Divorcing an addict takes planning, preparation and courage

Divorcing an addict takes planning, preparation and courage

You want to know how to survive the process of divorcing an addict. We will do better than that. We will go beyond survival. We will show you how you can thrive and get a successful result when divorcing your addict spouse. These are not vague tips. They come from decades of combined experience by our family law firm's attorneys.

This article is about divorcing a spouse with a drug addiction

Drugs includes illegal drugs and abuse of prescription medication. This is not about divorcing an alcoholic. We wrote an article about that topic and we linked it for you below.

​ Read our guide on divorcing an alcoholic

Drugs include both illegal drugs and prescription medication

We do not distinguish between illegal drugs and prescription medication. As of 2019 when we write this article, we see just as many divorce cases against addicts who abuse illegal drugs as we do with those who abuse prescription medication.

Categories and types of drugs

The following are the most common drug categories we see when divorcing an addict.

1. Opioids
2. Cannabis
3. Stimulants
4. Depressants, and
5. Hallucinogens

The most common drugs (legal and illegal) we see are the following.

1. Marijuana, regardless of its legality for recreational use,
2. Methamphetamine,
3. Cocaine,
4. Heroin,
5. LSD,
6. Valium,
7. Vicodin,
8. Morphine,
9. Hydrocodone, and
10. Oxycontin.

There are three types of addicts you can divorce

We discuss three categories of addicts.

Divorcing the functional addict

The functional addict is often able to hold down a steady job, make good income and generally present himself or herself as a normal, functioning adult. Such addicts often binge in their drug use between episodes of sobriety. Sometimes, they build a tolerance, which is, in part, genetic. Most important, unless you live with the functional addict, you may never know he or she is a drug addict.

Some functional drug addicts hold a powerful position in large companies and even State or Federal government positions.

Divorcing the dysfunctional addict

The dysfunctional addict is the opposite of the functional addict. He or she bounces from one job to another and is unable to hold down a job. Dysfunctional drug addicts often have a criminal record, including those for possession and/or use of illegal drugs, and driving under the influence. The dysfunctional addict may also have a record of attending and falling out of rehabilitation.

Divorcing the junkie

The junkie is an extreme version of the dysfunctional addict. This goes beyond dysfunction and reaches a level of use that may cause the addict to end up in a body bag on any particular day. The drug addiction is often long-term. Such drug addicts also associate with known criminal elements. They may have an extensive criminal record. They are an ongoing danger to themselves and anyone around them.

Essential steps when divorcing an addict

Everything we write here applies to functional addicts, dysfunctional addicts and the junkies. For the last two types, the strategy may change and become more elaborate. We note that on the list below.

Electronic journaling of the addict's drug use

Journal the drug addict's use before and during the divorce. You can maintain a Microsoft Word document or any other software program that you feel comfortable to use.

Gathering documentation and photographs of drug use

You should document the drug abuse. You should also use opportunities to present themselves to photograph the abuse. Do not steal passwords, provide false information to gain access to computers or engage in other potential criminal conduct. Ensure you act in compliance with the law.

If you are not sure, consult with a criminal law attorney before taking action. Our family law firm provides such referrals.

Here are examples of documenting and photographing the drug abuse.

Electronic transactions of drug purchases

These are usually electronic receipts, credit card statements, and activity statements, including those on PayPal, as one example.

Paper transactions of drug purchases

These may be prescriptions, including fraudulent prescriptions or those that do not belong to your spouse.

Photographs of drugs and paraphernalia

If you see the drugs and paraphernalia, photograph it. You should also speak with a criminal law attorney about how to avoid liability to you for allowing drugs or paraphernalia at your residence.

Photographs of your spouse's drug use

This may be difficult and you should not do this if it potentially places your safety in danger.

Text messages and emails

1. Gathering existing text messages and emails

If you have electronic communication between you and your spouse that shows your spouse's drug abuse, secure that communication. Do not delete it. Maintain it in its native format.

2. Ongoing text messages and emails

Use ongoing communication. If your spouse admits to his or drug abuse, keep that record. If you have a reasonable opportunity to document your spouse's drug abuse, consider doing so. This may be an email or text message that expresses concern about something your spouse did or failed to do. It can be as simple as expressing concern over your spouse's drug abuse. It can cite to an incident that just occurred.

No matter what it is, it must be truthful and come across as normal communication. An experienced family law attorney can help with this.

Rehabilitation records

If you have records of your spouse's attendance at a drug rehabilitation facility, save it.

Narcotics anonymous records

Save these records as they may prove useful on start and stop dates.

Records of criminal actions

Much of these are public record. You should still save all of the records you have, especially since some people expunge their criminal record. Expungement may make it difficult to obtain the records from the Court.

Retaining a private investigator

A private investigator can set up surveillance and find information to which you and a family law attorney do not have easy access.

Safeguarding the documentation and photographs you gathered

There are several ways to safeguard the documents and photographs.

1. Upload the information to the Cloud and password protect the access.
2. Keep a backup flash drive of the documentation and keep that flash drive in a place where your spouse does not have access.
3. Provide the information to your divorce attorney.

Gathering a list of friendly and potentially hostile witnesses

We break up witnesses into two categories.

Friendly witnesses

These witnesses provide information to you and your retained professionals, including your divorce attorney and/or private investigator. They are also witnesses who have facts that support your position that your spouse has a serious drug addiction. Maintain each friendly witness' name, address, phone number and email address.

Hostile witnesses

Hostile witnesses are those who have personal knowledge of your spouse's drug addiction but will likely not testify voluntarily. Your divorce attorney can subpoena such witnesses. These usually include one or both of the following.

1. The addict's friends and family, and
2. The addict's dealer.

Developing a strategy with your divorce attorney

You and your divorce attorney must put together a specific strategy. The strategy should, at a minimum, address the following issues.

Planning the exit strategy

The addict who is not a threat to your safety or the children's safety

This is an easier transition to divorce. You likely will not need a restraining order or urgent child custody orders.

The addict who is also a threat to your safety or the children's safety

This may require a restraining order and emergency child custody orders. You must have the evidence to support your position of this threat.

The addict who is the breadwinner

You will need immediate child support, spousal support and/or property control orders. Property control includes access to financial accounts. You may also need an order for your spouse to contribute toward your attorney's fees for the divorce.

The addict with the inconsistent work history and questionable income

If the addict is the family's financial support but has an inconsistent work history or does not report his or her income, the "timing" for the divorce becomes more important.

Planning the filing and service date

The date your attorney files and serves the divorce papers depends on each of the above issues. Many divorce attorneys do not speak with their clients about this issue. They do not plan or prepare. That is a mistake.

Planning for temporary custody and support orders

The more unstable your spouse is, the more time sensitive temporary custody and support orders become. When divorcing an addict, no two situations are the same. You and your attorney should customize the timing strategy to your specific situation.

Planning for a drug and/or child custody evaluation during the divorce

A drug evaluation is different from a private child custody evaluation although a drug evaluation may be part of the custody evaluation. An addiction expert (typically a Ph.D.) conducts a drug evaluation. A forensic psychologist often performs the custody evaluation. Some forensic psychologists also perform drug evaluations.

Admissibility of the report

If you want the evaluation, you and your attorney should speak about the report's admissibility into evidence. The evolution of California law may prohibit an expert's report and opinion from coming into evidence if the expert relied on case-related hearsay. We are not going to discuss what that means here, as it is a highly complex issue.

If you want the report to come into evidence and for the judge to consider it, your attorney should propose to your spouse's attorney specific language regarding the report's admissibility.