“What if They Don’t” Clause in Divorce

exEXPERTS transcript: Interview with Tracy Malone

Jessica: Have you ever wondered how things would go if you thought about protecting yourself from divorce when you first got married? Not just a prenup, but what if there was a clause in there around “what if they don’t”? Well, that’s some of what we’re talking about in today’s 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. Check out for tons of free divorce related resources. Let’s bring in today’s guest.


T.H.: Welcome Tracy Malone to our show today. She is a narcissist abuse coach and a divorce coach. Like the two of us, she is a real life expert. She has stepped in the shoes, she has walked the walk, and so she’s coming at this from two sides, which is really why she got into coaching, really focused on abuse and recovery from abuse post divorce. We’re really happy to have you here. This is such an important topic, and so many people are stuck and afraid and self-doubting. We’re hoping you can give us some tips that can pay it forward to other people today. Welcome to our show.


Tracy:  Thank you so much for having me, ladies. I’m so honored to be here.


Jessica: Thanks for being here. Tell us right off the bat your thoughts about protecting yourself when it comes to getting married. I mean, the idea of a prenup in and of itself is such a polarizing concept for so many people, I think particularly younger people, because they feel you’re going into it with this negative attitude. But you have a different take on all of it. Talk to us a little about that.


Tracy: Well, it comes out of all of the clients that I’ve had that are divorcing, that wished that they had some kind of protection. Post separation abuse is real. And so the goal is to make people understand that we can stop some of that before we decide to get the divorce, before it gets into the document. But knowing that you don’t know how your relationship is going to end, or if it will ever end, that fairytale thing, we don’t go into a marriage going, “Hey, let me plan for the inevitable.” It does feel creepy, and it does feel unnatural. But ultimately, I think people have to realize that if we do not think these things through before we get married, that we’re just going to get married and then end up in a puddle of doom trying to figure our way out of it. As much as we can pre-do, or at least in a divorcing situation, put some protections in just in case they don’t do what they are ordered to do.


T.H.: So give us give us a real life example.


Tracy: I went to court, and this is how this was birthed for my book, “Divorcing Your Narcissist”, I went to a trial for a contempt of court with a client. It was about $20,000 in two years since he had not paid. In the divorce decree, it said sell a couple of rental properties and give her 300,000. That was reasonable. But it had been two years. She had spent about $20,000 getting to that day of court where I was sitting with her. When her lawyer got up and they had won, the judge was like, “Pay her in 30 days or you’re going to jail.” It was quite serious. At that point, her lawyer stood up with her big binders of work that they had done to get there and said, “But judge, why should she be paying $20,000 when you ordered him to do this two years ago?” The judge literally put her hands together and said, “I wish I could give you legal fees, but it wasn’t in the first decree.” I went, “You can do that?” I’m poking the lawyer and I’m like, “We’re talking about this afterwards. I want to know what we can do to prevent this. What was that judge talking about?” Basically, it’s protection that if they don’t comply with whatever gets into the decree, then they pay your legal fees. Because I deal with narcissists, so they will always look for the way out. They will always look for a way to take advantage of you. And so if they can take you back to court and delay it for two years, cost you another $20,000, it’s no skin off their back. They don’t care. There’s thousands of these examples, whether it is co-parenting, whether it is paying the money, giving out the retirement money you were ordered to give, whatever it was, those are the things that we want to stop them from having free financial gain by having a clause in the contract like this.


T.H.: So that clause, so you’re thinking about getting a divorce, you go to your lawyer, you say, “This is what I’m going through.” At that point is when you need to have this conversation, that anything that goes through now in front of the judge needs to have this clause in it? Because my ex filed a ton of motions, and I saw every expert, and he actually made me hire more experts than we had motions. That also totally screwed me. But I guess from your first moment of retaining your lawyer, when you first go and you file your complaint, like when does this come into play?


