Joe Jonas and Sophie Turner are getting divorced.  Even before the two issued a statement, our smart devices were buzzing with details and speculations as to the cause of the split as Jonas was spotted visiting family law attorneys in Florida.  Like most celebrities, the sad news was confirmed by the joint statement issued by the Jonas and Turner camps expressing that they had “mutually decided to amicably end [their] marriage.”  While for many this joint statement may have quelled fears of yet another nasty celebrity divorce, the reality, like so many divorces, appears to be quite different. 

At the outset, negative stories focused on Turner’s partying ways and lack of devotion to her children appeared in rapid-fire succession.  Many of these articles highlighted the fact that the children were touring with the Jonas brothers at the time, even suggesting that Jonas had been caring for the children “pretty much all the time.”  To Turner’s credit, she has not commented on the salacious stories, and Jonas’ camp appears to be somewhat backpedaling.  But what this media frenzy has underscored is that the term “amicable” in a carefully crafted statement usually means anything but amicable in a divorce and often precipitates a very contentious reality.

Throughout my career, I have met with numerous clients who all set out with the best of intentions.  These clients, especially those who are not breadwinners in their families, are quick to point out that the other spouse has said he or she wants to handle the divorce amicably, that attorneys are not necessary, and that his or her spouse will be more than fair and take care of that spouse always.  For the few, that may be true.  For most, however, it becomes all too clear that the word “compromise” was never part of the other spouse’s lexicon and that the amicable divorce he or she is desperately seeking will not be so easily obtained. 

The truth, in my experience, is that personalities that were at play during the marriage are only heightened during a divorce suit, with very few exceptions.  If a spouse was uncompromising, domineering, or even abusive during the marriage, it is unlikely that spouse will be amicable and willing to negotiate during the divorce.  Hearing the phrases “let’s work this out amicably” or “let’s do this without resorting to discovery” from individuals with high conflict personalities should raise red flags.  High conflict personalities are masters at manipulation, projection, and deflection, which can often lead to exhaustion and railroading if you are not properly represented or prepared.  While you can certainly hope for the best and an amicable resolution, you should always be prepared for the Inquisition and, to the extent possible, do so before you act.  

So how do you prepare?

1)            Work on Your Mental Fitness

Divorce is a series of compounding traumatic events – loss of income, loss of family and societal structures, loss of the marital relationship, loss of home, loss of time with children, etc.  Those experienced traumas are further heightened when dealing with a high conflict personality.  The process will undoubtedly be emotionally draining and perhaps mentally overwhelming, triggering a fight or flight response where rational thinking takes a back seat to fear and anger. To deal with this emotional rollercoaster, some will only see red and do whatever it takes to stick it to the other person.  However, when that person has typically kowtowed to every whim of his or her high conflict personality spouse, the flight mode takes over, causing that person to want to simply sign on the dotted line no matter the cost or what he she may lose in the process. 

Even before the divorce process begins, it is vital to cultivate your mental fitness to prepare yourself for the battle ahead.  Consider seeking the help of a mental health professional to talk through your fears and anxieties not only surrounding the dissolution of your marriage relationship but also the divorce process as a whole.  While therapy is not a cure-all and will not immediately resolve past traumas or future fears, the right mental health professional can give you tools to deal with the extreme stressors of the divorce process, to manage your reactions to your spouse, and to enable you to fight for what is rightfully yours and to protect your interests and those of your children. 

Develop a routine that consists of exercise, adequate sleep, and a well-rounded diet.  We all know that exercise releases endorphins that allow you to feel happy and relaxed, at least for a brief period of time.  Pick activities that you actually enjoy and that will bring you even the smallest degree of comfort during this time period. 

Surround yourself with people who will support you through this process.  It is normal to feel the need to retreat, to keep the divorce close to your vest, and to avoid involving friends and family.  That can be a costly mistake.  You will need that network to share your experiences and feelings, to bounce off ideas and receive much needed non-legal advice.  You will be surprised how many people will actually want and are able to help you through this process.

2)            Educate Yourself on the Law and Your Options

Before you act, take the time to educate yourself on your rights concerning your children and your property.  Each state is different in terms of what can and cannot be awarded.  You need to understand what your post-divorce future may entail.  This includes your entitlement to alimony or spousal maintenance, characterization of property, the amount and duration of child support, rights and duties to your children, etc.

