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July 29, 2022 Feature

How to Turn Your Case into the Breakup from Hell

Kathleen A. Hogan

Other articles in this issue are premised on the assumption that you really would prefer a prompt and rational conclusion to your case. However, we all know there will be times when nothing but an all-out battle will satisfy the urge to create havoc and inflict pain. The question is: Can you do that in a way that limits the suffering to the opposing party while sparing you, your bank balance, and your children? Following the list below will ensure a divorce from hell. More amicable alternatives are provided.

1. Invest a lot of time in self-pity and find shoulders to cry on—your friends, family, in-laws, social media “friends” or followers, and, worst of all, your children.

Believe it or not, at some point you are likely to want to move on with your life while maintaining your friendships and family relationships. However, continually involving your friends, your family, your children, and others only escalates the emotional nightmare and may permanently destroy important relationships. Spreading your pain is a tactic that rarely accomplishes anything positive for you and often serves to alienate friends and family, who soon begin to tire of hearing about your situation.

What you should do is take positive steps. Engage in meaningful therapy, cultivate new interests, or find a support group. Remember, one day your breakup will be in the past and you want to be able to put it behind you with dignity and grace. It’s hard to live down the reputation of being a constant whiner or complainer. As well, those posts to social media live forever. Try explaining to a future employer that you are not really that angry, vindictive person your posts seem to portray.

2. Ignore deadlines and drag your feet about producing financial records or other required materials.

The fact that you did not want the breakup or that you are not the one who initiated the process should count for something—right?! Wrong! Once the case has been initiated, the court and the other party will have opportunities to move things forward with or without your participation. That can result in orders entered in your absence and possibly based on inaccurate assumptions about your income, finances, or other matters. The process of later getting you relief from such orders may not even be possible, and if it can be done, it will be harder and more expensive than playing by the rules in the first place.

3. Involve your children in the dispute.

One of the quickest ways to escalate hostilities is to involve your children in fights with the other parent. Use your child as a confidant about the other parent’s affair or drinking, for example. Air your version of all the family dirty laundry with your preteen and justify your behavior by claiming, “I won’t lie to my child.”

When children are used as pawns by their parents in a breakup, they soon learn that they can manipulate their parents as well. The nightmare of that is unimaginable, as is the emotional damage to the children.

Resisting the temptation to lash out in front of the children may be difficult when you’re angry or frustrated or can’t afford to buy the little extras your children want. But be advised—you will suffer for it, and so will your kids and everyone around you.

4. Play games with parenting time exchanges.

This tactic can have endless permutations. You can consistently be anywhere from a few minutes to an hour or more late for pick-ups or drop-offs, or you can fail to appear for visitation and forget to call. You can continually send the children without appropriate clothing or refuse to return clothing or toys or books, or return the children dirty, hungry, or exhausted. You can inadvertently forget to send the children’s schoolwork or assignments or fail to send notices of school events to the other parent. You also can forget to mention long-standing dental or medical appointments until the last possible moment. Another wonderful opportunity to cause misery is to refuse to take your child to a soccer game or birthday party because it conflicts with your time-sharing arrangement or to insist that the child attend extracurricular events you arranged that occur on the other parent’s time. Another way to stir up the heat is to try to direct (or disrupt) any routine the other parent may establish for his/her time.

A brief objective consideration of these tactics reflects that the children will suffer as much or more than the other party who is the object of your anger.

5. Expose your children to that new person in your life too soon. (Extra credit if you post a photo of him or her with your kids on social media!)

Nothing can spell disaster with greater certainty than introducing your new relationships or significant other to your kids too soon. In the first place, your children need time to adjust to seeing their parents separately before being exposed to a new adult in their lives. In addition, they likely need reassurance that they are still important in your life, not a vivid reminder that they now need to compete with a new person for your time and attention.

While you might be counting on the children to report your activities to the other parent with the goal of causing anger, resentment, and jealousy, that does wonders to raise tensions in the case in unproductive ways.

6. Keep secrets from your lawyer.

Don’t tell your lawyer about the stash you have hidden in the safe deposit box or the relationship you have been having, or the pending tax audit of your business or the psychologist you have been seeing for the past three years. Only tell the lawyer the parts of the story that reflect favorably on you.

