I frequently get asked for advice on how to tell a spouse that the marriage is over. There are a lot of articles online that have useful information, and that’s a good place to do some research. In this article, I add my thoughts to that conversation.

Take a moment and think it through. This is the time to be honest and realistic about who you are married to, and what type of marriage you have. For most married couples, a discussion about divorce is going to be difficult, but for others it can be dangerous. So, first, if you are married to someone that is objectively dangerous to you, or who has physically hurt you, strategize how to tell him/her with someone like me, or a qualified mental health professional who deals with domestic violence, or WEAVE. You will need to develop a plan to let your spouse know the marriage is over so that you, and any kids you have, won’t be placed at risk or in danger.

For the majority of other folks, who may face an emotionally stressful situation, but not one that creates any risk of harm, I suggest you follow these guidelines:

Pick a place where you deliver the message. You know your spouse. Determine whether it should be in a public location (like a park), or a private one (like around your kitchen table). No matter where, no one should be able to overhear what you’re saying, nor should your spouse feel like he/she is being publicly shamed or ambushed. If you have children, make sure they aren’t around, or even in the house if you’re delivering the message there. For the most part, a private place will be the most respectful; public locations should be selected when there’s a safety issue. One of the best places you can tell your spouse is at a therapist’s office. If doing that, tell the therapist what you intend to do, and strategize the best way to have that meeting.

Pick a time when you are both normally calm, attentive, and not distracted by other things. Mid-mornings can be good, unless you and your spouse over-caffeinate and get jittery, or there are youngsters around. Early evenings can be good, unless you or your spouse drink (alcohol and bad news are a potentially dangerous combination), or there are youngsters around. The key is trying to find a time when your spouse will be at his/her best, and not distracted.

Keep it short. If this news is going to be a surprise to your spouse, remember that they’re only going to hear your first two or three sentences, and then the chances are good they are going to be emotionally flooded, and/or shut down. In either case, they aren’t easily going to be able to process anything else you say at that time. Work from a script if you need one (e.g., bullet points on a flash card), and keep it reasonably short and to the point. An example might be something like this, “You and I have both been unhappy in our marriage for a long time. Though I still care for you, I can’t be married to you any longer. I want to end our marriage”. Or, “We both know our marriage was over a long time ago. It’s time we formally ended our marriage, so we can both move on and both be happy again”. These are my words; you need to use your own, and ones that your spouse will recognize as authentically yours.

Stop talking, and listen. DON’T try to justify your decision with a list of reasons, or get pulled into an argument. You both look at the world differently; trying to prove your decision is right or justified is only going to set the stage for a big fight. If he or she needs it, give your spouse some space and time to process this information. Some people process this information faster or slower than others. If your spouse handles the news well and has questions, it’s okay to have a discussion, but once again, don’t argue; if he/she wants to argue with you, don’t engage, other than to calmly state that your mind is made up. And suggest that the two of you could talk about it some more later, which gives your spouse time to get emotions under control.

What to do if your spouse wants to resolve important issues right then and there? Negotiating money or kid issues immediately after finding out that your marriage is over is a bad idea. If you have to have such a discussion, limit it to deciding whether or not to use out of court processes (like mediation or collaborative practice), or litigate. Most times, spouses will be only too happy to hear that you want to solve issues respectfully, and away from the courthouse.

Whether clients have negotiated terms over many, many months, or in a single session, we frequently get pressure from one or both clients to prepare their final written agreement as fast as we can, so it can be signed before one of them changes his/her mind. Here are some tips on how to evaluate your situation, whether you feel rushed or not, but they are particularly important to think about if you feel hurried. Because once you sign that piece of paper, you’re bound to those terms by contract, and it will very soon become a final Judgment of the Court.

Understand that this is all about two words: informed consent.

So, first, are you informed enough to come to an agreement? It’s one thing not to worry about whether your spouse has $50 versus $100 in his/her wallet, when your marital estate is worth hundreds of thousands; it’s another to guess at the value of something like a retirement, when that’s the only major asset of the marriage, or agree to terms without really knowing what your spouse’s monthly income is [this is one reason why Declarations of Disclosure should be exchanged before doing substantive negotiations, let alone before coming to a final agreement]. At this point, ask yourself whether you know enough so that your smartest, most trusted advisor would say you were informed at the time you signed; if yes, move to the next step; if not, then ask for, or find out, more information so that you feel informed.