Consult with one or more family law attorneys adept at handling the issues involved in your case.  Prepare in writing a list of questions you would like to have answered by that attorney.  If available, bring financial documents with you that may provide a roadmap to your marital property and what may be divided in the divorce.  Be open and honest in that consultation regarding your fears, goals, and any skeletons in your closet.  The more information your prospective attorney has, the better and more accurate his or her advice and recommendations will be.

3)            Assemble Your Team

REMEMBER: YOU ARE NOT ALONE IN THIS PROCESS.  Your team should consist of your support group (discussed above), your chosen attorney(s), financial experts and advisors, and mental health professionals and experts. 

Find an attorney that meets the needs of your case and will be detailed, creative, responsive, and assertive or aggressive when necessary.  Although 95% of cases will settle outside the courtroom, preparation for trial begins during your initial consultation.  Ensure that you are choosing a lawyer that you are confident will be prepared for litigation in the event an amicable settlement cannot be achieved.  In my experience, fixing issues that have gone awry during a case prior to my retention is significantly more costly than doing it correctly the first time. 

Consider retaining the services of a financial advisor who can help you make decisions regarding which assets will be best for you in terms of affordability and income productivity.  While the marital residence that you spent so much time designing, cleaning, and raising your children may be of significant importance to you, you need to know whether you can even afford that house following the divorce.  A financial advisor can help you determine what other assets or income is needed to secure the same and whether retention of that house is a realistic goal. 

Other financial or mental health experts will also form vital parts of your team.  On the financial side, if you or your spouse owns in whole or in part a business, you will need to have that interest valued.  In terms of your home, you may need to hire a real estate appraiser to determine the market value of your house.  Too often, the tax rolls are not representative of the true value of the home.  You may also have valuable collections that need to be valued and appraised, such as art, wine, gold or coins.  If you or your spouse had significant property coming into the marriage or inherited money or property during the marriage, you will likely need the services of a forensic accountant in order to trace what portion of a certain account or asset remains your separate property and what portion is part of the community estate. 

If you or your spouse has been diagnosed with any serious mental health conditions or you have a strong belief that your spouse has a mental health disorder, you may need to retain the services of a mental health professional to complete a child custody evaluation or psychological evaluation.  These types of evaluations can help the court determine which parent will best meet the psychological needs of a child – an important piece of evidence to present to the judge or the jury.  If you are getting divorced later in life and your spouse has been exhibiting signs of dementia, you may need to have a mental examination completed to determine whether that spouse even has the mental capacity to proceed with the divorce without a court-appointed representative, such as a guardian of the person and the estate.  The last thing you want is to have your divorce agreement or judgment overturned because that spouse did not have the requisite capacity at the time. 

Given that time is of the essence and that your spouse may be retaining similar individuals, it is essential to discuss these potential needs with your attorney at the outset of your case. 

4)            Gather Documents

In nearly every divorce case, there are basic documents that will have to be exchanged with the other side prior to final judgment.  Tax returns, bank statements, credit card statements, real estate deeds, and other financial documents for at least the past two years will need to be produced.  Begin working on gathering these documents even before filing for divorce. 

If you do not have access or your spouse will not give you that access, write down each and every financial institution at which you know or have reason to believe your spouse maintains accounts.  Take pictures of mail that is addressed to your spouse from any financial institution, credit card company, or current or former employer that may indicate where certain assets are held.  CAUTION: DO NOT OPEN THAT MAIL.  Only take pictures of the envelopes.  Opening or diverting mail addressed to anyone other than you may subject you to civil or criminal liability.

Put together a list of negative facts that you anticipate the other side will raise during the case.  This could be recorded phone calls in which you lost your temper, violent altercations, poor spending habits, drug or alcohol use, arrests, criminal convictions, or the like.  Your legal team should be armed with knowledge not only of your spouse, your children, and your community estate, but also of you and your family.  Do not omit details which you find embarrassing or that may undermine your case.  Your attorney cannot effectively represent you if you withhold valuable information, whether positive or negative.

