Divorce Pre-Planning: What is It? What Can You Do About It?

The other night I was watching “The Hungry Games: Alaska” Big Bear Challenge,” a show on Peacock about the lengths these bears go to when they bulk up for winter.

Their preparations made me think about how some people prepare for a divorce. There’s a particularly dark variety of people, one of whom may be your spouse, who cunningly work to fatten up the chances that they’ll prevail in their divorce. They go well beyond the usual preparations that most people make, often starting long before they mention the word divorce to you. They create a plan that tries to find loopholes around laws that were intended to achieve an equitable result, and they begin stockpiling advantages.

These are some of the craftiest people who get divorced, and they prepare very early.

Their first step usually involves meeting with a divorce attorney to get the lay of the land, years before they plan to start a divorce action.

And following that consultation, they work to put certain things in place that make the chances of a straightforward, fair divorce more unlikely.

Let me share with you three examples of what crafty spouses do to try and do an end run around laws that were designed to achieve equitable results.

Custody

Custody law is largely settled. It is based on what is in the best interest of the children, and a key factor in determining primary custody is what has been happening in the current parenting situation, which becomes the status quo.

For example, suppose one parent is much more involved in the children’s lives. If there is a contested custody battle, that parent has a better chance of being awarded primary custody of the children, all other things being equal, meaning both parents are good-enough parents. Think of a good-enough parent as a good-enough driver; you do not have to be a great driver to have a license; you just have to be a good enough to know the basic rules and not hurt anyone. That same thought process applies to parents getting a divorce.

Parents who know they meet the good-enough standard but are less involved with their children for reasons that may be out of their control, such as a demanding work schedule, might maneuver to get primary custody by working to change the status quo pre-divorce. They might start making subtle changes over a period of time to try becoming more active in their children’s lives, even if they’d never been interested before.

It starts small, such as going to doctor’s appointments and maybe attending extra-curricular activities, and can build from there.

If you sense that your formerly too-busy spouse is making changes in the status quo of how things operate in your home relating to the children, then you may be getting useful information that something is coming down the road.

Now it may be a good thing that this parent wants to be more involved in the children’s lives, and is forced to level up their parenting game before a divorce because they do not want to be reduced to a traditional parenting plan, which would only give them solo time with the children on alternating weekends and at a dinner midweek.

But if the reason for the increase in time has nothing to do with the children’s best interest but has more to do with the parent wanting more parenting time for their own self-interest, such as getting back at their spouse or avoiding child-support obligations, then the children will be deprived of time with the parent who is actually more loving and emotionally engaged, which may deprive the children of a secure upbringing.

Maintenance

Another tactic you might see relates to maintenance or spousal support and specifically how a moneyed spouse might try to keep from paying an equitable award.

Maintenance is determined primarily by using an income formula based on current income.

So, a way to guard against paying higher maintenance is for the moneyed spouse to lower their income.

It may be challenging to do this if you have a history of showing higher income.

But what happens if they have the flexibility to control their income, maybe because they are self-employed or work in a small business? Their income tax returns then may not reflect their true income.

Wise judges most likely will be on to this tactic and can base maintenance not only on current income but lifestyle.

But a devious spouse could sell the other spouse on a major life change, such as downsizing, painting it as an adventure rather, than the pre-divorce tactic it is.

Let’s say, for example, that your spouse says they want to downsize, live the dream and see America. They want you to sell your home to buy a RV and become full-time RVers, or as the spouse might romantically put it, “Let’s be digital nomads.” You only live once, right? Why not have the adventure?

And so many people now work hybrid, do you really need to even live in a large city anymore to work? Of course not! So you hit the road.

The other shoe drops after a few years of living this a full-time RV life, with a reduced lifestyle and income. Those are what the court sees when this devious spouse files for divorce.

What should be an easy calculation of maintenance for a judge following a formula becomes much more difficult, and lawyers will be in a position to earn high fees in advocating their clients’ positions.

Division of Assets

A last common tactic has to do with the division of assets, and it’s similar to the maintenance tactic above. In these kinds of scenarios, a devious spouse sells off property that would have been divided in a divorce and uses the proceeds to fund lifestyle, claiming their income does not support their lifestyle. The hope here is after using this dwindling asset for years, there will be less of a marital estate to divide.

Don’t Ignore the Warning Signs

You need to be aware of what is going on in your marriage.

If you see changes in your financial or parenting situation, especially if they seem out of character for your spouse, consider that you may have a devious spouse on your hands, one who is acting as tactically as one of those Alaskan Brown Bears, doing everything possible to consume millions of calories for the long winter ahead, even if that means flexing their dominance with a powerful paw-swipe.

Protect Yourself

Much of being ready for a divorce comes down to being prepared for a divorce, but most people do not spend their marriage with their eye on how they can come out ahead when (not if) they get divorced. So what can you do if you find yourself in a marriage where your spouse is making changes, making you uncomfortable?

For financial matters, it might be wise to discuss a postnuptial agreement before making any major life changes if you want to save the marriage but your trust is waning. A postnuptial agreement is like a prenuptial agreement, except it is entered into during the marriage rather than before.

Parenting issues are trickier. Even if you reduce [[spell out]?] a parenting plan in a post-nuptial agreement, it may not necessarily be enforced, as the court still has the power to determine what is best for the children, and the provisions in a post-nuptial agreement may be a factor, but not a controlling factor the court uses to determine custody.

So be conscious of what you are agreeing to if your spouse uncharacteristically rachets up offers to spend more time with the children. The longer the new pattern lasts, the more likely the court will see it as the status quo, even if you took on most of the parenting responsibility for the bulk of your children’s lives. A good divorce attorney at a divorce consult can advise you on how to interpret these changes at a consultation even if you have no intention of getting divorced.