Jessica: Or even to think about if you decide that you’re going to have a prenup, to be thinking outside the box and beyond the standard boilerplate template of how much you’ll get per year, or however prenups are decided based on income or how many years of marriage, even at that point to say—because you’re already writing a prenup to say “If we get divorced…” Maybe it’s in that also, “If we get divorced…and then this…”


Tracy: Yeah. Well, again, we’re talking about two different situations. One situation is we’re getting married, we’re happily blissfully in love, and we’re picking up napkin colors. That’s a different place than, “Oh my God, what will happen to me? Where’s my life going to be? Where will I live? How will I take care of the kids? What’s going on?” We’re totally talking about two separate things. If we could get something like this into a prenup, it’s a beautiful thing. But because you and I are all talking about divorce, it is to put into the decree, like the story that I gave you, that he was ordered to pay her the money and just simply didn’t. But court case, court case, filings, all of those motions cost you money. It is in that that this has the most power for it. It isn’t something that a lawyer actually knows the name “what if they don’t” clause. I did have that lawyer, I paid her to write me said clause and donate it off to the book so that people will know what they can do. Because it goes in very stealthily, right? It’s not glaring to the narcissist, “Oh, you’re going to pay my legal fees if this happens.” It looks very, very neutral.


T.H.: Mild. Yeah. Because I think that in mine was any motions or legal action, unreasonable is the word that they used, I believe, unreasonable terms in court, motions, hiring experts that is just totally out of whack without the goal of resolving this, then he would pay those fees.


Jessica: But who decides what’s reasonable? Who decides?


T.H.: That’s right. That’s what I’m saying. In my case, it was what was reasonable, and then the judge would determine what’s reasonable or not. Here, the way Tracy’s doing it, it’s like it’s there, but it’s not there. It’s like petting the animal very softly. We’re just going to agree to this, okay, instead of saying, “Unreasonable terms, you’re going to pay.” Yeah, it’s a very different tone what you’re suggesting offers than what I did, and I’m pretty sure he didn’t pay.


Tracy: Yeah. Again, it’s all part of the process to get them to do what you need them to do. What you’re talking about is the gray areas of a divorce decree. The “reasonable” word is the gray area. I have a whole chapter on the gray areas of a divorce decree, specifically with narcissists. Because you see black and white, “Well, it says it this is unreasonable. I think it’s unreasonable.” But where’s the line? The gray areas are what we want to cover. But this goes in a place, you know that line that both parties are responsible for their legal fees, blah, blah, blah, normal kind of language that comes out of every lawyer’s mouth. But in the event that either party should not comply with what has been ordered in the rest of this document, they will be responsible for the legal fees of the other party should they have to pursue legal action. If you think about that, that is all the protection you need. You’re not going to have financial abuse. You’re not going to have legal abuse. Well, they’re not going to want to pay both legal fees. The game for them is to take away your money. The game for them is to watch you struggle as you write a $20,000 check to a lawyer for something that made no sense.


Jessica: You could take it even a step further to say that if either party doesn’t comply, then you’re paying the legal fees. But if it has to do with money that was already owed, for example, that 300,000, that also you’d have to pay interest accrued at whatever percent.


T.H.: Right? It’s negligence.


Jessica: You can add on to that clause to make it so that you really are not out of pocket at all. It’s really just a question of in the end to what extent will some people actually take it and not comply. It is shocking to hear of stories of how certain people will really go to the mat to not comply, despite whatever threats are being made to them by judges and—


T.H.: Because nothing ultimately happens. The truth is, if it’s a man or a woman or whatever, and they go to jail, that doesn’t help you, because now they’re not making any money. Now you’re not getting any money.


Jessica: No, but if they are a respected professional, they’re not going to want to go to jail. There does come a point where they won’t want it, I forget what the term is, but pulled out of their paycheck so that their company has to know.


T.H.: Garnishing their wages.


Jessica: Right, garnishing their wages because they’re delinquent in their divorce debt or whatever. There is an element of embarrassment to some extent, where are you would imagine that there comes a point which anyone, including a narcissist, would be like, even for me, that’s a little bit much.


T.H.: I should have done that, to be honest. I don’t think he would have cared because no one would have known except the accountant pulling out the money. 

Let’s talk about post separation abuse, and what can we do to prevent it?


