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Divorce: Legal Implications of Emotional Behavior

Beware of negative emotions and actions following the decision to divorce. You and your spouse should focus on being fair to each other.

Divorce: Legal Implications of Emotional Behavior

Even before the shock, disbelief, and confused feelings have abated, you are faced with a legal situation: What happens now for the two of you? Both of you will have to consider the legal implications of your behavior from now on.

Don't Let Your Feelings Impact Your Legal Standing

It's not fair, you say? Sorry, but the truth is that in many states courts are set up so that the circumstances leading one person to leave another have no bearing on the division of marital assets, child support, or parental time sharing. To repeat, if your spouse has left you for another love, in most cases, it will have no impact on the division of the worldly goods you have built up during your time together or on other issues in your separation and divorce. In a pure no-fault state, the dumper and the dumpee are on equal footing in the eyes of the law.

Despite common “no fault” divorce laws, the emotional turmoil of impending divorce often causes one partner to concede his fair share of the marriage spoils in a negotiated settlement. As you plan your separation and, ultimately, divide your marital assets and other arrangements, be aware that the emotional tenor created as your marriage crumbles and then dies can influence a divorce settlement in unforeseen and irrevocable ways.

Our friend Tonina provides the perfect cautionary tale. A seemingly reserved individual who has always wanted space and “more time for me,” Tonina often felt overwhelmed by her outgoing, gregarious, and attention-seeking spouse, Leo. She'd been ambivalent about their marriage for years, spending much of her free time selling her homemade jewelry at craft shows, often far from home. Leo offered to accompany her, but Tonina explained that exhibiting jewelry was her only break from the pressure of the relationship, and requested he stay home. Because he truly loved Tonina, Leo—an aggressive salesman by day—consented to abide by her limits. But he realized his acquiescence had been a mistake.

Over time, the discontented Tonina found companionship through a recently-divorced fellow craftsman, a gentle bead-maker who also made the rounds of craft shows, and who decided to cry on her shoulder as they sold their wares. With so many hours together, their booths side by side, the friendship between Tonina and the sensitive bead-maker eventually blossomed into more. Finally, Tonina decided she'd found the gentle soul mate she had always needed. Though Leo had been good to her and truly loved her, and although he would be devastated, she felt she knew what she had to do: Tell him she had reached a fork in the road, and she could no longer travel his way.

In the days following “the announcement,” Tonina moved into a spare room in the home of a female friend and participated in counseling with Leo. Leo had pressed for the sessions; his fervent hope was to use the counseling to convince Tonina to recommit to him. Tonina, on the other hand, hoped the therapist could convince Leo to let go. Eventually, that is just what occurred.

Six months after her announcement, Tonina had moved into her own apartment, a bastion of the space and solitude she had so long craved, but also a haven for nurturing her new romance. Leo, on the other hand, continued to live in the couple's home, where he often found the loneliness crushing. A regular at online dating services such as, he went out several times a week but found it hard to shake his fear that Tonina could never be replaced.

It was a full year after Tonina moved out that the divorce was finalized—a year of new awakenings for Tonina and agony for Leo. There was only one benefit to the underdog position that Leo could discern: Despite their 20 years of marriage, Tonina had demanded far less than her fair share of the marital estate than she was legally entitled to. Pressured by Leo at the outset not to obtain private counsel, but to work with a mediator of his choosing, Tonina agreed as part of her “penance.”

In her desire to sever ties as quickly and cleanly as possible, she agreed to the stern terms Leo put forth in the mediation sessions each week. She literally (and knowingly) allowed Leo to shortchange her in settlement by waiving her rights to marital property belonging to them both. Not only did she agree to give Leo the house and the car free and clear, she also requested none of his 401-K, to which she was entitled. If Tonina had been less wracked by guilt and Leo had been less hurt during those months of separation, the division would have been more equitable. But with Tonina too guilty to hire a lawyer to negotiate on her behalf and with Leo too upset to abide by the standard of fairness he usually embraced, Tonina was left without a dime.

Our advice to those about to end a marriage is to be aware of how the emotional underpinnings of your initial breakup can affect the financial and legal terms of your final settlement. If you are the leaver, we beseech you to be emotionally kind to your soon-to-be-ex when you break the news. The angrier your spouse becomes during this delicate time, the more unyielding he or she will be in reaching a reasonable settlement.

This is not only the empathetic path, but also the strategic one. If you feel too much guilt, or if you are the object of too much anger, you may find yourself accepting unfair terms.

Even as you remain kind, you must also stay steadfast in your demand for what is your legal due. You are breaking up your marriage for a reason, after all. In the end, it takes two to ruin a marriage; if the law, generally, does not distinguish between dumper and dumpee, neither should you. It is tempting, in the interest of peace and economy, to go with a mediator. But if you feel so guilty you might cave during negotiations—for instance, if you have any doubt about your ability to demand economic fairness because you feel you inflicted emotional pain on your spouse by leaving—you would do well to hire someone to negotiate on your behalf.

If you are the one who's been left, on the other hand, this may be your best chance to strike the most favorable deal possible. Like Leo, you might be able to obtain greater concessions from your spouse in the early days of the announcement, when the hurt is still raw and the guilt most pronounced. This is all provided you keep your anger—but not your sense of disappointment and betrayal—to yourself. Remember that your spouse may be most likely to leave with less when you seem bereft and alone. Even if your partner has left for another love, he or she will be less likely to make concessions in settlement if you seem happily ensconced with a new love, too. This is just human nature. You have already been rejected; a better divorce settlement is hardly compensation, but you should still opt for whatever advantage you can.

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