What Everyone Should Know Before Ending a Marriage: We're Talking Divorce withJames Sexton

Welcome to We're Talking. In this episode I sit down with divorce lawyer James Sexton to unpack what divorce really means, what people should know before they leave a marriage, and why the smartest decisions often happen long before the paperwork begins. What is divorce exactly? Does it mean is it is it the division of assets? Is it like technical divorce is technically the termination legally of the marital relationship? The termination, the termination of the undoing of the marital relationship. So it is the termination. Now what is that usually entail? It usually entails deciding custody and access with children, like who's going to have the kids and when if they're a children. Then support, which is child support, which is how are we going to pay the expenses related to our children, and spouse will support or alimony or maintenance. Every state calls it something different. And then the third piece of what a divorce is is what we call equitable distribution, which is the division of assets. Figuring out who has what and how we're going to divide it and a lot of like horse trading is what lawyers do. So we'll say like are you keep your 401k and I'll keep the house and that's a lot of what lawyers do. So it's basically just the untying of the not the unwinding of all the things that happened legally when we got married. Okay. So now you mentioned your book. I read your book. It was phenomenal. So this is how not to f up your marriage. Exactly. Right. Which just came out 2025. Yep. And in it there was something that you mentioned that I want to look at is so as a divorce attorney your clients are telling you things that they don't even tell their therapist. 100%. Well there's no you know the two people in your life you should just absolutely never lie to are your lawyer and your doctor. Because our only job is to protect you. Everything you tell us is confidential and that confidentiality even survives your death. So like if your client tells you a secret when they die you're still not allowed to tell anybody that secret. And so tell me the truth and my job is to protect you and that's why I think I have a lens and insight that other people don't have. Yes. And I agree. I agree. Absolutely. I've read some research somewhere that stated that many women know one year prior to leaving their partner and these are in heterosexual relationships. They know one year prior and they spend a lot of that year plotting on how to how to get out. Yeah. Right. And so the question though is if you feel as if you can't repair the relationship your partner won't be able to repair it. Should you immediately have that conversation or should you approach it another way? Given your experience as a divorce attorney. So this is where my human advice and my legal advice are discordant. Okay. Okay. So I wear two hats. One of them is person who talks about how to stay married and how to not f up your marriage. And the other is I'm a tactician whose job is to facilitate the demise of unhappy marriages. So the tactician in me would say, if I'm going to punch you, I'm not telling you the punch is coming. So if you're going to divorce someone and there's going to be a fight, I want it to be that when you realize you're in a fight, the fight's over. Like General Patton said, if you find yourself in a fair fight, your tactics suck. Like my job is ideally to have all the pieces lined up so that when you know your the other side knows you're in a fight, the fights over. Like they're in the valley and I've got high ground. Human advice? I think you owe it to yourself and to your partner to express where we're at. And to say, look, I think we've reached the terminal stage of this where if this doesn't get fixed, if we don't make changes, this is going to have to end. Like the things you sometimes have to do to shore up defenses and create levers or antagonistic to repair. So let's look at that. Let's look at someone who's in a relationship and they know they want out. Perhaps they have kids. Maybe there's some assets tactically than they should not have the conversation immediately. I think it depends. See, I personally, I've represented extremely wealthy people for a really long time now. Before that I represented, you know, regular mom and pop type people. I grew up poor and I didn't have any money, college when I was in university. I worked as a waiter as a server. Like I had nothing. When I started my career as a lawyer, I borrowed $5,000 from friends and from my dad and built it into the multi-million dollar thing that it is now and now thank God after 25 years of doing this profession, I have economic security, I have success, I have all those wonderful things. I believe there are, and I say this representing like I have a client who's worth $8 billion right now. There are two amounts of money, enough and not enough. So the first question you need to ask yourself is tactically, if I reveal to this person that this marriage is ending and I'm going to need to have us move forward with the demise of this marriage, I need to protect myself. Maybe because this person is the type who's vindictive is the type that's different than a situation where you're saying, like, because here's the thing, if the only thing I have to lose is some stuff. Okay, take some stuff. Like, stuff is not the end of the world. Like, what are you going to do? You're going to get tactical advantage and get a little more of my assets? Okay. Like, I'm losing something much more precious than some of my stuff. Like, because here's the thing, like, you don't win a divorce. You don't win a