know the truth and getting to the bottom of the story isn’t the problem. Parties may occasionally lie or fudge the facts, but the truth is at least ascertainable, even if it’s denied.
There may be a few exceptions to this generalization, of course. Sometimes, the facts are truly disputed. If one spouse believes, for instance, that the other spouse has been hiding assets (and it is denied), it might be necessary to test that hypothesis in front of a judge, where credibility can be determined. Usually, however, the “he said/she said” contest in family law is largely immaterial, even though many litigants enrich their lawyers in the pursuit of winning such arguments.
In most family law cases, the facts are known with a high degree of certainty. That’s because the two star witnesses in the case have “lived” the facts, and are intimately familiar with them. Even though they may disagree about what’s best for the children, whether support should be paid, and who should get the home, there’s often little argument over the facts.
As a result, litigation in family matters is rarely truly necessary.
What’s surprising, however, is the number of family law cases where the parties approach litigation as (a) the best dispute resolution option, and (b) a practical method of resolving their dispute. In almost all families, better options exist. Moreover, litigation is usually anything but a practical method. Going to court to resolve matrimonial disputes is almost always expensive, unpleasant, cumbersome, and unnecessary.
In family law, almost all litigants lose. Even a wholly successful spouse, who claims to get everything, will typically later concede that the victory was illusory, unsatisfying, or Pyrrhic — achieved at excessive cost. Success in divorce litigation can bring some financial rewards, but it’s rarely a pleasing process. I think this is because of what’s at stake in family law litigation.
When couples who were once in love, raised children together, or shared aspirations, dreams, disappointments, and sleeping accommodations suddenly separate, discomfort is almost inevitable. Sometimes it’s downright nasty. These feelings of loss tend to increase the stakes and make the transaction (the “business” of separation) seem more dramatic and traumatic than it needs to be.
It is normal to have differing views about what’s right, how the spoils of the relationship should be divided, and what is best for children. Nuclear families argue about such matters all the time. When the parties are separating, it’s to be expected that the dispute will appear to be more acrimonious and troubling. It is partly for that reason that non-acrimonious methods of resolving the dispute should be explored. Unfortunately, many separating spouses do not know what the options are, or why litigation is neither realistic nor affordable.
Some spouses can resolve their contests in a civil and friendly way, but they are the exception. Others must resort to dispute resolution systems such as arbitration, mediation, collaborative law, or the courts. Those who find a solution with minimal legal trauma are likely to be happiest.
The fact remains, however, that not all separating couples can sit down at the table and work things out. Sometimes, despite best intentions and sensible attitudes, settlement-minded spouses encounter difficulty. In fact, some of the most reasonable, wise, and balanced parents can lose all objectivity when it comes to divorce. Even good people may behave poorly during divorce.
Usually, when separating couples argue and go outside the relationship for help, they become involved in a process which was designed for general use by other people. In making these inquiries, the spouses may receive a referral to a mediator, counselor, or other expert. Maybe they’ll start with a lawyer, their accountant, or their spiritual advisor. Whatever the case may be, spouses often look outside of their own family for advice and guidance when the topic of divorce comes up. Sometimes the advice that they receive is good, well intentioned, and helpful. Other times the advice is poor, incorrect, and potentially dangerous. Occasionally the advice is just plain bad, based on inaccurate information or ideas that aren’t likely to be helpful. Getting really good and accurate information at the outset is very important.
Whenever spouses enter into mediation, arbitration, or the litigation process, some of the decision-making power is transferred, or downloaded, away from the couple to a person who is an outsider. In arbitration, the parties hand over the decision-making power to someone who is similar to a judge. The process itself may be more friendly, streamlined, and less costly than court, but it’s really the same sort of system.
In mediation, the parties retain the decision-making power and control the process to a greater degree. Still, they are engaging in a time-limited and costly program. Even though mediation may be the least costly of several alternatives, it will often involve lawyers and other experts, including the mediator who will charge for the service.
In a court case, the litigants throw up their hands in a sense of helpless dismay and say: “Here, judge, you decide! We know you’re a complete stranger and you really don’t know anything about us, but we would like to entrust you to make a good decision about us and our kids.”
In some cases, the litigants then proceed to offer up a one- to ten-day Reader’s Digest condensed version of their lives and disputes before asking the judge for a ruling. It’s all very artificial and, quite frankly, a little weird. It’s also very costly.
I have been appearing before judges for 25 years. During that time, my office staff has dispensed more Kleenex than most funeral homes. We have also listened to more stories about relationships than most people can imagine … and some of the stories we’re told are incapable of being imagined by anyone. As we often say, the difference between truth and fiction is that good fiction must sound as though it could be true. That’s not so with the truth. The stories told in our offices sound like they couldn’t possibly be true, even though they are.
By far the greatest influence on my understanding has come from the several thousand divorces I have handled over the years. While it’s overstating the obvious to say that each divorce case is unique, it may not be so obvious (though far more important) to note that in many respects, every case is the same.
Every separating spouse comes to me with a certain set of concerns. These concerns are universal. They arise independently of whether the relationship involves young or aged spouses, gay or straight parties, married or common-law couples, or any combination of the above. Somehow, they all have the same kinds of problems. Familiarity with these themes and issues is something which allows me the opportunity to explain how separating spouses can resolve their disputes without a legal bloodbath.
It all really begins with one simple commitment — that separating spouses must make a good, solid, and honest effort to solve their matters outside of court. It’s that simple. If you have that commitment, anything’s possible. If you don’t care and you’re ready to go to court, good luck to you.
You may not have the commitment I speak of on the day you separate. Your world when the relationship ends is more likely filled with anger, disappointment, self-doubt, and other legitimate worries. About the last thing you want to do right after separation is offer commitment and accept your estranged spouse’s professed commitment. There’s no need to be reasonable — you’re angry and hurt.
When you separate, you should settle your case without court (but probably with legal advice) in order to save money, save hardship, and avoid making a public display of your misery. Do it without court for all these and many more personal reasons.
Court is not a reasonable alternative. I say that in this book about 100 times, mostly because it’s so important that I hope it will be remembered. And I say it knowing that those who work in the justice system (the courts) do their absolute best. I know as well that judges work hard and do their best with the information at hand.
Almost
