DIVORCE ETC... THE PODCAST – SEASON 3, EPISODE 31

FULL TRANSCRIPT: WHAT CAN YOU SAY DURING DIVORCE

(WITHOUT GETTING TROUBLE)?

Jessica: Are you concerned about how to be careful with your communications during the divorce process, like what kind of things are discoverable: texts or emails? Plus, if you share apps across platforms with your kids, how to make sure they don’t see things they aren’t meant to see? Well, those are the things we’re talking about in today’s episode of the Divorce etc… podcast. We’re the exEXPERTS, Jessica and T.H. We focus on helping you navigate your divorce and successfully move on with your life. Please follow us on all social media at exEXPERTS, and check out www.exexperts.com  for tons of free divorce related resources. Let’s bring in today’s guest.

T.H.: So we met Seth… I feel like this is a dating story. Met Seth through a friend—

Seth: Okay, you tell your view, and then I’ll tell my story, and see if they match.

T.H.: All right. Who hooked up us through email, Michelle Dempsey, one of our faves for our exEXPERTS. We’re thrilled to have Seth Nelson here. He is a family law attorney in Florida. He is the founder of NLG Law Firm. So many times that I’ve spoken to Seth, I was like “I wish you were my lawyer. I wish you were my lawyer.” I mean, he’s very straightforward. He’s very transparent. You may not like everything he’s going to say, but he’ll deliver it in a very honest and somewhat empathetic manner. It’s up to you to absorb it. Welcome to our show on Divorce etc…

Seth: I am so excited to be here.

Jessica: I want to also say he also has a fantastic and hilarious podcast called How To Split a Toaster, which we were fortunate enough to be guests on fairly recently. So definitely check that out as well.

Seth: Well, thanks for having me. You guys were amazing guests. You guys do amazing work, and you’re helping people all over the nation and the globe. So I’m really honored to be here.

Jessica: Thank you, thank you. So look, we decided on the topic for today’s podcast based specifically on feedback that we get from people in the Divorce etc… and exEXPERTS community. We had spoken many moons ago in one of our first episodes in season one about how to manage social media when you’re getting divorced, and do’s and don’ts and that kind of thing. But the idea of the types of communications that you have or have had with your soon-to-be ex and what might be admissible and what can be used and all that stuff really isn’t something that we’ve tackled. Where do you even start when it comes to helping people understand maybe the right way to communicate, which may be a change from what they’ve already been doing?

Seth: 100% a great question. I love that we are going to go a different direction today, and you said, wait, my listeners, our listeners have this question, and we want to be answering questions in real time. Because this can be a big problem, and there’s easy solutions to this problem. Here’s the problem, anything you say to anybody during your divorce, anything not to your lawyer but to anyone else, anything you text to anybody regarding your divorce, obviously anything you text to your spouse, is all ripe to be used against you in a court of law.

Jessica: Even text messages. Because that used to not necessarily be. 

Seth: Even text messages. I always say on How To Split a Toaster, check your local jurisdiction, check with your local lawyer. In Florida, these are in court all the time, and there are a couple problems with them. One, it costs a lot of money to have lawyers and paralegals get the text messages and read them all.

Jessica: Right.

T.H.: Right.

Seth: Save some money. Stop texting, right?

Jessica: You’re not going to stop texting to all of your friends?

Seth: Not to all of your friends.

T.H.: No, stop texting to your soon-to-be ex, which I say all the time.

Seth: There is no reason to text all your friends about your divorce.

T.H.: Yeah.

Seth: That is the problem. You can text them about anything else, but not about your divorce.

Jessica: I’m curious, what type of a text? If I’m texting T.H., and I’m saying, “Oh my god, he’s being such a pain in the ass,” because he’s pushing for whatever, the Wednesday night dinners, how is that going to be used against me? Why is it not okay for me to be venting to someone about the process?  

