Attorney James Sexton on How to Get Divorced Without Going Broke

21:54Where reasonable minds disagree. Where two lawyers are advocating for some. Because there's things that are black and white in the law. And then there's some gray areas. So everybody's going to argue the gray area in favor of their client. That's our job. So sometimes the judge, the person in the black robe who gets to make the decision, they'll listen to your arguments and they'll go, yeah, more like that and less like that. And then you go, OK. And then you go out and you settle your case. And that's how most divorces go. Like I've had a case. I had a case right last month with John Teitler.

22:21He is, in my opinion, the greatest divorce lawyer in the United States, definitely in the state of New York. He's also one of my main courtroom adversaries. And we had a huge case with billions of dollars on the line and we settled it in like three phone calls and two emails. and probably like 10 grand worth of council fees, 20 grand worth of council fees, because we both knew like, all right, here's what you're going to do. Here's what I'm going to do. Like, here's what it's going to be. And we've had some brawls. Like, like it's not that either of us doesn't like to fight. We're both courtroom lawyers.

22:49We have good teams. We're, we're, we're, we're, we're like, you know, like, like, uh, you know, Ali and Frazier. But the truth is like, we're also not going to waste anybody's time. We're not going to waste each other's time. We're not going to waste our clients money. So we're going to make good choices by saying, okay, look, let's just get there. This is where the judge is going to go. This is let's just get there now. And that's what you do.

23:07Nicole Lapin:Well, yes, my marriage will end in death, as crazy as that sounds. If somebody's isn't, what's the best way to ask for a divorce? Gosh, Esther Perel would give you a better answer than me. I think I'm a fan of being clear with people. I think being clear and compassionate. So I would say I would be I think people have a tendency when they're giving someone bad news to hedge a bit because they think they're softening it. But I think when you're breaking up with someone, there's no way to say it that they're going to feel good about it. So you have to just sort of reject that possibility from minute one and then just be very clear.

23:54Because if you say, you know, I've been thinking that maybe we should. OK, you're already screwing this up. like maybe implies that, but maybe not. Like, I think it turns into, I've given this some careful thought and I think this relationship needs to end. Like that's clear. It feels harsh, but what you're losing in terms of the softness, you're gaining a lot in terms of clarity. So I think clarity is really important. I would say compassionate clarity should be the mantra, which is you're, you're not like, take your share of the blame. Don't put it on this person, you know, but also don't try to be so compassionate that you're no longer clear about what it is.

24:36I've been thinking maybe we should have some time. No, like if you've decided this relationship is over, I've come to a place where this relationship no longer makes sense for me. And I feel like we need to end it.

24:47Nicole Lapin:Let's talk about alimony. Sure. How does I gave up my career for you or for this family show up in an hour. Yeah. So in every state spousal support, alimony maintenance is three words for the same thing. Every state uses a different term. New York, we call it spousal maintenance or spousal support. California calls it alimony. New Jersey calls it alimony, but it's the same thing. It's a payment made by a moneyed spouse to a non-moneyed spouse when there's a disparity in incomes. There are in New York 14 factors in the domestic relations law that govern spousal support or alimony. One of them is what you just described.

25:22which we call that diminished lifetime earning capacity. So diminished lifetime earning capacity is when a person has made decisions by virtue of the marriage that their long-term earning capacity has now been impaired. So it's not just a short-term thing. It's a longer-term thing. The analogy or metaphor I give to people is if you're running a marathon and in mile 20, you stop for 10 minutes, you could still finish the marathon, but you're not going to catch up to the people you were running with before. So you'll finish, but you're not going to catch up with those people because there's a diminished capacity.

25:55Right. Those people have gone further. So the law believes in this concept called detrimental reliance. And in contracts, that becomes a very important thing, which is I detriment. I relied on a promise you made to my detriment. Right. So if I say to you, you can borrow my car tomorrow, I've made you a promise. If you now cancel the car you had and then I turn around and I say, oh, I'm sorry, you can't use my car now. OK, you've now detrimentally relied on my promise. So now I've created damages to you. So that's essentially what alimony is designed. And one of the factors that alimony is designed to address is detrimental reliance, meaning in reliance on you being the primary wage earner and us staying together.