A lawyer’s nightmare is learning on the eve of trial (or, worse yet, in the courtroom) of some hidden asset or income stream not previously disclosed or other key information that the client neglected to mention. Frankly, most people who try to hide assets or income are not particularly good at it. There almost always is a paper trail, and judges are usually astute at discerning dishonesty. If you are caught in a lie, you will destroy your credibility with your spouse, your lawyer, and, worst of all, the court. As well, your lawyer may need to withdraw from your case if you have not been forthcoming with all the kinds of records and information the lawyer is obligated to provide to the other side.

7. Claim your spouse is hiding income or assets and insist that your lawyer use evidence of unreported income to bolster your claim for support.

Claim that “I didn’t look at the return before I signed it” and assume that you—a party who enjoyed the benefits of the untaxed income—will walk away unscathed.

This generally is a hot issue for families who appear to be living on higher incomes than the tax returns reveal. Before you take this position, understand that signing a joint tax return may make you jointly liable for fraudulent reporting. In addition, the judge may feel an ethical obligation to report tax fraud.

8. Insist on going to trial.

Hold on to the belief that the judge will care as much as you do about the things that led you to the breakup, even if your lawyer tells you otherwise. Few litigants get as much satisfaction out of going to trial as they expect. Sometimes the parts of the story that are most significant to a litigant are not even admissible in court. Further, most parties underestimate how uncomfortable it can be to sit through the part of the case where the other side gets to pick apart their testimony and lay out their own claims.

Success at trial is never guaranteed. It is often far more intelligent to avoid trial if you can. Going to trial often is very expensive. Make sure it is worth the cost financially and emotionally. Also keep in mind if you insist on going to trial on questionable positions that the judge may begin to see you as angry, emotional, or frivolous. This does not, of course, mean that every position you take before the judge must be a sure-fire winner; however, make certain you are standing on solid legal and factual grounds. Judges have busy dockets and don’t like to waste time with obviously meritless or trivial matters.

9. Insist on unrealistic expectations and hold on to them no matter what your lawyer says.

This usually starts at the beginning of your case. You may have formulated your view of the desired outcome without the benefit of legal advice about how the process works or what kinds of orders courts might make in situations like yours. You may be reading things on the internet or getting advice from friends. Most people start with a general “wish list,” but refusing to listen to your attorney and to consider rational alternatives will only escalate the chaos.

Among the most important things you can do early in the case is to clarify possible outcomes, focus on what you want to achieve and how best to accomplish it, and consider what you are willing to give up. No case is a “win-win.” Listen to your attorney and other professionals on your team. Ask questions and take notes. Be flexible and reassess your goals as you move through the process. A party who becomes educated as they work through the process often comes to realize that some of their original goals were not really in their best interests in light of the overall situation.

The bottom line is this: Engaging in the blame game and punishing the other side may seem to be your only way to “get even” but will often leave you the ultimate victim. Remember the old saying, “The best revenge is living well.” The best breakup strategy is to focus on issues that are important to you and that are winnable and steer clear of anger, finger pointing, and retribution. Take responsibility for yourself, focus on what is important to you and your family, and be realistic. Believe it or not, one day your case will be over and you will move successfully on with your life for the benefit of you and your children.

10. Make every molehill into a mountain.

Domestic relations litigation offers lots of opportunities to overreact to relatively minor matters or to argue over technicalities that will have no lasting effect on the outcome of the proceeding. The battle over who gets the sofa or dining room table should not cost more than the price for replacing the item—but it can if you choose to proceed that way. The question whether the other side may have a short extension of time in providing discovery responses won’t affect the outcome of your case. Whether it can be achieved via a brief call or email between the lawyers or whether it requires that a motion be filed with the court will depend on your approach to the case. There will be lots of points in the process where identifying priorities can be critical. Turning every minor event into a battle raises both the cost and the emotional wear and tear but often does not come with a corresponding benefit of any kind. fa

Adapted from “How to Turn Your Case into the Divorce from Hell” by Michele Kane Cummings (34 Family Advocate, no. 1, Summer 2011, at 22–24).

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Kathleen A. Hogan is a principal with Hogan Omidi, PC, in Denver, Colorado, and Editor in Chief of Family Advocate.