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MISTAKE NO. 1

MOVING OUT

Bill was a successful architect, with his own small firm. He was married to Ellen, his college sweetheart, and they had two daughters, ages six and eight. They enjoyed a comfortable upper-middle-class lifestyle--a nice home, a couple of late-model cars, one or two vacations a year. Bill loved family life. Even if he had to stay late at work, he almost always made it home to read the girls their bedtime stories. In the mornings, he got them both up, made sure they were dressed and had their homework, prepared their breakfast, helped them pack their lunches, and then drove them to school on his way in to the office. Ellen was not a morning person, but that was okay with Bill. He liked having the morning as his special time with the girls.

The marriage was good, he thought, but not great. Lately Ellen was spending more and more time out during the day, playing tennis and shopping and having lunch with her friends. She had begun asking her mom to pick up the girls after school sometimes. Bill didn't always know where his wife was or what she was doing, but he didn't want to press her. Being a stay-at-home mom was tough, he reasoned. And besides, the girls loved going to Grandma's house.

One Sunday evening after he tucked the girls in, Bill came downstairs to find Ellen waiting for him at the kitchen table.

"Sit down," she said. "We need to talk."

She wanted a divorce. He was stunned. "Why?" he stammered. "What's wrong?"

"I'm just not happy," she said. "I don't love you anymore."

Bill couldn't believe it. He didn't want his marriage to end. He wanted to try to work things out. This was so sudden. He pleaded with her to be patient, to keep trying. He'd change. He'd do whatever she wanted. He pressed her: What else could he do?

"Nothing," she said. "You just don't make me happy." That was all she could tell him, and she kept saying it over and over: "You just don't make me happy."

Ellen wanted Bill to move out that night. He could go stay with his parents, who lived a few miles away.

"No," he said.

"If you don't," she said, "I will call the police. I'll tell them you hit me. They'll take you away in handcuffs. And I'll get a restraining order that keeps you out of the house anyway. I'll keep you away from the kids, too. Do you want to see the kids? Then move out now."

Reeling, Bill felt like he had no choice. What could he do at ten o'clock on a Sunday night? If he was arrested, even on a false charge, he couldn't imagine the damage to his reputation. He'd probably lose his business.

"I want a divorce, but I want it to be civilized," Ellen assured him. "If you move out tonight, I'll let you see the girls as much as you want until we get everything settled. I don't want to hurt you. I just want out of the marriage."

Bill threw a few things into an overnight bag and drove to his parents' house. That drive was the longest 15 minutes of his life.

The next morning, Bill called my law firm and asked if he could come in. An hour later he was sitting in my office. I've seen a lot of unhappy men sit in that chair across from me. Sometimes they are angry. Sometimes they are sad. Sometimes they are frustrated. Sometimes they feel like they have failed as husbands. Sometimes they just don't understand what is happening. Bill was all of those.

"I don't know what to do," he said. "What should I do?"

I explained to Bill, as gently but as firmly as I could, that he had already made a big mistake. I also told him--though it didn't make him feel much better--that he wasn't alone. Moving out is the first mistake many men make when their marriages are on the rocks. And, unfortunately, it's often the biggest mistake, too--the one that has the biggest impact as they try to rebuild their lives after the divorce. Moving out when it's not necessary can mean that a man gets to see his kids less and that the divorce costs more than if he stayed in the family home as long as reasonably possible.

Many men voluntarily--though reluctantly--move out because they think it is the right thing to do. Maybe it will help save the marriage. Maybe it will make things easier on his wife and kids during a difficult time. I think some men see the family home as a place where they can live as long as their wives agree. For whatever reason, men want to do the presumed right thing--even when their marriages are collapsing and the world is crashing down around them. Besides, if the marriage is struggling and there are tensions in the home, it often makes sense to take a break. A little time apart might ease the tension, especially if there are children at home. And who knows? Maybe a temporary separation ultimately will lead to a reconciliation and help save the marriage.

