The Hidden Cost of Waiting for Divorce: Part 2 – Children, Support, and Strategic Consequences

David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by lawyers, but not for lawyers only. On JGL Law for You, we will be discussing a wide array of topics to help you navigate the many legal processes, developments in the law, other current events, and how they may affect you, your family, or your business.

We are back on JGL Law for You in a second part of a discussion that I’m having with my law partner, Chris Castellano, regarding the hidden costs of delaying divorce. The first episode we talked a lot about why people delay divorce, the financial issues, the drift that people have when it comes to planning or not planning for divorce, and information that may get lost while you’re thinking about it.

I want to pick up today a little bit, Chris, with the next piece of this discussion, and that has to do with kids. Talk to me a little bit about this whole, the involvement of [00:01:00] children in terms of planning for your separation and planning for your divorce.

Christopher Castellano: Yeah, that’s right. So, when we first talked about this idea of some of those hidden costs of waiting for a divorce, we reserved on one of the biggest triggers of the emotional responses to the divorce process, which is the children, right?

The children and the family, and when you delay a divorce, the list is pretty significant on the impact of the kids, right? We’re not going to get into a lot of the psychological impacts on children delaying divorce. You know, that’s an entire topic in and of itself, and probably for a qualified therapist.

But nevertheless, we as attorneys can recognize a lot of these hidden costs on kids when you delay a divorce specific to our bread and butter, right? And so, what I go to first is the basic, how do you handle [00:02:00] the kids’ routine, right? And I’m talking just the mundane activities of the getting ready for school, the scheduling for various different appointments, whether it’s doctors, dentists, etc, you know, school communications.

And then you branch out to the bigger questions, right? So, if you’re delaying the divorce process, but you’ve separated, where are the kids sleeping? You know, how are you managing that? Are you changing the kids from house to house? What do the exchanges look like? Because of course, you’re not operating in the world of a formal agreement.

You’re certainly not operating in the world of a formal order. And so you’re, you’re doing this on your own, right? And you’re doing this somewhat ad hoc. And so that’s one of the big costs: the longer you do this ad hoc arrangement, the more likelihood that you could create a status [00:03:00] quo, and that might be a status quo that, you know, you don’t prefer.

David Bulitt: When you say a status quo, tell us what you’re talking about.

Christopher Castellano: Yeah. So, let’s say that you’re doing this separation. You’re not acting, of course, in the world of an order or an agreement, but you’re just doing this because you want to start this process, but you don’t want to go full bore on it, right? And so you say, “Listen, I’m moving into an apartment.

You’re staying in the marital house. You have the kids during one week, and then on Fridays I get the kids,” right? “And we’re just going to swap back and forth.” Well, if you’re in the context of a divorce, a formal divorce, you know, you filed a complaint, the classic process, you may not be inclined to say, “I think that the other spouse should have 50% of the time with the kid.

I don’t think that’s really a, a good situation.” Well, the longer you consent, we’ll say, to a week on, week off, for instance, in this hypothetical, the more you’ve created [00:04:00] the basis and the history of 50/50 working. And so, you could, without necessarily intending to, create that status quo that tells the court that, “Hey, this is reasonably effective, this worked, so tell me why we shouldn’t do that.”

David Bulitt: So, in other words, unconsciously, for lack of a better word, you could be setting up what looks like the norm when you don’t really want that to be the norm. You want that to be sort of a temporary thing, a step sort of thing. Is that kind of what you’re saying?

Christopher Castellano: Yeah. I mean, your intention to have a more gradual change, and maybe it doesn’t impact the kids in such a dramatic way, the intentions there could be noble, but the reality is, is that you could be setting yourself up for what is a relatively uncomfortable court experience when the court says, “Hey, you have an arrangement that you established here that you were okay with, that you felt comfortable with, that you [00:05:00] believed would not harm the kids, ’cause otherwise, frankly, you wouldn’t have done it.

And so tell me why we shouldn’t do this formally.”

David Bulitt: Particularly if the kids are doing well in that scenario, right?

Christopher Castellano: Well, that’s right. You know, if the kids are thriving, you know, they’re doing well in school, their friendships are maintained, you know, they don’t have mental health concerns that have arisen as a result.

These are all indices that the court will look at ultimately to say, “Tell me why this arrangement is bad.”