Tracy: Well, the most I see is obviously a clause like the “what if they don’t” clause. You’re protecting yourself legally and financially, right? But that’s to the things that they’re ordered to do. Post separation abuse is also neglectful parenting. It is counter-parenting. It is harassment. It is if you say, “Our kid needs braces,” they say, “They don’t.” That’s the gray area, right? That’s the “I’m sorry you got joint legal custody. I’m going to say no to anything you want because it’s for you.” It doesn’t matter that your kid’s teeth are straight out to the front. It matters to them that you don’t get what you want. And so the more that you can put in, again, if you’ve got children, a parenting plan that is rock solid, no gray areas, stops post separation abuse. If you think about it, if we know what’s going to happen when our kid needs braces, if our kid should need braces, this is what we’re going to do. If you put as much of those details into it, post separation, the abuse can’t really happen because you’ve covered yourself financially and legally, and then you’re covering every situation. So when the kid needs braces, we’ve got a plan for that. When the kid wants to go to international soccer camp, we’ve got a plan for that. We’ve got a budget for that. We know what the rules are, and that stops it. It’s when you are dealing with a person like a narcissist that is going to say no, no, no, to anything that you’re asking for, it makes it really hard because you’re sitting there and your lawyers are writing the motion, “Well, we want to make sure braces are covered,” or whatever the other things that might come up, and people just get defeated from the nos. “I’m not going to do that. No, no, no.” They just go, “Okay, fine, I’ll surrender. I’ll give it back. Just take me out of my misery.” They give up on the most important thing, which is the parenting plan. If you think about how much we each spent on our fricking wedding dresses, or the effort that we put into picking out the ring, or the color of the napkins, and the wine that we drank for that three hours of a celebration, if we put that much effort into planning the next 18 years of our children’s lives beforehand, then you are going to have a post separation situation where there are no gray areas. We know the rules period, right? Even though a narcissist or a normal person is going to fight back on these things, that’s what negotiating is. You put a whole bunch of other things on there, but you really want this nut. Then you give back those things and you sit there and you go like this. Also, by creating a really ironclad parenting plan, if you think about it, you are going to be in a place where there’s nothing left to argue about. That stops the abuse because it’s the unknown factors. If we just keep surrendering, if you think about putting in this whole parenting plan the way you want it, and they’ve rejected everything, and you bring that into the courtroom because they haven’t given a single thing other than they want 90% of the custody and 90% of the money, other than that, they haven’t really put who’s going to pick the camps, the this, the that, they haven’t thought about that stuff. So if your parenting plan presents with really good direction, a judge bases his decisions off of that versus nothing. If you come in there both sides with nothing, and you’re like, “Okay, judge, tell us our parenting plan,” that’s all they’re going to do. They’re not going to think about the “what ifs”. And that’s what you need to do.


T.H.: Honestly, Jessica and I really helped one another with the future planning, because Jessica’s kids were four and two, and I had three kids under eight. My lawyer was talking about college, and my kids were going to sleepaway camp, and I knew other friends whose kids were going on teen tours and getting a car. I was telling Jessica, I’m like, “You need to talk about these things in negotiating your divorce. Because I know your kids only two and four, but who is paying for college for those kids?”


Jessica: Right, things that I never would have considered at that age.


T.H.: Who pays for them to fly home on Christmas break? Then they’re in the house, and what happens to child support when they go to college? Actually, I want to come back to that, but we’re going to take a quick break here. Because we know it’s hard to get honest and reliable information about your divorce, so we’ve done the work for you. Be sure to subscribe to our newsletter to get exEXPERTS in your inbox, join our virtual open house events where you can ask questions to top experts live, and sign up for private sessions with us so we can help you move on. You can sign up and get all of this information at We’ve lived it, so we get it. Now back to our show. I definitely spent a lot of time on our parenting agreement, and I was married to a narcissist. You’re so under the mud and suffocating that you don’t even know what’s good anymore, but there was a change in his employment all of the sudden, and a change in his income all the sudden. I know him. He’s not living himself on that salary. Forget about me and three kids, that’s not the kind of life he wants to live, so I know it was bullshit. Anyway, the way that we negotiated in the end, because he was going to have a big lump sum of money coming in, in a few years when they were selling the company he moved over to, I said, “Well, I’m entitled to that.” The argument was “No, you’re not. We’re not together anymore.” I said, “Then put it on the kids’ names. I don’t want any of it. It’s all for the kids.” That money has paid for three kids in college. There’s money for postgraduate school. There’s money for living in New York City. It took, by the way, four years for my divorce. This was probably year three by the time we got to me being strong enough to recognize, holy crap, this is this is not good, what’s going on here, and more importantly, to figure out how to get it in a way that will work for him, and indirectly give it to the kids. I’m so glad that it worked out that way because it would have been very stressful. But we did consider college, we did negotiate some things for child support to go down, but I’ve got to tell you guys, they’re more expensive in college than they are living at home. Be careful negotiating your child support. 18 years old, they’re not adults, okay? They’re not adults till they can pay for a roof over their head and lah-de-dah. As far as I’m concerned, that’s like 30 years old, okay? But child support is not going to 30.