Those are noble sentiments, but foolish. Many men think they have to move out when the relationship falls apart, but in most cases they don't--and they shouldn't.

My lawyers have witnessed this scene many times: A man comes in for the first time and says, "My wife just told me she wants a divorce. So I went to stay with a friend. Now I'm looking for an apartment."

We ask why. Why did he move out? The man seems confused. "She said she wants a divorce," he says. "The marriage is over. We're not a couple anymore. We're not going to live together."

But why, we ask, do you assume you are the one who should move out?

"Uh, I thought I was supposed to," he says. He explains that she doesn't want him around the house anymore, and it felt like he should leave. He didn't want to fight with her, especially in front of the kids. It made him uncomfortable to be there--to be anywhere he wasn't wanted anymore.

It's amazing to us how many times the man will voluntarily move out even when the wife is in the wrong. A common example is when the wife is cheating, announces to her husband that her future is with her new man, demands a divorce, and tells him to get out. And many men do it.

"No," we tell them. "Don't do it. Don't leave. She's the one who wants the marriage to end. If someone has to leave, she should be the one, not you. If she wants her space, she can pack up her things and leave."

Many men who come to us are discouraged when we tell them they shouldn't have moved out--they've already made Stupid Mistake No. 1. But for many of those men, it's a mistake that can be undone. If there haven't been any legal proceedings dictating he has to leave, it's one of those rare instances when the man gets a do-over. For you golfers, a mulligan.

We tell men who have moved out: "Nothing has been filed yet? Move back in. Right now. As soon as possible. The less time you have been gone, the better." The less time you're away, the less opportunity she has to claim you don't care about the kids or the house.



IF YOU MUST GO . . .

Of course, sometimes there are legitimate reasons for moving out, especially if the soon-to-be-ex-wife is making it impossible to stay. Unfortunately, if the police are called or the wife seeks an emergency protective order, the presumption remains that the wife will not make false accusations and the man is in the better financial and physical position to leave. If the police are called or a judge is given only the wife's version of the situation, it is more than likely the man will be told to leave. All your wife has to assert is aggressive conduct--blocking her path, taking her cell phone, verbal threats--and police or court intervention is probable. The bottom-line caveat: If you think there's any chance of a claim of violence or interference--by anyone, for any reason--then moving out may be necessary, at least for a few days until things calm down.

It's understandable that a man would want to avoid conflict and protect his kids from seeing their parents fighting. Those are admirable reasons for leaving. But it sends the wrong message, and what seems like a short-term solution to avoid conflict and make the breakup go smoothly can actually result in long-range problems and give the man a very rough ride when it comes to the details of the divorce. Instead of leaving, propose reasonable rules to continue cohabiting with minimum conflict. If she is adamant, propose a timetable that allows for an orderly evaluation of any transition. And always get to a lawyer immediately, preferably before you pack that bag.

There are a number of reasons that men should not move out. Most important is that staying in the family home allows the father to stay fully involved with his children during the divorce proceedings. We hear it all the time. In one breath, dads tell us, "I've moved out." In the next breath they say, "I want custody of my kids." At that point we have to advise our clients that having moved out, they may have limited the available strategies and increased the necessary effort and expense in pursuing custody. The divorce process can take time, especially when custody is an issue. If the father has moved out he may be portrayed as the "absentee father" or as having "moved on" without his children.

Here's how it works. Divorce proceedings are finalized one of two ways. One, the two parties can reach an out-of-court settlement and agree on custody and the division of property. Their lawyers take this settlement to the court, and the court reviews it. Unless there is something totally out of whack--something so unfair that it's clear at least one side's lawyer did a poor job--the court will approve the settlement and it will become official. The divorce decree will be entered and the two sides will be legally obliged to live up to their commitments.