26:38I made certain choices financially about my career, my profession, what I was going to be doing. And I've diminished my lifetime earning capacity. So if, for example, as many people do, when you have children in your 30s or 40s, there's going to be a chunk of time, even if it's just when the kids are before school age, where you might not be working as much. Right. You're going to be out of the workforce for a period of time. That's going to diminish your lifetime earning capacity because the people that didn't step out of the race for that nine months or year or three years or five years, they're getting a head start.

27:12So the people you went to business school with, they're going to have a little bit of a head start. So that's what you're arguing when you're arguing spousal maintenance. And sometimes there's a lot of other factors like future inheritances that people might be getting, what their ability to earn is. Because the idea of what we call non-durational alimony or what used to be called lifetime alimony, it really fell out of vogue quite some time ago. Now it's the idea is really what's called rehabilitative, which is essentially to get a person back to where they would have been or as close as possible.

27:42So the idea, for example, is if a person was an attorney and then they marry someone who's very wealthy and they say, OK, I'm going to step off of partner track and I'm going to be home with kids that we had or adopt during the marriage. That's you're going to step back a bit and you're going to be behind other people. So you still have a law license. You still can get a job. But now, you know, maybe you need a few extra years because the kids are school age or you don't have, you know, or you've lost some opportunities when it came to the kind of placement you would have. That's what alimony is designed to do is to sort of diminish the negative impacts of detrimental reliance that you made in reliance on the promise of the marriage.

28:21Because what is marriage other than a promise? It's a promise that we're going to walk the path together.

28:26Nicole Lapin:Just walking each other home. That's it. Are these conversations different when the woman is the breadwinner? Um, I mean, in my experience, women tend to marry laterally or up more often than men. So a lot of the very high performing women that I represent are married to men who are equally or higher performing. So like you don't often it's pretty common to have like the Goldman Sachs bro or the Black Rock bro marrying a yoga teacher. It's not as common to have like the Goldman Sachs gal or the, you know, Google exec gal marry a broke musician. Seems so cliche, but it's true. Yeah, it's true. Women, women, I think, you know, again, I don't know the gender dynamic of it perfectly.

29:18You could all speculate, probably. But I think that, you know, women find a man who's a successful person attractive. I don't think that that's a secret. And I think men very often like feeling a little more powerful, you know, in terms of the finance that they bring to a relationship or the success they bring to a relationship. I don't think that these are like I'm saying anything too controversial to say that out loud.

29:40Nicole Lapin:So you don't deal with palimony? Well, Palamone doesn't really exist in most states now. But I mean, what I will say is I've represented a couple of outlier, very successful women who are married to men who are not as successful. So I've had some women who were in finance married to a partner at a law firm and maybe he gets laid off or maybe he has issues. Like I had one case where the guy had an opiate addiction that affected his employability. And then she ended up having to pay alimony to him, even though they had both been quite successful. And then his kind of derailing was a function of, of his substance use issues.

30:14Which again, you know, if you believe in the, you know, like, like disease model of addiction, like you wouldn't get mad at someone and be like, damn it, Mike, you have lupus. Like you would say like, you know, damn it, Mike, you're an alcoholic. Like it's an illness. So I get it. And that's the argument that was made. But I will say, and again, this might not be a popular take. Women don't like paying alimony. Like they like it even less than men do from what I've seen. Like every time I tell a woman, yeah, you're going to pay alimony. She's like, what? Like you could be the most Bella Abzug feminist when you get told you're going to be paying alimony.

30:47You get a lot of like like someone who was previously very woke and like not gender is a construct. And, you know, suddenly they're like, he has a strong back. He can get a job. Are you kidding me? Like, I'm going to pay him alimony. Like, it's a very when I do like I actually just I do a lot of lesbian divorces now because, you know, marriage equality, you know, has been the law of the land. for quite some time. And it turns out that gay and lesbian individuals aren't that much better than us heterosexuals at marriage. They find it equally challenging. I don't really know, you know, we were fighting for marriage equality for so long.