The next step is to engage in a little self-examination before signing, to see if you are agreeing voluntarily. Have you really negotiated your best agreement, or are you signing just to stop having to meet with your spouse in mediation any more? Are you signing because you feel pressured by your spouse or, even worse, are you signing because you’re in fear of what might happen if you don’t? Is signing really an act of free will on your part? Is signing really an act of free will on the part of your spouse? Do you want to sign quickly because you’re afraid that if your spouse figures out that you’re getting a really good deal, he/she will demand changes? There are many reasons to sign your agreement, but especially in the context of feeling pressured to agree quickly, you have to ask yourself why you must do that, instead of acting more methodically. Make sure that you’re signing for the right reasons for you, and that you want to sign. If you don’t, slow down, and then…

…Balance the alternatives. Having bad alternatives is not the same as having no alternatives. Sometimes, there will be many better alternatives, including going back to the negotiating table and asking for more, or looking for more creative solutions, or hiring an expert to provide a valuation of something. At such a time, you might risk words of anger or frustration by your spouse, but in the majority of situations, and in the balancing of that frustration versus getting better terms, getting better terms carries more weight (and your spouse usually gets over his/her frustration at the slow pace). Sometimes the alternatives to coming to a quick agreement are all bad, and if that’s your situation, and if you are fully informed about the alternatives, and consenting to the agreement voluntarily, then you should move forward with a clear conscience.

Last, this is why we always advise clients to review their final agreements with independent legal counsel. It allows an opportunity for a trained legal professional, in a privileged conversation, to look you in the eye, advise you about your legal rights, and ask if you had enough information for, and voluntarily consented to, your agreement.

What’s the difference between a Special Master on Custody issues, and a Superior Court Judge and does it matter?

In some family law matters, even contested ones, the parents are able to continue making rational parenting decisions in the best interests of their children.  Unfortunately, in others they can’t agree on anything when it comes to their kids.  When parents can’t agree on decisions about their children, the Superior Court makes decisions that the parents could and should have.

Superior Court Judges have total authority over all family issues in divorce, legal separation, and parentage matters, such as who has legal custody (the ability to make decisions about the health, education, and welfare of a child); who has physical custody (who the child spends most time with); where the children go to school; and what the specific parenting plan is going to be.  These are significant issues, and the Court sometimes spends significant time in deciding them.

Judges also have authority over other smaller, but equally important everyday decisions, such as whether the parents can swap custodial weekends with the children for a special event; whether the exchange time for the children should be permanently modified so that it’s at 6 p.m. on Fridays instead of 3 p.m.; which parent has responsibility to transport the children to the exchange location; which therapist should be chosen for the children; and whether and when the children should be able to call a parent during the other parent’s custodial time.

There are a multitude of these types of decisions that parents need to make about their children all of the time.  It is extremely expensive for everyone, from a personal time and money standpoint for the parties and also systemically for the Court, to have to handle smaller issues like these at the courthouse.  As a result, the Courts enacted rules that allow parties to opt out of asking a Superior Court Judge for orders on some ‘smaller’ parenting issues, and opt into using a Special Master on Custody.   But there are significant differences between the use of a Superior Court Judge, and that of a Special Master.
For starters, and unlike the Superior Court, the use of a Special Master only occurs upon agreement of the parties; it cannot be forced on someone.  And, unlike the continuing jurisdiction (authority) of the Court over children which usually lasts until the children are no longer minors, Special Masters are generally hired for a term not to exceed two years, even if the children are very young.  Also unlike Court, this is a fee based process in which the clients actually hire the Special Master as an independent professional.

Another major difference is that Judges make orders, but Special Masters issue “Decisions”.  Decisions have the weight of an order and will be enforced by law enforcement, but are not official orders of the Court unless/until countersigned (i.e., approved) by a Judge.  The parties are still obliged to follow any Decision as if it were an order, but if a Decision is violated by a party, the other party cannot file a Contempt of Court action as punishment.  However, once approved by a Judge, and if the former-Decision-now-an-Order is violated, a Contempt action can be brought against the violator.