Seth: That exact text happens all the time, and here’s the problem. When I review that, and I’m going to play the role of your ex husband or soon-to-be ex husband’s attorney, I get to know the date and time that you sent that text. What happens if you’re with the kids? It’s your weekend with the kids, and you’re spending your time, Jessica, when you’re focused on your kids and you’re battling for your kids, and instead, you’re texting T.H. about what an asshole he is about every other Wednesday?

Jessica: Yeah, because my daughter’s napping and my son is at his soccer game.

Seth: That’s right. That’s exactly right. But now you have to start answering these types of questions: “Where were you?” You’ve got to defend where you were. That’s exactly what you just fell into.

Jessica: It’s like your alibi.

Seth: Exactly, and your alibi is not good because you’re saying your kid was napping. Who’s going to testify to that? Just you. But now we’ve got you in a defensive position on one question, right? One question. And people aren’t always going to be doing it when one kid’s at soccer and the other child’s napping. They’re going to be doing it during soccer practice, which then I get to say, “You’re fighting for all this time, but you’re on your phone. Don’t you think you should have quality time and not quantity time?”

T.H.: Oh, my god, this is like bringing back demons for me.

Seth: That’s right. It sounds petty.

Jessica: It’s very petty.

T.H.: It’s very real.

Seth: It sounds petty, and it sounds real. Now let’s switch to the substance of your conversation. So my point on this is all electronics are monitored. We can look at them and we can see where you are, who was around you, what you were doing. Location, we can get cell towers. We can triangulate it. I mean, there’s a lot you can do. So don’t give them that information. You’re just giving it to him. You’re just giving me fodder. Now, I don’t use a lot of them, and I’ll tell you why in a minute, but let’s start with not been able to because you don’t text. Now, the substance of what you said, “He’s fighting for Wednesdays overnight. What an asshole,” okay, it just puts you in a bad light. Because then I get to say in your deposition or elsewhere, “How many people have you talked to you about your case?” Every single person you’ve texted or listed, I can now go after. So every friend you text about your case, I can now depose. I can get their records back and forth from you to see what you’re saying. Do you really want to put your friends in that position?

Jessica: No, of course not.

T.H.: I honestly am so grateful that we got divorced when we did because this would have been my life. If there was identity theft, and locations, and tracking, and cell phones, and all that stuff back in 2008-2012, I would have been living this. That’s why I’m saying you’re making me a little sick in my stomach because that would have been me. That’s exactly why we created exEXPERTS and we’re interviewing you today because you don’t even understand the magnitude, everybody. Don’t Google stuff, don’t get suckered into stuff, don’t believe if your friend starts egging you on. Your ex could say, “Find out for me. We’re still friends here.” It’s really shitty. It’s really shitty, but keep it tight. Keep it close.

Seth: That’s 100% correct.

T.H.: I mean, and also, look, it’s hard, and you want to talk to people about it, but really keep it close, because you don’t want it to come back and hurt you. You don’t want to pay for it.

Seth: You don’t want to pay for it.

T.H.: You have to listen to us.

Seth: Here’s the other thing T.H., is that it’s out of context.

T.H.: Right.

Seth: And they don’t necessarily line up. He sends you an email, you respond with a text. He messages you on one of the apps like OurFamilyWizard or Talking Parents, and the lawyer and the paralegal have to put it all together. But when you’re in court and in a depo, you’re only getting one maybe of those communications.

Jessica: So what is the safest right way to have communications a) with your divorce team, your lawyers etc., b) your soon-to-be ex, and c) your friends and family support system. Because it sounds like it might be different ways of communicating. 

Seth: It’s 100% different. First off, you can communicate with your lawyer any way that works for you and works for them. So by way of example, we have a program that in your portal, in your case, you can send me a message, and I get an alert. Then it’s all captured in your file. We have a way of identifying that and labeling it so we can get back to it if it’s important, or I copy it and I put it in notes. So we can be streamlined with all the information we’re getting.

