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Counseling the aggrieved spouse to move on

I finalized a divorce earlier this week in which the other party discovered my client’s adultery a few years ago and filed for divorce twenty months ago.  The case ended with my client agreeing to pay six-figure lump sum alimony.  Yet at the divorce hearing, my client was relaxed and happy while his soon-to-be-ex looked like she was sucking lemons.  One would think this experience unusual but it’s more common than one imagines.  Too often such cheated-upon spouses are encouraged to remain furious and remain mired in the past.  That’s not good counsel.

A spouse consulting with an attorney about a fault divorce will naturally initially feel aggrieved. He or she is only ending the marriage because of the other spouse’s misbehavior.  However a good family law attorney counsels such clients to begin making plans and setting goals for post-divorce life.  Often these plans include deciding where they want to live, whether they want to pursue further education or develop their career, and how much financial assistance they will need to maintain the marital lifestyle.  A supported spouse interested in remarrying might be better of seeking lump sum alimony while a support spouse who is uninterested in a romantic relationship needs permanent alimony. The time to start thinking about these issues is at the beginning of the divorce process.  Part of doing this planning is learning to let go of the anger in order to move forward.  Encouraging clients to focus on the future is good counsel.  It’s simply not healthy for clients to remain fixated on the past and on their anger towards their spouse.

Sometimes attorneys think it’s useful or necessary for such clients to hold onto their fury and not focus on the future until the case is completed.  The thinking is that supported spouses who show initiative may reduce their alimony award because they will have greater income at the time of trial.  The thinking also is that an aggrieved spouse is more sympathetic than a merely sad spouse.

I think both of these suppositions are questionable.  A supported spouse who spends the lengthy litigation period remaining mired in dependency gives rise to a reasonable argument that a substantial alimony award is a disincentive to work.  See, e.g., McElveen v. McElveen, 332 S.C. 583, 599, 506 S.E.2d 1, 9 (Ct.App.1998) (alimony should not “serve as a disincentive for spouses to improve their employment potential or to dissuade them from providing, to the extent possible, for their own support.”)   Further, waiting until after a final order is issued to get ambitious about career only gives rise to a potential alimony reduction case based on lower need.  Additionally, in my experience, family court judges appreciate seeing litigants who demonstrate some maturity.  It’s equally sympathetic–and a lot more mature–to display sadness at the end of a marriage due to the other spouse’s fault than to display fury over fault that was discovered long-ago.

Spouses, especially supported spouses, who have fault divorce grounds, tend to be more optimistic at the time of the divorce if they have used the litigation period to develop new goals and strengths.   Early in my career I counseled such clients to seek the fault divorce ground, even if they could proceed on a no-fault ground, as a way of helping the client obtain “vindication.”  Now, unless the parties have not been separated a year, I counsel such clients to obtain a no-fault divorce as a way of feeling magnanimous towards the other spouse.

Any attorney whose alimony-and-fault-divorce-obtaining client appears miserable at the final hearing should question whether he or she served the client well.

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