But when the two sides cannot reach an out-of-court agreement to settle their divorce, it goes to court. There is a trial before a judge (a couple of states allow jury trials in some divorce cases, but it is rare) with witnesses and evidence and testimony and opening and closing arguments and rulings from the bench and, finally, a decision by the judge. That decision is the divorce decree, and the two sides are legally obliged to live up to its terms.

But none of that happens quickly. It may take months, or even a year or two, for a divorce case to get to trial. Even if both sides are eager to settle their divorce out of court, there are bound to be delays with lawyers and court schedules, and that can take weeks or months too.

In custody contests, the continued daily interaction with your children and intimate awareness of the details of their day is key. Moving out often means the father is cut off from the details of what is going on with his children, either by default or by the wife's design. Being out of the home allows the wife the opportunity to lobby, bribe, or guilt-trip the children in an attempt to alienate them from you. Let me put this very clearly: If you move out, you're setting up arguments and tactics used to deny you a reasonable chance of becoming the parent with primary custody.

Agreeing to the wife's demand that you move out may also weaken any hope for meaningful joint custody. It is not uncommon for the wife who has gotten the husband to leave quickly to then propose a quick custody agreement. Ellen did that in the earlier example, claiming, "If you move out tonight, I'll let you see the girls as much as you want until we get everything settled." Believing that she has established that she is in control of the terms of the divorce by getting you to leave, she may propose a joint-custody agreement that contains a catchall provision. In the event of disagreement, her parenting decision prevails. Or she may agree to joint custody with no real expectation of having to abide by it. She assumes the man will automatically agree to whatever decisions she makes, regardless of his rights under the terms of joint custody.

So what happens during those weeks or months--or year or more--while the divorce is pending if you do voluntarily move out? Who decides who pays for what and who is responsible for the kids on what days?

Many states issue temporary orders to decide all that. These orders are often issued or approved by a judge after an initial hearing that is held soon after the divorce has been filed. The husband and wife, through their lawyers, usually work out the details between them. If they differ--on how much money the husband needs to pay the wife each week or month, for example, or how often he is allowed to take the kids overnight--their lawyers present their respective arguments and the court makes the ultimate decision. Either side can ask for another hearing to change the temporary orders, but in most cases, unless there is a severe problem with the temporary orders, the orders stand until the divorce is finalized. Judges don't want to hear the same temporary issues over and over.

Consequently, temporary orders are huge. Don't let anyone--especially your own lawyer--tell you otherwise. Let's use an example to illustrate. Alex and Zoe had not been getting along for years, and agreed to split up. They agreed to be civilized. He would move out and get an apartment near the family house, where she would continue to live with the kids, ages 11 and 14. The kids would stay with her during the week, in order not to interrupt their school routines. Alex could see the kids, both boys, any time he wanted after school. Both of them were athletes, and he could always go watch their games or practices and walk them home afterward. Alex could also see the kids on weekends, and he often did. He'd spend part of pretty much every Saturday or Sunday with one or both. Because his apartment was too small to have both boys stay overnight at the same time, the kids stayed with him on alternate weekends. One would sleep at his place on Friday and Saturday, and then the other would stay with him the following Friday and Saturday.

These arrangements went on for some time as Alex and Zoe discussed the divorce and retained attorneys. The arrangement was approved by the court for the temporary orders issued shortly after Zoe finally filed for divorce. Alex was fine with the arrangements. For all practical purposes, Alex believed he had joint custody. He was in the process of getting a bigger place in the neighborhood, a place where each boy could have his own room, and he wanted 50-50 custody. But when he tried to formalize the 50-50 arrangement in the final divorce decree months later, he got a rude shock. Zoe said no. She wanted primary custody. She would allow Alex to have one or both boys one night each week and on alternate weekends.

In court, Alex's lawyer objected to Zoe's proposal. The judge seemed sympathetic to Alex's case: He was a good dad, he was involved. But the judge had a problem. If Alex had wanted 50-50 custody, why hadn't he asked for it earlier? Why hadn't he asked for it when he and Zoe were making the arrangements to split up almost a year ago?