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2023-02-17 at 6:43 PM #1485Staff
12 Dirty Divorce Tricks and How to Avoid Them
Far too many people play dirty to try to come out on top in their divorce case. For many, this involves shielding assets, hiding income, or otherwise taking actions to try to get a positive financial gain. For others, it can be about alienating children or other tactics to try to minimize time with the children and the other parent.
What’s important though is that these dirty tricks are real. They do happen. And if left unchecked they can lead to a negative outcome for the affected spouse. Much like everything else, the first step is to identify the problem. The next step is to take corrective action when the problem is recognized.
Below we’ve identified 12 of the most common dirty tricks that we see in divorce cases.
#1: Hiding Assets in Anticipation of Divorce
An unbelievably common dirty divorce trick is when the spouse who controls the money or other assets hides some or all of those assets from the other spouse in anticipation of a divorce.
Consider the all too common scenario of the breadwinner husband who makes the money and controls the finances. The wife has access to the joint bank account from which she goes shopping, pays certain expenses for the children, and otherwise goes about her daily business. But the wife doesn’t necessarily know exactly how much money the husband is making, or where the husband is putting money besides what actually hits that joint bank account.
If the husband had been socking away funds week after week in separate accounts, how would the wife know? And if a husband is willing to hide some of his assets from his wife, he certainly might be willing to hide knowledge of these assets from the divorce court.
In many states, the courts will consider any assets that are built during the marriage by labor of one of the parties to be marital assets. That means wherever that money has gone, the husband built the assets based on money earned during the marriage. Therefore, such assets will be marital in nature and the wife stands to receive half of the balance.
Because many spouses seek divorce consultations in confidence months or even years before ultimately filing for divorce, they often learn well in advance of filing for divorce just how the courts might treat certain assets. As such, the breadwinner spouse may decide that an equitable division under the law just is not something that they can stand. The spouses often take the law into their own hands by hiding some of the assets months or even years before filing. The hope is that the court never knows just what assets are out there, and the spouse playing the dirty trick will keep them all free and clear. In the case above the wife would never be the wiser.
#2: Starving the Other Spouse…Financially
Another dirty financial trick is when the spouse who controls the purse strings cuts off the other spouse or severely restricts financial support. Divorce lawyers call this, “starving the spouse.” The goal of this trick is to force the needy spouse to give up and agree not to fight the case in court, so that the spouse with the financial leverage secures a better deal.
Consider this hypothetical scenario. A husband and wife have been together for 25 years.
The husband was a military man, ultimately reaching the level of Lieutenant Colonel. He retired, and took a civilian contractor job. The wife raised the children and did not work. Eventually the wife reached an age in life where it would be unlikely that she could re-enter the workforce.
The military man husband had a dominant personality; the wife was more submissive. Over time the finances became a controlled situation, where the military husband would “give” a certain sum of money every month to the wife. If she needed more, she would ask for it, and the military husband would give it.
Eventually these two headed for a divorce. The military husband, always the one in the relationship to spell out the parameters of the deal, laid it on the line to the wife that he would agree to give her X years of alimony at Y number of dollars. She better take it, he said, or he would cut her off and leave her with nothing.
Time and time again, this hypothetical scenario has played out. Time and time again the needy spouse believes the statements of the military husband. It’s because that’s how they operated during the marriage and that was the dynamic they had.
The objective reality is that the husband would put himself in a precarious situation if he cut off the needy spouse at any point prior to dissolution or during dissolution proceedings. The court has the inherent power to order temporary support, sometimes even on an expedited basis, to make sure that the needs of each spouse are met even while a divorce is still pending.
Another surprisingly common dirty trick is for the payer spouse to simply quit his job until the case is finalized. The thought process behind this trick is that the spouse could throw his hands up in the air and say, “Judge, I just don’t have any money to pay support.”
While this trick is common, the other spouse has the ability to fight back. The law allows a spouse to argue for imputation of income to another spouse if that other spouse is voluntarily unemployed or underemployed.
So for example, consider the case of the crane operator who during the marriage worked a 40-hour workweek and lots of overtime. In anticipation of a divorce, and not wanting to pay support to his spouse, the crane operator leaves his job and takes a job working in a supermarket. Of course, the crane operator has specific skills that will allow him to get back to operating cranes for as many hours a week as he wants — and that’s fully what the crane operator intends to do once his case is finalized and the support obligations are taken care of.
In this fact pattern, the other spouse can argue to the judge that the crane operator spouse’s former wages should be imputed for purposes of calculating alimony and child support. Then, the wife should argue that alimony and child support should be based upon the former crane operator spouse’s imputed income, and not the current income while working at the grocery store.
#3: Hiding Money in the Business to Artificially Lower Income
Determining income for non-commission-based W-2 employees is a relatively straightforward matter. But determining income for entrepreneurs and small business owners can be much more difficult. That’s because the income for the purposes of child support calculations is not necessarily the same income as for the purposes of Uncle Sam.
