How to Start a Divorce Case

In this episode, Joshua Stern and Marvin Mendez break down the divorce process from the beginning, including how to approach the first conversation with your spouse to when (or whether) to retain an attorney. They discuss emotional readiness, financial preparation, legal service options and the importance of minimizing conflict—especially when children are involved. Whether you’re contemplating divorce or just gathering information, this episode offers clear, compassionate guidance on what to expect and how to begin.

Key moments:

00:27 – How to start a divorce case. You want to make a move, but what do the first steps look like?

1:06 – Josh and Marvin share advice on how to talk to your partner about divorce.

4:03 – How to avoid escalation in conflict when announcing a divorce. Josh shares options like couples counseling, discernment counseling and more.

6:02 – Marvin addresses common challenges and worries when preparing to tell your spouse about divorce, such as financial concerns and fear of breaking up your family—and provides ideas to make this step a little easier.

8:55 – Divorce simplified is categorizing assets and then dividing them. Josh emphasizes being informed about what you have and where.

10:52 – A break down on three options for filing for divorce.

14:51 – Josh and Marvin discuss what to consider before moving out and the preconditions for physical separation.

16:41 – A recap of the discussion and questions to consider in a logical and chronological way.

18:48 – Final word: The importance of not involving children in the process and finding good support.

Transcript:

I love marriage. I think it’s a fantastic part of life. And your wife watches the podcast. [laughter] I don’t know if she’ll watch this one— she’s got better things to watch.

[Music]

Hi, I’m Joshua Stern and this is Marvin Mendes. Stern Mendes. Welcome to I Do Until I Don’t, a podcast where we’ll discuss family law and other legal issues.

Today’s session is how to start a divorce case. So, in other words, you know you want to split, you’re not happy, and you aren’t sure how to approach the subject at home. You aren’t sure what the next steps are. You don’t have a lawyer. Really, you’re starting off fresh. You know you want to make a move, but you don’t know what that move looks like. I mean, we’re both going to tell you the same thing. This is a common question. Knowing you want to get divorced and knowing how to get divorced are two very different things.

So, Marvin, let’s like kind of play out a hypothetical. Client comes to you and it’s very clear the marriage is over. It cannot be saved. They’re not happy. And they go through the whole legal process. They talk to you about all their issues. You give them advice and at the end they say, “Uh, so how do I tell my husband or wife?” What do you tell them?

Well, let me preface this by saying I think marriage is a wonderful thing. I love marriage. I think it’s a fantastic part of life. And your wife watches the podcast. [laughter] I don’t know if she’ll watch this one. She’s got better things to watch. And I do believe in marriage, and I always try to tell my people before, you know, before they’re taking the step: Is there anything you can do to try to work this out? Have you exhausted all possibilities? Have you made every effort? Do you recognize what your role has been in this process? And hopefully, you know, much to our chagrin, right? Because this is how we get paid. They take some my advice and go back to their spouse and figure out what the real issue is.

But in those circumstances where it doesn’t work out, this is when we come in and we’re here to help people and we’re here to help them navigate the process and break it down as much as possible to help them understand what it’s going to be like. So, in situations when, you know, the first step is like: okay, I’m ready to go or I’m not ready to go. I’m scared because I don’t know how he or she may react. What advice do we have for them to communicate with them? And it is a very tough conversation, right? It’s easier for an outsider looking in to say, you know, the proverbial just pull the band-aid. That may not be the best thing because it depends on many personalities. But I think one of the ways to do it is potentially addressing the conversation with the therapist. Now, that can be kind of tough because the other person will be embarrassed. So, then there’s the other component of do you talk to your spouse in private and say, “I’ve met with an attorney. We’ve had this conversation on many occasions and presumably this isn’t something that comes out overnight, right? Presumably. Yeah. So, this is probably something that’s been in the works, so it shouldn’t be a surprise and, notwithstanding it will always be a surprise to someone. And you have the private conversation, and you tell them in private or through your therapist that you’re ready to take the next step, right? Like, we’ve hit our, you know, our point of no return. And we start communicating in a cordial manner. I think it’s important that when you do go through that process, if you’re going to have the other person have a negative response or an adversarial response, don’t feed into that. Right? This isn’t the point where you start going, “Well, this was your fault.” [Right.] Right. There’s no blaming. There’s no finger-pointing. Let the other person and their emotions come out calmly, but let them know that you already have the support of an attorney or a team that’s prepared for. And hopefully, and I don’t know what you’re thinking about this, hopefully they’ve already retained you in the process where you’ve been able to coach someone, what to say, how to say it, how to approach it, and here’s my number in case you need me at any time when this is all happening.

