The Rules: How Not to Lose Your Own Divorce Case

From The Mid-South Divorce Guide, chapters 28 through 29, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.

Questions this page answers

• Can I date during a divorce in Tennessee?
• Can social media be used against me in a divorce?
• Should I move out during a divorce?
• What evidence matters in a custody case?

The Rules

This is the chapter clients quote back to me years later. These are
not moral instructions. I am not your pastor. These are practical rules
based on watching people damage their own cases, and every one of them
exists because somebody learned it the hard way.

Rule
one. Do not date, and if you are going to date anyway, here are the
rules.

A new relationship does three things to a divorce file, and none of
them have anything to do with morality.

It creates a person. That person has a name, an address, and a phone,
and all three are discoverable. They can be deposed. They can be
subpoenaed. Your children can be asked about them. Somebody who had
nothing to do with your marriage is now going to spend a Tuesday
afternoon in a conference room answering questions about you under oath,
and how that goes is entirely outside your control.

It creates a paper trail. Dinners, hotels, gifts, and gas all leave
records, and those records sit on statements the other side is entitled
to read line by line.

And it hands your spouse something to be furious about at the exact
moment you need them calm enough to sign something. A case about a
retirement account becomes a case about your girlfriend, and cases about
girlfriends do not settle in one mediation.

Fault is real too. Tennessee still counts it among the alimony
factors and a judge weighing support does not stop being a person when
your conduct comes up. But fault is the part everybody worries about,
and the discovery is the part that actually runs up the bill.

The question I get every single time is whether any of this changes
because the marriage has been over for a year, or because they left
first, or because they have been living with somebody since the spring.
None of that touches the deposition. None of it touches the mediation.
It may well change what a judge does with it, and that is a real
conversation. Bring me the fact and let me tell you what it is worth. Do
not decide on your own that it cancels the rule.

Now, I have been doing this long enough to know that some of you are
going to date anyway. So here are your rules.

Do not spend money on them. Not dinner, not gifts,
not trips, not a phone line. Marital money spent on a romantic partner
is dissipation,
and if your spouse can prove it, the value comes off the top before
anything gets divided. If she bought some guy a Rolex for Valentine’s
Day with marital funds and we find it, you get the value of that Rolex
off the top. It works the same in reverse.

You have the greatest built-in excuse in the world here. You
literally cannot take somebody to dinner and pay for it. Use it.

Do not have them around your children. Not a
sleepover, not a weekend, not an introduction. Not until the case is
over and probably not for a while after. This is the one that shows up
in a best interest analysis and the one that upsets a judge.

Do not post about it. See rule four.

Do not lie about it in discovery. If you are asked
under oath, tell the truth. Getting caught in the lie is a hundred times
worse than the affair.

Rule two. Watch your money.

No large purchases. No large transfers. No new debt. No closing or
opening accounts without talking to your lawyer.

Keep paying the regular bills the way you have been paying them.
Changing the pattern, in either direction, gets noticed.

Save every receipt for anything unusual. If you had a legitimate
reason to spend four thousand dollars, you want the documentation before
anybody asks.

Rule three. Do not
move out without advice.

Moving out can affect the temporary parenting schedule, who pays the
mortgage, and what the court sees as the status quo. Sometimes it is
exactly right. Sometimes it costs you the house and half your parenting
time.

If there is violence in the house, leave. Go now, and read Chapter 32. The rest
of this rule does not apply to you.

Rule four. Social media.

Stop posting. That is the simplest version and it is the version I
recommend.

If you will not stop, then understand this. Everything you post is
evidence. Everything your friends post about you is evidence. Everything
you post in a private group is evidence, because private is not a legal
concept in this context and somebody in that group knows your
spouse.

Do not post about the case. Do not post about your spouse. Do not
post about your lawyer or the judge. Do not post pictures of the
vacation you took while telling the court you cannot afford support. Do
not post pictures of a party while a substance abuse allegation is
pending.

And do not delete things. That is the trap. Once a case is filed,
deleting posts is destruction of evidence, and it violates the automatic
injunction in Chapter
6. Set the account to private, stop adding to it, and leave what is
there alone.

Take the same advice about dating apps. A profile is a document.

Rule five.
Assume every communication is exhibit A.

Every text, every email, every voicemail to your spouse. Assume it
gets read out loud in a courtroom by somebody trying to make you look
bad.

So write accordingly. Short. Factual. About logistics and children.
No name calling, no history, no jabs, no you always and no you
never.

Here is the practical trick. When your spouse sends you something
designed to provoke you, and they will, wait an hour before answering.
Then answer only the part that has a logistical question in it and
ignore the rest. The nastiest text thread in the world looks great for
you if every message on your side is two calm sentences about pickup
times.

