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Episode 58 Transcript: Letting Your Divorce Lapse

I wanted to talk a little bit in this episode about what happens when you start the divorce process and then you let the process lapse for a while. 

To give a little bit of context there, it’s probably very obvious to you (if it wasn’t before listening to this podcast, it certainly is now) that divorce isn’t the easiest process. It’s time-intensive. It requires a lot of you. It’s expensive and fraught emotionally on a lot of levels. And so there are a million and one reasons why people would not want to have to deal with going through their divorce process. It’s totally understandable. 

And that manifests not uncommonly in the divorce process in that couples will come in for mediation or an initial consultation, and then a year or two years or three years might pass before they return to continue with the process. I’m not saying that’s the norm, but it happens. 

If that’s your situation, if right now maybe you had a consultation or an initial mediation session for your divorce a year ago or two years ago and then you kind of put it on the backburner and life took over and you just haven’t gotten back to it, what are a couple of the things that you should keep in mind as you think about how and whether to re-approach the divorce process and rededicate yourself to it? 

Of course, this assumes that you want to be divorced. Many people start the divorce process and maybe they’re also in a therapy process with their spouse and working on their relationship at the same time, and there are changes that take place in their relationship that cause them to not want to pursue the divorce at that time. That’s not the kind of situation that I’m talking about. I’m talking about a situation in which both spouses are, or at least one spouse is completely, resolved that the marriage is not viable. They do want to be divorced, but they’re just not engaging in the legal process that’s required for them to actually be divorced. 

A couple of things to think about there. 

First of all, there are significant legal implications, financial and otherwise, of remaining legally married. If you have initiated the divorce process or have thought about it but just are not taking steps in that direction, my advice to you is to have at least one hour of legal consultation to understand what the legal financial implications to you are of remaining legally married, because they can be significant and they are not always intuitive. Often, people misunderstand them or aren’t aware of them, and then three years later, when they take up the divorce process again, are shocked to realize that the startup that they created last year while they were living separately from their spouse is still considered marital property and subject to division in the divorce. (I’m completely making that up. I don’t know your particular situation.) 

But there are significant financial implications and other implications of remaining legally married and you want to understand what those are so that your decision to not move forward with the divorce process for now or to put it on the backburner for now is an educated one, that you really understand the decision that you’re making, essentially.

In concert with that, if there are implications, financial, legal or otherwise, of not moving forward with your divorce at the moment, you want to ask, whether it’s that you had an initial mediation session and got this information from your mediator or had an initial consultation with an attorney, you want to ask if there are any mechanisms, like an interim agreement, for instance, or filing, initiating a divorce case with the court and serving your spouse but not taking further action, or whatever the option might be, whether there are any things you can do that would mitigate the risk to you of not proceeding, not moving forward actively with the divorce at this time. 

There may well be a simple solution in your situation and we just need to sign an interim agreement that acknowledges that “I’m going to receive this inheritance that we anticipate next year. And now I’m going to put this into this account, but we both recognize that it’s going to be totally separate property,” or whatever else you foresee. It’s important to run through those issues with an attorney or with a mediator to be informed as to what kinds of risks you’re running, and then to think about whether there are any solutions to mitigating those risks while you are not actively moving forward with the divorce process.

So then just a couple of things that I observe as challenges for couples who have started the divorce process and then let it lapse for a couple of years and then come back to it are:

First of all, and this can happen at any time, but it’s particularly complex when you’re going through a divorce, your financial situation can change. 

Now, if it changes for the better, that tends to not make things more complicated. But one of the spouses’ financial situations may change for the worse and then that can really throw a curveball into the negotiation process and make it a lot harder to come to a settlement than it would have been if you had negotiated the settlement when both spouses were in an okay financial position. 

So, in some ways, if you’re both doing okay financially, it’s not exactly like strike while the iron is hot, but that’s a better circumstance to negotiate in than if one or both of you is really not doing okay financially, and it then becomes more urgent that you need a settlement but a settlement is much more difficult to reach because you’re both under some kind of acute financial stress when you finally get around to negotiating the divorce terms. 

That’s one thing to bear in mind. You’re doing okay financially now, but there’s always risk that in the future you might not be and it may serve you to resolve things now in a financial climate that’s more stable, that’s easier on both of you, than to wait for a time when one or both of you needs to move forward with the divorce but one or both of you is not okay financially, and everything by virtue of that becomes more difficult to negotiate.

The other issue I see come up when people went for an initial mediation session and then waited a couple of years and then they’re back in mediation two years later is that often that push to finally really dig into the process and finish it comes from some kind of external source of urgency. Often it’s another relationship, but it doesn’t have to be, or it’s just one person feeling like “Oh my god. We’ve let this lapse for like three years and this needs to be done.” 

