What’s Wrong With Old School, Litigated Divorce?

Well, nothing. Nothing, that is, if you really want to bankrupt yourself, make enemies with the other parent of your children, and spend the rest of your life thinking about how you got shafted in your divorce.   Does this ending sound all too familiar?  If you haven’t heard this ending before, you haven’t talked with very many divorced people.  It’s not hard to find people who have been through horrific, painful divorces.

But there is a growing group of people who have found a new way.  They’ve rejected the paradigm that pits parties against one another in expensive litigation.   Instead, these people are finding non-adversarial ways of divorcing.

Instead of fighting against one another, these parties work together to disentangle their lives in the best way they can figure out.  It doesn’t always work perfectly.  But when divorcing spouses commit to fairness and attempt to separate their lives in ways that do as little damage as possible, things can be a lot better for both of you.  Not only personally, but financially as well.  For,  non-adversarial models of divorce devote no money to the courtroom battlefield.  Instead, they preserve precious family resources for things you do need, like neutral financial experts to help with your property division and neutral child specialists to help with your parenting plan.  The non-adversarial model for divorce also keeps the couple in control of their own family.

Don’t get me wrong, divorce is a significant and serious legal decision with long term consequences.  Attorneys are still needed in non-adversarial divorce.  But their role is reduced.  The lawyers still give advice, review documents, and appear in court when needed, but much fewer court documents are required, many fewer attorney hours when you are not engaging in contested litigation, and the couple is in the driver’s seat rather than the lawyers or the court.

What are these newer divorce options?

One option is a mediated divorce.  In a mediated divorce, couples negotiate with each other using a mediator, using lawyers for advice and guidance on an hourly basis.   Depending on circumstances, lawyers may or may not attend the mediation sessions.  The other option is a collaborative divorce.  In a collaborative divorce, each party has a lawyer who gives advice and negotiates on behalf of the party.  In both a mediated and collaborative divorce, outside experts are utilized to help the couple achieve objective fairness and sound parenting plans.  And in both a mediated and collaborative divorce, all parties commit to reach their own agreement and stay out of court, even if the negotiation becomes challenging.  In the end, both mediated and collaborative divorce save parties literally tens of thousands of dollars over the cost of a litigated divorce.

All but a small minority of non-adversarial cases do settle, and overall people report that they are more satisfied with their divorce process than when they litigate.   One mediator / collaborative divorce attorney put it this way one time:

 “A mediated divorce is like paying for a Chevy and getting a Mercedes.  A collaborative divorce is like paying for a Mercedes and getting a Rolls Royce.   A litigated divorce is like paying for a Rolls Royce and getting a Chevy.”

But cost is not the only factor to consider.  In divorce, penny wise can be pound foolish.  It is more important to make sure you are getting a quality divorce product.    What makes non-adversarial divorce options a better choice for many people?

NON-ADVERSARIAL DIVORCE IS A DIFFERENT PARADIGM

To start with, mediation does not pit the parties against one another as if they were in a battle, as traditional litigation does.   One Florida attorney refers to mediated or collaborative divorce as “Divorce Without War“.  In a non-adversarial divorce, parties engage in interest-based negotiation in an attempt to find settlement options that are fair and which meet the needs of both parties and their children.   Rather than fighting against one another for a portion of a limited pie (assets, time with children, etc.), parties to mediation attempt to expand the pie and find win-win solutions that do right by each other and are consistent with their family values.  While divorce is one of the worst, most painful experiences in life that one can go through, there are ways to make it better.  Non-adversarial divorce is one way to take a bad situation and make it better.

There are more reasons not to litigate, however. We’ve talked theory.  Now, let’s talk specifics.

SOME OF THE PRACTICAL DIFFERENCES BETWEEN ADVERSARIAL AND NON-ADVERSARIAL DIVORCE  

Finances.  Would you rather your own children go to college, or would you  prefer instead to send your lawyer’s children to college?  That’s a bit cynical way of putting it, but a litigated divorce will cost each of you, on average, about the same amount it would take to send  one child to an in-state college for four years.  Between the two of you, that’s eight years of college education.  One web site on the internet measures the equivalent monetary amounts in terms of the number of Hawaiian vacations or automobiles you could buy with the money.  Measure it however you like, the cost is real.  (There’s an article about the costs of divorce on my web site, HERE.)

