Pros & Cons of a Stealth Divorce

Katie Holmes and Tom Cruise

You don’t have to be a TomKat fan to remember their famous split: Katie Holmes used a disposable cellphone to talk secretly to her lawyers, and filed for divorce in Manhattan while Tom Cruise was on location in Iceland.

Is this the way to go? In most cases, I advise against secrecy—although in some cases a stealth divorce is essential (more on that in a minute).

First let’s discuss the need to be candid. There are three main reasons to let your spouse know you want a divorce.

It shows respect
. Would you want to be blindsided?

You set the tone
. Discussing divorce ahead of time sends a message that you want to approach the end of your marriage as civilized adults with a mutual problem to solve, rather than as enemies in a war.

You avoid the possibly nasty fallout from a surprise
: e.g. shocking your spouse could trigger an explosion at worst—ill will at best.

Here’s a true story: My husband had a colleague who came home from work one night to find all his furniture gone, and a note from his wife saying she had moved out and filed for divorce. He was devastated, clueless —he had no idea anything was wrong in his marriage—and later, really angry.  

I don’t know why she did it this way, given the incredible pain she must have known it would cause.  And, predictably, the fallout was huge; any generosity of spirit he might have shown toward her in the settlement negotiations was obliterated by the way she chose to start the divorce.

Perhaps she felt she had no other choice.  But if you have the option, choose the respectful route: talk to your spouse, as difficult as that may be; let him know that you have decided to file for divorce; and give him the heads up as to when and how he’s going to receive the papers. 

There are, of course, important exceptions.  If you’re afraid that if you discussed divorce with your spouse up front that you’d suffer physical, emotional, or financial consequences, then you might decide it’s necessary to take your cue from Katie Holmes and proceed in secret.

If that’s the case, and secrecy is best, here’s how to lay your plans without sacrificing self-protection. 

1. Consult and retain a good divorce lawyer first, using funds that your spouse can’t trace to you (cash from a separate account, a credit card in your name only, a loan from parents or friends). 

2. If your fear is physical and/or emotional abuse, make sure you (and your children) have a safe place to stay before the complaint is served. 

3. If your fear is financial, i.e. that your spouse will empty joint accounts and shut down credit cards, make a plan with your lawyer to address this. You might have to deposit funds in a separate account and get a credit card in your name prior to filing.   

The timing here is a delicate issue; you don’t want to tip your hand, but you will need to secure your assets. 

 Margaret Klaw is a founding partner with Berner Klaw & Watson in Philadelphia. She blogs at Family Law Unraveled.

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