Family Law

First Discussions With Your Spouse About Divorce

By Amy Castillo, J.D., University of Minnesota School of Law
How to approach your spouse about divorce.

Be Kind to Your Spouse

When you first approach your spouse about divorce, it’s almost certain to be a difficult and emotional discussion. Yet it’s unlikely to come as a total surprise, either. In most unhappy marriages, both spouses have at least an inkling that something's amiss.

The best way to plan for the conversation is to pick a quiet time, when the two of you can be alone, uninterrupted by work demands or phone calls. If you have children, send them to a relative or friend’s house, so they don’t hear the discussion and feel traumatized. There will be plenty of time later to tell them that their parents are getting divorced and to explain what that means.

When you mention divorce, your spouse may initially resist you, or ask you to go to church or counseling to give the marriage another chance. If you're open to this, by all means, pursue it—you don't want to end your marriage only to have second thoughts later about whether you tried everything you could to save it. But if you're certain you’re ready to divorce, prepare yourself to communicate that the marriage isn’t working for you anymore, and you want to end it permanently.

This will undoubtedly hurt your spouse, who may become very angry. If so, you might need to end the conversation prematurely and leave, because you can’t put yourself in physical danger. But if your spouse is just caught off guard and venting, you may want to continue the conversation by mostly listening. Be as kind as you can stand to be. An act of kindness now—when you’re first discussing the divorce—may pay off in an amicable settlement down the line.

Make sure your spouse is the first person to know about the divorce—outside of a lawyer, therapist, or medical professional, all of whom are obliged to keep your discussions confidential. Don’t tell your sister, cousin, or best friend before you tell your spouse, because word spreads quickly, and your spouse may hear it from someone else before hearing it from you. That’s disrespectful, and it may taint future settlement talks.

Finally, don't make promises you can't keep. Avoid giving your spouse any assurances or hope about getting back together, which can be used against you when it comes time to prove your date of separation.

Speak to a Divorce Lawyer

After you finish talking to your spouse, contact an experienced divorce lawyer as soon as possible. It's best if you consult with an attorney before you have the divorce discussion. Once your spouse knows you want a divorce, there’s a possibility your spouse may react by running up credit cards, refusing to pay bills, or otherwise damaging your finances. A divorce attorney can help prevent this by asking a judge for a temporary court order that “freezes” your family accounts. The order will require both spouses to continue to pay bills and maintain all insurance policies, and prohibit either spouse from emptying shared bank accounts or maxing out joint credit cards. In some states, including California, these financial restraining orders go into effect automatically, as soon as you serve your spouse with the divorce petition.

Later, if you’re not able to reach agreements with your spouse, you can go back to court and ask for preliminary orders to divide marital property—like checking or savings accounts—and arrange temporary custody and visitation. The next step will be for you and your spouse to agree on permanent solutions for your divorce-related issues, or go to trial and ask a judge to make these decisions for you.

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