Damage to Children.  In the old days, conventional wisdom was that divorce was very damaging for children.  This is because in the old days, the adversarial model for divorce was the only model.  With the advent of non-adversarial divorce, studies now show that the amount children suffer from divorce is (overall) related to the amount of conflict and hostility between their parents.  Think of it this way:  your children only have one childhood.  Do you want them to have to live with feuding parents, or would it be better for them to have parents who continue to work as a team to ensure that they have a stable and happy childhood?  Mediation helps you work together to forge a healthy and co-operative parenting plan.  (My web site has links to resources that can help parents as they negotiate their parenting plan, HERE.)

 Efficient Use of Resources.  Litigation puts resources into paperwork, “discovery,”  and court hearings (see flow chart, HERE).   A collaborative or mediated model of divorce spends no money on these, but rather puts resources into hiring people with the expertise you actually need to resolve your conflict.  When both parties are committed to fairness, they can agree to hire (and to share the cost of, when appropriate) neutral professionals such as child psychologists to assist with parenting plans, financial experts to assist with property division and support, (separate) attorneys to review agreements, and even career counseling experts to assist in helping the family design a plan to help home-makers get back on their feet financially.  (The articles on my web site about Collaborative Divorce address this more fully.)

 Long Term Relationship.  When you had children together, you made a life-long decision.  Your children have just one mother and just one father, and no step-parent’s arrival in the picture will ever change that.   The two of you will attend your children’s graduations and weddings, and you will be grandparents to the same little people.  For the sake of your children and grandchildren, you and your ex need to maintain a healthy, cordial relationship.   Hostile litigation makes this much less likely.

Creativity.  Some people measure their “rights” in a divorce against what a court would or would not do.  I do not.  Courts are a last resort, a fallback that set a barely minimal standard based on society’s general expectations.  You can do better than this.  You can choose to do what is right by each other and your children, not just the threadbare minimum that the law will require.  Every decision is a moral decision.  When it comes to your own family, make the right moral decisions, including the decision to forgive and to give each other the benefit of the doubt occasionally, and be creative in forging solutions that work for your family.  Mediation keeps family decisions within the control of the family, not a court, enabling you to forge creative arrangements that work for you.

Empowerment.  This is corollary to the notes about creativity.  In the litigated, adversarial model of divorce, lawyers run the show, telling parents what their rights are and making “evaluative” recommendations about what you ought to do.  Mediation, when controlled by attorneys and in the litigation context, often follows this same model.  Litigators, therefore, often view mediation as nothing more than an attorney-directed settlement conference.  A true interest-based model of mediation, however, is different, seeking to empower the parties to forge their own agreement which reflects the unique needs, circumstances, and values of their own family.  Lawyers do have a role in a mediated or collaborative divorce, but that role is not to direct the show and tell people what to do.  Rather, they act as consultants to make sure your divorce agreement covers all the bases, doesn’t make costly mistakes, and is written in a way to accomplish that which you hope to achieve.

Beauty of Design.  A well drafted separation agreement is a work of art.  It governs not only the relationships of the parties today, but also it can set formulas and standards to govern future, as yet unforeseen, events.  A court order will not anticipate changes in circumstance or contain provisions to govern amendment of your agreement after it becomes outdated.  Why?  Because the litigation mindset is to go back to court and have another hearing.  Mediation, on the other hand, enables you to craft agreements that are flexible enough to change with time and which anticipate foreseeable changes in circumstances.

 Communication.  People are mistaken when they think they’ll have their “day in court” and be able to tell their story to a sympathetic judge or jury.  There are three reasons this is not going to happen.  First, courtroom testimony is tightly controlled and limited to facts that have evidentiary value.  Second, what a judge thinks is relevant may not be the same thing you think is relevant. It means nothing to a judge that a 10 cent pocket hankie had great sentimental value because it was embroidered by your great grandmother and given to your great grandfather.  To him, it’s  nothing but a ten cent pocket hankie.  Third, the courtroom mindset is not one of communication and collaboration.  Each person is there to prove his or her own case, not to listen to yours.  If you truly want to be heard, go to mediation, because in mediation all facts are relevant, feelings are important, and each party listens to the other.

