It is easy to say with a flourish of the pen, “no divorce should ever end up in court,” but in order to understand and consider viable options for high conflict divorce, the ones that end up in court, we must deconstruct the fundamentals.
Divorce is about money and children. But, not just in the abstract, it is about your money and your children – your family. There simply isn’t a structure that can optimally design a financially and emotionally healthy future for a family better than the two parents. While married you are a family earning income and occupying a home. After your divorce, you are still a family earning that same aggregate income, while occupying two homes. We have to accept that fundamental fact before even contemplating divorce. Once we make the decision to divorce, it is incumbent on the spouses to jointly address how to use the joint income and assets to build a future for two households.
Clearly, if it were that simple, we would put the entire family law industry out of business (not a bad idea). That rational approach requires two sane individuals who have the ability, despite their emotional difficulty with the split and/or factors in the marriage, to choose what is in the best interest of the whole family and what is even more difficult, to compromise. (Yes, I did throw in a four-letter word, “sane.” Keep reading.)
So, then the real question is how do we handle the inevitable conflict over what is construed to be “fair” or in the best interest of the whole? Run to court and let a judge decide? No! Let’s face it, the conflict is typically driven by intense emotions that make any attempt to discuss and agree to reasonable terms difficult, if not impossible (and when there are mental health issues or personality disorders in the mix, the options narrow, See “Divorcing Crazy”). This is the critical juncture at which the entire process can unravel. Right now, we have few options to address this downward spiral, and that is where more effort must be made to prevent these situations from escalating. But how?
In the culture of Family Law we have come to accept that every conversation between the lawyers, every settlement overture is backed by the underlying threat that if we don’t agree, “I’ll see you in court” is our only path to justice…but is it “just?"
Court. Enter two family law attorneys and a Judge. Your divorce, your finances, your children - your family - is no longer under the control of two people who have the power to settle. There are now two hired (expensive) guns at the table with a fifth who will decide your fate. (The Collaborative Practice approach is an exception to this model and while sometimes flawed, it does attempt to address some of the inherent issues with this process.)
The court is the finder of fact and theoretically an impartial one, but it is fraught with problems. The process is expensive and will unnecessarily deplete significant financial resources. It is lengthy and typically succeeds in escalating adversity rather than helping to curb it. The backlog doesn’t allow enough time for the judge to become as conversant with the facts as you would like. They have heard it all and I mean it ALL, and while you might feel your case is compelling, they might have had five difficult cases before yours and had enough. Family law judges have a tremendous amount of latitude in ruling and like it or not, they are people too - with biases. No two judges in the same county will provide the same ruling, and then it becomes a game of how to manipulate the system. How to change judges, which experts should be brought in for which spouse, what tactics will what lawyer use. This makes great TV but is the worst possible system for you and your family.
This system doesn’t make judges incapable of being fair, this makes them human. No judge walks into court each day thinking about how they can fail a family. Family law court, where you hear one case after another of truly horrific behavior, is not a place where you want your case to be the next one heard. There are no guarantees. Even if you genuinely believe you have the facts on your side, there are no guarantees except that you will spend far too much time and money getting there. And often, when an attorney who knows the judges well and who knows the unpredictability will refuse to take a case to court, they are seen as weak. That was probably the best advice not taken.
So now we are back to the beginning. Court is the last possible place anyone would ever suggest you settle your divorce, and yet what do you do if your spouse and/or his or her attorney refuse to settle with agreeable terms? Only 10-15% of all divorces are considered high conflict and litigated in court. Most cases are settled in advance of court, and if you are in a situation where you can find a way to settle, without being the bully or feeling bullied, that is far less risky and often leads to a better long-term ability to restore some level of civility.
The element most often ignored is the longer-term effect of a court battle. Divorces are difficult, but a divorce litigated in court exacerbates the conflict, and truly no one wins. It makes it difficult, if not impossible, to ever repair the damage or to restore an amicable relationship or more importantly the ability to co-parent. And it tends to poison family and friends thereby creating more quality of life issues post-divorce. That is why no divorce should ever end up in court. There are alternative dispute resolution options such as Mediation and Collaborative Practice. This is your divorce; don’t let it happen to you.
Are you thinking about divorce? dtour.life can help you gain clarity as you start the process. With divorce education, financial and parenting tools, our platform helps you prepare for this journey. Calculate net worth statements, living and child expenses, budgets, and settlement scenarios to help you move forward with both eyes open. You are not alone!
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