David Bulitt: So, folks, listen carefully to that in terms of what plans you make, even if you think it’s going to be temporary just to sort of get things going. Be careful of the, right, of what it could look like in terms of this is what’s best for your kids.

I mean, that’s really what you’re saying.

Christopher Castellano: Absolutely.

David Bulitt: Let’s slip over to child support. Tell us how delaying moving forward can affect, not just child support, but contribution toward kids’ expenses and potentially even alimony. I don’t want to stray too far, but [00:06:00] let’s talk about all those finance- potential financial consequences of waiting.

Christopher Castellano: Yeah, I mean, it’s very similar in overall concept, right? When you create a presumption that a custody arrangement is proper, the court’s going to look at, “Tell me why this is wrong,” what we just said. If you create a presumption that a support exchange is proper and is suitable for the circumstances, including the custody arrangement that you just informally established, you’re going to have a hard time overcoming that presumption that that’s not still a relatively reasonable outcome.

Now, it’s somewhat different. It depends on a couple of different factors when we talk about child support. In Maryland, we have the child support guidelines. If you and your spouse are below $30,000 per month, then the guidelines will attach to your case, meaning that the court is going to presume that the guidelines are an accurate child support figure for you.

[00:07:00] So if you’ve deviated from those guidelines, subconsciously or not, then the court’s going to say, “Okay, I understand that you think that this custody arrangement’s working for you. I’m not going to disturb that. However, you agreed to number X for child support. That’s well off what the real child support number should be, whether higher or lower, and the child support guidelines say it should be Y, and so we’re implementing Y.”

The court has the authority to do that. Now, if you are what we call above guidelines, so you and your spouse are making in excess of 30,000 per month, and you have created a financial circumstance as far as the support that is different than what the child support guidelines would recommend, well, then in that situation, even if you don’t like that support number, the court will be more inclined to say, “I understand what you did here.

I understand why you [00:08:00] did this, and so you tell me,” just like with custody, “why we should deviate away from this.” So, it, it depends on your particular circumstances, depends on your income structure between you and your spouse, but you could, just like with custody, create a presumption that you don’t necessarily want to be creating.

David Bulitt: So again, where let’s say, for example, the higher wage earner of the two in the couple may be setting a precedent that they can afford to pay more than what the guidelines number might otherwise spit out, so to speak.

Christopher Castellano: Oh, and it’s only doubly true for alimony, right? If you pay, let’s say the child support guidelines say it’s 500, right?

And so, you start paying the 500, subconsciously or not, you pay that 500. But then you’re also paying 2,000 for alimony, right? Because you say, “Well, listen, I want to get the separation going. I’m the higher earner, you know, my other spouse has been a stay-at-home spouse. I’m just going to pay that [00:09:00] $2,000.” If you were in the litigation mode, it may not necessarily mean that, you know, the facts may not equate to the reality that you should be paying 2,000 a month.

But because you’ve done that voluntarily, you’ve established a pattern that you’re not impoverishing yourself by paying the $2,000 a month in support, in alimony support. And so, the court’s going to say, “Again, tell me why you can’t do that. You were doing it for 10 months. What’s changed?” Because filing in court is not all of a sudden going to change your income structure, right?

And it applies to a lot of different things. You could start going down the list, right? So what if a year before you separated, you started paying for private school, and then you separate ’cause of unforeseeable circumstances, whatever it may be. You separate and the spouse says, “Okay, well, we’re going to continue the private school.”

Okay, that’s fine, that’s fine, that’s fine. I want for the best interest of the kids and all that. And so you have, for another year, pay that private school. [00:10:00] If you go into court and try to say, “You know what? I got to be honest with you, there’s not enough money to pay for this private school. Well, you have two years of history paying for that private school, whether you intended it or not.

So again, to that theme, hidden costs of delaying the divorce process, it’s a bit on the nose because this is an actual financial cost, but it’s the presumption, the presumption’s the hidden cost that we need to be aware of.

David Bulitt: So again, same kind of thing, right? So even if you’re, if you’re looking to separate, even if it may, you’re looking to sort of build a bridge from married land to divorce town, and this bridge might be if I’m the financially superior, the higher earner, even if I want to stretch myself for this short period of time, I could be exposed, right, to stretching myself for a lot longer period of time if, in fact, we end up in court.

Christopher Castellano: Yeah, absolutely.