So, I, you know, I’m not always retained prior to the discussion. I tell them what to do during a consultation or give them some options because you know to your point the one of the more important things at these early stages is to avoid unnecessary tension or an escalation of a conflict. It’s really easy to ramp up a conflict. It’s much harder to ramp it down. And if the conflict ramps up, you know, at the announcement, “Hey, I want to split”, and suddenly we have a huge fight, that could be problematic. So, we want to get out and provide the information gently. So, right, couples counseling, great option. Obviously, discernment counseling where you work with a counselor specifically there to figure out whether the marriage can be saved. You go and you meet with the discernment counselor. You have a couple and one person’s leaning out of the marriage, one person’s leaning in. Over the course of three to five sessions, we figure out whether the marriage can be saved and transition them into an amicable process, whether that is reconciliation or divorce. That provides a very safe and sort of obvious forum for this. There’s also of course just sort of the kitchen table conversation although we really need to be careful about what is said and not to say both too much or anything hurtful. Usually the first conversation is not the last one and the case, the settlement, all the terms, they’re not going to be figured out. Then there’s a big desire, I think, when you’re in that sort of tense situation to make progress and start wrapping stuff up, uh, that closure will feel like security. But without a lot of preparation and some information, no one’s really situated.

So, you want to have the conversation, say, “Hey, this is we’re going to separate. We’re going to get divorced. We want to be amicable, cooperative, low conflict, take care of the kids, our dependents, and our assets.” And once that’s communicated, I feel it’s sort of mission accomplished. Whether you got the lawyers in pocket or not, I could give you arguments either way. I don’t actually feel too strongly, but you do want to be advised before you have the conversation. If not, have someone fully retained.

You know, people often tippy toe around the issue despite them already knowing that it’s a foregone conclusion that they’re looking to move on. But I think the difficult part is telling them they want to take that step. And I’ve been in situations where I’ve been talking to potential clients for a year or two years and they just can’t get across the finish line because they’re concerned or scared of breaking up the family, of course, or the financial ramifications or the unknown, right? And then I have the other side of it feels so much better now getting past this. And it’s always getting past that hump. And it’s a human thing, right? We’re always concerned of the unknown. We’re always scared of the unknown. And everybody always thinks that once you do that, it is hell to pay. You’re going to get cut off financially. I’m going to lose my kids, right? I’m going to be kicked out of the home. I’m not going to be able to provide for myself depending on, you know, what the circumstances are. And so, I do believe that it is a tough conversation to have. What I would add is in terms of, you know, when to tell your spouse or how to tell your spouse? One of the thoughts that I had is preparing yourself to tell your spouse. And what I mean by that is, okay, you know you’re going to do it, and you know you’re going to take the steps. To that person that is not the person in charge of the finances, or the household expenses, or understanding what the depth and breadth of the marital state is. To those people, I would highly encourage to start looking for files and paperwork. [Mhm.] Not because you’re being sneaky, not because you’re looking to have an aha moment and “I have information that you’ve been lying about”, but because eventually you’re going to have to familiarize yourself with the finances. You’re going to have to familiarize yourself with how to manage your own finances and have a bigger understanding. Now, that shouldn’t be the reason why you choose to not proceed with, you know, divorce, right? Should you already be committed to that process because you realize that the financial circumstances aren’t what you expect them to be. [Mhm.] But you should have an iota of understanding of what’s in there so that one, you can eventually talk to your attorney in terms of what to expect and you can start familiarizing yourself with what really is out there instead of finding yourself in a situation where you’re let’s say for the example the spouse that says, “I really want to keep this house. My only priority is keeping this house.” Right? Sure, that’s fine. But how many times have we been through situations where we fought for that and this is what’s important and ultimately the case is concluding, and the person doesn’t qualify to refinance or can’t afford to stay in that house. Have we just spent the last year, two years litigating about something that you can’t afford and spent thousands and thousands of dollars in that process?

If you think about divorce in the most simplistic terms, we’re looking to both I guess categorize assets and then divide them. So, we need to know what the assets are because we can’t categorize things we don’t know about. We certainly can’t divide them. Having access to the information is paramount. You can get it via discovery. You can get it during the case, but there’s no reason to delay being informed. So, I’m totally with you. If you have access to the statements, grab them. At least be familiar about where you bank, the number of accounts you have, the type of accounts, and if we’re really lucky, the account numbers. That’s going to help us a ton. So, you have access to it. Let’s use the information that’s free and available.