31:20And I always found myself wondering that if you really did hate, you know, gay and lesbian individuals, like you should have been fighting for them to have to get married, you know, because why should, why should we have all the misery to ourselves? But one of the things that, that I've found is I, I actually just had a conversation with a lesbian client, like hearing a woman say, like, if that bitch thinks she's going to get half my business and I'm listening to her say that, I'm like, wow, that is not on my 2026 bingo card. Like I did not imagine hearing a woman say that about another woman.

31:50But, you know, listen, it becomes a very mercenary thing. It's not gendered. Like it's about the haves and the have nots. It's about what we owe each other, you know?

31:58Nicole Lapin:So is it more money, more power in these alimony conversations? I mean, certainly. I mean, the person who has the money has something to lose, though, too. And so what would you tell the other side? I mean, I think what you want to always do is find the formula and the accommodation that's going to make sense. You're not going to be successful in, like, preventing alimony in a case where alimony is clearly applicable. The question is, is how long and how much? And if I front load it, can I have a shorter duration? And, you know, the time value of money applies. Or in lieu of alimony, I'll give you this asset.

32:35And that applies certain negative contingency discounts. I mean, a lot of what I do isn't sexy. Like people think divorce lawyers are, you know, constantly like just dealing with, you know, crazy custody cases and like cross examining people. And there's a big part of my job that is that. But a lot of what I do is like, you know, kind of wonky dorky stuff. Like it's a lot about like, you know, applying negative contingency discounts and figuring out if an asset's in an intentionally defective grant or trust. Like what impact does that have on the marital estate? Like it's kind of dorky stuff, but because I'm a trial lawyer and as a trial lawyer, you have to have like a performer streak and you have to be able to like it's I call it full contact storytelling.

33:10Like you're trying to tell a story while someone's actively trying to stop you from telling that story and tell a competing story. So it's like the hardest kind of storytelling imaginable.

33:19Nicole Lapin:You do very well. Well, it's, you know, I just over talk everybody. What's the best argument if somebody wants to keep the house? There's a lot of ways to keep the house. I mean, stability for children is a big successful argument for that, which is if children are at certain ages, you can use those ages as like guideposts of, well, I should be able to stay in the house for X period of time and try to make the argument that this person doesn't need their equity out of the house right away and that they should let it ride and that you couldn't find comparable accommodations for the children in the same geographic area for a similar price or a lower price.

33:53So there's a lot of factors you can argue. the buyout on the residence. I, as I was coming in, I was like sitting in a coffee shop nearby and killing some time before I came in to talk to you. And cause I'd finished in court this morning and I just had a little bit of extra time and I didn't want to go all the way uptown. And I was on my phone returning emails. And one of them was this person just had like a massively false appraisal of the marital residence. Like this house is worth like 800 grand and they got an appraisal for 1.5 million. And so I wrote back and said, great, she can buy us out at that price.

34:25No problem. And of course, instantly now he's like, well, you know, that might not be the right place. I'm like, no, a second ago when we were buying you out, that was the right price. Like, so there are some internal mechanisms that force people to be a little bit reasonable because -

34:39Nicole Lapin:Be careful with the appraisal. Well, yeah, you want to do it in a thoughtful way because you don't want to walk into dueling experts. Like you get an irrationally high appraisal, I get an irrationally low appraisal, And then we have a false average between the two. It's better to come up with like a neutral trusted. This is one of the things that like good divorce lawyers, we have networks of trustworthy accountants, trustworthy appraisers like jewelry appraisers, art appraisers, bag appraisers, wine collection appraisers, all the car appraisers, all the things that people have. We have like the people that, you know, are neutral because the danger of the court system is, you know, there was a time in the 1980s and 1970s where the cigarette companies were getting sued.

35:18And they found doctors who would testify that cigarettes are good for you. Because if you pay an expert enough money, you can get them to say almost anything. So you don't want to get into dueling experts. What you want to do is you want to come up with neutral, fair people that are qualified and know what they're doing and give you accurate values and good, experienced lawyers. We all know who the good ones are and who the hack jobs are.