Unlike Judges, Special Masters have limited authority over custody issues.  Specifically, while Judges can make broad orders, including initial orders establishing custody, Special Masters are primarily hired to implement existing parenting orders or an existing parenting scheme.  A significant part of Special Master work is to clarify areas of ambiguity in existing orders, and make minor adjustments as needed by the family, and which are in the best interests of the children.  A good way to view Special Masters is that we are the tie breakers for the parents.
In Court, a Judge cannot hear just one party if the other party hasn’t been noticed to appear, unless it’s an emergency.  And there’s always some sort of record (even if just a Minute Order) of those proceedings.  Special Masters control their proceedings, and can meet with and speak with parties together or one at a time, with or without attorneys present, and with or without records being kept.  And, unlike a judge, Special Masters also have the authority to interview third parties (e.g., a child’s teachers and/or counselors), without any party being present, in order to obtain enough information upon which to make a Decision.  We can also interview children, under appropriate circumstances.

Last, and most importantly, to the degree that parties can afford it, a party has much greater access to a Special Master for purposes of explaining circumstances or arguing for a change in the orders, than would ever be allowed by a Judge.  The access piece, which can be expensive, is an aspect of the process that’s prized by clients; the other one is that they stay out of Court, and generally don’t need their respective attorneys to represent them while the Special Master is on the case.

When do you know your marriage is over, and it’s time to separate?

Next to the decision to get married, this is one of the most difficult decisions in a relationship.  As an attorney, and not a therapist, my views on this subject are colored by my experiences with divorcing couples, and I recognize that every professional that works with divorcing couples will have their own opinions on this subject, but here are some basics:

First and foremost, if you have become physically at risk, or your children have become physically at risk, from the other spouse, it’s time to physically separate.  As much as you can want a relationship to survive, if violence, or the express or implied threat of violence exists, you are not in a healthy relationship anymore, and it’s time to disengage.  No one should be subjected to violence in any relationship.

Similarly, even if there’s no actual violence, but there’s a pattern of active coercion or controlling behaviors by one spouse so that the other spouse has lost his/her exercise of free will, it’s time to recognize that you are in an unhealthy relationship, and you need to make a change.  This not only includes situations in which one spouse uses, for example, mind games to control someone, but also situations in which money or assets are used to control the other spouse.

With respect to such behaviors towards children, it’s a different situation because societally, we permit a certain level of coercive control over children for effective management.  But even though society allows some coercive control, if one parent is using control in a demonstrably harmful way towards children (i.e., bullying them), then it may be time to remove yourself and the children from that relationship.

If a spouse has begun abusing substances such as alcohol or prescription medications, it may be time to leave if your spouse cannot get their problem under control.  Substance abuse issues can sometimes be very difficult to see as the problem it is, because they frequently develop over long periods of time in a marriage or relationship, but such problems can lead to other, more dangerous issues, including the threat of physical harm to another spouse or the children.

Trust is an incredibly important and valuable asset in a relationship, and its breach is another area after which some people feel the need to disengage and file for divorce.  Sometimes the breach is chronic, such as when a spouse is what we might call a serial adulterer; sometimes the breach is situational, such as when someone gets drunk at an office party, and has a one-night-stand.  The level of breach that’s necessary to end a marriage is probably specific and unique for every relationship, but my advice to anyone on this issue is that it’s important to weigh and distinguish between a stupid mistake and chronic and continuing behavior before making a decision to leave.  And it’s also useful to think about how you would feel, had you been in his/her shoes.

Last, when trying to decide whether to end a relationship or not, it’s useful to look at why you got married, or started that relationship, in the first place.  I’m not necessarily talking about the ‘standard’ vows that one hears at weddings; I’m talking about the real reasons, the ones that (hopefully) you and your spouse talked about, or bargained over, before the agreement to marry occurred.  Did you agree to marry because you were each other’s love of your life?  Or to have children?  Or because it seemed like a good idea at the time?  Did you really agree to both hang around if someone becomes an alcoholic, or a gambling addict and wastes everything in the bank account?  Or to stay married, even if you don’t love each other?  If it’s not too lawyerly to state in these terms, what was the basis of your agreement?  Has there been a renegotiation?  And have you both been faithful to those express or implied promises?  It’s a different type of analysis, and for some people whose relationship has become less than perfect, it might be enlightening.  And such enlightenment may lead to separation, but it also may lead to a renegotiation of marriage terms for the future, and another try at marriage with your spouse.

Regardless of what situation you’re in, there is one piece of advice that everyone is going to give you: if you or the kids are in danger, get out; if you’re not, then weigh the pros and cons with an independent professional counselor or family law attorney, and think about your options carefully before making any decisions.