Jessica: You’re so tech savvy.

Seth: Well, thank you.

T.H.: It’s fabulous.

Jessica: You’re at the forefront.

T.H.: It’s fabulous. I pay people to do all this.

Seth: Right, right, it makes a big difference in how people communicate. Now, some people want to talk to me on the phone. They’ll text me through the app. Okay, I’ll call them. Some people want an email, and I’ll try to get them to use our program, because it’s just more efficient and it saves them time and money. So that’s one on the lawyer, that’s easy. Okay. Your friends, talk to them. Don’t put in text that you’re bitching about them, about the ex. What you can do is say stuff like, “I know we both love the children sometimes,” and “I’m really struggling. I’m trying to do my best co-parenting.” That’s all about you. You said something positive about your ex, right? I appreciate that people can have different points of view. It’s just one of those deals where everybody can, if you have to say something, the best thing is don’t text your friends about it. Do not mention them. But if you’re going to, then you really need to think of a judge is going to read this.

Jessica: You just have to assume, as often is the case in a job, you have to assume that everything that you put in writing could end up back to that person.

Seth: And the problem with that is 100% correct, but there’s been studies when people put up cameras in their offices and people know that people are watching, for the first week, they’re all very—

Jessica: Then they forget.

Seth: And then they just go back to being who they are. So that’s the problem. I tell people a judge is going to read it, they always forget, or they’re so upset in the moment. Okay.

Jessica: Yeah, it’s not at the forefront of their mind.

T.H.: I mean you and I spoke on the phone, Jessica. We weren’t texting back then. We definitely were hashing it out on the phone or in person.

Jessica: We were, but I feel like we had almost special circumstances. There were probably other friends of yours that you were communicating about it and were really more texting or emailing about it. You and I, I think, were talking more on the phone because it was also like—

T.H.: “What’d you do today? What’d you find out?”

Jessica: Exactly. “Hey, listen, my lawyer told me this today.”

T.H.: Right.

Seth: Right.

Jessica: And I feel like also just back in that day, I don’t know that texting was like—

T.H.: Now.

Jessica: We were texting, but it just wasn’t what texting is today.

T.H.: I think we had a BlackBerry.

Seth: Right. That they used to call Crackberry.

T.H.: I definitely did have a BlackBerry because the judge called me out on it. So I definitely had a BlackBerry.

Seth: Okay, but Jessica, you also said, how do you communicate with your ex? 

Jessica: Yes. What’s the best way?

Seth: BIFF. B-I-F-F. You’re brief, you’re informative, you’re friendly, and you’re firm. That’s it.  

Jessica: Right, because I think we should clarify. The context of where you might be worried about this kind of thing is presumably in a divorce that’s more acrimonious, that’s more litigious. If you’re going through a very easy collaborative divorce, you may not have the same issues or same concerns because—

T.H.: I don’t know…

Jessica: I don’t feel like I had concerns about that sort of stuff. But when you’re talking about brief, informative, friendly, and firm, to me, that’s a different—

T.H.: That’s me.

Jessica: Yeah, that’s a different type of divorce. And look—

T.H.: But I feel like you need to be careful anyway. I feel like you need to be careful anyway. Someone can turn on a dime. You’re very fortunate. But he could come back and be like, “You know what? I heard something, and they’re right, and you’re wrong, and we’re going back to those lawyers that made you pissed off.”

Seth: But I think, Jessica, that what you’re saying, and what T.H. is saying are actually more similar than you think, and here’s why. On the friendly part, you can go on and on. There are spots within there, even though I say brief. Okay, so hit me with anything that your ex might have said to you. Give me a hypothetical, and I’ll tell you the response.

Jessica: All right.

Seth: Give me one, T.H. You got one?

T.H.: “We have a birthday party this weekend, and you did not send along a gift. I don’t have all of the information about where it is, and now he’s not going to the party.”