Jessica: But it sounds, Tracy, to some extent, your book really maybe offers almost a checklist of things for people to be thinking about when it comes to their parenting agreements. It’s always surprised me over the years, when we talk to people, I know T.H. says we helped each other, but really, she was helping me. Because she was a few years older, her kids were a few years older, so she was thinking about things down the line that were not even in the realm or scope of what I was thinking. But over the years as we’ve spoken to people, and it’s like, oh, yeah, their lawyers aren’t suggesting to them. Well, what about if your kids need braces? If you’re Jewish, Bar and Bat Mitzvahs? Or confirmation? Or when they go to college, it’s all just about the room and board, but if you live on the east coast and your kid goes to school in California, who is paying for those round trip plane tickets X number of times a year to get them home? Those were all things that T.H. guided me on, and it almost sounds like now people can get that right from you from your book?


Tracy: Actually, it’s not in the book because it’s all about divorce. But I do have a parenting plan course I’ve been working on for about a year and a half that’s almost done. That’s got hundreds of worksheets and so much material behind it. We talked about the college and you talked about the expensive things that happen, right? I put in there that starting at that college module that I’m doing, it’s not about the tuition and the room and board. When my son went to Washington DC, he had a $4,000 a month rent to be off campus.


T.H.: Food, cleaning supplies…


Tracy: I was like, “What am I going to do?” Yeah, and that’s not covered by some of the loans or some of the college savings we had. It’s about who’s going to take them on college visits, every single detail that you can nail down prior and go, “Okay, well, we’ve got a budget,” or “You’re going to take them to these,” or “Well, we can sign up for this many applications,” or “Here’s our budget to it.” Just think about those things. The more details you can get, all of those things stop post separation abuse because you’ve got the answer, whether it’s something that you’re talking about the financial protection and the legal protection with the “what if they don’t” clause, or whether you start to build in and think about your children’s future as we have discussed today.


Jessica: I feel also just the idea of post separation abuse, we’ve talked about so many kinds of abuse that people can go through when they’re married and when they’re going through divorce, I feel that’s a term that’s not really brought up a lot and not really discussed a lot. We talk about financial abuse and emotional abuse and things like that, but the actual phrase of post separation abuse, I think is, if not new, it’s newish to us and I think to a lot of people that are listening, because it’s everything encompassed combined all into one thing.


Tracy: It’s the gift that keeps on giving, guys. We have all had it. I can’t even tell you how many clients I have that have been divorced already, but either those checks they were supposed to get aren’t coming, or they aren’t being good parents, or they’re not caring about what the children’s needs are. It’s all of those types of things that if we define it and spend, again, as much time as we did picking out our stupid dresses that—what did you do with yours?


T.H.: I did love my dress, by the way.


Tracy: I loved my dress too, and I gave it to Goodwill, and took a picture of going into a dumpster at X many thousands of dollars. But that was the fairy tale. This is our future. We have to spend as much effort as we did if we’re going through a divorce on figuring out these details. Because if we don’t, you’re going to hit a point where, “Oh my god, our kids need braces, what do you think?” “No, I’m not paying.” “Our kids need glasses.” “I’m not paying. It wasn’t in there. It doesn’t say I have to pay that. I only have to give you $300 a month. That’s all. You can make it work.” All of those stupid things that they’re going to complain about it, there’s a plan for it, right? Kids don’t just stay at five years old. As you said, the needs grow. Peewee soccer is not the same cost as travel soccer, and traveling and putting your kid in a hotel every other weekend, right? Those things need to be considered because that’s what a child’s life is. Lawyers, honestly, by the time they’ve gotten to the point of deciding and working on a parenting plan, they just want to do the parenting schedule and maybe one or two clauses. They just don’t have the interest in doing it. And so with my system, it’s going to be something nobody’s ever really seen. The worksheets are about that high. It fills a six inch binder at this point, because we have to think about it. My education module, I was like, okay, it started out six pages in Word, and it ended up being 13 different modules. Because if your kids are in public school, it’s not the same; if you’re homeschooling, it’s not the same; if you’re in military school, it’s not the same. People have to still have rules for what you plan on doing. Do we decide if our kid wants to go to military school? We never talked about that. What do we do now? Think about the future and build your life on that, because that’s how you protect yourself by getting into that decree. Like that judge said, “If it was only in the first decree, I’d love to give you back your money.” Think about that. Get it in there so that you are not like my client sitting there going, “But I paid 20,000!”