David Bulitt: Okay. So, so now we’re going to, we’re going to toggle over again out of the money, out of the, [00:11:00] out of that, and let’s go back to more of the emotional pieces of all of this. You know, the delay and how it may affect not only the parties, but the children and the dynamic in terms of getting from married through the separation to divorce.

Tell us a little bit about what you’ve seen, what your experience is when it comes to that, the delay and how it impacts the family.

Christopher Castellano: Yeah. So, I don’t think it’s a surprise to anyone that when parties are living together and they have kids, but you’re living together as a family unit in the house, and there is marital discord to the point where everybody knows the writing’s on the wall, it’s a tense situation.

It’s uncomfortable. It could lead to fighting; it could lead to disagreements. Whatever it may be, it’s an uncomfortable situation, right? We’ve all seen it. If you delay the divorce process formally, but are in this world [00:12:00] of, “We’re going to do the divorce, but we’re going to do this separation,” or, “We’re going to have these discussions,” or, or whatever it may be, whatever flavor, what you’re essentially doing there is you’re extending that period that the heightened discord, disconnect between the two of you, right?

Some people would say that the fight or flight type of mentality that is becoming ingrained in you during that period, and for yourself, you’re just elongating that, right? And that is a lot of burden for someone to carry, is to be in that state of mind for an extended period of time. I’m sure, David, you’ve had this with clients, but they come to you and once they sign that retainer, they have a sense of relief because they’re putting that burden, that fight or flight burden, they’re putting it onto the attorney in a way.

David Bulitt: Relief, but for the check that they have to write.

Christopher Castellano: Yes.

David Bulitt: Yeah.

Christopher Castellano: But there’s a lot of mental benefit to saying, “Okay, I’ve done what I need to [00:13:00] do. I’ve crossed that bridge. I’ve accepted the reality that I need to hire an attorney. And so, I’m no longer in the fight or flight because I’ve made that decision.

I’ve chosen what essentially is the fight,” right? And so when you don’t make that decision, you’re extending the mental stressors that are really inherent with that constant fighting, battling mode that you are in with your spouse, especially if you’re cohabitating in the same house. And it’s no surprise that the kids, kids know. Kids, even at a very, very early age, they know what’s going on, and they can feel that tension, that pressure.

It’s an uncomfortable situation for everybody.

David Bulitt: I personally tend to agree with you, and as you know, my wife’s an LCSW who works with families and so forth, and we’ve had this discussion about, folks who stay together not just in a divorce planning mode, but also just stay together because we want it to be better for the kids.

And [00:14:00] as you have seen, that’s not necessarily always, if at all, may rarely be the case. And kids do see what’s going on in the house. They do understand, and you lay the groundwork, I think, for what happens when they’re adults. Kids do see what their parents do. They model that behavior. But that’s a discussion for another day.

I want to talk to you about, we touched on this a little bit last time. I’d be remiss if we missed it this time in a little bit more detail, the disadvantage, the strategic disadvantage that you may face, whether it’s a custody case, or financial issues, whatever it may be by delaying.

Christopher Castellano: Yeah. So, let’s dovetail that from our last discussion of the emotional impact, right?

Is that one of the impacts of the elongating this emotional strain between you and your spouse is that you could increase the level of resentment between the two of you, right? And when you increase the level of resentment, what you do is that you make that [00:15:00] negotiating table that much larger, right? And the, the ability to come across that table becomes a lot more difficult.

As a consequence of that, you’re setting yourself up for making the settlement path in your case and resolution a much more difficult goal, right? And I think that you would agree that the vast majority of these cases that could be settled, that is far and away the more beneficial outcome for these people, right?

They get to decide the outcome of their own lives. Well, when you increase resentment, you increase the disconnect between you and your spouse, you decrease the likelihood and the ease with which you can attain that settlement. And so that’s one of the significant strategic disadvantages is that you could unwittingly damage your negotiating position, right?

One person may hold it against you. One person may say, [00:16:00] “Well, during that period of separation, you did X, Y, and Z,” right? Whether that’s finding a new partner during that period of time and the money spent on that becomes an issue. But as far as some of the other marquee strategic disadvantages, even from a very basic level, the longer you go for the divorce process, the more stale information becomes, right?