Seth: Okay, so this is what I’m assuming in this. It’s another child’s birthday party, and he’s now complaining that you didn’t give him all the information. Obviously, he thinks that’s your responsibility, and he couldn’t ask the other parent directly.

T.H.: Correct.

Seth: But he obviously knows about the party, right?

T.H.: Right.

Seth: And he’s not going, which means it’s still in the future. That’s what I’ve gotten out of what you’ve just said to me. Here it is. “I’m sorry there’s been a miscommunication. The party is on this date and time.” I’m assuming you have this information, right? So we’ve been brief so far, we’ve been informative, we’ve been friendly already: “I’m sorry,” and firm: “I hope that he’ll be able to make it,” right? Then sometimes what I would do if I’ve been working with my client, the next thing they say is, and let’s say you know that he really wanted to go or something like that, you say, “If he really wants to go and it won’t work this weekend, I suggest that you have him reach out to the friend and ask if he can set up a sleepover, and they can celebrate the birthday, just the two of them.”

T.H.: Okay, so this is how this would have been translated into my ex husband’s brain, okay? I never say I’m sorry unless I actually did something wrong. So I would never actually start something with “I’m sorry”. I would say, “Here’s the parent’s phone number for further information. Reach out to the parent.” But as soon as I say, “But I suggest…” he’s gone. He’s not interested in my advice, my guidance, my thoughts, my anything. But if I’m putting that in there as a matter of record to show good faith, that’s different. But for someone like me, from the marriage I was in, those are hard pills to swallow, to say I’m sorry for something—

Jessica: But you’re not apologizing for the kid not going to the party. He’s just saying, “I’m sorry there was a miscommunication.”

T.H.: I know, but I’m sorry for mis—there must be a miscommunication, and I’d leave the word “sorry” out.

Jessica: Right.

Seth: Which is fine.

T.H.: But listen, different strokes for different folks.

Jessica: That’s fair.

Seth: That’s right. That’s right.

T.H.: Is putting that in there really more—should you just do it for a matter of record, and then still on the side be like, no fucking way am I doing any of that stuff?

Seth: I think you got to do what your gut tells you. Because in a depo, I always like this example as a depo, is “T.H., were you really sorry?” “Nope” You’re not going to lie about it. So if it just goes against your core, I never tell anybody to go against their core. I train them and teach them how to save money, how to communicate more effectively. All you can control, T.H., is what you send. You cannot control the listener. So before this show, we were talking about how my son likes to write comedy. I explained to him that in comedy, some comedians quite frequently have to say, “I’m just joking. This is a joke. And I think the joke is hilarious.” Somebody sitting next to me could be offended by the joke.

T.H.: Totally. I know. They have to do that now.

Seth: It’s all about how the listener perceives the joke. The same joke, the same situation, we’re sitting at a comedy club. It’s exactly the same. The only thing different is the views of the listener.

T.H.: Totally.

Seth: And that’s all you can control is what you say, not how it’s received by them. But we can certainly do a better job in making it more acceptable to how the judge is going to receive that.

T.H.: Right, right. We’re just going to take a quick break here. Because we know it’s hard to get honest and reliable information about your divorce and life in general, so we’ve done the work for you by creating exEXPERTS and the Divorce etc… podcast. Jess and I had one another to ask all of the questions and figure out the answers as best we could. We are your no BS, no nonsense girlfriends through divorce and beyond. Ask us anything about post divorce life and all that comes with it. Be sure to subscribe to our weekly newsletter to get exEXPERTS in your inbox. You can get all of this information at www.exexperts.com. We’ve lived it, so we get it. So go ahead, Jess.

