What Can Be Used Against You in a Divorce?

By Divorce.com staff
Updated Sep 20, 2022


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Equitable Distribution

So your marriage has ended, and you and your spouse are looking to start the divorce process. Your spouse might attempt to use several things against you during legal proceedings to gain a more favorable ruling.

It’s essential to protect yourself as much as possible to avoid the risk of retaliation and hire your divorce attorney to help you navigate the process. Here you will learn what can be used against you in a divorce and how to avoid being put in an uncomfortable situation during divorce proceedings.

Equitable Distribution

Hidden Assets

If you’re going through a divorce (or just thinking about it), you’ve likely wondered what might become of your assets, especially if you live in a community property state. In community property states, all assets are equally divided, even individual assets acquired before marriage. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are all community property states.

Since individual assets become joint assets by default in these states, a small business you built on your own before meeting your spouse, or any outstanding debt you owe, would be considered marital property. As upsetting as it can be, do not attempt to hide any of your assets. This can get you in trouble with the law. You might be wondering if it’s too late for a prenuptial agreement; it’s not.

Except it’s called a postnuptial agreement, which can protect you during a divorce if you initially choose to forgo a prenup. You’ll be able to spell out what happens to your assets, state how much (if any) spousal support you’re willing to pay, and determine what you want the child custody arrangement to look like. It’s a good idea to draft this agreement before you need it and while you and your spouse are on good terms.

Learn about divorce online with Divorce.com

Extramarital Relationships

If you have been unfaithful to your spouse, it doesn’t have to negatively impact your case, especially if you live in a no-fault state (which most are). In no-fault states, the filing partner doesn’t have to state and prove a reason. They can simply say that the marriage is no longer working out and has, for all intents and purposes, “broken down.”

Suppose they decide to cite your extramarital relationship as their reason when filing. In that case, it won’t affect the legal outcome on issues like alimony payments, property division, and child custody arrangements.

An affair could impact your divorce if you spent large amounts of money on the person, but only if your spouse can prove it. Unfaithful spouses often get caught using joint bank accounts or a shared credit card to pay for purchases connected to their affair.

Text Messages, Emails, and Communications

Text messages and emails can be used against you during divorce proceedings; they are considered statements. Suppose you’ve sent any messages where you admitted to being the owner of a debt, agreed to something (ex: paying a certain amount for child support), or confessed to domestic violence. In that case, your spouse can present these to the judge.

There is, however, one stipulation. Logs of phone calls, text messages, and emails must be authenticated. Your spouse's attorney for verification can subpoena phone call logs, but not text messages. For any communications to be admissible, they must fall under the category of a hearsay exception.

Social Media Posts

There are several ways social media can harm you during divorce proceedings. Here are a few examples of situations where what you post online will hurt the outcome of your divorce case.

  • Showing off your purchases. If you claim not to be able to afford spousal support payments but post a photo of your new luxury home on social media soon after, this can be used against you.
  • Neglecting your child. If you have a history of ignoring your child and any proof of that is available online, your partner could get sole custody and be on the hook for child support.
  • Abusive behavior. It’s best not to air out your grievances on the internet. If you ever have, any abusive language or video clips demonstrating abusive behavior (ex: domestic violence) can also be used against you.

Mind your social media presence, and if you’re considering a divorce, you may want to scan through your online profiles and take down anything that could paint you in a bad light.

How Can You Protect Yourself During a Divorce?

Protecting yourself during divorce proceedings can feel stressful, but there are some simple steps you can take to make the process less overwhelming. Make sure you’re being mindful of your actions; in real life and online.

Avoid Excessive Spending and Marital Waste

The excessive spending of marital assets for only one spouse’s benefit during the breakdown of a legal union (divorce) is called dissipation. One example of dissipation is cheating on your spouse and purchasing things for your new partner using a shared credit card or joint funds you have with your spouse.

Don’t Move Assets

As much as you might want to protect the property you feel is yours by hiding it, don’t. Your spouse’s lawyer will likely find the hidden assets, and you can face legal consequences. Instead, consider a postnuptial agreement ahead of filing.

Keep Records

Document everything you can, even if you don’t think you’ll need it. Digital conversations like text messages and financial records like credit card statements are all records you should have. If there is a time when your spouse tries to claim you said something you didn’t, or you were at a location you weren’t, you can use these forms of documentation (among others) to set the record straight.

Never Act in Anger

If your spouse attempts to provoke you, remove yourself from the situation as quickly as possible. If they get verbally violent or threaten to harm you physically, you can record them for your safety or call the police to file a report, so there is a record of their behavior. You never want to commit an act of domestic violence.

Don’t Violate Court Orders

If a judge has ordered you to pay child or spousal support (alimony), you must make the payments. If you disobey a court-ordered divorce settlement, your ex-spouse could file for a “motion for contempt of final decree of divorce,” and a judge could hold you in contempt.

Learn about divorce online with Divorce.com

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