Well, it generally doesn’t help your position in a negotiation to be the one who is experiencing a sense of urgency. It generally weakens your position in a negotiation because you have this new interest, which is that you value the process just being done, and you may be willing to accept less beneficial settlement terms than you would otherwise have been if you had negotiated at a time when you felt less urgency. 

One common way I see that play out is that people start their divorce process, and then they let it lapse until one person has a significant other who is really at their breaking point of saying, “Okay. If this divorce isn’t finalized in the next six months, our relationship is over.” Well, six months from start to finish for a divorce timeline is not realistic. And so you don’t want to paint yourself into a corner and wait until the absolute last minute to be resolving your divorce because you have no other choice but to resolve it. That’s not a great stance from which to negotiate a divorce settlement. 

So you just want to bear in mind that risk that you don’t know what’s coming down the pipeline, you don’t know what the future holds, and you are often better served to take care of anything, including your divorce settlement, before it becomes a dire necessity and absolutely urgent for you.

I would also say I observe that even if there’s not an element of urgency or time sensitivity, the longer you allow the divorce process to hang over your head, even if you’re not engaged in it, if you’ve gone for an initial session or you’ve talked about divorce or you’re even very lightly engaged in the process, it still sort of saps energy from you and feels like you’re engaged in it. And so even if you’ve done nothing in your divorce process for two years, in two years’ time, you’re still more fatigued in a way by your divorce than you would otherwise have been if you just finished it out. 

And then, when you finally re-engage in the process, you can really be feeling depleted in terms of the energy that you have to devote to the process. Even though your energy was sapped during that two-year break period by not really doing a lot, it’s just that it occupies mental space. It’s something that you want to achieve but that you’ve not yet accomplished and can sort of drain you in an unexpected way. 

So that’s another risk or thing to be aware of to take into consideration if you are leaving your divorce on the backburner. It’s not that it takes no resources or no mental energy from you. It takes some. It takes certainly less than if you are fulltime engaged in settling your divorce, but it doesn’t take nothing from you. And then when you finally come around to dedicating yourself, devoting yourself to the process to really finish it, you’re working with often fewer resources than you would have had two years earlier when you were just at the outset of the process. 

The final thing I would say to keep in mind is that… And I’ve seen this happen for couples. It doesn’t happen a lot, but you want to think about whether you are okay with remaining married, like if the divorce never goes through, because in order to be divorced, it’s going to require a certain amount of time and energy and financial investment from you. It’s a resource-intensive process, and it’s hard. And if you don’t devote the resources to it, it’s not likely to happen. So you want to ask yourself if you are okay with that. Are you okay remaining legally married to your spouse? 

And the answer might be yes. If you’re living separate and apart and you have some kind of agreement in place that really disconnects your finances, you may not care that you’re still legally married. But if you do, you just want to be realistic with yourself that if you’re not devoting energy to the process now, and you don’t have a plan to in the future, well, there’s a chance that you might not get divorced and, God forbid, one spouse could end up passing away during the marriage, which carries with it, at least in New York, some implications around estate and inheritance rights. 

It doesn’t happen frequently that if you don’t diligently work on your divorce process, you will end up married for the rest of your lives, but it’s a possibility. So it’s just something to be aware of and to reality check with yourself. How long are you okay being legally married for? And your opinion on that may change over time, but it’s something that’s important for you to have a realistic understanding of for yourself.

Let’s say that after considering all the things that I’ve raised and you’ve had your divorce on the backburner, you feel like “Okay. I want to move forward with this, but it doesn’t even feel possible. How do we do it?” 

What I have seen to be most successful for couples who are really stretched thin and just don’t have a lot of bandwidth to devote to the divorce process is to sort of tie themselves to the mast, so to speak, so to force themselves to make an appointment, set a date when they are going to meet with their attorney or they are going to have a mediation session, and just take it one session at a time. 

Get yourself to that next session. And in that next session, you’ll identify a few things, two things, three things to work on, and set the subsequent session so that you have a deadline for when you have to have completed the things that you’re working on. And you can really keep it session to session. 

You don’t have to finish, and you won’t finish, your entire divorce in one session or figure it all out before you re-engage with the process. Just get yourself back to the table. If you’re feeling stretched thin and overwhelmed by it, you don’t have to take it all on at once. Just get yourself back to the table for one session and keep it really contained to make the time to go to the session. Identify homework items that feel doable for you just to make it to the next session. Set that session. 

And maybe it’s that you set sessions two months apart or consults with your attorney two months apart. It doesn’t have to be every other week. But in that way, you could sort of tie yourself to the mast and force yourself to do a little bit of work so that you’re still moving things forward even though you’re busy, even though you’re stretched thin, but you’re not letting the process entirely lapse for a period of several years if that is not your goal. 

That was our mini-session on what happens and what to consider when you let your divorce process lapse. I hope it was helpful for you.

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