Jessica: No, so I was just going to say, this has all been like great information. Let’s just pivot a tiny bit because one of the questions that we had gotten, which happens often with parents who have children that are younger ages, and the parents are sharing apps across screens, like the kids’ apps are on the parent’s iPad, and they can control stuff on their phone and whatever, and so messages can get crossed on different things. What are your suggestions in terms of how to help parents prevent things that they wouldn’t want their kids to see if that’s their situation, that they’re sharing things? So, what are the types of communication or apps that they should be using, that you would recommend, to avoid that from happening?

Seth: Stop Sharing.

T.H.: Yeah.

Seth: It’s that simple.

Jessica: Okay.

Seth: It’s that simple. Literally, there’s no difference in my mind on whether you give your kid your phone to play with or another electronic device to play with. When they’re really little, it’s dad has two phones: one of them you’re allowed to play on, one you’re not. That kid does not know that you don’t make calls from that and you don’t have any other apps on that. It’s just the screen you’re giving them. People are going to say, “Oh, my god, that’s so expensive. I have to get another plan.” Absolutely, you’re 100% correct. It’s cheaper than calling me and have to defend that when it comes across my desk. What people lose sight of, and this all goes to communication, is everything you potentially do can increase the cost of your case. So if you just get a different device, that is going to potentially save you money because you don’t accidentally share X, Y and Z, that either 1) kids aren’t supposed to be seeing, or 2) you don’t want your former spouse to see.

Jessica: Right.

T.H.: Right. That’s brilliant. The simplest idea, sometimes you’re like, mind blowing. How come I didn’t think of that? Because your brain is so cluttered with so much other stuff. But seriously, if you think about like $50 a month for another phone for your kid to play on, big deal compared to $500 an hour to figure out all this mess.

Jessica: For sure. So talk to us then about apps that you love for parents to use when it comes to smoother communications with their ex. I mean, we’ve done some episodes on parenting apps, co-parenting apps and that kind of thing. But from your perspective—

T.H.: Right, from a legal perspective.

Jessica: —and you’re looking at it, what do you love, and why?

Seth: I think that there are a lot of good apps out there. It’s less about the app as it is how people use it. It’s more about if you have an agreement, what it says on when you’re supposed to check in and when you’re supposed to respond. If you don’t have an agreement, how you do that. Because it doesn’t matter which app, what people use the apps for is to try to communicate with each other. So I’m going to backup. You get your app on your phone. Jessica, pop quiz: why do you have a phone?

Jessica: Oh, I feel like you gave us this pop quiz on your podcast, and now I forget the answer. Because I can?

Seth: Okay, true. But that’s not the right answer. T.H., why do you have a phone?

T.H.: Because it’s easy?

Seth: True. But that’s not the answer. We all have a phone for one reason, for your own convenience. I have a phone because it’s convenient for me.

Jessica: My answer was right. I said because I want one.

T.H.: Mine was kind of right.

Seth: Close enough. Okay, solid B. Solid B.

T.H.: We got half points, half points.

Seth: Okay. It is not a window to allow your ex to blow you up, to totally control your day, and push your buttons. So it’s not about the app. It’s not about the device. It’s how you use it. Every night after the kids go to bed, you’re going to check your app, and you’re going to respond accordingly to anything that might have come through.

Jessica: So just as an overall, you’re encouraging an app as the sole source of communication with someone’s ex—

Seth: In a high-conflict case. 100%.

Jessica: Because that way, like you said, you don’t even have to look at it until you’re in the right frame of mind and you’re not being bombarded with it or caught off guard at inopportune moments.

Seth: And everyone’s like, “But it’s on my phone. It’s going to ding at me.” Turn off notifications.

T.H.: Right. I definitely had harassment for at least a month, 30, 40 text messages a day of all the things I’d done wrong. Then I brought it to my lawyer, who then spent time going through all of that. Then we were going to have to file a restraining order to communicate. Because there were no co-parenting apps back then. We would have 100% used a co-parenting app.

Seth: So here’s what I would have advised you to do: get a different number and start giving it out to only other people. Because then you’re carrying around two phones, or you leave it at home, okay, boom, I’ll check on it later. You’re not out there talking with Jessica, not about your divorce, that the kids did something amazing. You’re having a great conversation. Ding, you look at it, you’re in a different frame of mind.