Rule six. Do not talk
about the case.

Not to the children. Ever. Not the reasons, not the money, not what
their mother’s lawyer said. Children who get updates on the litigation
are being harmed, judges know it, and the parent doing it is usually the
parent who thinks they are being honest.

Not to your spouse’s family. Not to mutual friends. Not to your
spouse’s employer, which the automatic injunction specifically
prohibits.

Not on the phone from jail, if that ever applies, because those calls
are recorded.

Talk to your lawyer. Talk to your therapist. Talk to one trusted
friend who is not connected to your spouse. That is the list.

Rule seven. Be the
reasonable one.

This is not about being a pushover. It is strategy.

Family law gives judges enormous discretion, and judges are human
beings forming impressions about which of the two people in front of
them is being reasonable. The parent who accommodates a schedule change,
who communicates civilly, who does not run to court over everything,
builds credibility. And credibility is what you spend later, on the
issue that actually matters to you.

Save your fights. You do not get many.

Rule eight. Do not use the
children.

No making them choose. No showing them documents. No telling them a
schedule before it has been decided. No sending a message through them,
including a message you think is neutral, because there is no such thing
from where they are standing. And no questions about the other house,
which is the one people do without noticing they are doing it. A child
who learns that coming home means an interview stops telling you things,
and by the time you need them to tell you something real, that habit is
a year old.

Every judge in Shelby County has seen this and every judge hates it.
It is the fastest way to convert a case about property into a case about
your parenting.

Rule nine. Give it hours,
not days.

A divorce will take every hour you hand it, and I do not mean that as
a figure of speech. Leave the whole evening open for it and it fills the
whole evening. Then it fills the drive to work. Then it fills the part
of Saturday you were going to spend with your children.

So put it in a box. Pick two evenings a week and an hour on the
weekend. That is when you pull documents, answer my office, update your
log, and think about your case. Outside those hours it waits. Almost
nothing in a divorce is genuinely urgent on a Tuesday night, and the
handful of things that are will arrive as a phone call from me.

Two people benefit from this and neither of them is your lawyer. The
first is your children, who are keeping a running count of how much of
you this thing is taking. The second is you, eleven months from now, on
the afternoon somebody slides a proposal across a table at you, because
how that afternoon goes depends on whether there is anything left of you
by then.

One legal note while we are here. If you are seeing a counselor, and
plenty of people in this process should be, tell your lawyer you are
going. Treatment records can become discoverable if you put your own
mental health at issue in a custody case. That is not a reason to stop
going. It is a reason for us to handle it on purpose rather than to
learn about it from a request for production.

Evidence

What actually helps

Documents. Bank statements, tax returns, pay stubs,
credit card statements, deeds, titles, retirement statements. Boring,
verifiable, and worth more than any testimony.

Contemporaneous records. A log kept at the time is
far stronger than a memory reconstructed later. Note the date, the time,
what happened, and who was present. Facts, not conclusions.

Text and email threads, complete. Not the one
screenshot that helps you. The whole thread, in context, because the
other side will produce the context anyway and you want to be the one
who brought it.

Photographs and video with metadata intact. Original
files, not screenshots of screenshots.

Third party witnesses. Teachers, coaches, doctors,
neighbors. People with no stake in the outcome are worth ten times what
your mother is worth as a witness, and I say that with affection for
your mother.

School and medical records. Obtained lawfully,
through the proper channel or by subpoena.

What hurts more than it
helps

Recordings you made illegally. See the next chapter.
This can be a felony.

Your own long narrative. A twelve-page timeline of
everything your spouse ever did is useful to your lawyer as background
and is not evidence. Courts do not have the patience and it makes you
look obsessed.

Anything from the children. Do not record your
child. Do not interview your child. Do not send your child in with a
phone. Courts see this as manipulation and it will hurt you far more
than whatever the child said would have helped.

Hearsay. What your sister heard from your spouse’s
coworker generally does not come in.

Evidence of things courts do not care about. This is
the hard one. Your spouse’s new relationship, their spending on
themselves, their personality, their parenting choices you disagree
with. Courts do not make moral judgments the way they used to. Bring
your lawyer the facts that map to a legal standard, and let your lawyer
tell you which ones those are.

Preservation

The moment you think a divorce is coming, stop deleting things.
Texts, emails, photos, social media, browser history, financial records,
voicemails.

Back up your phone. Export the text threads. Do it now, because
phones break and cloud accounts get closed and carriers do not keep
message content long.

And again, once the case is filed, the automatic injunction makes
destruction of evidence a violation of a court order, and spoliation lets a
court assume the missing evidence was bad for you. Whatever is on that
phone, it is better than the inference a judge will draw if you wipe
it.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.