Most divorce professionals will tell you that everyone lies at some point in their divorce. For many people, they might be harmless ‘white lies’ that are told to try to make the other person feel better or to avoid a confrontation.
But then there are the lies that are deeply deceitful. They may cause significant harm, even be life-altering. The sad truth about your spouse’s lies in divorce is that you may have little legal recourse.
How can this be? What does it mean for you? What needs to change?
Joining me for this Conversations About Divorce is Jill Hasday who is a Distinguished McKnight University Professor and the Centennial Professor of law at the University of Minnesota Law School. She’s also the author of “Intimate Lies and The Law.” Read more about Jill at her website.
Listen in below or keep reading…
It’s Not Just Your Spouse’s Lies
We use ‘lies’ very broadly. What we’re really talking about here is any kind of deception which Hasday defines as “any conduct or an action designed to make someone else think something you think is untrue.”
More common than lies Hasday says are the intentional omissions. You might think that by not responding directly to a question, you’re not lying and therefore you’re being honest. However, by not responding you may still be deceiving.
Let’s say for example you ask your spouse where they were last night. They might say they met a friend for a drink. What they really did was go for a drink, but it was with someone with whom they’re intimately involved. They’re not lying but they’re also not telling the whole truth.
In Hasday’s experience it’s very hard for someone to get away with a big deception without lying about something.
The most common areas for a spouse’s lies concern fidelity and finances but it can be much broader.
“My bottom-line conclusion is that people deceive each other about anything and everything,” said Hasday.
Hasday has identified different kinds of deception. One kind she calls “linchpin deception.” This is where someone lies because being truthful would mean the end of the relationship. Concealing that you’re a pedophile or that you have a child pornography habit would be examples of this.
Another kind is “deception to maintain a pre-existing façade.” This is where, for example you hide your criminal conduct from an intimate because of fear they’ll tell law enforcement.
No Fault Divorce Shouldn’t Mean No Consequences
All 50 states in the U.S. have no-fault divorce laws. This means that you don’t have to prove grounds for divorce. But there’s a common misconception that the division of assets should then happen without adjustment for wrongdoing. And that misconception happens with the courts as well as non-legal people.
“No-fault divorce was a really important innovation,” said Hasday. “It freed people from unhappy marriages. But it doesn’t mean you should be free from all civil liability when you injure someone.”
While Hasday is reluctant to speculate, you may have a better shot if you’re in an “equitable division” state versus a “community property” state. With equitable division, the idea is that the assets are divided in a way that is fair. That your spouse has been telling lies and that has cause harm, might influence what the court considers fair. You might have a stronger argument where you can demonstrate financial injury rather than pure emotional distress.
That being said, emotional injury often leads to a financial cost. You just need to think outside the box to quantify it. But there are plenty of resources available for that. After all, courts are very good at assessing damages for personal injury claims between strangers.
But … The Court Sees No Deception In An Ongoing Marriage
According to Hasday, courts are very reluctant to give remedies for a deception and a spouse’s lies that occurred during the marriage.
One example of this that Hasday cites in her book is a husband who was arrested for attempted rape and maintained his innocence to his wife. The couple ending up spending $50,000 for his legal defense. He was however found guilty and convicted. He eventually confessed that he did it. They divorced and she asked the court for a remedy because she wouldn’t have supported spending the money on legal fees had she known he was guilty. Her request was denied because of the concept that there is no deception in an ongoing marriage.
The irony of this is, of course, that the marriage is ongoing only because of the deception.
Why the courts see deception in marriage this way could be traced back to common law history where husbands and wives were treated as a single legal entity and the courts didn’t want to intervene.
Deception Leads To Financial Costs
One might argue that it’s hard to quantify the damage from a spouse’s lies especially when it’s emotional pain. Hasday is quick to counter this saying that courts do this all the time in cases that don’t involve intimate partners.
“The law is in the business of putting dollar values on things that are very hard to quantify,” said Hasday. “That’s what judges and juries do all the time.”
Hasday argues that the law should be changed so that if you can sue a stranger for causing injury through deception, then you should be able to bring the same claim against your spouse.
STDs Are Different
One area that courts are receptive to claims between intimate partners is when one party has contracted an STD from the other party. The other party did not disclose that they had an STD or sometimes if they concealed an affair that led to the party contracting the infection. But the courts’ actions are not based on the distress and suffering that was caused.
“Courts always stress we’re giving you a remedy because we’re worried about public health,” said Hasday. “We want to create every disincentive to spreading STDs.”
More Protections Are Needed
Even if the law was changed to recognize a spouse’s lies and deceptions, Hasday doesn’t see the courts being deluged with cases. That’s because bring a lawsuit is difficult. It can be embarrassing, very expensive and extremely time consuming. The person you’re suing also needs to have the money to pay a damage award.
Given this, then Hasday believes that more protections are needed to protect spouses from the actions of their partner.
“The law does remarkably little to stop one spouse from expropriating joint assets without the other spouse’s permission,” Hasday said. “What are safeguards the law could create that wouldn’t unduly burden everyday transactions but just make it harder to sell or give away or spend large amounts of joint property without the other person’s knowledge?”
Some women have brought battery claims saying that the only reason they had sex with the person was because the person was lying about something such as saying they were unmarried. But again, for people who are married these claims wouldn’t currently be considered.
Being Deceived Is Not Your Fault
While Hasday’s goal is to change the law, she also thinks we can all be more compassionate in how we treat people who have been deceived.
“I think courts and commentators are too inclined to blame people for being deceived,” said Hasday. “In hindsight, it’s always easier to say you should have known. You should have investigated.”
We also like to tell ourselves that only people who are being stupid or gullible would fall for lies. We do that because it makes us feel safe in the world and reassured.
The reality is that we all tend to discount red flags because we’re not looking for them and especially with an intimate. What we’re looking for are ways to make the relationship work rather than reasons for why it shouldn’t.
When we do start to question incidents, it’s often hard to investigate. You can do some basic checking on social media and internet searches but tread carefully.
“Many kinds of investigation you would like to do are actually against the law,” said Hasday. “People have had to pay, have been successfully sued or have gone to jail for searching someone’s credit report or emails.”
My guest for this Conversations About Divorce was Jill Hasday who is a Distinguished McKnight University Professor and the Centennial Professor of law at the University of Minnesota Law School. She’s also the author of “Intimate Lies and The Law.” Read more about Jill at her website.