Yeah. I think the discovery is a fantastic tool that’s available to everyone and all attorneys have access to this. But it’s like now you’re asking us to familiarize ourselves with your life and your lifestyle and your assets. There’s no need to spend money on that. I’d love the ones that come in and say, “Here’s what we have. Here’s what we own. Here are the liabilities that we have. We’re happy just dividing what we have here. I’m not interested in going one year, two years down the road because we had kept separate assets and we never really understood each other’s assets.”

Let’s go back to separation and also when to file. And so, I’ll ask you another question. So, is it good or bad for a case if you serve the other spouse at work in front of their co-workers without any advanced notice?

Oh, absolutely. I think it’s the best idea. [The only way to do it, right?] Because this is how you get back at that person. This is how you create an amicable relationship during the dissolution process. People are going to react really well [super well] to being served and embarrassed with documents instead of just sending a cordial email saying, [Oh my god] “Here I’ve been retained. This is what’s going to happen. I’d like to avoid any personal embarrassment that comes with service.” So yeah, I think it’s the best idea, right? No, I don’t think that’s the best option. But what do you do nowadays?

So, I always give people like a three-tier option. Is actually have the right number of fingers here. So, the first one, obviously the most extreme, is service and we’re only doing that in really really narrow circumstances. It’s going to pour gas on the fire. It’s going to increase the conflict and it’s usually not entirely necessary. And I won’t get into the specifics of personal jurisdiction, but typically we don’t have any question about whether the person is subject to jurisdiction. And usually we don’t need questions about whether they will flee the jurisdiction or not. They’re typically employed with kids. So, we know they’re coming in one way or another. We don’t need to start with the service. So, that’s the most aggressive. The middle tier is we file the petition. We send them a letter. We say, “Look, we don’t want to serve you. The case is open. Please get a lawyer. Please reach out to us. Let us know you’re getting the ball rolling. This is the case, so you’re going to have your lawyer or yourself file an appearance in it and we will be in front of a judge, but we want to talk. And the lightest option is we say, “Look, I was just retained. We want to discuss the divorce process, figure out how to go about it, and we want to keep it as amicable and out of court as possible. So, get back to me. Let’s make a road map, exchange information, documents, and figure out how to do this without fireworks.”

Now, do all these options presume that the spouse has already told them that there’s a letter forthcoming from his or her?

I never want to be the person to tell the spouse. And I’ve been in that situation before, unknowingly, in fact. And it…I feel bad for the spouse. I mean, typically they’re caught off guard. They’re offended. And it’s a letter from a lawyer. They’re a little intimidated. And that feeling of being threatened and intimidated, it’s not like a warm fuzzy feeling. We’re not off to a good start. So, I really want to know the tenor of the conversations. What’s the temperature at home? What is the spouse expecting? And I want to align with those expectations and align with that tone. I’m not looking to come out soft if people are screaming and I’m certainly not looking to start screaming if people are getting along.

Would you say preparation to tell the person that we’re coming, you know, that a letter’s coming from the attorney is sort of an overnight thing or would you say that normally there’s some conversation had beforehand so that then they can say, “Okay, it’s coming.”

I prefer that. I prefer to, you know, we all need to have some degree of compassion and empathy for the big feelings, the difficult problems people are going to go through. So, I don’t want someone to be told right before bed, “Hey, by the way, in the morning you’re going to get a letter from Josh.” And they wake up, you know, they grab their phone and here I am. I’m really…we don’t need to make people experience more personal struggle during this process. We need to solve problems, and we need to help people transition to the next stage. So I, you know, look, there’s a time and place for conflict and pressure. I don’t think that time and place is the intro letter at all.

Yeah. Look, I my philosophy on family laws is good people going through bad times. Sure. All right. And personally, you know, if you were going through that process, your ego’s hurt, right? Your emotions, your feelings are hurt. And so, I do agree with you and I love what you said. We do have to be sensitive to the other person. We do have to be sensitive to the family unit and how that’s going to affect husband and spouse, you know, husband and wife, their children, new homes and dynamics. And I think that coming out swinging with personal service or some adversarial letter is only going to fuel the fire and bring more heat than light to the process. [Oh my god.] Yeah. So, I like the communication. Anything…the early communication. So, that’s what I would say, right? When the separation process starts going, don’t have a person serve directly, given the opportunity or the courtesy, right? The common courtesy in my opinion to just say, “Here, here’s what’s happening. I’m not coming out swinging. I need your cooperation. Unfortunately, we are here and let’s take the next steps.”