divorce. Like, you survive a divorce. You get out the other side of it with as much intact as you possibly can. But, you don't win. Like, nobody ever walks out of the war is going, yeah, I want. Like, you don't win. It's the end of something. It's a death. You grieve it. Like, you follow Elizabeth Kublerosa's stages of death and dying. You bargain. You're sad. You go through all of those things before acceptance. And that's totally understandable. You're grieving the death of this marriage. And so, again, you have to ask yourself, like, what's the goal? Because I'll tell you the truth. Like, not only can you not win a divorce, but you can't win a fight with your spouse. You can't win. You'll never win a fight with your spouse. If you win, you lost. You made them feel small. You won. Yay. Victory. A great job. You made your spouse feel dumb. You made your spouse feel small. You made your spouse feel sad. Or you lose the argument. And then you lost the argument. You can't win an argument with your spouse. Like, because the idea of this is connection to stay connected to each other. Anything that is antagonistic to that connection is the enemy of marriage. But if you feel as if your partner would be vindictive. Yeah. So, for example, I have a friend. This is a true story. I have a friend who wanted to ensure that he got custody of the children. Sure. And so, I think of him almost in the situation. Yeah. You know, would it have been smart to not have the conversation? Yeah. To put things in place. Yeah. So that he would 100%. Yeah. So, you know, the best thing you could always do is go talk to a lawyer sooner rather than later. It's confidential. No one's ever going to find out they're not allowed to tell anybody. I have people who come in, you know, a year, two years, three years before they're actually even going to file. Or when they're just thinking about it. Oh, I've had people who come in 10 years before. It's great. People, listen, some people are super tactical. And some people, it's that they're kind of we call them tire kickers. Like they're like, well, the relationship's not going great. I want to know like, what are my rights and obligations? And what are things I should be thinking about? Wait, look, I'm going to make the argument right now that you should see a divorce lawyer before you get married. I think you should understand, before you get married, what a court would be looking at and thinking about in a divorce, in the event your marriage ends in the likely, statistically likely outcome. At first, I said, this is wild and crazy, but you know, I like this. This should be part of the, it's hard to get into why wouldn't it be? Yeah. Why wouldn't you sit down with a divorce lawyer? I can explain to you legally what's about to happen when you get married, what changes to your rights and obligations are about to happen. And I can explain to you that, for example, your friend, your friend is married to someone who their relationship is tenuous. He's not sure. Maybe this is a combative person, a vindictive person. Yes. And by the way, you divorce the person you were married to. So, you know, if, like, people, it's one of the most astounding things still after so many years of doing this is people come in and they'll say to me, like, I can't believe he's being so vindictive and cheap and angry. I'm like, oh, what, what was he like during the marriage? Vindictive and cheap and angry. I'm like, why would you think he'd be benevolent during the divorce? Like, he was this way. So, like, if anything, it's just going to be this under extreme stress. So, it's going to be a little worse even than it normally would be. So, if your friend came in and said, look, the wheels are still on this thing, but I'm worried that it might be unstable. What are the kinds of things that judge is going to look at when making decisions about custody? Now I can educate you. I can talk about joint custody, soul custody, shared custody. I can talk about different parenting access schedules. I can talk about what are the standards that a judge looks at when making decisions? is about custody, I can talk about what I call the negative case and the positive case, which is not just what's wrong with your co-parent, because you might be just as awful as them just in different ways. So what's the negative case is what's wrong with that co-parent, or where are their areas that they could be better, that they aren't, versus where are areas where I'm strong as a co-parent. And I can talk to you about what are the evidentiary standards, and what are some ways that you can shore up and prepare, so I would say, hey, make sure we go to parent teacher night, make sure we go to the pediatric appointments, make sure that you're part of the data day routine of your child, and not just doing the fun stuff, because by the way, you might be a super great dad, but you trust your co-parent, because they're good as a co-parent, they're a good parent, and you kind of don't like to be home, because when you're home, you guys argue, so you want the kids to not be around that, and you don't really feel like it, so you stay away. Okay, now you're setting up a terrible custody case, because you're not home, she's the primary caregiver to the children, she does most of the heavy lifting of day-to-day parenting, you have set up a bad custody case in the future. So now, again, do you think anybody, if they came into my office, and I gave them that conversation, that primer, on look, I hope your marriage doesn't end. And if it ends, I hope you don't have a custody battle, but if you did, here's the kinds of things a judge might look at, and here's some ways to it, do you think