What Can Be Used Against You in a Divorce?

Are you considering ending your marriage and want to prepare for divorce? You could benefit from a better understanding of what can be used against you in a divorce. 

As an experienced divorce lawyer in Phoenix, Lincoln & Wenk can help you prepare for the divorce and pursue a favorable outcome. Keep reading to learn what happens during a divorce proceeding, the things your ex can use against you, and how to protect yourself.

What Happens During Divorce Proceedings?

While the divorce process differs slightly in each state, it usually follows the same general process. When you file a divorce petition, it asks the court to terminate the marriage based on specific grounds. You can pursue a no-fault divorce (one based on irreconcilable differences) without the consent of your spouse.

Once you pay the filing fee, you may undergo temporary hearings to establish a policy for custody, financial support, necessary restraining orders, and appropriate division of expenses. During this time, the lawyers for both parties gather evidence to help the judge determine the eventual distribution of assets and custody agreement. As such, you must protect yourself from doing or saying anything that could bias the judge against ruling in your favor.

Things They Can Use Against You

During bitter or hostile divorce proceedings, your ex’s lawyers will look for things that prove you should receive fewer assets or less time with your children. They can use the following factors against you during the divorce.

Text Messages and Emails

Be careful what messages and emails you send your ex, as they can use them to prove what kind of moral character you have. For example, if, in a moment of frustration, you send them a profanity-laden text about how awful they are, the judge might view that as lacking the emotional maturity you need to effectively raise children. The difference becomes more stark if your ex keeps a level head during the process.

Another thing you should avoid is mentions of your fault. Whether you feel bad for your conduct during your marriage or not, don’t apologize, as the courts can see that as admitting guilt.

It’s beneficial to keep your communications in-person or over the phone. If you do use text-based communication, stay very careful about what you say and how you say it.

Social Media Posts

Much like your texts and emails, the court can use your Facebook posts and comments against you. For example, if you post a picture of your new romantic interest, the lawyer could use that as evidence of adultery. If you mention buying a new car, the court might think you have more assets than you disclosed and divide more of your belongings.

You’ll want to use social media as a venting platform during your divorce, but it’s beneficial to keep those conversations private and only in the presence of a few people you trust.

Criminal Record

What can be used against you in a divorce? Your criminal record, if you have one, can play a significant role in determining the outcome of your divorce. The criminal record can help the judge determine your character, whether you’re a fit parent, or how responsibly you use your finances.

Having a criminal record doesn’t automatically hurt your chances, as the court cares about context. They’ll look at the charge, when you committed it, how you’ve acted since then, and any rehabilitation efforts you’ve made. If you’ve shown considerable growth and exemplary citizenship since that time, the record may not carry any weight.

The criminal record tends to affect you more when it meets any of the following criteria:

  • The criminal charge relates to the divorce of custody process, such as hiring a sex worker.
  • The record shows a history of abuse or domestic violence.
  • You have multiple charges over several years, showing a lack of reform.
  • The record shows an inability to adequately parent, such as substance abuse or driving violations.


A history of affairs or being unfaithful in your marriage can greatly affect whether you end up paying alimony. First, consider that in many states, having an affair constitutes a criminal offense. In Arizona, infidelity is a Class 3 misdemeanor and may lead to up to 30 days in jail and $500 in penalties.

Even in states where affairs aren’t a criminal offense, consider the significant emotional duress it places on the offended spouse. If your ex’s lawyers can prove you had an affair, they can convince the courts you’re at fault for the divorce, which means you’ll end up paying alimony if you make enough money.

Substance Abuse

Demonstrating a history of substance abuse can affect your divorce in several ways, including:

  • Custody: If your substance abuse depicts you as an unfit parent, you could lose some or all of your custody privileges.
  • Alimony: If your ex can prove you spend a considerable amount of money on your addiction, the judge may factor that into alimony payments as recompense.
  • Bargaining power: If substance abuse was a significant factor in ending your marriage, the at-fault party might have a harder time advocating for fair asset division.

Alcohol and illegal substances aren’t the only forms of addictions that can impact your divorce proceedings. An addiction to gambling, adult entertainment, and even video games can not only end your marriage but provide legal grounds showing you’re either at fault for the divorce or should have less custody of your children.

Parental Habits

Many studies have documented the effects of divorce on children, but they often fare better when their parents share custody. A history of bad parental habits can significantly affect the kind of custody arrangement you end up with. Parenting behaviors that can negatively affect your custody agreement include:

  • A record of abuse or addiction
  • A history of leaving town for extended durations, especially without communicating with your spouse
  • Taking your child out of town or state, especially during pending custody agreements, without your partner’s permission
  • Making disparaging comments about the child’s other parents in front of the child


What can be used against you in a divorce? You have two kinds of assets the courts can use to decide how much you should pay (or receive) in alimony and child support.

Marital assets are those you share with your ex, such as your house, a car with both your names on the title, and a shared checking account. In general, a court seeks to divide these assets equitably.

Hidden assets are anything a person purposely hides in an attempt to pay less or receive more. Not only does this constitute fraud in many states, but it can also bias your divorce case against you, and you’ll lose much of your bargaining power.

Protecting Yourself During Divorce

You can take several steps to protect yourself, your assets, and your custody of your children through the divorce process.

Change Phone Plan

If you share a phone plan with your ex, switch to your own account immediately. Sharing can give your former partner access to your communications, which they can then use against you.

Manage Emotions

Even an amicable divorce is stressful and requires processing a complex network of emotions. Without dealing with your feelings, you’re more at risk of lashing out publically against your ex. Seek professional help and support groups to better manage your anger, depression, stress, and more.

Disable Location Sharing

Many partners enable location sharing on their phones in case an emergency comes up and they need help. If you did this during your marriage, make sure you disable it during the divorce so your ex can’t use it against you.

Avoid Social Media

During your divorce, you should avoid social media as much as possible. If you must use it, consider running every post by your lawyer to determine whether your ex could use it against you.

Separate Accounts

You probably share a lot of accounts with your spouse, including email, bank accounts, and more. In general, you should separate your accounts and establish your own. For example, you don’t want financial information sent to your joint email accounts, but you may still share the email for co-parenting purposes.

One exception to this rule is your joint bank account. Don’t separate or restrict access until a judge has divided your assets, as the account legally belongs to both of you.

Protect Accounts

You probably gave your former partner access to certain accounts and your passwords. Change these as soon as you know you’re divorcing to protect your accounts and prevent your spouse from using the information against you.

Talk to an Experienced Divorce Lawyer

Now that you know what can be used against you in a divorce, you can take appropriate steps to protect yourself. From using social media during a divorce to advocating for a fair custody agreement, Lincoln & Wenk can help.

We’re a team of experienced divorce lawyers who know the process and passionately advocate for you. To learn more about how we can help you through your divorce, call 623-294-2464 or fill out the contact form on this page.

Call us at 623-294-2464 or contact us to schedule your consultation today.

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