Revenge and Anger.  Just as parents should never spank a child out of anger, so they should also never go to court out of anger.  The emotional aspects of divorce are real, but court is expensive and counterproductive to healing.  Your divorce settlement is a business agreement.  Your divorce recovery is a matter of personal healing which ideally occurs outside the judicial process.  Instead of spending the money on fruitless courtroom revenge, spend the money on a therapist, a vacation in Hawaii, and on a college education for your children.  Litigation does not heal or bring closure to wounds.

Thinking you have the upper hand.  Sometimes one party sees no benefit to mediation because they think they’ll win in litigation.  In family battles, just as in marriage, when one loses both in fact lose.  Equally important, however, is the fact that for every action, there is an equal and opposite reaction.  Your spouse thinks they are right and entitled to win, and their attorney is engaged fulltime to make that happen.  The “odds” sometimes flip, and your view might not prevail in court.  Why not hedge your bets, and try to find a win-win solution through mediation?

Spiritual Well-Being.  Finally,  I would like to touch on the spiritual aspect of litigation.  I do not force my religious views on people, and it’s unlikely that I would never discuss religion during mediation.  However, if you’re interested in this more spiritual side of conflict resolution, there’s another side to the story.

Whether you are a Christian or not, there is much to be learned about conflict resolution from sacred texts.  Jesus’s commands not only that we forgive but also that we are to love our neighbor.  These commands, in the Lord’s prayer and in Matthew chapter 22, are absolute.  While anger is normal in the painful process leading to divorce, I encourage you not to lose sight of the fact that Jesus himself set the standard for how we are to live.  This standard includes a model for choosing not to retaliate:  at the time of Jesus’s arrest, he even healed the ear of one of the men who was injured during the arrest, saying, “No more of this!”  (Luke 22:51).

How can a divorcing spouses apply the brakes, to say, “no more of this!?”

First of all, to do so involves taking a risk.  It involves making ourselves vulnerable, in taking the first step and in hoping that the other person will reciprocate.  But the worst case scenario is never to try.  If you try and it fails, you can always proceed to litigation.  If you never try, you’ll never know.

I’ve often found that people focused on litigation are in fact focused on revenge and on their own self-righteousness.   Sometimes our friends express support for our views and encourage us to litigation, or to build walls.  There are two good reasons to beware of voices that urge the path of war, of litigation, and of self righteousness, whether those voices belong to ourselves or to someone else.

Sometimes, cheerleading friends (or grandparents) who are standing on the sidelines feel they are being supportive when they encourage you to litigate and “stick up for your rights,” but consider that their perspective may be wrong.  For one thing, they are not the people who will live with the consequences of this polarization.  You are.  And your children are.  Does it do your children good to hear bad things about their other parent? Does it do you or your children good to spend all your home equity on the divorce war?  After your cheerleading friends have moved on, you will still be paying on the home equity line.

Secondly, to the extent that these voices displace blame improperly, they detract from the important task of self-reflection.  In the Bible, Romans 3:10 reminds us, “There is none righteous, no not one.”   If you are divorcing, the best thing you can do is to acknowledge that something went wrong in your marriage, that you had a part of whatever it was that went wrong, and to take responsibility for changing yourself too.  The sooner you can uncover and change your own role, the less likely it will be that you will repeat it the next time.  This doesn’t mean you should beat yourself up or wear sack cloth.  It means that after every failure in life, we do well by ourselves if we examine what went wrong and try to learn from it.  Self-righteousness and vindication may make you feel better and help to ease the pain, but in the long run self-reflection will serve you better.

CONCLUSION

My goal has been to make you think twice about the path you are choosing and to urge you to choose wisely.  Conflict, even the painful conflict of divorce, gives each of us opportunity to examine sources of conflict, choose a better path, and redirect our lives.    The two of you have it within yourselves to settle your case in a way that will bring healing and closure, or you can choose to build walls and hurl stones.   It’s your choice.  Which path will you take?