anybody would have that meeting with me, and they go, you know, I was really happy in my marriage before this, but now I'm going to go home and just get divorced. But no, you just, like I get a physical every year, right? One of the lawyers who works for me for many years now, he doesn't get a physical, and when I said to him, hey man, you're over 40, why don't you get a physical, he goes, I don't want to know. I kind of hate doctors. I was like, okay, not having a physical is a guaranteed way to end up eventually seeing a whole bunch of doctors. So if you hate doctors, definitely go get a physical, so that you don't have things going on that you don't know about, it's not going to save, your ignorance won't save you. Yeah, it's like your sister and the two thing, where you say the dentist, yeah, what are three things that you wish people knew or took into consideration before they got married? As the number one divorce and turning us in the world. Three things that people should know before they get married. One would be, what did their parents' conflicts look like, okay? So did their parents yell at each other, did their parents ice each other out? Was their domestic violence an intimate part of abuse? And then also, how does that translate to yours? Because people tend in my experience to either become like their parents or the opposite. Yes. So, what does this look like and what was your reaction to it and what work if any have you done on that? That's fair, this one. Number two, I would say, assess very clearly what your priorities are. Like what's important to you? If custody and your children is the most important thing to you. If economic outcome is what's most important to you. Like identify very honestly for yourself what your goals are in terms of what's important here. Because I will tell you, an unfortunate reality is the person who cares less about the well-being of the children has tactical advantage in custody litigation. So if you don't care about your kids and screwing up your kids, you have tactical advantage in custody litigation. You can put them right in the middle of the situation. You can weaponize them. You can try to bribe them emotionally. You can create loyalty binds and engage in alienation and negative gatekeeping. There's all kinds of horrible things you could do. So identify what's important to me, what's important to my partner and who are they? Have an honest conversation with yourself and your counsel about who is my partner. Because if you're against someone who's going to be villainous potentially. You got to bring a different toolkit to the situation. It's better to have a trial lawyer and not need me than to need a trial lawyer and hire a mediator because you think maybe if I hire a really friendly person, that it'll keep it friendly. It's not how it works. The main levers in my experience as a litigator are fear and greed. It's not empathy. It's not empathy. It's not compassion. It's fear and greed. My job is to cultivate leverage and decide how and when to use it. So that is that almost number three. So two is having this frank honest open discussion. But three is really three is sure of this. Bences and get good lawyer and really trust your counsel if you found good counsel. And then trust the fact that sometimes the path to peace is war. What's the number one reason why someone comes to your office to see you and seeking you out? Or should I say, what's the number one reason that you've seen for divorce? So the answer that most people want when they ask me that question is, is there a singular or are there identifiable things that you see in the terminal stage of a marriage? So the obvious and accurate answer is there's cheating is usually a massive, like, they're almost, I would say a good 85% of divorces, there's some element of cheating in the in the situation or financial impropriety. Those are very real things, but I don't see those as the cause. I see those as the symptom of the underlying illness. The underlying illness is disconnection. The underlying illness is that these because happy people don't cheat on each other, satisfied people don't cheat on each other. Was it 84 85% of people who are seeking a divorce have cheated or have been a part of cheating? Yeah, have been in fidelity is involved in the equation somehow, either or both people have cheated. And again, how you define cheating is very subjective, so it's a question of like, is emotional infidelity infidelity or as purely as it's sexual, like for the purposes of divorce in fault-based states, adultery was defined as like, you know, genital contact, essentially. So, you know, I think most of us would agree that your spouse could cheat without touching anybody's genitals or having anybody touch there. I think so. You know, just to go back to, you had mentioned it was interesting, he talked about, and tell me if this is, if I heard this correctly, 85% of people are remarried within five years of their divorce. It's like the metric. Oh, no, no. But is that, that's the stat that I, that when I throw that out, people swallow their teeth. Yeah, yeah. Okay. Yeah. Yes, yes, yes, that roughly 10 to 20% more you're estimating are unhappy but stay together for the kids. But 86% of people are remarried within five years of their divorce. Within five years. Within five years. So, these are people that catastrophically failed that marriage. Yes. And 86% are remarried within five years. That's mind-blowing. Then, from that cohort, is the divorce rate higher or lower? Higher? Yeah, I would imagine. The connection rate is higher. Is it? Yes. So, the ones who, so I think that teaches me, right, and again, we have to extrapolate