This brief guide discusses some of the common threats and comments that one may hear from the other spouse during their divorce and how to deal with it. If on the receiving end of such threats or comments, the best approach is to NOT respond in kind, but instead, keep a running "events journal" with dates, places, circumstances, and summaries, including quotes of all comments made. Additionally, do NOT record a conversation without the express consent of your spouse. In California, it is a felony to record a conversation without the other person's knowledge and consent.
The below examples are some common threats made by a spouse during litigation. As said above, the best thing to do (apart from keeping a complete and up-to-date journal) is to ignore such threats, and instead, move forward with your effort to reach a resolution of the pending divorce issues. In other words, it’s always best to take the high road. If you participate in any hostile dialogue, not only will that impair the ability to reach agreements, but could also harm your efforts to get favorable court orders if you are determined to be equally uncooperative or problematic to the litigation process.
1. You spouse says: "I will tell them ‘x, y and z,’ and you will never get the children."
"X, y, and z" can be many things, either true or false. For example, an affair that occurred in the past; or that you are seeing a therapist (hence implying that you must be emotionally or psychologically impaired); or that you drink wine with dinner (hence implying that you have a drinking problem). Chances are that contrary to your spouse’s subjective opinion, "x, y, and z" have little or nothing to do with the children’s “best interests" (the standard applied by the judge when considering custody or visitation issues). Instead, the threats are designed to intimidate and/or upset you. Because such claims by your spouse will likely not be relevant to orders pertaining to custody or visitation (or anything else) they should be ignored, except documenting all such threats as suggested above.
2. Your spouse says: "Your attorney is a quack," or “Your attorney is only out to get our money," or "let’s use one attorney and save money," or “your attorney is really partial to me and my position," etc…
These are divide-and-conquer tactics. If there is a way to save attorney fees and costs, any ethical attorney welcomes it, and has likely already considered it in his/her overall assessment of your case and strategy decisions. Plus, most clients become aware early on if their lawyer is incompetent or does not have their client’s interests prioritized.
3. Your spouse says: "Unless you do things my way, you'll never get a dime."
The person making this threat is probably used to being in charge, and that is no longer the case once you start resisting their commands (for instance, because you are now listening to your attorney’s advice on how to best proceed with your case rather than being bullied by your spouse). When your spouse starts to lose control of you, he or she will often ratchet up their threats in an effort to intimidate you back into submission. The truth is that regardless of your spouse’s threats, the judge will divide property and award support, if applicable, in accordance with the true facts and the law, not what your spouse says or wants. In fact, their threats can and will backfire if exposed. Thus, make sure to keep an accurate and up to date journal.
4. Your spouse says: "Why are you trying to take my money… or… my pension… or … my children?"
Your spouse is probably trying to make you feel like the bad guy so you will not seek your rights. Apart from such manipulation attempts, the simple truth is that each spouse has legal rights, and is entitled to certain property, support, and custody/visitation terms under the law. You are not taking advantage of your spouse by merely asserting proper legal claims and seeking what you’re entitled to. When your spouse tries to manipulate you by playing the victim, it is usually because that spouse isn't willing to be fair when it comes to resolving divorce issues, but instead, is trying to weaken your approach.
5. Your spouse says: "I'll go to jail before I pay you anything."
If true, so be it. If your spouse states that they will not follow the law by complying with support orders, then they can accept the consequences. Additionally, there are various ways to enforce support obligations, including seeking contempt of court orders, which can mean a jail sentence. This is rarely the ultimate outcome, however, as most people end up paying voluntarily when faced with legal consequences. I.e., all the tough talk goes out the window.
6. Your spouse says: "I'll quit my job before I pay you any money."
If your spouse makes such claim, attempt to get a witness to corroborate it. If there’s no witness, then document such comments very soon after they are made, including when, where, why, and exactly what was said. If you can prove a spouse’s intent to avoid support obligations (or pay any other amount owed to you) by quitting their job so they have no income, then their payment obligations will not change based on a voluntary loss of income.
7. Your spouse says: "When the judge sees my expenses, he/she will award less (or more, as the case may be) support than the guideline amount."
This claim is not accurate, unless there are truly extraordinary expenses that are justified given the circumstances, such as supporting a child with special needs. Judges have vast experience determining support, and are not fooled by falsely inflated expenses. In fact, intentionally inflating expenses designed to improperly alter support calculations typically backfires on the person perpetrating the fraud.
8. Your spouse says: "You'll never see the kids again."
There are laws that prohibit abduction. There are also severe consequences for thwarting the other parent’s visitation with the children. Additionally, a parent who attempts to limit the other parent’s custodial time may have their own custodial time reduced or eliminated. Failure to allow visitation is one of the reasons why judge’s change custody from one parent to the other.
9. Your spouse says: "If you don't agree with me about how to divide this [asset], the judge will order that we sell everything."
The court will not order the sale of an asset, unless there is a good economic reason for it, and it is in the best interests of both parties. The following are some orders a judge may make to divide assets:
a. Award an asset to one spouse, and order the other spouse to pay the first spouse half the asset’s value (or account for such amount as an offset when dividing other assets and debts).
b. Order that one spouse receive the asset (such as a residence), conditioned on an equalizing payment or promissory note to the other. Where there are minor children and tight economic circumstances, the court may also temporarily order that only the custodial parent reside in the family residence, with the home sale and equal division of any sale proceeds to occur later.
Please note that it is not necessary to call your attorney if/when any threats are made. In fact, it will save you attorney fees not to call your attorney each time your spouse runs at the mouth. Rather, keep your journal up to date, and provide your attorney with updated copies as new events are documented.
If any questions about how to deal with these or other threats, please feel free to contact me to discuss. But remember, such threats are common, and will usually backfire on the person making them, especially if you keep an accurate and timely journal. Thus, don’t be intimidated or get upset when you hear such threats and comments. Rather, simply realize that these tactics are common in many litigated cases, and in the long run, usually amount to nothing. Moreover, the less your reaction to such threats, the less likely they are to continue.