Dirty Tricks, and How to Avoid Them
- by Eric C. Nelson, Attorney

Note: I am not writing about these dirty tricks to encourage their use. On the contrary, I’m writing about them as a warning, and as something to beware of.

I. “Trial Separation.

Spouse #1: “I still love you, but we need a trial separation while we work things out, or I’ll have to divorce you immediately. Meanwhile, you go stay at the YMCA and leave me here in the home with the kids.”

Spouse #2: “I love you too. For the sake of our marriage, I’ll do whatever it takes.”

Several months later, Spouse #1 serves Spouse #2 with a Petition for Dissolution, seeking sole physical custody of the children and occupancy of the homestead. Spouse #1 argues that for the sake of continuity and stability for the children, he or she should be awarded custody of the children and exclusive occupancy of the homestead.

Lesson: don’t agree to trial separations without first consulting a lawyer, as it will be very important to arrange the trial separation in a way that doesn’t prejudice your rights should you still end up in divorce.

II. “Forget What the Papers Say, I’ll Do This or That”

Dupe signs the papers, and you know what happens next. There are various manifestations of this dirty trick, such as:
  • “Sign the papers giving me sole physical custody. You know I’ll let you see the kids whenever you want.”
  • “Give me custody this year, and then I’ll let you have custody when the child starts school (or substitute some such future event or time frame).”
  • “Sign the papers withholding X amount of child support from your pay. I know it’s too high, but I’ll refund the difference.”
  • “I’m sorry you lost your job, but there’s no need to change the support order, because I agree you don’t have to pay me while you’re unemployed.” (Later, dupe is hit with enforcement action for tens of thousands in arrears).
Lesson: Remember, “the papers” are always controlling. Your verbal side-agreements are totally unenforceable.

III. “Let’s Move to Alaska: after You Find Us a Place, I’ll Come Join You with the Kids.”

This is all too common. Parties agree to move the family to another state. Spouse #1 moves there first to find housing and get situated. Spouse #2 promises to join Spouse #1 at the end of the school year (or some other future time). Then when the appointed time arrives, Spouse #2 instead sues for divorce in the home state, and asks for sole custody of the children and exclusive occupancy of the homestead, for the sake of continuity and stability for the children. Spouse #1 is at a huge disadvantage unless he or she moves back to Minnesota immediately.

Lesson: Don’t ever move away from your family if there’s any chance you may be headed for divorce.

IV. Dismiss Case When You Start Losing, Then Try Again Later

I have had some cases where, after it becomes clear that my client is likely going to be awarded sole physical custody of the children, the spouse suddenly wants to reconcile. Now, sometimes this is sincere. One of those cases happened several years ago, and the parties remain happily married to this day. The danger to watch out for is that the reconciliation pitch is just a fraud to enable the other spouse to try again for a better outcome at a later date, with a different judge and custody evaluator. It happens.

V. Moving Family & Friends into Marital Home During Divorce

It often happens that during the pendency of a divorce, both parties remain in the marital home despite the hostility, because neither wants to suffer prejudice in a dispute over custody, parenting time, or the award of the homestead itself. In such situations, one party may invite friends or family to stay as semi-permanent overnight house guests, in the hope that this will drive the other party so insane that he or she will give up and move out. And even if you don't, now there are hostile witnesses in your house who will write affidavits complaining about your every move.

Don't fall for it. The best counter-measure is to invite your own guests over to serve as support-persons and witnesses of your own. (Usually by this point both parties will agree that neither will have guests over as long as they continue to share occupancy of the house).

VI. Scheduling Activities Over the Other Parent's Parenting Time

Occasionally a parent will schedule activities for the children which conflict with the other parent's parenting time, so as to create an excuse to minimize parenting time with the other parent. The best defense against this kind of manipulation is to address the issue in the initial custody and parenting time order, by precluding either party from scheduling activities during the other party's parenting time, except by mutual agreement, by decision of a parenting consultant, or by court order.

VII. “Oh By the Way, Kid #3 Isn’t Yours.”

This is too rare to worry about, but I’ve seen it. At the time of divorce, the father learns for the first time that one or more of the children he thought were his in fact were sired by his best friend, neighbor, co-worker, or some guy he’s never heard of from the local pub. Sometimes this can cause problems obtaining custody, because if the biological father somehow obtains a paternity order, a major legal obstacle is created. Now the husband-father must either try to obtain custody of only his own biological children — which is unlikely given the strong case law against splitting up siblings — or he must try to get custody of all of the children, including those not his own, which is extra difficult when you’re not the father.