lessons from the data. Yes. And again, that all, that's all, you know, subjective stuff. I think what that says is there are some people that are just not good at marriage and they could do it a bunch of times and they're just not good at it. Okay. And then there are people that, like most people, aren't great at something the first time they do it. They screw it up, but they learn something from that. And then they're better at it, and they enjoy it more. Look at that. And so, for me, second marriages have a much higher satisfaction rate than first marriages, but they have a slightly higher failure rate. There's something like 58% of second marriages in the divorce, so it's a slightly higher failure rate. Well, I find beautiful about how quickly and consistently people get remarried. It tells me something about how important this is to us, and that's not lawyer gym talking now. That's relationship person. Like I, I hesitate to say relationship expert, but relationship person, you know, because I really think that's beautiful. It means that this is really important to us. Like this is, this is something we want to be good at. It's something we need. It's something that, like I think it's something that's just beautiful to us, and we run to it. Like we, we just want it so bad, like it, because something in us wants this thing, like we want this connection, and I think it's the most lovely thing that we just keep trying. And we just, and we're so human, like we're so human that we fail so consistently at this thing through our own weakness and short-sightedness, and I think there's something really beautiful about that. I just think there's something really beautiful about our desire to love and to be loved, because I think, I think our greatest fear is that we're not worthy of love. I think our greatest fear is that if someone knew us, they wouldn't love us. Do you project that marriage rates will increase, decrease, or stay the same? I think we are doing what we do as a culture, which is we over-correct. So I think for a period of time the marriage rate was down, the divorce rate was up. Now I'm seeing a lot of resurgence of traditional religion and traditional gender roles, so I think we're gonna roll in the other direction, all of a sudden, and there's gonna be more people getting married, fewer people getting divorced, more rigidity of gender roles. And then I think, once again, we'll over-correct in the other direct, like I've lived through as a 53-year-old man, I've watched this pendulum swing a few times, and for some reason, we just can't get ourselves into the middle. What is the problem to which marriage is a solution? You tell me, you're married, what do you want me to tell you? Listen, what is the problem? Here's what I'll tell you, people with answer, I'm lonely, I don't want to be lonely. Guess what? You can be married and be lonely. There's a special loneliness when you're unhappily married, because you've got sitting next to you, a person who's supposed to be your person, and you feel so alone and by yourself and isolated. So it's not a cure for loneliness, I want a steady supply of sex. We have sex, and this is a way to guarantee we're going to keep having sex. Can you even say that out loud and not loud? The fact that you're married as a guarantee that you're going to have a steady supply of sex is like saying, I live near a restaurant, so that guarantees I'm going to get to be well-fed every single day. Buffets every night, right. So my parents want me to get married, like that's a reason. That's a reason a lot of people would answer. God wants me to get married. That's a big one. Yes. That's a big one. I can't argue with that. Okay. Okay. And again, if you say the reason I got married is because God wants me to, cool, then you also acknowledge that God also handed down these two rules. Doesn't that tell you this has been a problem for a really long time? Yes. Like, because personally, I don't know when infidelity was invented. But I feel like it was probably like 10 minutes after monogamy was invented. Right. So you think monogamy came first? I mean, I guess it had to be by definition, right? Like it had to be. Otherwise, like, otherwise, there's nothing-- there's no rule to break. It could have been a theory. Right. But I believe it was probably like a cave, you know, and the caveman in whatever was kind of grunted that he's going to, you know, this is his woman or whatever. Yes. And thereby the fire, and she's with the kid and holding on to it. And he was like, oh, I'm going to, you know, you didn't say it eloquently, but he was like, oh, I'm going to go get the elk. And he walked out to get the elk and saw like another decent-looking loincloth. And he kind of went like, well, I'm out here getting an elk anyway. I might as well say hello over here. And that's it. We're off to the race. 10 minutes later. We're off to the races, you know? And we've evolved to this as we have most things. But the underlying thing, like, you know, technology offers us real solutions to imaginary problems and imaginary solutions to real problems. Okay. So like, there's been a real problem for a real long time. And now we have much more complex ways to cheat and much more complex ways to figure out that someone's cheating and sort of punish them or, you know, identify it if they do. But the core problem is still the same. Exactly. And this gets to your point of looking at this as a job. And how can I be the best at this job? Yeah. And if you want to hear the full unfiltered stories from today's guest, you can check them out on the We Need To Talk page. Drop a like, leave a comment, and hit subscribe. See you next week.