What Everyone Should Know Before Ending a Marriage: We're Talking Divorce withJames Sexton

Divorce lawyer James Sexton breaks down what divorce really means, what you need to know before leaving a marriage, and why the smartest decisions are often made long before the legal paperwork begins. James explains how divorce works, what happens when a marriage is legally terminated, and the key questions people should consider before starting the process. From dividing assets to preparing for what comes next, this episode offers clear guidance for anyone considering divorce or trying to understand it. We're Talking Divorce (00:00) Intro (00:30) James' Definition of Divorce (02:28) What to Do if You're Unhappy in Your Marriage (07:40) When Should You Speak to a Divorce Lawyer? (12:04) Three Things to Know Before Getting Married (14:46) The Number One Cause of Divorce (19:42) The Future of Marriage and Divorce Rates Learn more about your ad choices. Visit megaphone.fm/adchoices

• 0:00Speaker 00

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• 0:30Speaker 01

  Welcome to We're Talking. In this episode, I sit down with divorce lawyer James Sexton to unpack what divorce really means, what people should know before they leave a marriage, and why the smartest decisions often happen long before the paperwork begins.

• 1:00Speaker 01

  What is divorce exactly? Does it mean, is it the division of assets? Is it like technically?

• 1:08Speaker 02

  I mean divorce is technically the termination legally of the marital relationship.

• 1:12Speaker 01

  The termination?

• 1:13Speaker 02

  Yeah, the termination of the marital, the undoing of the marital relationship. So it is the termination. Now, what does that usually entail? It usually entails deciding custody and access with children, like who's going to have the kids and when if there are children. Then support, which is child support, which is how are we going to pay the expenses related to our children? And spousal support, or alimony, or maintenance, every state calls it something different. And then the third piece of what a divorce is, is what we call equitable distribution, which is the division of assets, figuring out who has what and how we're going to divide it. And a lot of like horse trading is what lawyers do. So we'll say like, all right, you keep your 401K and I'll keep the house. And that's a lot of what lawyers do.

• 1:54Speaker 02

  So it's basically just the untying of the knot, the unwinding of all the things that happened legally when we got married.

• 2:01Speaker 01

  Okay. So now you mentioned your book. I read your book. It was phenomenal. So this is How Not to F Up Your Marriage.

• 2:08Speaker 02

  Exactly.

• 2:08Speaker 01

  Right? Which just came out 2025.

• 2:10Speaker 02

  Yep.

• 2:11Speaker 01

  And in it, there was something that you mentioned that I want to look at is, so as a divorce attorney, your clients are telling you things that they don't even tell their therapists.

• 2:23Speaker 02

  100%. Well, there's no, you know, the two people in your life you should just absolutely never lie to are your lawyer and your doctor. Because our only job is to protect you. Everything you tell us is confidential, and that confidentiality even survives your death. So like, if your client tells you a secret, when they die, you're still not allowed to tell anybody that secret. And so tell me the truth and my job is to protect you. And that's why I think I have a lens, an insight that other people don't have.

• 2:55Speaker 01

  Yes, and I agree. I agree, absolutely. I've read some research somewhere that stated that many women know one year prior to leaving their partner, and these are in heterosexual relationships. They know one year prior, and they spend a lot of that year plotting on how to get out.

• 3:13Speaker 02

  Yeah.

• 3:13Speaker 01

  Right? And so the question though is, if you feel as if you can't repair the relationship or your partner won't be able to repair it, should you immediately have that conversation? Or should you approach it another way, given your experience as a divorce attorney?

• 3:27Speaker 02

  So this is where my human advice and my legal advice are discordant.

• 3:33Speaker 01

  Okay, okay.

• 3:34Speaker 02

  So I wear two hats. One of them is person who talks about how to stay married and how to not F up your marriage. And the other is I'm a tactician whose job is to facilitate the demise of unhappy marriages. So the tactician in me would say, if I'm going to punch you, I'm not telling you the punch is coming. So if you're going to divorce someone and there's going to be a fight, I want it to be that when you realize you're in a fight, the fight's over. Like General Patton said, if you find yourself in a fair fight, your tactics suck. Like my job is ideally to have all the pieces lined up so that when you know you're, the other side knows you're in a fight, the fight's over.