What are in your mind preconditions for physical separation? So, we know we want to separate. We know we can’t do it out of the gate. We know we have some concerns. Okay. But I mean, you know, it’s a conversation we have all the time. Cool. I can’t leave right away, but when can I? How much longer do I have to wait? And what has to happen before I can go? So, what do we tell someone?

Oh, I mean, there there’s that’s kind of a loaded question, right? Because it’s, you know, famous lawyer response, it depends. [Sure.] Right. Do the parties have the financial ability to go, you know, pay for two homes? [Mhm.] If they don’t have the financial ability for take for paying for two homes and we have to wait until the process unfolds, do you just stay in the same home? Keep the status quo as much as possible. Right. It’s also a situation where it depends on whether you’re in a domestic violence situation. [Oh god. Right.] Otherwise, Josh, I would say don’t leave the house. Don’t leave the house unless you have an agreement on some sort of temporary parenting schedule, some temporary financial resolution so that you know what you can afford in the meantime, and no one misses a skip or be with uh with their children.

I tend to agree with all of that and I’d say we should probably conclude on that note that separation is sort of a more complex analysis, but that emergencies, whether it’s violence, it’s abuse, substance abuse, whatever it might be, that kind of forces the hand. We can’t have that. It’s not safe. It’s not something that’s going to get better with time. And separation immediately is necessary. Outside of that, we really want to have a plan. We want to have a plan for the finances. What can we afford? What’s the schedule going to be? We can’t rush it and it’s hard to undo or it’s hard to do over as well. So, we really want to make sure we do it right and it’s just so fact specific.

So, what we’re really looking at here is how do we…does a person communicate to their spouse and when do they communicate to the spouse that they’re interested in moving forward? Do they retain counsel before they tell their spouse, or do they retain counsel afterwards? My suggestion is at least if you don’t retain counsel, start consulting with someone, right? Have someone and hire an attorney as a consultant, right? Where he can…he or she can tell you how to navigate the process and what to expect so you can have less fear of the unknown. And then determining also the next component, right, was whether we start securing financial information before. Or do we become reactive right in the process and we don’t know what we have and we’re fighting for something that we don’t know that we’re going to be able to afford at a later date. I think that’s where the importance is, even as a married couple, right, or partnership, to familiarize yourself with your financial circumstances. So, that if for some reason you were to have to leave the house, [Right.] you know what you can do, how much you can afford, and where you can’t go.

You’d also know what exactly you have—access to liquid money. You can budget. Financial information is always advantageous. I cannot really think of a situation where it would be harmful.

Yeah. And I think there will be initial shock at first. [Yes.] And it’s just a matter of rebalancing yourself. And I think it takes a few months to really reestablish yourself and find some sort of flow again until emotions simmer. [Mmh] And you know, we have some sort of predictability on a temporary schedule or some very financial situations. But I think once it’s done and once you start filing, not start filing, but once you file a petition or take the next steps, I highly encourage people to maintain the status quo.

Absolutely. I think it’s crucial. [Yeah.]

Again, absent any domestic violence or severe circumstances, maintain the status quo financially, parenting time, do not [excuse me], do not use the children as swords and shields in the process. [Oh my god.] And do not involve them in this process.

Absolutely. That’s I would say…it should go without saying, but the children are young. They’re impressionable. We’re talking about a conflict between the two pillars of their safety net, their two caregivers. It can be a very destabilizing and concerning process for them. So, protecting them and being mindful of what they’re being exposed to and how that could impact them is just so important. I couldn’t overstate it. Yeah. And you know I think from one last component for me just a good reminder: do not find friends and outlets that placate you. Do not find someone that will make you have a scorched earth view of this entire process but [someone] that keeps you true to yourself and who you are as a person to try to keep the calm and move forward through this process amicably. Because remember, you’re divorcing someone that at some point in time you loved and you said you would do everything and anything for them. Unfortunately, you know, things don’t always work out that way. And you’re also going to be now, if children are involved, involving kids that didn’t ask to be here, but are here and they happen. And you want to minimize the impact and the risk that your actions may have on them. So, find a group, a good group that supports you. Sometimes it’s just a sounding board, right, that allows you to vent. But not that’s going to encourage you to do this tit for tat and fight back. Because they’re just outsiders looking in and they don’t know the particulars or specifics of what is happening in their marriage with each person’s respective financial circumstances may or may not be.

Absolutely. Well, it was a pleasure uh speaking with you today, Marvin. I don’t know how to end a podcast.

Like yeah “I do until I don’t”.

I do until I don’t. Until next time, guys.

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