So for example, consider the case of the small business owner who is going through a divorce. The last couple years of the marriage, the small business owner happily pulled profits out of the business and spent them. It was money earned that he deserved. But with the pending divorce, the small business owner has decided to keep money in the business and decrease his or her wage. He goes to the judge and says while he may have made $150,000 last year from his small business, things are not going well this year. He was only able to bring out $40,000. Meanwhile, the rest of the money is still in the business.
In this case the spouse who is dependent on the small business owner will need to be proactive in order to avoid this dirty trick. Judges try hard, but they are state employees and many of them have not run their own business and don’t understand how business works. The wife will need to engage an attorney that understands small businesses and how to present a case to the judge that shows when money is being held in a business that really should be considered income for purposes of calculating child support or alimony.
#4: Spending Money Wildly
One of the most bewildering dirty tricks is the, “I’d rather blow it so that he or she doesn’t get any of it” trick. Consider the example of the wife truly supporting the husband. The wife has worked hard during the marriage and has gathered up substantial investments in her name. The wife is upset that the husband never worked as hard as he could during the marriage and the assets that he’s built up in his name aren’t nearly as large. Also consider that the wife just can’t stand the husband.
The wife consults with an attorney and soon comes to understand that absent exceptional circumstances, the courts are going to want to fairly distribute the assets between the parties — meaning that the husband is going to get some of the retirement account the wife has accrued. The wife just can’t stand that idea and in an act of scorched earth, she takes a loan out against her 401(k) and blows it all, spending money wildly. Her hatred for the husband is so great that she would rather see it all gone than for him to get any of it.
This dirty trick is bewildering because it is an example of cutting off your nose to spite your face. Yet emotions run rampant in divorces, and it is something that we see all the time.
The husband can take actions to stop this sort of behavior, but he’ll need to move quickly. He can ask the judge to order an injunction to stop the wife from taking money out. If it’s too late, the husband also has the ability to prove to the judge that the money was spent unreasonably and with the intent to hurt the husband. In other words it wasn’t reasonable and necessary expenses that were consistent with what the parties had seen during the marriage. If the husband can prove this to the judge even though the money is already gone, the husband may be able to get the judge to hold the wife’s silly spending against her in any financial settlements made during the divorce case.
#5: Secret Copies or Downloads
In anticipation of divorce, it is very common to see one of the parties gather evidence against the other party. This crosses the line when one of the parties goes into the private computer or email of the other party and makes copies or downloads of the other party’s information. In many circumstances, this sort of behavior is not just unethical but downright criminal.
This is especially true with electronic documents that are enumerated under statute as having specific privacy expectations. A great example is email, or Facebook.
When a case is heading for divorce, as crazy as it sounds, the best thing that both parties can do is to make sure that their email, Facebook, and computer passwords have been changed and are all secure. Remember, the emotions that are tied into divorce are second only to those involving the death of a loved one. People do crazy things. The best maneuver is for each spouse to eliminate the ability of the other spouse to do crazy things.
#6: Stealing Bank Statements, Health Care Records, and Other Documents
On a similar note, a dirty trick that goes back well before the advent of email and digital records is the theft of physical records including bank statements, healthcare records, and other documents.
Healthcare records are especially problematic due to HIPAA. In other words, a spouse will need to seek the okay from the other spouse before turning over any of his or her healthcare records. Yet, especially in contested child custody litigation, an overaggressive spouse may use the dirty trick of stealing the health records of the other spouse, turning them over to his or her attorney, and trying to use them to tactical advantage without permission of the other spouse or the judge.
This dirty trick, in the right circumstances, can be used against the offending spouse.
#7: Dummy Emails
Beware of the emotionally unstable spouse who has good technological skills. In recent years we’ve seen a huge rise in a spouse creating fake emails and dummy Facebook posts. This is often used for child custody purposes, and almost always used to paint an unflattering or unstable picture of the other spouse.
Consider the following example: a technologically savvy husband enters into a divorce with a not so savvy wife, and custody litigation ensues. The technologically savvy husband decides to create a fake profile of the wife on Facebook that looks identical to the wife’s other profile. The technologically savvy husband then sends messages to himself from the fake profile of the wife whereby the wife “incriminates” herself and makes comments that could be very damaging to her custody case. The technology savvy husband then takes these printouts and sends them to his attorney, who then uses them in the case.
This really happens, and much more than you would ever guess. When this happens it becomes incumbent on the aggrieved spouse to subpoena records from Facebook, Internet providers, email accounts, and other social media accounts to prove that the technologically savvy spouse is creating fake evidence.
When we think of extortion, we often don’t think of divorce litigation. Yet extortion is more rampant in divorce litigation than in almost any other area of law.
Think about the following examples where this dirty trick be used:
1. The husband is a member of the military. He is an officer. The wife finds out about her husband having an affair. She tells the husband, “You will give me 100 percent custody of the children or I will tell the military about your affair and you will lose your job.”
2. A wife has taken out a domestic violence charge (whether deserved or not) against her husband. The wife tells the husband that she will drop the charges against him, if he will just agree to pay a heightened amount of alimony and child support.
3. A husband has some nude pictures of his wife in a very compromising situation. These are pictures that were taken by the husband in confidence during the marriage. However, the husband wants a tactical advantage; he tells the wife that he will ruin her by showing her boss these pictures if she doesn’t play ball and give him the deal that he wants.