• 4:17Speaker 02

  Like they're in the valley and I've got high ground. Human advice? I think you owe it to yourself and to your partner to express where we're at and to say, look, I think we've reached the terminal stage of this, where if this doesn't get fixed, if we don't make changes, this is going to have to end. Like the things you sometimes have to do to shore up defenses and create levers.

• 4:46Speaker 01

  Yes.

• 4:47Speaker 02

  Are antagonistic.

• 4:48Speaker 01

  Yes.

• 4:49Speaker 02

  To repair.

• 4:50Speaker 01

  So how, so let's, let's look at that. Let's look at someone who's in a relationship and they know they want out. Perhaps they have kids, maybe there's some assets.

• 4:58Speaker 02

  Yeah.

• 5:00Speaker 01

  Tactically, then they should not have the conversation immediately. What should they do?

• 5:04Speaker 02

  I think it depends. See, I personally, I've represented extremely wealthy people for a really long time now. Before that, I represented, you know, regular mom and pop type people. I grew up poor and I didn't have any money. College, when I was in university, I worked as a waiter, as a server. Like I had nothing. When I started my career as a lawyer, I borrowed $5,000 from friends and from my dad and built it into the multimillion dollar thing that it is now. And now, thank God, after 25 years of doing this profession, I have economic security, I have success, I have all those wonderful things.

• 5:39Speaker 02

  I believe there are, and I say this representing, like I have a client who's worth $8 billion right now.

• 5:46Speaker 02

  There are two amounts of money, enough and not enough. So the first question you need to ask yourself is tactically, if I reveal to this person that this marriage is ending and I'm going to need to have us move forward with the demise of this marriage, I need to protect myself, maybe because this person is the type who's vindictive, is the type, that's different than a situation where you're saying, like, because here's the thing, if the only thing I have to lose is some stuff, okay, take some stuff. Like it's stuff. It's not the end of the world. Like, what are you going to, you're going to get tactical advantage and get a little

• 6:30Speaker 02

  more of my assets? Okay. Like I'm losing something much more precious than some of my stuff. Like prioritize, because here's the thing, like you don't win a divorce. You don't win a divorce. Like you survive a divorce. You get out the other side of it with as much intact as you possibly can, but you don't win. Like nobody ever walks out of divorce going, yeah, I won. Like you don't win. It's the end of something. It's a, it's a death. You grieve it. Like you follow Elizabeth Kubler Ross's stages of death and dying. You bargain, you're sad, you, you, you know, you go through all of those things before acceptance, you know? And that's totally understandable. You're grieving the death of this marriage.

• 7:15Speaker 02

  And so, you know, again, you have to ask yourself, like, what's the goal? Because I'll tell you the truth, like, not only can you not win a divorce, but you can't win a fight with your spouse. You can't, you will never win a fight with your spouse. If you win, you lost. You made them feel small. You, you won, yay, victory, a great job. You made your spouse feel dumb. You made your spouse feel small. You made your spouse feel sad. Or you lose the argument and then you lost the argument. You can't win an argument with your spouse. Like because the idea of this is connection, to stay connected to each other. Anything that is antagonistic to that connection is the enemy of marriage.

• 7:55Speaker 01

  But if you feel as if your partner would be vindictive.

• 7:58Speaker 02

  Yeah.

• 7:59Speaker 01

  You know, so for example, I have a friend, this is a true story. I have a friend who wanted to ensure that he got custody of the children.

• 8:07Speaker 02

  Sure.

• 8:08Speaker 01

  And so I think of him almost in this situation. You know, would it have been smart to not have the conversation? To put things in place so that he would?