35:40Nicole Lapin:One of the sexiest divorces out there is Bunny XO and Jelly Roll. Have you heard of them? Yeah, I have. But they seem to be quite kind to each other in their public discussions. So just for clarity, so Jelly Roll is a musician. Bunny is a podcaster. Bunny has talked about how she worked as an escort to support him. That's a very, very specific case. But for entrepreneurs, athletes, if one person is supporting the other in the beginning of their relationship, if they're in the beginning of their relationship for the beginning of their career, what are they entitled to? Well, it's one of the factors a court considers when they're talking about things like alimony.

36:19It's also one of the factors in what's called equitable distribution, which is the division of assets and the division of property. In some jurisdictions, after a certain period of time, like California, you have things like community property, where after a certain period of time, all property is marital property, and there's no distinction between separate property and marital property, like premarital property and marital property. In New York, we are still a state that has separate property and marital property. So if you keep your separate property separate, the appreciation on it will remain separate property potentially in a divorce.

36:48So in a case like that, you know, courts look at that like courts in divorces are what's called equitable courts. Like there's courts of equity and then there's courts of like strict application of law. So like a judge in criminal court can't give you a life sentence for a parking ticket. That would be an abuse of their discretion. There are sentencing guidelines. They can give you this little or this much. And that's it. The legislature has spoken. Courts of divorce are courts of equity. So it's about fairness. So courts look at factors. And that's why I say, like, my job is full contact storytelling.

37:24I can tell that story in a way that makes one side look very sympathetic. And I can tell it in a way that makes the other side look more sympathetic. Like, that's the thing. Facts all come with points of view. So the job of a good trial divorce lawyer is to tell the story in a way that makes my client look most sympathetic and the other side look least sympathetic. So I could represent either of those people in a way that would be more likely to shine in a positive direction for them. Now, again, good divorce lawyers don't try to fit their client with halos and the other side with horns. That's rarely an effective strategy.

37:59The better thing to do is to show that they're both human and they're both flawed. But, you know, the best salesman doesn't seem like they're trying to sell you anything. The best advertising doesn't seem like an ad. Like the best advocacy doesn't feel like advocacy. I'm just shining a light on the truth. But in reality, it's advocacy.

38:17Nicole Lapin:Your version of the truth. Well, my client's version of the truth. The version of the truth that's most favorable to the outcome my client would like to achieve. Are you ready for a lightning round? Sure. What's your favorite legalese term? Oh, boy. My favorite legalese term? Here to forehead herein. Prior discussions here to forehead herein. There's so much good old English I also like vituperative And obstreperous What do those mean? Vituperative is like unduly hostile And obstreperous is being like obstructionist Like you're standing in the way unnecessarily And creating So your client's vituperative conduct Or your client's obstreperous conduct I feel like we have to bring those into the regular Yeah, they're fun I write a lot of nasty lawyer letters So you do a lot of like Here to four Here to four hat here in All proceedings here to forehead here and without prejudice, all claims and defenses.

39:13Nicole Lapin:The most surprising secret that you uncovered in divorce proceedings.

39:22Gosh, I've seen a lot of stuff. There's a chapter in my book called Everyone's Fucking the Nanny. That's about a bunch of people that were having affairs with nannies. And so that's happened a lot. I don't know what it is about nannies. I have a theory of it. I talk about in the book. But so nanny stuff is always very salacious. That's always shocking. People sleeping with each other's other family members. That's always that always catches me off guard. I just feel like there's so many people in the world you could potentially sleep with. Why would you sleep with your sister-in-law? It just feels it's already like adding insult to injury, you know, and making future Thanksgiving's even more awkward.

39:56Nicole Lapin:You know, it's the most expensive mistake in a divorce. Getting married. No, the most expensive mistake in a divorce. hiring the wrong lawyer, hiring the wrong lawyer. People, people make the following mistake. They hire. It's better to have a gun and not need it than to need a gun and not have it. It's better to be a warrior in a garden than a gardener in a war. So people hire like a friendly, I never try cases. I'm very settlement minded lawyer. Cause they think that's going to protect them from having an ugly divorce. And that's like someone saying, I've got a gun, but it doesn't have any bullets.

40:39Okay, then you don't have a gun. What are you going to throw it at me? Like, it's better to have a trial lawyer and not need it than to need a trial lawyer and not have it. So hiring a friendly, warm hug of a lawyer instead of someone that ideally has the full toolkit. Like some people will describe me as a compassionate advocate and a very calming force. And some people will say, I'm the sociopath you want on your side and an unchained pit bull. I'm both of those things, depending on what the situation dictates.