While the above tactics may almost seem like they are hardball negotiation tactics, they very well may rise to the level of extortion. This sort of dirty tactic is used all the time with unbelievable success.
The spouse that is the victim of extortion needs to take action and have an aggressive attorney turn the tide on the husband. Bringing this sort of stuff to the judge can have an equalizing effect and ensure that fair resolutions happen rather than the unfair resolutions that the extorting spouse is looking for.
#9: Faking Violence as a Custody Play
The vast majority of the time injunctions or restraining orders are filed because a party is the victim of domestic violence and truly needs protection. However, in the divorce context it is not uncommon to see a party file an injunction and make outrageous allegations in order to get an upper hand in a child custody case. That’s because injunctions don’t just restrain one party from seeing another party; they can restrain husband or wife from seeing their children on a temporary basis. The logic follows then that a spouse who gets a temporary restraining order that prohibits the other spouse from seeing the children for a term of months or even years will have a higher degree of leverage in the child custody litigation in Family Court.
The result is that we see spouses faking violence all the time as part of a custody play. The spouse who finds himself served with injunction paperwork must take action immediately. Often these injunction trials will take place in a matter of weeks after the initial paperwork is served. These injunction hearings can be full-blown daylong trials. But the effect they can have on timesharing is so significant, that they are worth the time and energy put into defending them.
#10: “Conflicting Out” Attorneys
A truly dirty tactic: sometimes a spouse will call all the other attorneys in town to try to conflict out the other spouse from using those attorneys.
Consider the wife who is mad at the husband and wants him to not have a good attorney. The wife spends an afternoon on the phone setting consultations with the best divorce attorneys in town. The wife ultimately chooses one attorney and files for divorce.
The husband then tries to call the best attorneys in town and goes through the first three; all three have to turn him down from even speaking to him because they are conflicted out.
This dirty trick can be painful and often creates a difficult situation for the other spouse. However if the other spouse does a good job of working up the evidence to prove that his spouse did this, it can be useful evidence in a divorce case. Again, like many of the dirty tricks that we see, they can be flipped around and turned on the other person.
#11: Turning Into a Helicopter Parent — At Least Temporarily
During the marriage, the husband was an absentee father. He didn’t go to any of the events for the children, didn’t take the kids to school, and didn’t take them to their doctors’ appointments.
Miraculously though when the divorce is filed, the husband turns into the most hands-on parent the world has ever seen.
The mother is furious because she knows that while it would be great if the dad would continue to be such a hands-on parent, it won’t happen. Rather, the husband is playing the game to try to maximize timesharing. The husband doesn’t have any intention of actually exercising the timesharing he is trying to get, rather the husband knows that if he maximizes timesharing that is child support will be lower and his alimony will be lower.
Responding to this dirty trick needs to be done on a case-by-case basis. It is true that there are certain situations where a parent truly does want to spend more time with the children. Seeing that the family is dissolving, maybe the husband is renewed and wants to be the best father that he can. However, it is also true that often the husband is simply trying to do this for financial gain. In this case, the wife would want to talk to her attorney to develop a strategic plan during the pending divorce to show the true intentions of the husband. If the husband truly wants to be a hands-on parent, it is a win-win for all three parties including the children. But if the husband does not want to be a hands-on parent, he needs to be exposed so that the children do not suffer by having an artificially low child support number.
#12: Alienating Children From the Other Spouse
On the flip side is the spouse who intentionally alienates the children from the other spouse in order to hurt the other spouse or to decrease the amount of time the other spouse has with the children.
For example, consider the mother who refuses to allow the father to see the children more than a couple of hours a week supervised during a pending divorce case. Remember, absent an emergency there can be quite a lag of time between when a divorce is filed and when the court finally has an opportunity to hear the issues about child custody. During this pending time, the mother continuously and repeatedly talks badly to the children about their father. The mother is in effect trying to turn the children against the father. The hope from the mother is that at the end of the day the mother will or the court will allow the mother to present testimony of the children who will say that they don’t want to be around their father.
These cases are grave and severe. When they happen, the dad would need to be aggressive and tactical with his attorney. Often the best maneuver is to get experts such as psychologists who are trained in spotting and dealing with alienation involved in the case to help prevent the alienation or nip it in the bud. The psychologists can also explain the situation and its ramifications to the judge.
What to Do to Protect Yourself
Some of the dirty tricks mentioned above seem silly. But they are very real and they happen all the time. They can all be defended, and in many cases they can be turned around so that the offending spouse who tried to play the dirty trick will actually come off in a worse position in front of the judge than if they did it the right way. However, to turn around the tricks above requires a proactive approach to stop the trick, minimize the damage, and then show it for what it is. It’s when the spouse who has the dirty trick played on them does nothing that problems happen. In effect the spouse is trying to run over the other spouse.
The first step is a simple one but it’s tried-and-true: take advantage of a paid consultation with a divorce attorney in your area to discuss what you’re up against, what’s at stake, and determine a good game plan going forward.
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