• 8:17Speaker 02

  100%. Yeah. So go, you know, the best thing you could always do is go talk to a lawyer sooner rather than later. It's confidential, no one's ever going to find out, they're not allowed to tell anybody. I have people who come in, you know, a year, two years, three years before they're actually even going to file or when they're just thinking about it. Oh, I've had people who come in 10 years before. It's crazy. People, listen, some people are super tactical and some people, it's that they're kind of, we call them tire kickers. Like they're like, well, the relationship's not going great and I want to know like, what are my rights and obligations and what are things I should be thinking about? Wait a minute, look, I'm going to make the argument right now that you should see a divorce lawyer before you get married. I think you should understand before you get married, what a court would be looking at and thinking about in a divorce.

• 9:02Speaker 02

  In the event your marriage ends in the likely statistically likely outcome, which is divorce.

• 9:08Speaker 01

  At first I said, this is wild and crazy, but you know, I like this. This should be part of the it's hard to get into.

• 9:15Speaker 02

  Why wouldn't it be?

• 9:16Speaker 01

  Yeah.

• 9:16Speaker 02

  Why wouldn't you sit down with a divorce lawyer? I can explain to you legally what's about to happen when you get married.

• 9:22Speaker 01

  Yes.

• 9:22Speaker 02

  What changes to your rights and obligations are about to happen. And I can explain to you that, for example, your friend. Your friend is married to someone who their relationship is tenuous. He's not sure, maybe this is a combative person, a vindictive person.

• 9:34Speaker 01

  Yes.

• 9:35Speaker 02

  Okay, and by the way, you divorced the person you were married to. So, you know, if like people, it's one of the most astounding things still after so many years of doing this is people come in and they'll say to me like, I can't believe he's being so vindictive and cheap and angry. I'm like, oh, what was he like during the marriage? Vindictive and cheap and angry. I'm like, why would you think he'd be benevolent during the divorce? Like he was this way. So like, if anything, it's just going to be this under extreme stress.

• 10:02Speaker 01

  Yes.

• 10:02Speaker 02

  So it's going to be a little worse even than it normally would be. So if your friend came in and said, look, the wheels are still on this thing, but I'm worried that it might be unstable. What are the kinds of things that judge is going to look at when making decisions about custody? Now I can educate you. I can talk about joint custody, sole custody, shared custody. I can talk about different parenting access schedules. I can talk about what are the standards that a judge looks at when making decisions about custody? I can talk about what I call the negative case and the positive case, which is not just what's wrong with your co-parent, because you might be just as awful as them, just in different ways. So what's the negative case is what's wrong with that co-parent? Or where are there areas that they could be better that they aren't?

• 10:46Speaker 02

  Versus where are areas where I'm strong as a co-parent? And I can talk to you about what are the evidentiary standards? And what are some ways that you can shore up and prepare? So I would say, hey, make sure we go to parent teacher night. Make sure we go to the pediatric appointments. Make sure that you're part of the day to day routine of your child and not just doing the fun stuff. Because by the way, you might be a super great dad, but you trust your co-parent because they're good as a co-parent. They're a good parent. And you kind of don't like to be home because when you're home, you guys argue. So you want the kids to not be around that and you don't really feel like it. So you stay away. Okay, now you're setting up a terrible custody case. Because you're not home.

• 11:27Speaker 01

  Right.

• 11:27Speaker 02

  She's the primary caregiver to the children. She does most of the heavy lifting of day to day parenting. You have set up a bad custody case in the future. So now, again, do you think anybody, if they came into my office and I gave them that conversation, that primer on, look, I hope your marriage doesn't end. And if it ends, I hope you don't have a custody battle. But if you did, here's the kinds of things a judge might look at and here's some ways to do it. Do you think anybody would have that meeting with me and then go, you know, I was really happy in my marriage before this, but now I'm going to go home and just get divorced? Like, no, you just, like, I get a physical every year.

• 11:59Speaker 01

  Right.

• 12:00Speaker 02

  One of the lawyers who works for me for many years now, he doesn't get a physical. And when I said to him, hey, man, you're over 40, why don't you get a physical? He goes, I don't want to know. I kind of hate doctors. I was like, okay, not having a physical is a guaranteed way to end up eventually seeing a whole bunch of doctors. So if you hate doctors, definitely go get a physical. So that you don't have things going on that you don't know about. It's not going to save, your ignorance won't save you.