T.H.: Right, and chirping. Yes.

Jessica: Right, it totally deflates you and knocks the wind out of—

T.H.: I think those co-parenting apps are so great because I know that that’s definitely a tool that I would have used it. It would have kept me safe. I would have felt like, okay, what’s going in here I know is going to be seen. Someone’s going to have my back because I am keeping track of the dates, and the expenses, and the time, and the pickup, and that birthday party was on the app. Like, this isn’t my gig. This is your weekend.

Seth: That’s right. That’s right. It’s all in there. When you use an app, it solves a lot of those problems. What I mean by solves, it means they just look stupid when they say, “Why didn’t you tell me?”

Jessica: Right, because it’s literally all there.

Seth: Exactly.

T.H.: Right, and can that be required by the court?

Seth: Yeah.

Jessica: The co-parenting app?

Seth: Yes. 

T.H.: Yeah, that you use a co-parenting app.

Seth: I have it in a lot of my agreements. I’ve had a lot ordered in trial. That’s now to the specificity of how it’s going to be used. By way of example, each parent will check the app one time a day between 8pm and 9pm. You will respond accordingly to any questions or any issues regarding the children. Both parents are prohibited from doing any messages that does not directly relate to the children.

T.H.: I would have loved to have that. I needed that kind of real structure and boundaries in place because it was a free for all. Now, look, this is parenting plan post divorce. What about the pendente lite time? Can that be required while you’re figuring out your shit before your divorce is done?

Seth: Yeah, I’ve done it in temporary agreements. I’ve gone to court and gotten an order: “Judge, this is how they need to communicate.”

T.H.: Yeah. Because that breaks everything down. I know you wrote for your page “no parenting plan,” and I was like, gasp, I could never survive without a parenting plan. But every relationship is different. Every situation is different. I lived by the letter of the parenting plan.

Seth: Right. Because in that horrible relationship you were in, you had to set boundaries. That boundary was called your parenting plan. You were going to live and die by what it said on that piece of paper, because that’s what kept you safe. 

T.H.: Right.

Seth: 100%. My parenting plan which I’ve had since my child was two and a half years old, within three months or so, it wasn’t working. We changed it. We didn’t tell anyone. We didn’t call the lawyers. At the time, I wasn’t a divorce attorney. We didn’t call the lawyers. We didn’t call the judge. We didn’t do anything. We changed it. Then years later, the pandemic hits, we changed it again. We changed it throughout on holidays. We always switched it. We were flexible. Now for a period of time, T.H., we did stick by the letter. I think that was healthy for both of us because I think we both needed to set those boundaries and parameters. I think it was healthy for my child to know that this day is going to Dad’s and this day is going to Mom’s. Ultimately, that became more flexible.

Jessica: Right, as it often does.

Seth: Hopefully.

T.H.: You should finish what you were going to say.

Seth: I was just going to say that last thing is that hopefully, this is the way it could go. But if you need that protection and those boundaries, that’s why the plan’s there. You don’t have to change it.

T.H.: Right. I was going to say, like coming off of my weekend of graduation and other stuff that I’ve heard is going on, even many years later, shit comes up. There’s a big wedding, or there’s an occasion, or there’s whatever. How would you rate what you need based on your level of communication? We did not communicate. Our lawyers communicated on our behalf, and then I funneled everything through her that came my way. Then Jessica and Daren were fully able to talk. Where’s that line in the sand, because communication is so important. Then like you said, you get comfortable. All these years, everything’s been great, and then it breaks down. Something happens, and it breaks down.

Seth: T.H., to talk about communication, we have to understand that there’s more than one conversation happening in divorce. There’s the communication that the parties are talking to each other.

T.H.: Between each other.

