A guide to the psychological warfare that is commonly waged during the divorce process.
Most lawyers who have been handling divorces for any length of time have clients report an almost predictable list of threats from their spouses. Since divorcing parties generally have a limited understanding of the process, they take these threats literally and immediately call their attorneys to report them, thereby increasing their fees and their anxiety level. Most threats are baseless and more a result of fear, bullying or desperation. Often, merely knowing that you are not the first one to hear these threats can have a calming effect.
Having said that, on rare occasions a threat will turn out to be real. Thus, while it is easy to say that they are common, whether to give them any weight depends upon the actual circumstances of your case.
The following is a list of common threats that attorneys often hear and to which they generally pay little attention. Most of these threats are just that – threats born of anger and frustration. In some cases it is definitely necessary to get the assistance of private attorneys and/or the District Attorney.
1. “When I tell them [X], you’ll never get the kids.” X can be an affair, the fact that you are seeing an analyst, a DUI, or some other transgression. Although X may have been painful to you and/or your spouse, unless it directly impacts the best interests of the children, it is doubtful that it is going to be given any significant weight by the custody evaluators and/or the judge.
2. “You’ll never see the children again.” Sorry, that’s not the way it works. When custodial parents don’t want to share the children, the courts have lots of weapons available to convince them to cooperate. These include sanctions and/or a change of custody. Having said that, sometimes a parent will disappear with the children. If a parent does this, you must immediately see a lawyer to get the appropriate court orders and file police reports. It will be necessary to get both state and federal arrest warrants. This is relatively rare, but it does happen.
3. “I’ll take the children and move back to Nebraska.” This one may be true, although it is not automatic. The custodial parent has a right to move the children pretty much anywhere s/he chooses, even if it interferes with the noncustodial parent’s visitation rights. Unless the noncustodial can show either that the move will cause some detriment to the children or that the moving parent’s purpose is to deprive the noncustodial parent of visitation, the courts will not interfere. The noncustodial parent’s remedies are more extensive visitation during vacation periods and perhaps an adjustment in support due to the costs of travel.
4. “If you ask for a share of my property [or support, or whatever], I’ll ask for custody and take the children away from you.” Go ahead and try. Custody determinations are made based upon what is in the best interests of the child. In making this determination, mediators and judges put more weight on established patterns of conduct than they do on expressed intentions. Thus, if the mother has been the one in charge of raising the children, the chances are very slim that the court is going to suddenly award custody to the father (usually prompted by a peek at the child support guidelines).
5. “You’ll end up in the street with nothing.” No. You will end up with half of the community property and, if appropriate, spousal and/or child support for an appropriate period of time. The spouse making the threat may not want to give you your share of the property and support, but your attorney can request that the court make orders insuring that the property is equally divided and that support is paid. You can also seek the assistance of the Department of Child Support Services in your county.
6. “You’ll never get any of my pension.” Although pensions are very emotional assets for many people, in the final analysis, they are just another type of property that must be considered and divided in the divorce. The simple answer is that it is community property and you deserve your share. Although it may be possible for the employee to keep his or her pension intact, it will require that the other spouse receive other property of equal value. In many marriages, the pension and the equity in the house are the two most valuable assets and if the employee is going to keep his/her pension, the other spouse may end up with the house.
7. “I’ll hide all the money and you won’t get a nickel.” This is harder than it sounds. It is difficult to move money around without there being a paper record of it. If your attorney does adequate discovery, s/he should be able to spot any significant transfers of funds from one account to another. In cases where such a threat is likely to be credible, it is important to get as many records from the financial institutions themselves as possible, as you don’t want to be relying on what your spouse is giving you. It may be necessary to involve a forensic accountant to assist in reviewing the records and searching for diverted assets. If the party is self-employed, then the search gets more difficult and more expensive. Although it is possible to hide assets, it is not as easy as most people believe.
8. “I’ll start a new family and they will be my priority.” So what? The court will require that s/he take care of the financial needs of the prior family before taking the needs of a new family into account. If s/he has a child with a new spouse, then s/he will be entitled to a hardship deduction in the child support calculation, but that usually doesn’t have a large impact on support.
9. “I’m kicking you out of MY house.” Maybe, but not right away. First, whose house is it? If both names are on the deed, you have an equal right to possession of it. Generally, you cannot be forced to leave unless you have committed domestic violence. If it truly is his (or her) house, then at the end of the case you will be required to leave. Having said that, you may want to leave sooner. Who wants to live with someone that they are divorcing?
10. “I’ve got someone new and s/he is better/younger/prettier than you.” This is designed to simply be hurtful. The retort may simply be, “Perhaps, but s/he doesn’t really know you yet.”
11. “Your attorney is unscrupulous and is taking you to the cleaners.” This is an attempt to “divide and conquer.” Most attorneys are acutely aware of the size of their bills and are not anxious to see them get out of hand. It is much easier for them to collect small bills than large ones. If your spouse thinks that your attorney is really a gem, then perhaps s/he isn’t representing you as vigorously as is warranted.
12. “Unless you do things my way, you won’t get a dime.” This is a threat made by someone who is used to being in charge. You don’t have to do it his or her way. That’s why you have an attorney to represent your interests. The law states what you are entitled to. If your soon to be ex-spouse can’t get used to the idea that s/he is no longer in charge of your affairs, that’s a personal problem.
13. “I’ll quit my job before I pay you a dime.” Although support is usually awarded based on actual current earnings, if the Court believes that one party is earning less than his or her capacity, it may use earning ability. In this situation, the paying party may be ordered to pay higher support (or the receiving party get less support) than would be warranted based upon his or her current circumstances. These are often credibility issues so it is best if you can get a witness to the threats.
14. “When the judge sees my expenses, you’ll get less (or I’ll get more) support than the guideline amount.” Perhaps, but unlikely. Judges are used to making orders that leave both parties unable to meet their stated expenses. Thus, unless there is a very compelling expense, such as unusual medical expenses, mortgage or private school expenses, the court is just going to apportion the available income equitably between the parties and let them get by as best they can.
15. “I’ll consider reconciling with you if you sign this agreement.” If s/he wants to reconcile, why do you need a property agreement? In all likelihood, it is simply an artifice to get you to make a concession that you shouldn’t make and shortly after signing it s/he will be gone again. Be extremely cautious of such devices.
While most such threats can be ignored, you may want to keep a log of the dates, times and context within which the threats were made. If you think that a threat is serious, then you should contact your attorney immediately. Otherwise, simply keep your log and periodically share it with your attorney. Take solace in the knowledge that the fact that your spouse feels the need to make these sorts of threats is usually because s/he is frightened and no longer feels in control.
The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay; http://www.erinedixon.com/.