• 12:28Speaker 01

  Yeah, it's like your sister and the tooth thing. What were you saying, the dentist? Yeah. What are three things that you wish people knew or took into consideration before they got married? As the number one divorce attorney in the world.

• 12:42Speaker 02

  Three things that people should know before they get married. One.

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• 13:44Speaker 02

  Would be what did their parents' conflicts look like?

• 13:51Speaker 01

  Okay.

• 13:52Speaker 02

  So did their parents yell at each other? Did their parents ice each other out? Was there domestic violence and intimate partner abuse? And then also, how does that translate to yours? Because people tend, in my experience, to either become like their parents or the opposite.

• 14:06Speaker 01

  Yes.

• 14:06Speaker 02

  So what does this look like? And what was your reaction to it? And what work, if any, have you done on that?

• 14:13Speaker 01

  Okay, that's fair, that's one.

• 14:15Speaker 02

  Number two, I would say, assess very clearly what your priorities are. Like, what's important to you? If custody and your children is the most important thing to you. If economic outcome is what's most important to you. Like, identify very honestly for yourself what your goals are in terms of what's important here. Because I will tell you, an unfortunate reality is the person who cares less about the well-being of the children has tactical advantage in custody litigation. So if you don't care about your kids and screwing up your kids, you have tactical advantage in custody litigation. You can put them right in the middle of the situation. You can weaponize them. You can try to bribe them emotionally.

• 14:59Speaker 02

  You can create loyalty binds and engage in alienation and negative gatekeeping. Like, there's all kinds of horrible things you could do. So identify kind of what's important to me, what's important to my partner? And who are they? Like, have an honest conversation with yourself and your counsel about who is my partner? Because if you're against someone who's going to be villainous potentially.

• 15:24Speaker 01

  Right.

• 15:24Speaker 02

  You got to bring a different toolkit.

• 15:26Speaker 01

  Okay.

• 15:26Speaker 02

  To the situation. Like, it's better to have a trial lawyer and not need me than to need a trial lawyer and hire a mediator. Because you think, maybe if I hire a really friendly person, that it'll keep it friendly. It's not how it works. Like, it's not how it works. Like, the main levers, in my experience as a litigator, are fear and greed. It's not empathy. It's not empathy. It's not compassion. It's fear and greed. My job is to cultivate leverage and decide how and when to use it.

• 15:58Speaker 01

  So is that almost number three? So two is having this frank, honest, open discussion. But three is really already identify counsel.

• 16:08Speaker 02

  Shore up defenses and get good lawyer. And really trust your counsel if you've found good counsel.

• 16:15Speaker 01

  Wow.

• 16:15Speaker 02

  And then trust the fact that sometimes the path to peace is war.

• 16:18Speaker 01

  What's the number one reason why someone comes to your office to see you? And seeking you out? Or should I say, what's the number one reason that you've seen for divorce?

• 16:32Speaker 02

  So the answer that most people want when they ask me that question is, is there a singular or are there identifiable things that you see in the terminal stage of a marriage? So the obvious and accurate answer is, there's cheating is usually a massive, like, they're almost, I would say a good 85% of divorces, there's some element of cheating in the situation.

• 17:01Speaker 01

  Okay.

• 17:02Speaker 02

  Or financial impropriety. Those are very real things, but I don't see those as the cause. I see those as the symptom of the underlying illness. The underlying illness is disconnection. The underlying illness is that these, because happy people don't cheat on each other. Satisfied people don't cheat on each other.

• 17:22Speaker 01

  Was it 84, 85% of people who are seeking a divorce have cheated? Or have been a part of?

• 17:28Speaker 02

  Yeah, have been. Infidelity is involved in the equation somehow. Either or both people have cheated. And again, how you define cheating is very subjective. So it's a question of like, is emotional infidelity infidelity? Or is purely, is it sexual? Like, for the purposes of divorce in fault-based states, adultery was defined as like, you know, genital contact essentially. So, you know, I think most of us would agree that your spouse could cheat without touching anybody's genitals or having anybody touch theirs.

