved is acting in a selfish, mean-spirited, or crazy manner. This means that the person isn’t interested in a fair outcome for all concerned (including the children), but only in getting what he or she wants. Sometimes, all this person wants is to make the spouse suffer. In some instances, such people don’t care if the process bankrupts everyone involved (except the lawyers, of course). They are often obsessive to the point of lunacy. They say that they would rather give all their money to lawyers than allow their spouse to have one more penny than necessary. They delight in humiliating and angering their spouse throughout the process, and they hope the ultimate outcome will humiliate and anger that person even more. They may be acting in this harmful way because the divorce has temporarily unhinged them or because they are inherently cruel, but what ever the reason, they are doing everything possible to make the divorce more difficult than it has to be.

Divorce wars place people under a tremendous amount of stress and cause them to be emotionally upset. In part, this is because they believe their spouse is divorcing them in a way that will harm them or their children emotionally, financially, or physically. And in part it’s because the divorce process itself, especially in a highly combative situation, involves hostile questions during depositions, difficult sessions with therapists, heated negotiations over property, and a tension-packed trial.

In short, a divorce war is prolonged, costly, and often nasty. It features legal fighting over kids and assets, and it may also include extralegal tactics, from hiding money to refusing to pay child support to kidnapping.

HOW TO MAKE A DIVORCE WAR MANAGEABLE:

WHAT YOU’LL LEARN

I’ve tried to make this book as useful as possible for people going through a divorce. Throughout it, you’ll find advice about ways to avoid war and, when that isn’t possible, ways to contain and control the damage. Many times, people make their divorces worse because they’re operating under false assumptions based on bad advice. At the very least, I hope this book provides you with information that helps you limit the harm an ugly divorce can cause you and your children.

To that end, the first chapter will offer you advice about how to avoid the mistakes that people often commit at the start of a divorce—mistakes that render you defenseless if your spouse launches an all-out surprise attack. In the next few chapters, I’ll address other issues that arise early, such as assessing just how difficult your divorce may be, choosing an attorney who is a war-tested veteran, and recognizing if your spouse fits any of three highly problematic categories.

The next group of chapters focuses on three key problems or situations that surface when things get ugly. Chapter 5 involves how to settle a difficult divorce, which is much more challenging than a normal one. Chapter 6 looks at what happens when you can’t settle and must go to court—I’ll cover everything from the factors that result in a favorable judgment to how you should prepare if you need to testify. Chapter 7, on post-decree court, examines what happens when the divorce ends but your case keeps returning to court—and how to deal with an ex-spouse who refuses to accept the war is over.

The book’s next-to-last chapter concentrates on special situations in