T.H.: Right. Also, I want everyone to know, I mean, three of us are quite a ways away from that, from the divorce process, but you really need to have everything set up. This type of safety net that Tracy has created is so important because then your team is gone. I mean, for me, one of the great days was “You’re divorced.” I’m like, “Halle-fucking-lujah. Now what? I can’t call my lawyer anymore. Where’s my accountant? Where’s this person? Where’s that person?” Tracy’s really set up a plan, and like I said, a safety net to hold you, because there are always going to be surprises after your divorce. My ex called me six months later saying, “We can work this out. This will be great. Just give me one more chance.” By the way, he was engaged to somebody before I knew for sure, and then he re-proposed to her, and then called me asking to get back together with him. I was like, “Are you freaking kidding right now?” Right, you can’t make this shit up.


Jessica: We need those buttons.


T.H.: Also, you’re talking about post separation abuse, and you will see things differently as you start to work on yourself. Tracy has helped you remove as much of the surprise element as a person can. Because we know everybody’s situation is unique. You have to think about your own life, what you do, how you do it, all of that. But I still collect child support, and my ex husband will not send it until I send him a reminder that he’s late on child support, for years. He knows I’m not going back to court for it. He waits, and that’s still the same shit because I want the money. But he will not send it. I think he sent it once, and I was like, “Oh my god, he sent it! I don’t have to remind him.” It’s really freaking annoying. But I’m at a certain point where I’ve got like two more years of this. It’s shitty, but it’s not going to change. I’m not going to court. Like I said, remove the surprise, and cover as much as you can. It doesn’t all go away. Me reminding him seems like a trivial thing, but it’s a total power play on his part, still over my life. He’s moved on and has a five year old. What are you doing with me? But this is the problem. Make it so it’s only that one reminder. That doesn’t hurt as much as the other stuff.


Tracy: Right. But if you have someone that has sort of been abusive, I mean, you see how they are in the relationship or in the divorce, if you don’t even want to put the word narc on there, that’s fine. If they’re just not being cooperative, then we can anticipate that they will do exactly what he’s doing with the child support to you. We asked for the family court system to allocate the money. It is a thing that my—


T.H.: Right. So I could have certainly done that.


Tracy: You could have done that. If it’s a deadbeat dad and he’s just not paying what he should, yours is paying you, but just wants a reminder—


T.H.: He’s paid. He just wants me to remind him.


Tracy: He wants to just be a little mosquito—


T.H.: A dig.


Jessica: That’s right, just a little dig. 


Tracy: Yeah, absolutely. But if it had gone through the family court system and he didn’t pay, then he would be jailed, his money was garnished, his taxes would be claimed. No matter what happens, it is a place of empowerment to go, “This might happen. I better ask for that thing.” Why not? It costs you nothing to then go through the family court system. Know who thy enemy is and what they’re capable of doing, so that you can anticipate post divorce stuff like you’re talking about, and take care of that so that it doesn’t happen.


Jessica: Yeah, I mean, this is an ongoing conversation because, first of all, particularly when your course comes out, I mean, the idea of there being something that exists out there for people to reference to know that they’re covering everything in their parenting agreement to be protected for the future, for years out, is totally crucial. Thank you so much for coming on and sharing all of this with us. For everyone listening, if you got as much out of this episode of the Divorce etc… podcast with the exEXPERTS as we did today, then can you help us out? When you subscribe, rate, and review our Divorce etc… podcast, 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 Tracy Malone and her book and her upcoming course. And of course, share this with anyone you know who can benefit from listening. Have a great day.

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