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Embracing Bad Facts in a Divorce Case

No one is perfect. We have all made mistakes, done things we regret, and even done things we might be ashamed of. When you’re going through a divorce case, you know that you have to put your best foot forward, but you might be surprised to learn that covering up your mistakes is the last thing you should do in a divorce.

What is a Bad Fact?

In a divorce case, a bad fact is something you have done or said or failed to do that could be harmful to your case. Most of the time, personal behavior impacts a custody case. However, if you do not have children or custody is not an issue in your case, there could be things you have done that impact the identification and distribution of assets in the divorce. 

Here are some examples of bad facts:

  • You destroyed marital assets
  • You got a DUI
  • You got angry with your child
  • You had an addiction problem
  • You hid marital assets
  • You locked your spouse out of the house
  • You physically harmed your child
  • You posted photos or videos of parties you were at on social media
  • You refused to allow your spouse to have time with your kids
  • You sent angry or threatening emails or texts to your spouse
  • You took your child out of state and refused to bring them back
  • You were arrested for a crime

Every one of these items is something that could negatively impact your divorce case. It either questions your parenting abilities or shows an intent to harm or cheat your spouse. These are bad facts.

Your Instincts About Bad Facts

If you’ve done something that you realize could be harmful to your divorce case, your first instinct may be to deny it and cover it up. You might even not want to tell your own attorney about it, hoping desperately that no one will find out and it can just disappear. Many people even take it so far as to not tell the truth about these things when they are asked about them as they are testifying in court. Pretending something did not happen and erasing it from your mind can make you feel better, but it can’t change the facts.

Why You Need to Tell Your Attorney About Bad Facts

It is extremely important that you tell your attorney every harmful or detrimental thing you have done in relation to the divorce. You might think that if your attorney doesn’t know about it, it can’t be addressed in the case, and it’s just simpler to keep it to yourself.

Your attorney needs to know absolutely everything you might have done that could possibly have a negative impact on the case. They need to be fully prepared for anything that could be brought up by your spouse’s attorney during the case. If, for example, you had too much to drink and hit your teenage daughter, your attorney needs to know about this so they can understand exactly what happened, why it happened, where it happened, and who was present when it happened. They can then decide on a strategy for managing the information when it comes out at trial (and bad facts almost always come out at trial, no matter how hidden you think they may be).

Bad Facts Can’t Be Hidden

As much as you might wish some actions to just disappear, they can’t. Even if you think you have removed every trace of the misstep, your spouse’s attorney is probably going to find it. For example, some people think that by simply deleting social media posts, they can erase things they shared there. However, there are programs that allow experts to locate copies of deleted posts. If you shared a video from a wild party you went to, but deny on the stand that you drink or ever get drunk, your spouse’s attorney is likely to find that post. When they cross-examine you, they are likely to offer it as evidence to the court. Now, not only have you been proven to be a liar, but all of your friends who commented on that post or were tagged in the post can be called as witnesses against you. 

Personal behavior or actions do not happen in a vacuum. There is almost always a witness or some way of proving what occurred.

Additionally, any mistakes you’ve made with finances are also easily traceable by a forensic accountant. Funds that are hidden or money that is surreptitiously spent will almost certainly be uncovered by your spouse’s legal team. 

The Good News About Bad Facts

Bad facts provide an opportunity to be honest, authentic, and forthright. You can use them to your advantage, and the way you present them can actually help your case and assist you in achieving the outcome you want. 

Consider this example. As things were starting to fall apart in your marriage you hurt your shoulder and started taking prescribed pain medication. Your marriage got worse, and you began to have some problems at work. You relied on the pills to get you through the day and became addicted. You acted irresponsibly and cared for your children alone at times when you were using. All of that sounds pretty damning. However, if you realized your mistakes, went to a treatment program, continue to go to counseling, and have completely changed your life, and are honest about all of it, this is now a good fact. 

If you go to court and tell your story and show that you accept responsibility, made changes, and can be forthright about it, you paint yourself in a very positive light. Everyone loves a story of redemption. If you were a judge faced with someone who told this story and a spouse who only wants to paint this person as evil and take away their parental rights, toward whom who would you feel more sympathetic?

This approach also holds true for other mistakes for which there may not be as direct a path of healing. If you withdrew significant funds from a joint investment account just prior to filing for divorce and then placed those funds offshore, hoping to keep them from being distributed in the divorce, you made a mistake. When this is uncovered by your spouse’s attorney, you could be cast as the villain who is trying to lie and cheat to get a better financial outcome in the divorce. 

However, if you realized this was a mistake, returned the funds, admitted you were distraught and acted on emotions, but now are sorry and want to be completely candid and authentic, the court is going to find your honesty and ownership of the mistake to be refreshing. 

Lemons into Lemonade

The best way to view bad facts is as an opportunity. You can’t change them, and you can’t hide them. So use them as an opportunity to show the judge your personal growth and your desire to be completely honest. Every bad fact can be turned around into something positive. The key is being completely sincere and giving your attorney all the facts so that they can all be presented to the court in the right light. 

If your spouse’s attorney asks you on the stand if you sent a series of angry texts to your spouse, all you can answer is yes, if it is true. But if your attorney is aware of the situation, they can present it to the court in the context of the entire situation and then show how you have made personal changes, received counseling, or whatever other steps you have taken to improve yourself so this never happens again. In this light, it becomes a good fact. 

Don’t be afraid of the bad facts in your case. Every case has some bad facts. The key is using them properly to strengthen your case. The attorneys at Burnham Law are ready to listen to you without judgment and help you create a sincere and genuine case that incorporates your mistakes and your growth so that the judge can make a fair decision. Get started by calling us now at 303-990-5308.


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Managing Partner

Colorado Springs

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