Seth: Their lawyer may or may not know about it. I’ve had clients that were still sleeping together.

T.H.: Yeah, I know some of those people too.

Jessica: We’ve heard those stories.

Seth: Okay, so we have that. Then we have the communication that we touched on a little bit between the client and the lawyer. There’s communications between the lawyers. Then there’s the formal communication that is from the parties, individually to the court. And so that’s what pisses people off. “I can’t believe that your lawyer just asked me to pay your attorney’s fees.” And I tell my client everybody puts that in their petition, because if you don’t ask for it properly, you’re not getting it. Even if you ask for it properly, you may or may not get it. Here’s my example. We’ve all taken children to a candy store. We never say, “As much as you want, take it all.” What we say is, “What would you like?” And they say, “I’ve eaten all my vegetables. I brushed my teeth. I’ve cleaned my room. I took the dog for a walk. May I please have one piece of candy of each kind?” We’ll say, “That was so well thought out, and the answer’s no. You can have three pieces of candy. One you can eat now, and one you can save for after dinner, and one you can get later.” But if the child doesn’t ask, they’re not getting it. It’s the same with that conversation with the court. So when you talk about conversations, I’m always trying to define with my client which conversations are we talking about. Because the way we communicate is vastly different.

Jessica: Well, but that makes me wonder, and this is pulling way back to the beginning of our interview talking about what kind of communications can be discoverable and used, you’re talking about protecting things. What if I’ve journaled for the last five years and have things that I’ve written—

Seth: Discoverable.

T.H.: It is discoverable. I had to give my journal. 

Jessica: It is discoverable, like my personal journal?

Seth: Yep.

T.H.: I had to give my journal.

Jessica: You did have to?

T.H.: Yep. I actually forgot I even had one.

Jessica: So is there anything that’s not admissible for the other side?

Seth: Okay, so discoverable and admissible are two different terms. Let’s break that down quickly.

Jessica: Okay.

T.H.: Yeah.

Seth: Discoverable is out of court. It’s much broader. Check your local jurisdiction, but it’s anything that has the likelihood to lead to the discoverability of admissible evidence. That is a legal term that goes on forever, and it’s very broad. But here’s the thing, I ask you, “Jessica, do you ever journal?” “Yes.” That’s discoverable because there’s something in that journal that might lead me, after I read all those personal thoughts, to something else that I’m allowed to bring into court. When you bring it into court, that’s where we talk about admissible.

Jessica: So you can’t bring my journal into court—

Seth: I can. The journal could say, “I am really struggling with my drug addiction.” That’s relevant. That is relevant. If you’ve got kids, that’s relevant.

Jessica: All right. So just for everyone listening, this is a really important—

T.H.: Oh, my god, this is so upsetting.

Jessica: This is a really important, yes, and upsetting piece of information to know. Your personal journal, while you are thinking about the divorce process, going through the divorce process, is not yours and yours alone. You actually have to be careful about the things that you put down in writing, even in your personal private diaries, because that can be used against you.

T.H.: What about—

Seth: So the lawyer gets it. Go ahead, T.H. No, go ahead.

T.H.: What about what you say to your therapist?

Seth: Okay, a perfect example. Now we’re going to go from discoverable to admissible. Here’s the deal, what you say to your therapist—now this is your personal therapist that you’re using for mental health—that is protected under the therapist-client privilege. The same as what you say to your lawyer—attorney-client privilege—that is protected. If you’re talking to a guardian ad litem, if you’re talking to someone who’s been hired to do a psych eval on you, or do a custody evaluation, that’s not protected, because that’s for litigation purposes. But your personal therapist is protected.

T.H.: So that’s where you should put it with it, with your therapist.

Jessica: Right, but you don’t have your therapist at night before you go to bed. If you want to write something down, it’s scary.