If you are claiming that you have separate property – that is, property you brought into marriage, that you acquired during the marriage via inheritance or gift, or that you obtained from a personal injury settlement or judgment – start gathering those documents immediately.  This may include contributions to retirement accounts for work prior to marriage; a lump sum payment from the estate of a deceased parent; a sum of money contributed to the purchase of a house from an account you had prior to marriage or that contained inheritance; a brokerage account that you established prior to marriage; real property you purchased prior to marriage; a business you formed prior to marriage or that you capitalized with separate property funds.  In Texas, all property existing as of the date of divorce is presumed to be community property and capable of being divided by the court.  It is your burden to prove that the property you are claiming is separate is in fact your separate property.  Keep in mind, that the value as of the date of marriage may not be the actual value of that separate property, especially during a longer marriage.  That separate property may have significantly increased over time, and you may need an expert to trace the portion that is attributable to your separate estate.

5)            Prepare a Budget and Get Financial Assistance if Necessary

As mentioned above, you need to determine what your post-divorce financial future may look like.  To that end, begin preparing a budget that contains all of your current expenses, including those related to your children, and any anticipated future expenses.  Add a section as well for your income to determine whether you can meet your current financial demands without financial assistance from your spouse.  Also include a list of your accessibility to liquid funds, such as savings accounts or brokerage accounts, that can be utilized with minimal to no tax consequences to support your lifestyle during and after litigation.  This budget will not only be useful for determining what on-going support you may need following the divorce, but also what you will need while the case is pending.  This includes what you will need to pay escalating litigation costs and fees. 

If you do not have sufficient access to liquid funds to support your needs and those of your children, including litigation costs, this is one area where your support system will become vital.  Consider reaching out to family members or friends who can give you a loan or a gift.  I have had numerous clients who have received financial assistance to pay my initial retainer and fees from parents, grandparents, or even close friends.  If the money received is in the nature of a loan, be sure to document the same, including terms of repayment.  If that sum of money is spent on attorney’s fees or reasonable and necessary living expenses, that promissory note will likely be considered as part of the debt of your community estate, which means that your spouse is equally harmed by the repayment of that loan.  While he or she may not be the one who is ultimately assigned that debt, the same can be included in any proposed property division, meaning you will get a credit for having to pay that debt following the conclusion of the suit.

6)            Document Everything

High conflict personalities are spin masters.  They will twist your words, your actions, and what has occurred during your marriage to achieve their desired ends.  That behavior will only get worse during a divorce suit where loss of control is inevitable and their perceived superiority over you is being challenged and threatened.  You need to arm yourself with facts and documented proof to combat the same.  Prior to taking any action, sit down, recount, and write down the seminal events that have occurred during your marriage:  For example:

  • For adultery claims, include dates that you discovered or became suspicious of infidelity and details regarding important conversations or suspicious activity that occurred.  If there are text messages, recorded phone calls or in-person conversations, emails, or pictures to substantiate the same, note that in your summary and save those documents in a secure and private location. 
  • For abuse (physical, emotional, psychological, financial), include dates and details regarding derogatory comments, name calling, violence, withholding of money, etc.  Include a description of the documents that may support the same such as text messages, recorded phone calls, emails, photos, videos, police records, medical bills, invoices from unpaid bills, or contemporaneous diary entries.
  • For wasting of community assets (or other fraud claims), include dates of transfers, account numbers and institutions from which transfers were made, amounts of the transfers, and the names of any intended recipients (if you know).  If you have access to the financial statements, save the same in a secure and private location or take pictures and/or screenshots of the documents.
  • For custody of your children, include dates you have exercised possession vs. your spouse; the number of overnights your spouse has exercised without you; any arrests of you or your spouse; dates of doctors’ visits and who attended; and work and travel schedules of both you and your spouse.  Consider downloading all text messages between the two of you.  If you have an iPhone, you can use a program called iMazing to create a full PDF of every text message between you and your spouse during a specific time period.

7) Minimize and Tailor Contact

To the extent possible, keep everything in writing.  You should assume that every conversation, every text message, and every email will be used as evidence in your court proceeding.  It is therefore essential to mind your p’s and q’s and to curtail the “he said/she said” dynamic.  If you live in a state that permits one-party consent recording of conversations, such as Texas, then try and record your oral conversations with your spouse. 

In an ideal world, major life decisions should only occur when you are informed, not under pressure, emotionally stable, and clear-headed.  Unfortunately, decision-making during the divorce process will rarely feel this way, especially when your soon-to-be ex-spouse is a high conflict personality.  That is one of the many reasons it is essential to get your ducks in a row and to organize your team for the trauma and battle that lies ahead.  At Toombs Imel & Associates, our dedicated litigation team strives to ensure your financial future, family and property are all protected before, during and after litigation.