A Litigating Divorce is No April Fools’ Joke. It can be a Fool-ish – even Tragic -- Decision.

In the last few months four couples have come to my office for a Divorce Mediation consultation. In each case, the woman decided to go the Litigation Route. Each unilaterally hired a litigating attorney, instead of hiring a Collaborative Divorce attorney, or giving Mediation a full try with a trained Mediator [mental health professional or attorney]. A foolish, destructive, even tragic decision, in my professional opinion. Each case pulled at my heart strings, for different reasons. And here’s why.

THE DECISION. None of their relationships met the criteria for choosing war over peace. By hiring a litigating attorney they chose to war it out in court. I would have liked to see them give peace a chance – the non-court alternatives -- either the collaborative divorce or mediation routes. Just for 2 or 3 months. They did not meet these criteria for litigation: a) vast power difference between partners [e.g. one a bully, the other always walking on “egg shells” and unable to speak up, or a history of domestic violence ]; b) one partner, usually the monied partner, hiding assets, unwilling to give transparent and full financial information; c) one partner continuously purposefully delaying the process.

In each case, the woman partner [interesting? yes? it was the women… but that’s another blog!] convinced herself that one of the criteria above was true. Neither partner had presented that way in our Mediation consultation. The other strong similarities were: the woman wanted out of their marriages. The men were devastated. They continued to love their wives, and wanted to try to work on their marriages. All couples had young elementary school aged kids.

Bill and Carl knew they bad tempers, but were willing to seek counseling to understand why and what triggered their angry reactions. Dan was trying to understand and to forgive his wife’s infidelity after she connected on Facebook with a former high school boyfriend. And Earl had wanted to pay for the divorce’s legal, financial, and coaching fees out of joint marital funds [the customary procedure]. But his wife Ellen went to a free government service for women who were victims of domestic violence: she got an Order of Protection [so he could not see the kids “unsupervised”], and she lied about “physical abuse” incidents. She thought if she proved physical abuse she’s get free legal advice.

WHY? Each woman decided not to return to the negotiation table of the Mediation process. Instead, each hired a “barracuda” of a litigating divorce attorney. [The metaphor is that the ray-finned barracuda fish is known for its large size, fearsome appearance, and ferocious behavior.] Each woman felt she needed this barracuda litigator to lead the charge… as if on a medieval battlefield… emerging on horseback with crossbow and spear aimed at the partner’s heart, and often pocketbook.

Wearing my Psychologist’s hat, I can make three educated guesses why each chose the litigation route. 1) Repair from childhood Trauma [ big or little “T” ]. Each woman had a history with some version of feeling shy and unworthy as a child, without a voice in the adults’ world. Or worse: she was, or felt, abused, belittled, neglected by an overbearing bullying even cruel parent. 2) She needed to retaliate, get even, be right… sometimes related to #1. 3) She needed to embrace the “victim” role. This is a hostile stance in which the victim can feel “look what you’ve done to me” [example of Blame Game], without owning responsibility for any part of the situation. 4) Because to own your own responsibility – feelings, actions, desires, wants -- would then challenge you to change. And, if you’ve been misused , neglected, even abused etc. as a child, it’s hard to trust yourself to stand up properly for your own interests [#1 above]. Besides, change is always hard. For all of us!

FOOLISH. If your relationship does not meet the criteria to go the litigation route, then you’ve succumbed to the urging of someone in the “Greek Chorus” e.g. friend, relative, even your misguided therapist who says, “I did it this way”…or wish I’d done it this way…. Or you deserve xyz….”, or a litigating attorney who says “You deserve…”, or “I can get you…custody of the kids… more money”…or whatever. Litigation costs in money are about double that of Collaborative Divorce, and 3 to 4 times more expensive than Mediation. Do you really want to spend your kids’ college money to have your litigator sit in court, wait around for the court calendar, and have a judge decide your fate [instead of you]. The cost in emotional pressure and angst is also sky high. Since people go to court to “fight for their rights”, or a “principle”, this approach is often black or white, often with a winner and a loser [ I get the house, the kids, whatever…. and you don’t.].

TRAGIC. After fighting I court, how do couples then talk [or text!] with one another to arrange for Johnnie’s summer camp, or who’s picking him up from soccer practice? The adversarial process does not educate you to coordinate with one another as co-parents. And research tells us that co-parenting, to whatever degree you can, is best for children. Most children love both their parents and want them to get along. It is tragic for kids to see, to hear, or worse — be caught in the middle or alienated from one parent. What’s best for Johnnie is to experience on a daily basis two parents who can be respectful and tolerate one another’s differences. [Even if that was impossible to do when living together!] What’s best for Johnnie is for both parents to focus on him and his needs, and not their own!

It’s a Fool’s Errand to believe that you can beat up your partner in court, and come out unscathed. So please consider if your relationship can tolerate the 4 pillars of Collaborative Divorce and Mediation: a) cooperation, b) transparency, c) informed consent, d) shared confidentiality. On the internet you can research “Mediators” in your city, and find Collaborative Divorce practitioners on www.collaborativepractice.com.

Educate yourself and decide carefully which divorce option is best for your entire family. It’s the most crucial decision you’ll make. Don’t be Fool-ish this April…or any month of the year.

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