What exactly do you do to get through divorce?
Everyone feels overwhelmed when a marriage is ending. You are facing a restructuring of your life, and you don’t know where all the pieces will end up. Many of the plans you made for the future have to change.
In addition to feeling overwhelmed by the decisions to make, the tasks to complete, you are also going through many moods and emotions.
At this time of transition, it is normal to wish someone could take this off your shoulders and take care of it for you, and – take care of you! Who would not want to hire an experienced lawyer, and who promises to hold your hand, and guide you through this process?
And at the same time – the idea of sitting in the same room as your ex in mediation – trying to find a meeting of the minds, might feel just as overwhelming. If your communication were good, you wouldn’t be divorcing in the first place, right?
Read below to see why you should try mediation instead of the adversarial system to resolve the terms of your divorce.
• The longer you are embroiled in conflict, the longer before your children can settle back into being normal kids – focusing on school, friends, music, soccer – and not on the conflict between the two people they love most in this world.
• No lawyer or judge knows your children as well as you do, and they don’t, and never will, care about your children as much as you do.
• The legal system sees your children as pawns – who “has custody” of them? Who “has visitation” with them?
• Actually - the words “custody” and “visitation” don’t have to appear in your parenting agreement!
• Who “visits” their children? You want parenting time, not visiting time. The children are not in prison.
• Children always know the truth of their parents’ divorce. They will focus on it, and listen carefully to everything they hear, and piece together the story.
• Your children will never thank you for destroying their other parent.
• Do you want to put your children through college? Or your lawyer’s children?
• Litigation is obscenely expensive.
• There are families for whom $300,000 is peanuts, but that is not the case for most of us. (And they have more to fight over, so spending $300,000 might make sense to them.)
• Lawyers have a conflict of interest, around settling the case. If an attorney stands to earn $20,000 in a negotiated divorce, and $150,000 if the case goes to trial, will he/she really put 100% of effort and focus into settling the case? Would you? (I’m sure many attorneys are trying, in good faith, to behave ethically, but we are all influenced by our own needs and potential rewards.)
• Ask your attorney to sign an agreement to withdraw, in the event the case goes to litigation, and see how he/she reacts. A collaborative agreement which requires mandatory withdrawal would shift the attorney’s focus toward settling, and get rid of the conflict of interest.
3. The judge is not going to “feel your pain.”
• The judge will not be outraged (the way that you understandably may be) by the fact that your spouse betrayed you, broke all promises, ignored your marriage vows and left the marriage. The judge has (a) heard it all before and (b) wants to give each side something.
• Judges have a tendency to have you win on some issues, and your ex win on others. To split the baby.
• You won’t see a judge for a long time, and when you do, he/she will want to hear from your lawyer, not you.
• The judge will not be the wise parent whom you have always wished you had, and believe you deserve.
• Judge’s dockets are too full for them to get to know you, and to put a lot of deep thought into your situation, your family, and your best outcome.
• Attorneys make a lot of promises they can’t keep.
• Lawyers are good about saying, “I’ll argue this, and I’ll argue that,” but not good about telling you, “And this is what your ex’s lawyer is going to argue for him/her,” or “This is the outcome that will most likely be ordered in court.”
• The lawyer’s job is to keep fighting, and to come up with arguments to strengthen your case.
• The lawyer’s job is not to resolve things, to help you move on with your life.
• Litigators are fire-fighters and they won’t focus on your house till it’s about to burn down. Which won’t be for 2-3 years, in most cases.
5. Ritualized War
• The legal system sees the restructuring of your family as a legal problem.
• If it’s a legal problem, you need lawyers to “resolve” it.
• You can, instead, see it as a human/family problem, and the people who best know you, your family, your children, are in the best position to help you decide what you each need, going forward.
• If you didn’t need a lawyer to get married, why do you need one to get divorced?
6. It’s Your Life
• People often wish to give this whole mess to someone else – to meet with a lawyer, an expert, a judge, who will hear their side, and understand and sympathize, and take care of it for them.
• Well – yes – most matrimonial lawyers are able to sympathize, and listen to your story, and get angry on your behalf.
• But the reality is that, once you have paid the retainer fees, you will find it very difficult to reach your attorney on the phone.
• Litigation takes up a lot of time, and attorneys are usually in court every morning, working on the cases that are ready to go to trial.
• And your case – well it won’t be ready to go to trial for 2-3 years.
Finally, it is easier to start friendly, and move to battle, if necessary – than it is to go back the other way. Try mediation and, if it isn’t working, move to a more adversarial process, such as collaborative divorce, or litigation.
In the ritualized war of the adversarial process, resentments are fueled and morph into hatred, ideas about fairness morph into feelings of entitlement.
Starting with communication and respect in mediation has helped to guide many couples to a smoother, quicker, more cost-effective divorce, and a better co-parenting relationship for the future.