So, if you wanted to get a divorce because you found out that your spouse went down to the Caribbean and bought $4,000 worth of jewelry and you stayed together and you kind of moved past that expenditure, it pissed you off. You know, you still dwelled on it, but you continued to make financial transactions with this individual; it’s going to become a whole lot more difficult to go back historically and say, “You know what?

I want a credit for this. I want a credit for that and this,” right? So, from a strategic standpoint in that regard, [00:17:00] you start to make those arguments a little bit more difficult. And you could say the same for a lot of the different issues that come up, even in a custody standpoint where you’re alleging that the one parent was abusive, right?

Now, the court’s always going to consider abuse for what it is. However, when you’re trying to make the argument that the emotional abuse or even in an instance of physical abuse that didn’t rise to the level, of course, of a domestic violence action, but that happened five years ago, it’s going to be real difficult to make that argument that it is as dispositive of an issue regarding custody that if it happened a month prior to going to court, right?

And so the staleness of facts presents difficulty when presenting, and your access to information is rendered just as difficult. When we try to get documents from, I don’t know, call it a brokerage [00:18:00] account, an investment account or even a bank account, the longer you go, the more difficult it is to get those documents.

So, when you’re trying to pull up those credit card statements of the Caribbean expenditure that happened eight years ago, I mean, good luck trying to find the credit card statements if they weren’t printed out or you didn’t save all the mailed statements from the bank. And so you have to be careful of the staleness of not only your arguments, but the staleness of the documents themselves, much less your access to them.

David Bulitt: Now, the last thing I want to ask you, Chris, is let’s flip the coin over. There are times, are there not, that delay might actually be the right thing to do?

Christopher Castellano: Well, that’s right. When you are the financially disadvantaged spouse, for instance, and the other side is continuing to earn money, continuing to contribute to [00:19:00] investments, continuing to contribute to retirement.

The longer you go, A, you’re creating a longer period of lack of employment, which helps the narrative that you need support, number one. But also, your equal share of those investments, retirements, bank accounts, et cetera, those assets, you know, you continue to benefit from those. We saw this with the housing market, right?

If you stayed in your house from 2019 through 2025, ’26, for a lot of people, the house is your primary asset. That asset grew substantially in value. And so, by staying in the marriage and, quote-unquote, delaying the process a little bit, you, frankly, you made some money.

David Bulitt: The other thing that strikes me, and I know we both have seen it, is that someone comes and says, [00:20:00] “Well, my spouse is paying for the mortgage, paying for my credit card, paying for my car, paying for this, this, and this, and, you know, I want to get divorced.

You know, what do I do?” And sometimes the response to that is, “You know, I can’t get you any more money than what you’re getting right now.” Because if you look at what the… now, I know we talked about setting a precedent and so forth, but sometimes, strategically, you might tell that person, “Well, let’s ride this horse for a little bit longer if we can, because once we start getting lawyers involved or courts, that support obligation may actually come down.”

Christopher Castellano: Well, that’s right. You know, if you’ve created an informal understanding about how to do something, let’s say, you know, the financially dominant spouse agreed to pay, “Yes, you leave the house and I’ll pay your rent,” right? And then they continued to pay the credit card, and that’s where the expenses are coming from.

You know, that could be a whole lot of money. And so, as I say, why rock the boat? You know, we talked a lot about the potential [00:21:00] risks associated with delaying, of course, whether it be custody or certainly financially. On the other side, as you said, that coin, when it comes to custody, maybe you want to create the status quo, that presumption of propriety when it comes to a custody arrangement.

So, it really depends on what side of the coin you’re on, which is why you should talk to an attorney in this process. Even if you have them working in a situation like Oz where you’re behind the curtain, they should still be there to help you navigate this so you know what’s going on.

David Bulitt: Well, folks, you heard that. Talk to a lawyer. People are hesitant. People don’t want to spend the money. Penny wise and dollar foolish is never a good plan when it comes to separation and divorce. Chris, as always, I want to thank you for your time. Folks, if you are thinking about separation and divorce, give Chris Castellano a call, reach out.

And [00:22:00] Chris, how would they do that?

Christopher Castellano: Yeah, certainly. You know, anyone can find me over at Joseph Greenwald and Lake. They can give me a call direct at 240-399-7881, and my contact information, including email, is also on the firm profile. And thank you, David, for having me as always.

David Bulitt: Always. It’s a great conversation. Folks, I am David Bulitt, and this is JGL Law For You.