Seth: Right, so we’re in court now. We’re in court, because we got to get that word “admissible” resolved here. I want you to think of this. The judge is only allowed to look at what’s on the movie screen. There are different rules, as we know, on what goes on a movie screen. If it’s a G-rated movie, that’s different than an R-rated movie. Those rules on what gets on the movie screen are called the rules of evidence, okay? To get on the movie screen, it has to be relevant, it has to be admissible, and it has to be authentic. It’s a three legged stool. If any one of those is missing, it falls. It’s not in. So to T.H.’s point, she goes to the therapist, talks about the kids and how she parents, it’s certainly relevant how she parents if we’re having a child custody dispute. We’re fighting over kids. It’s her own words. That’s going to be authentic, okay? It’s not admissible because of the privilege. Now, they might say, “T.H., when was the first time you had sex?” “Objection: relevance, Judge. What does it matter in this case when the first time T.H. had sex? I can tell you she had sex at least a specific number of times, because they have that many kids. Other than that, it’s not relevant, Judge.” So there’s stuff like that. Now, authentic, is the document—it’s usually a document or video or a picture—is it what it says it is or what we assume it to be? I have cases where someone says, “That is my signature. But I didn’t sign that document.” So that document might not be authentic. A bank statement might not be authentic. It could be forged. It could be altered. So those are the three legs to the stool: relevant, admissible, and authentic. But discovery, I’m getting your journal, Jessica. I hate to break it to you.

Jessica: I mean, seriously, that’s so fucked up. I can’t even. I literally can’t even. We’re going to have to continue this conversation because I feel like there’s still so much more, and we’ve gone so long. But for everyone listening, every single point that we have talked about in this episode today of the Divorce etc… podcast is so important and relevant, particularly if you are in a situation where you are going to be going through some kind of high conflict or litigious divorce. I mean, you have to be able to protect yourself. Don’t be an idiot. Don’t think that these things won’t happen to you. Those are the stories that you hear of other people’s situations. And it’s so crucial to understand what you’re dealing with and to have someone like Seth. If you’re not in Tampa, you need someone else like Seth, who knows these things and can really help walk you through it in order to protect yourself. Because these are the things that get people into trouble, or get them into a situation where they don’t end up where they want to be with regards to the settlement of their divorce. Don’t be an idiot. That’s really what it comes down to. Don’t be an idiot.

T.H.: I already know the topic of our next podcast because it’s going to be—yeah, it just—yeah, okay, good. But this was so great. I mean, guys, Seth is so terrific. You have to follow his podcast, How To Split a Toaster. I just love the name anyway.

Jessica: First, check out the episode that we were on.

Seth: Yeah, absolutely. Highest downloads ever.

T.H.: We’ll lead you to all the right places. We’ll take you to our episode, we’ll take you to his, and then we’ll share and share alike. Thank you so much Seth for joining us, for sharing this crucial information. It doesn’t mean don’t journal, everybody. Because you all need a place to go, but we are also huge supporters of you really need a really excellent therapist anyway at the very beginning. Because Jessica and I are an exceptional situation; we’re like the 1%, if it’s even 1%. Just make sure you have the right support, and watch your back, and don’t be naive. I’m sure you’re not an idiot. Don’t be naive, don’t be suckered in. If you’ve been in an emotionally abusive marriage, really work with a therapist to understand your triggers and stuff, because you’re going to get suckered in to say things and do things that you’re not going to want to. So that’s what the next episode is going to be about.

Jessica: Yeah. Thank you again Seth so much for your time. For everyone listening, if you enjoyed this episode of the Divorce etc… podcast with the exEXPERTS today, then please help us out. Because when you subscribe, rate, and review, it helps us get the word out so we can support more people like you going through divorce and beyond. Check the show notes for more info on Seth, his practice, and his podcast. And of course, share this with anyone you know who can benefit from listening. Have a good day.

Seth: Jessica and T.H., thanks for having me. You guys are awesome.

T.H.: A pleasure.

Jessica: Thanks Seth.