Find out you’re in the midst of a divorce, and suddenly everyone and their brother has a story to share. We’ve all heard them – the nice guy who let his wife get all she wanted (and paid his lawyer an awful lot to get there, too), the dad who works three jobs just to support his kids (and odd jobs on the weekends), the angry ex who took half of everything (including the ice cube trays and one and one-half Wise Men from the nativity set). . .
And the cousin whose friend who’s an attorney said to do X . . .
And the friend who has a brother-in-law whose college roommate’s dad went through divorce and lost everything . . .
. . . and so forth.
Yes, we’ve all heard these lies. I write “lies” because they are filled with few facts and mostly fiction, like characters on the stage of some great divorce charade. But they are easily remembered, and startling, because (1) your family members describe them to you with such concern and sincerity that you believe them and/or (2) there is always some friend who, feigning concern, can Google a court opinion and hold it up before your as the definitive law on the subject and/or (3) in the whirlwind of divorce, where everything right down to the words from your attorney’s mouth is new, they are just another crazy-new thing, not too far from reality to believe.
But they are. Lest they confuse you, here is the truth to those lies your family told you:
“Nice Guys Finish Last”
Nope. Mr. Waugh from Connecticut learned this lesson too late. Every witness at his trial gave examples of his and his wife’s confrontations in and out of their son’s presence. They glared at each other. They ridiculed each other. They yelled at each other. They could not stand to be near each other. They were the fight-to-the-end/get-a-pit bull-lawyer type. To support his request for physical custody, Mr. Waugh argued the divorce court should hold his wife in contempt for bringing his son to parenting time three hours tardy one afternoon. The court did hold her in contempt – but that barely made a dent in the case. She was the proactive parent -- she visited at daycare, arranged doctors’ appointments, and, overall, made a real effort to allay her anger for the little boy’s sake. And Mr. Waugh? He was the fight-it-out parent who looked unfriendly in court. Waugh v Waugh, 2003 Conn Super LEXIS 1028 (Super Ct April 17, 2003)
Is there a “nice guys finish first” factor? Yes. In Michigan, it is factor (j) in the twelve-factor “best interests of the child” statute, MCL 722.23. This factor has the divorce court determine which parent encourages the child’s relationship with the other parent. Family lawyers call it by various names -- “the friendly parent factor” or “the cooperation factor” or “the willingness factor,” etc., but what it means is, the friendlier the parent, the more favorable the outcome.
Most of the time. Be too giving, and you will remind your judge of a push-over or, worse, a disinterested parent. Your parental rights are constitutional rights of the highest magnitude, and no government can intrude upon your decisions without utmost scrutiny. This means the judge cannot force you to do X merely because your spouse wants to do X, unless doing X is in your child’s best interests. So, if you disagree with your spouse on X, speak up! Show that you are interested in your child, and explain why. (Nicely. Bite your tongue. Avoid shouting matches.) Show that not doing X is in your child’s best interests. After all, the “nice guys” factor is but one of the factors the judge will consider.
The trick is to be forceful when need be, and nicest always.
“You Can Get ‘Em For Abandonment”
Kind of. When clients ask me about this rumor, they usually mean either (1) they have to prove abandonment to get divorced or (2) they can get money if their spouse abandoned them. They sit in my office and sift through Facebook photos and e-mails and written statements from friends, starting “To Whom It May Concern,” to offer proof that their spouse has deserted them for another, visions of dollar signs for the punishment the judge will dole floating in their heads.
In most states, you do not need to prove a wrong to get a divorce. These states are “no fault” divorce states, meaning the spouse seeking the divorce need not prove the other spouse left, or yelled, or cheated, or lied, or gambled away the savings, or anything else. The only thing to “prove” to obtain the divorce is an irretrievable breakdown in the marriage, which the spouse “proves” by saying it is true. Even in those few states that require fault for divorce, abandonment is but one basis, and most include an irretrievable breakdown basis.
However, abandonment for an appreciable time without the intent to support one’s spouse is a crime in some states. In Michigan, for example, a spouse is liable for spousal support and may be charged with a felony if he deserts his spouse or child more. Merely leaving is insufficient, however; the left-behind spouse must be wholly destitute and incapable of supporting herself, or he must have willfully neglected a support order. And that is when the prosecutor takes the case. These are old laws, rarely enforced except in the most egregious circumstances.
So, most of you can put those photos and e-mails and letters aside.
“She’ll Get Half of Everything”
Not everything.
Mostly, your divorce court will divide your marital property. Marital property is property you, your spouse, or both of you acquired during the marriage. The same is true for debt. Inheritances and gifts to one spouse, however, are non-marital even if acquired during the marriage. In “community property states” (a minority), so too are items you and your spouse identify as non-community property, usually in writing. So, “everything” is really not “everything” at all – it is what you acquired between the date of your marriage and the date of your divorce or separation.
Usually. Sometimes, the property you think is yours has turned into marital property. There are things you can do to keep your property yours:
First, do not comingle it. Commingled property is assets and debts that were non-marital but which were traded in to acquire new property during the marriage, repaired or enhanced during the marriage with marital funds, or, in some states, treated as marital property by written agreement or use during the marriage. A good example is a classic car purchased as a bachelor that you remodeled during your marriage with money you earned at work and deposited into a joint bank account. Well, why not simply separate the pre-marriage value, right? Some courts refuse to do any separating, reasoning that the non-marital property lost its status forever as soon as marital property mixed with it. Other courts will attempt separate valuations if the evidence presented is sufficient. A skilled attorney and expert testimony from an appraiser are essential.
Second, do not invest in it, repair it, rent it or do anything but leave it. Avoid active appreciation. Appreciation is the property’s increase in value. During the marriage, the appreciation may be passive or active. Passive appreciation is the increase in value due to the surrounding circumstances, not your conduct. Active appreciation is the increase in value due to your contribution, such as remodeling, reinvesting, and so forth. In most states, passive appreciation is non-marital property. However, active appreciation due to one or both spouse’s involvement during the marriage is. See, e.g., Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997) (rental homes bought before married but remodeled during).
Third, give your spouse a hefty share of marital property to keep it. If your spouse has a sizable share of property, it is less likely yours is invadable. Invadable property is one spouse’s property the court nonetheless divides because the facts and circumstances of the case, particularly one spouse’s needs, justify division. Each state has a different invasion law, so be sure to research the laws in your state to determine what, if any, invasion will occur in your case. In general, however, the laws allow invasion if the other spouse “needs” a share of the property due to an inequitable division of marital property or other financially dire circumstances and/or the spouse contributed to the property’s acquisition, use or maintenance.
Finally, keep records! If you want to prove that “everything” your spouse says is half hers is not much at all, you need to prove it with admissible records of who owned or owed what when. Convincing evidence. Get titles, security agreements, old photos, loan agreements, appraisals, stock certificates, your broker’s account records, and any other record that tends to prove the property is what you say it is, yours. Testimony about what you remember buying and never, ever, ever using during your marriage, when your spouse staunchly says the opposite, is wholly unconvincing.
Kind of like those lies your family told you