• 17:59Speaker 01

  I think so. You know, just to go back to, you had mentioned, it was interesting. You talked about, and tell me if this is, if I heard this correctly, 85% of?

• 18:09Speaker 02

  Of people are remarried within five years of their divorce. Is that the metric?

• 18:13Speaker 01

  Oh, no, no, but is that?

• 18:15Speaker 02

  That's the stat that I, that when I throw that out, people swallow their teeth.

• 18:19Speaker 01

  Yeah, yeah, okay.

• 18:19Speaker 02

  Yeah, that 56% of marriages end in divorce.

• 18:23Speaker 01

  Yes.

• 18:23Speaker 02

  That roughly 10 to 20% more, you're estimating, are unhappy but stay together for the kids. But 86% of people are remarried within five years of their divorce.

• 18:33Speaker 01

  Within five years?

• 18:34Speaker 02

  Within five years. So these are people that catastrophically failed that marriage.

• 18:38Speaker 01

  Yes.

• 18:39Speaker 02

  And 86% are remarried within five years.

• 18:43Speaker 01

  That's mind blowing. Then, from that cohort, is the divorce rate higher or lower?

• 18:49Speaker 02

  Higher.

• 18:49Speaker 01

  Yeah, I would imagine.

• 18:50Speaker 02

  But the marriage satisfaction rate is higher.

• 18:52Speaker 01

  Is it?

• 18:53Speaker 02

  Yes. So the ones who, so I think that teaches me, right? And again, we have to extrapolate lessons from the data.

• 19:01Speaker 01

  Yes.

• 19:01Speaker 02

  And again, that all, that's all, you know, subjective stuff. I think what that says is, there are some people that are just not good at marriage. And they could do it a bunch of times and they're just not good at it.

• 19:12Speaker 01

  Okay.

• 19:13Speaker 02

  And then there are people that, like most people, aren't great at something the first time they do it. They screw it up, but they learn something from that. And then they're better at it and they enjoy it more.

• 19:27Speaker 01

  Look at that.

• 19:28Speaker 02

  And so for me, second marriages have a much higher satisfaction rate than first marriages. But they have a slightly higher failure rate. Something like 58% of second marriages end in divorce. So it's a slightly higher failure rate. What I find beautiful about how quickly and consistently people get remarried is that it tells me something about how important this is to us. And that's not lawyer Jim talking now, that's relationship person. Like, I hesitate to say relationship expert, but relationship.

• 19:58Speaker 01

  Go ahead, take it.

• 19:58Speaker 02

  Relationship person. You know, because I really think that's beautiful. It means that this is really important to us. Like, this is, this is something we want to be good at. It's something we need. It's something that. Like, I think it's something that's just beautiful to us. And we run to it. Like, we just want it so bad. Like, because

• 20:25Speaker 02

  something in us wants this thing.

• 20:28Speaker 01

  Yeah, we want it.

• 20:29Speaker 02

  Like, we want this connection. And I think it's the most lovely thing that we just keep trying. And we're so human. Like, we're so human that we fail so consistently at this thing through our own weakness and short-sightedness. And I think there's something really beautiful about that. Like, I just think there's something really beautiful about our desire to love and to be loved. Because I think our greatest fear is that we're not worthy of love. I think our greatest fear is that if someone knew us, they wouldn't love us.

• 21:05Speaker 01

  Do you project that marriage rates will increase, decrease, or stay the same?

• 21:14Speaker 02

  I think we are doing what we do as a culture, which is we over-correct.

• 21:20Speaker 01

  Okay.

• 21:21Speaker 02

  So I think for a period of time, the marriage rate was down, the divorce rate was up. Now I'm seeing a lot of resurgence of traditional religion and traditional gender roles. So I think we're gonna roll in the other direction all of a sudden. And there's gonna be more people getting married, fewer people getting divorced, more rigidity of gender roles. And then I think, once again, we'll over-correct in the other direction. Like, I've lived through, as a 53-year-old man, I've watched this pendulum swing a few times. And for some reason, we just can't get ourselves into the middle. What is the problem to which marriage is a solution?