41:08Nicole Lapin:What does a divorce lawyer know about love that a therapist might not say out loud? How the most dangerous lies are the ones we tell ourselves. I think people try to tell their therapist the truth, but they're usually telling them lies that they've told themselves. I think one of the things you get to see as a lawyer is people have to tell you the truth because you have one job and it's to protect them. what's something you've seen ruin a divorce negotiation in five minutes

41:41personalizing things and vilifying someone whether it's the lawyer or whether it's the other party taking it very personally and losing the plot on what's actually important like i had a 20 million dollar divorce negotiation fall apart because of a toaster oven what yeah yeah we had everything done. We were down to personal property. We were like, let's not do this. We've got all these other deal points done. And they said, no, let's just knock it out. Let's get it finished while we're here. And we got down to a Breville toaster oven and it blew up into, well, I bought you. Well, I bought that for you.

42:13Well, you never use it and turn into a whole thing. And I actually like took out my phone and went on Amazon and I said, I can order four of these and they'll be delivered tomorrow prime. And it's going to cost less than 20 minutes of my time. Like, what are we doing right now, gang? Like this is, let's everybody just take a breath, you know? And thankfully it snapped everybody. I did actually order the toaster ovens too.

42:34Nicole Lapin:One for each of the lawyers. Yeah. One for myself, one for opposing counsel and one for each of the parties. What's the most expensive emotion in divorce? Impulsiveness. What's one thing people should never put in writing? The number of people they slept with before they were married. What's one thing they should always put in writing? Their favorite things about the person they're married to like their top five favorite things like when you when you go to your hotel tonight or wherever it is you're gonna go if you're not with your husband write 10 things that you love about him 10 things that he does that make you feel loved like it it will take five minutes and it would be it will actually make you feel more love and when he sees it it'll make him feel more love and it doesn't cost anything you are so romantic a little bit i imagine that people's digital footprints now in divorce can turn things in both ways right how does how have you seen that play out i mean it's super fun because now it's like just all out there like we get everybody's text messages things get intercepted all the time i joke that we all divorce lawyers owe Steve Jobs a tremendous debt of gratitude because having the integration in Apple devices where iMessage comes up on like your iPad that your kid is playing on and suddenly in real time your text message conversation with your with your paramour like your the kid's like mommy what happened to my iPad and then all of a sudden they're like dad's up in the bathroom texting with his mistress and the messages are going you know on the thing and you're looking at it like it's caused more chaos I mean people's talk about how they're not drinking and then it's like oh well what about these pictures from you on instagram what about this person's story tiktok i had a case recently it was tiktok like we what happened we blew somebody's whole life up with their tiktok this guy was like giving away money to like women mostly in brazil like on tiktok he was giving lions and universes like you can gift certain amounts of money tiktok makes lots of money on this bite dance is brilliant they they charge you like a thousand dollars and then you can give seven hundred dollars to a person like each of these toys or whatever like the unicorns and universes and lions and tigers and bears.

44:47And this guy had burned like three, $400 ,000 in marital assets that way.

44:51Nicole Lapin:How often is this stuff showing up in divorce proceedings? Like DMs, Venmo transactions? Constantly, almost every case now. Yeah, all the time. Because if somebody's crying poor, that they're out spending. Yeah, Venmo, Zelle, PayPal, all of them, cryptocurrency. Like we have to be on the edge of all of these technologies and understand them really, really well to do our job well. So if somebody is going through a divorce, how should they think about what they post on social media? I tell everybody you should treat social media the way that my mother used to tell me you should treat things you write, put in writing.

45:23Don't put anything in writing you wouldn't want put up on Times Square.

45:26Nicole Lapin:Or in Wall Street Journal. Yeah. Just don't. Just don't. Assume people are recording every conversation you're participating in. Assume that every document, every text message, everything you send will be shown to everyone. Like, I think that's good advice in general, by the way. Like, I think that don't behave outside the presence of your partner in a manner you would behave if they were there. You know, like you should behave away from your partner the way you would behave if your partner was there. Like, I think that that's what integrity is about. Integrity is how you behave when no one's looking.

