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When Should I Divorce?

Posted by attorney Mark Cord

This chapter does not attempt to answer the question “Should I divorce?" That decision is strictly personal, not legal, and one which only you can answer. Clients who have divorced with dignity tend to answer it, along with the question When, in three stages.

First, they have taken their own private inventory of the positives and negatives of their marriage. They seem to be able to rise above themselves, overseeing their own personal turmoil. From that height they are able to make a sane and objective judgment. Only then are they able to decide whether the source of their dissatisfaction is merely an isolated, temporary and/or acceptable situation, or requires proceeding to the second stage. Every client seems to have their own tolerance level or fuse length during this stage.

My psychologist/psychiatrist friends tell me that an isolated act of marital infidelity, for example, is generally a poor reason to end a marriage, especially of long duration where children are involved. We're all still members of the animal kingdom, the argument goes. We act on impulse. We make mistakes. What happened to forgiveness? Is the turmoil of throwing away the financial and emotional security of the entire family really worth it? But there are limits.

Frank gave Debbie three venereal diseases during their six year marriage. Debbie filed for divorce twice. Each time Frank would beg forgiveness, appeal to her sense of motherhood and family, promise religious conversion and she would reconcile with him. Everyone has a different threshold for pain.

Married to each other for forty-five years, Gladys and Bill both agreed they should have divorced thirty years ago. “What a waste", he told me. “I have never been happier than the past year of our separation", he said. His friends all agreed — at his funeral six months later. Bill was 82.

If you find the significant negatives outweigh the positives of your marriage, don't panic. It does not automatically mean you're destined for divorce. It only means you move to the second stage — marital counseling. If money is a factor, don't panic either. The Maricopa County Conciliation Court provides counseling free of charge. Churches provide free services as well. Other marital counseling services have sliding fee scales based on income. Some insurance policies cover a portion of the fees. In only five or six sessions, providing your spouse attends, you should either (1) see significant change (2) change counselors or (3) proceed to the final step.

Stage 3 — make and keep an appointment with a lawyer, preferably an experienced one. In one, no more than two meetings, a lawyer can analyze the legal issues of child custody, support, alimony, division of assets, and debts and costs. Within reasonable ranges a lawyer can advise you on what to expect financially and discharge any irrational threats by your spouse like “You'll never see the kids again", “We'll have to sell the house", or “You have no chance of getting one dime from me." (See Chapter Eleven on “Dirty Tricks")

Armed with all the necessary information you need (and with the continuing assistance of professional counseling, if necessary) you can now make a well-informed, intelligent decision away from all the chaos. If your decision is to divorce, then the only decision remaining is when?

There is never a good time to divorce. The ideal time has been referred to in the Preface — when you both want it at the same time. But most couples don't have that luxury. I hear these rationalizations: “I want to wait to get the kids in college", “relatives are coming", “I want to see my Christmas present first", “I want to wait until the kids are back in school", “I want to wait until the kids are out of school", or, “until we sell the house, pay off debts, until I finish school. . . ."

I'm not saying these are all bad reasons for waiting except this one: “I want my husband (or wife) to file first." In most states like Arizona the filing party presents their case first at trial if issues are contested, and they also go last in the rebuttal phase of their case. In close calls I want to be on the side of the first and last impressions with the judge. I also want to remove the “sting" of facts that may hurt my client's case — during our side of the case — and avoid the dramatic effect of allowing opposing counsel to bring it up first. Which trial scenario favors Mrs. Brown in a child custody contest?

Husband's Attorney: Mrs. Brown, isn't it true that you attempted suicide six months ago?

Mrs. Brown: Yes

Husband's Attorney: And how did you attempt your suicide?

Mrs. Brown: I took an overdose of sleeping pills.

Husband's Attorney: You weren't looking out for your children's best interests when you tried to poison yourself to death were you Mrs. Brown?

Mrs. Brown: I guess not?

Husband's Attorney: You guess not! But now you expect the court to believe you will always look out for their best interests and better than their father?


Mother's Attorney: Mrs. Brown, six months ago you made a mistake, didn't you?

Mrs. Brown: I sure did.

Mother's Attorney: Would you tell the court your state of mind before you made that mistake?

Mrs. Brown: I was seriously depressed and didn't know it until I started seeing my counselor right afterwards. My husband was cheating on me and telling me how awful I looked, and how stupid I was, and I just saw no other way out.

Mother's Attorney: What mistake did you make Mrs. Brown?

Mrs. Brown: I took an overdose of sleeping pills.

Mother's Attorney: Would you ever do that again?

Mrs. Brown: Never

Mother's Attorney: Why not?

Mrs. Brown: Because through counseling I have been able to understand that my husband's problems are bigger than mine. He thinks he's perfect and makes no mistakes. He feeds his ego by putting me and our kids down all the time. Now that I'm away from him I'm myself again.

Even a better reason may exist for filing first if you have determined that divorce is the only reasonable alternative — you wrestle control over your life away from your controlling spouse, who may prefer the status quo over your pain, sacrifice and unhappiness. I still am amazed though, and must always ask why, when I hear: “I should get a divorce but I'm going to let him/her file first."

So when should you divorce? Follow the three steps of a marriage inventory, marriage counseling, and legal advice. You'll know.

© 2011 Mark Cord

Chapter 3, Divorce With(Out) Dignity

Additional resources provided by the author

Mr. Cord is the author of "Divorce With(Out) Dignity - A Divorce Lawyer's View"

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