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 every time I appear in court, I’m impressed with the insight, intelligence, and clear thinking demonstrated by the judiciary. Time and time again, I hear persuasive and convincing arguments by skilled counsel, who offer up well-reasoned presentations for judges who are duty-bound to dispense justice. It’s an awesome process indeed. If you ever doubt the integrity of this system, I urge you to sit through three complete trials. I warrant that your respect for the North American justice system will be indelibly affirmed in the process. Really, it’s a remarkable system.
Having said all that, court can be a costly, slow, and awkward process. Judges do the best they can with the information they have, but it’s no easy task. The court can apply the law to the known facts, but legally trained judges are not omniscient and they do not practice psychiatry. They are not counselors, and they are not permitted the luxury of sympathy. Judges are paid and duty-bound to decide cases and that’s what they do. And almost every time a judge decides a case, somebody’s unhappy. Sometimes, both parties are unhappy.
When litigants give over to a judge the power to decide their future, they enter into a process that’s full of risk and uncertainty. Our justice system is not only harsh, traumatizing, and slow, it’s also very costly. In Canada (where I practice), the cost of an average divorce trial is between $25,000 and $50,000. As I often tell my clients, “I’ve been a divorce lawyer for 25 years, and I couldn’t afford me.”
There are other costs to litigation as well. Telling strangers about your life, your secrets, your desires, and your worries is upsetting. When warring spouses download their personal information to a judge or an arbitrator, the opportunity for more hurt feelings is expanded and amplified. The chance to resolve the dispute in privacy and with dignity is gone. As a result, the litigation process itself may make matters worse. I see this sometimes in my practice. It’s a situation that is played out with regular frequency. Imagine the following scenario:
The wife retains counsel because she’s in need of spousal support. All she wants is some support (alimony) for a few years so she can get back on her feet. She’s been out of the job market for a few years, and wants to retrain. Her lawyer must start a lawsuit to obtain that relief. He prepares affidavit material, explaining briefly the history of the marriage, and the career circumstances, and he describes the roles which the parties assumed during the relationship. He hopes to use these materials to persuade the court that the support is merited. As part of that process, it is explained that the wife ended her studies at university to raise the couple’s only child. The lawyer thinks this may be important. The wife’s affidavit also says that in recent years, she’s longed to upgrade her skills and return to school, but never had the time or the opportunity. It’s all pretty innocuous stuff. It is, however, necessary to deliver it to the husband and his lawyer to get the process started.
Although the allegations are not particularly provocative, the husband is upset by them. He worries that he’s being persecuted, and wonders if the judge will tag him for some unmanageable monthly sum. As a result, the husband becomes defensive. He meets with his lawyer, and they prepare an affidavit in response. (This responsive material tends to be slightly inflammatory, based on the theory that a good offense is the best defense. The lawyer wants to have a fighting chance.) Accordingly, in the material, the husband says that the wife was always a little on the lazy side, and that’s why her career never advanced. Really, it wasn’t his fault — he wished she had worked more, and contributed to the family pot. He deposes that he often asked her to return to work, but she declined his sensible proposals.