45:59Nicole Lapin:Very true. But don't go back and delete things. No, definitely do that. That's spoilation of evidence. It's still there. We're going to find it and we're going to make you look really bad for having tried to delete it. Yeah. You can even pick up additional charges because spoilation of evidence. Once there's been what's called a preservation notice sent, which is one of the first things we send in every divorce proceeding. Now you're you're destroying evidence. So in most jurisdictions, that's a felony. Is there any damages that can be claimed if the other person is just an asshole? Well, not officially, but I most divorce lawyers refer behind closed doors to what we call the asshole tax, which is if the judge perceives your clients.

46:40It's an asshole. They're going to make them pay the asshole tax. So judges have discretion on certain issues, like a range of potential outcomes. And if they decide they don't like your client, they're going to hammer your client where they can hammer them. They're going to make them pay the asshole tax. And I've had a number of cases where I could I got the other side to have to pay the asshole tax. And I've had some cases where my client has to pay the asshole tax.

47:01Nicole Lapin:What's the biggest asshole tax paid and why? A couple of million bucks. For doing what? um just for being rude and and abrupt on the stand arguing with opposing counsel during cross-examination just coming off like a dick like it's just vibes like it's just like yeah this person is just like kind of a dick you know like sometimes people when they're nervous you know they don't come off like the way they are and so they could be a really nice person and like they did a hundred things right but all you gotta do is one thing wrong like no one ever says like think about all the people jeffrey dahmer didn't eat like they're very caught up in like the ones that he did.

47:36But like most people he met, he didn't eat like in fairness, like the majority, overwhelming majority of people he met, he did not eat. Now, that's not an effective defense as a lawyer. Right. You can't go in and be like your honor. Sure. He ate five people, but like he met thousands of people. That's not even one percent of the people that he met that he ate. Come on. It's not that many. Like that's not a good argument. But if you've told a story 50 times and you've done everything right in a divorce proceeding, but you lose it on the witness stand at the critical moment, judge is just going to be like, yeah, you're an asshole.

48:09And then they're going to be able to hit you.

48:11Nicole Lapin:I'm actually quite glad that the asshole tax exists. Me too. Me too. Yeah, I weaponize it all the time and I try to mitigate against it for my clients as best I can. But sometimes, you know, if you can't teach a dog how to drive, it doesn't mean you're a bad teacher. Like, you just said about an impossible task. Like, there's times where I'm trying to make someone likable and they're just not likable. They're just not a likable person. Literally being a kind person pays. It pays to be a kind person. It pays to be a kind person. It pays to be charismatic. It pays to be humble. It pays to be. Look, we've all watched trials on TV.

48:40We watch Johnny Depp and Amber Heard. You know, we watched what it's like when someone's charming and affable on the witness stand and when someone's kind of an asshole on the witness stand. And it blows up in your face when you're an asshole on the witness stand. And again, it doesn't matter. Like the facts aren't necessarily people don't buy the steak. They buy the sizzle. So appearance is important.

49:00Nicole Lapin:James, as you know, since you've listened to our episodes, thank you so much. We end all of them by asking our guests for a final tip that listeners can take straight to the bank. We didn't talk much. We could talk forever. I love the way you are so poetic and your storytelling. You didn't come from money, but what is a financial tip that you've learned along the way to grow your wealth? You know, I was thinking about this before I came in. And my joking answer based on past relationships would be is if you're ever dating anyone and they decide they want to take up equestrian as a hobby, encourage them to take up cocaine instead because they're cheaper.

49:37That's my joking answer, but a truthful and based on life experience. I actually think the best advice I wish I'd learned earlier in life that I think is really useful is don't buy things you don't need with money you don't have to impress people you don't like. I think that right now we do a lot of that. We buy things we don't need with money we don't actually have, mostly to impress people we don't actually like. And I think that consumption will never fill the void inside of us. I think love fills the void inside of us. And so use your money as the tool that it's supposed to be, which is to make you feel safe and the people you love feel safe.

50:18And don't try to shove money at problems or consumption of products at problems that aren't going to be solved that way.

50:24Nicole Lapin:Buy money. Buy money.