• 21:57Speaker 01

  I don't know. You tell me.

• 21:58Speaker 02

  Me?

• 21:59Speaker 01

  Yeah.

• 21:59Speaker 02

  You're married. What do you want me to tell you? Listen, what is the problem? Here's what I'll tell you people would answer.

• 22:05Speaker 01

  Okay.

• 22:06Speaker 02

  I'm lonely.

• 22:07Speaker 01

  Yes.

• 22:07Speaker 02

  I don't wanna be lonely. Guess what? You can be married and be lonely.

• 22:11Speaker 01

  Sure can.

• 22:11Speaker 02

  There's a special loneliness when you're unhappily married. Because you've got, sitting next to you, a person who's supposed to be your person.

• 22:21Speaker 01

  Yes.

• 22:21Speaker 02

  And you feel so alone and by yourself and isolated. So, it's not a cure for loneliness.

• 22:27Speaker 01

  No.

• 22:27Speaker 02

  I want a steady supply of sex. We have sex, and this is a way to guarantee we're gonna keep having sex. Can you even say that out loud and not laugh?

• 22:36Speaker 02

  The fact that you're married as a guarantee that you're gonna have a steady supply of sex is like saying, "I live near a restaurant." So that guarantees I'm gonna get to be well-fed every single day.

• 22:47Speaker 01

  Buffets every night.

• 22:48Speaker 02

  Right, right. So, what is... My parents want me to get married. Okay. Like, that's a reason. That's a reason a lot of people would answer. God wants me to get married.

• 22:59Speaker 01

  Right.

• 23:00Speaker 02

  That's a big one.

• 23:01Speaker 01

  Yes.

• 23:01Speaker 02

  That's a big one. I can't argue with that. Okay. Okay. And again, if you say, "The reason I got married is because God wants me to." Cool, then you also acknowledge that God also handed down these two rules. Doesn't that tell you this has been a problem for a really long time?

• 23:17Speaker 01

  Yes.

• 23:17Speaker 02

  Like, because personally, I don't know when infidelity was invented. But I feel like it was probably like 10 minutes after monogamy was invented.

• 23:29Speaker 01

  Right. So you think monogamy came first?

• 23:31Speaker 02

  I mean, I guess it had to be by definition, right? Like, it had to be. Otherwise, like, otherwise, there's nothing... There's no rule to break.

• 23:37Speaker 01

  It could have been a theory.

• 23:39Speaker 02

  Right. But I believe it was probably like a cave. You know, and the caveman and whatever was kinda grunted that he's gonna... You know, this is his woman or whatever.

• 23:49Speaker 01

  Yes.

• 23:49Speaker 02

  And they're by the fire, and she's with the kid and holding on to it. And he was like, "All right, I'm gonna..." You know, he didn't say it eloquently, but he was like, "Ooh." Like, "I'm gonna go get the elk." And he walked out to get the elk and saw like another decent-looking loin cloth. And he kinda went like, "Well, I'm out here getting an elk anyway. I might as well say hello over here." And that's it.

• 24:07Speaker 01

  And that's it.

• 24:08Speaker 02

  We're off to the races.

• 24:08Speaker 01

  10 minutes later.

• 24:09Speaker 02

  We're off to the races. You know, and we've evolved this, as we have most things. But the underlying thing, like, you know, technology offers us real solutions to imaginary problems and imaginary solutions to real problems.

• 24:24Speaker 01

  Okay.

• 24:25Speaker 02

  So like, this has been a real problem for a real long time. And now, we have much more complex ways to cheat and much more complex ways to figure out that someone's cheating and sort of punish them or, you know, identify it if they do. But the core problem's still the same.

• 24:40Speaker 01

  Exactly. And this gets to your point of looking at this as a job. And how can I be the best at this job?

• 24:46Speaker 02

  Yeah.

• 24:47Speaker 01

  And if you wanna hear the full, unfiltered stories from today's guest, you can check them out on the We Need to Talk page. Drop a like, leave a comment, and hit subscribe. See you next week.

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