She responds angrily. Initially, she felt that her allegations were all relevant and “sanitized,” but her husband’s comments have hurt. This time, she deposes that he was nasty throughout the relationship — his behavior drove her into the arms of the neighbor. She says that she resisted her husband’s obsessive demand for her to perform meaningless fast food restaurant work because she knew that their ADHD child needed help with schoolwork and he was always unable to understand that. She uses unpleasant adjectives to describe his character flaws. She closes with a shot about how he’s tired because he’s overweight from beer consumption and watching sports on TV (something he did all day, every weekend) and that he’s never been any good at getting available overtime.
Now the nastiness takes on a life of its own, and the course is set. The mother, who initially only wanted a little spousal support, is embroiled in a complex web that involves escalating legal expenses and revolving accusations. With each passing day she remembers something else that should be included in yet another affidavit, and she’s on the phone with the lawyer twice a week. The husband cannot focus on work, and is considering stress leave. He starts to gather documents to prove what he says, and drops them off at his lawyer’s office. There are more documents each week.
Soon, this little brush fire will spread. In a moment of extreme despair, the wife may even tell their daughter about the problems and Dad’s allegations, and then, because she needs support for her position, she will involve the child in the dispute. The child will want to support her mom, because all kids say what they believe their parent wants to hear. Accordingly, the daughter may say that she doesn’t want to see her father, thinking this will please her mother. Soon, the father begins to fear parental alienation.
Meanwhile, the father will attempt to garner sympathy by sharing information about the spousal infidelity. He’ll tell his friends, and maybe the wife’s sister (he’s always liked her). The husband decides that if there’s going to be a war, it will be necessary to hide some of the savings, and soon this brush fire becomes a raging inferno. The lawyers gobble up retainers at breakneck speed, and as the stakes increase, both litigants are beyond the point of no return very quickly. The equity they once had in their family home will be squandered on legal fees, transcripts, and document production. In the end, everyone loses.
At the end of this case, both spouses are miserable and broke of course. Their child is confused and unhappy. Had the parents settled, their daughter could have attended college. Instead, the lawyer’s kids get a master’s degree. Really, it’s survival of the fittest in this melee.
What has occurred in this hypothetical example is a disaster which is played out regularly in law offices and courtrooms every day. It starts rather simply, with a short affidavit in support of a motion for one form of relief. Soon, the dispute expands, and the allegations grow like a life-threatening cancer.
The affidavits, which start the process off, are particularly toxic because of the procedure — they are “sworn” and usually “served” (delivered by a process server). And because the words of the affiant (a person making an affidavit) are sworn to as part of a Jurat (a certificate or place on the affidavit stating the time, place, and witnesses of affidavit) and given under oath, they are particularly stinging. Nothing hurts like the accusations of a spouse, sworn and shared.
Litigants know that the material is seen by at least several lawyers, secretaries, and court staff, and they may even believe (rightly or wrongly, depending on where the case is proceeding) that the lawsuit is a matter of public record, to which the world has access. Lawsuits, generally, are not secret.
In this example, the cost of the litigation grows exponentially with each new event. It’s not unusual for the litigants to spend $10,000 in the first few months of litigation. That’s before the matter actually reaches court for final determination. In fact, after all this hypothetical matter has gone back and forth, the prospects of settlement have become more distant than they were on the day of separation.
The spiraling costs of lawsuits are, however, but one reason for giving resolution without litigation a real and serious chance. Unspeakable accusations, affidavits that can’t be withdrawn or forgotten, and allegations that contaminate parental relations are some of the other reasons.
Having said all that, I need to be cautious. No spouse should “turtle” on his or her basic rights just because of a fear of litigation. If you or your spouse face an unresolved legal issue, it may be necessary at some point to seek justice in the justice system. That system exists in our magnificent democratic society so that we can get help and justice when we need it. And, as I point out in Chapter 4, there are some specific circumstances in which litigation is the only option. In cases where one spouse has financial or psychological dominance, where abuse prevails, where children are at risk, or where assets have been hidden, a court case may be absolutely critical and the only route to peace.
In the vast majority of cases that I see, however, that’s not so. I would estimate, in fact, that almost 90 percent of the cases where litigation has started are ultimately resolved outside of court. Many of the spouses who end up in litigation started in litigation, and they did so without finding out what alternatives existed. Many parties have not explored or exhausted the opportunities for a negotiated settlement when they consult counsel, and that is a mistake. Indeed, in most cases, it’s never been tried. Often, that’s because the parties simply don’t know how to talk, how to negotiate, or what to do.
As you read the coming chapters, remember: The process of negotiation and settlement is something that your mediator or lawyer is going to engage in at any event — so why not at least try it yourself first?
If you’re overweight, have high-blood pressure, and smoke cigarettes, you shouldn’t be surprised when you go to the doctor for a check-up and receive advice about necessary changes. Unless you have absolutely no insight into the essentials of good health, you should be able to anticipate what will happen.
Yet when I see separated spouses and ask if they can really talk with their spouse or have a calm and meaningful discussion (in person or in writing), I often get a glazed look in response: “Can I do that? Can we talk?” is the question.
The answer, of course, is yes. Unless there’s a restraining order that prohibits the parties from communicating, separated spouses should talk, provided it can be done respectfully and sensibly. If you can’t do that, and every thought, proposal, and idea has to be delivered through counsel, you’re going to need a patient lawyer and a large pile of money to resolve the issues.
At the start, I always tell my clients that the discussions have to begin somewhere. Try a simple issue that’s not too emotionally charged and not likely to create great hardship. Establish rapport and build trust. Show your spouse that talking about the issues (in person, on the phone, or by email) doesn’t need to be traumatic.
If you end up with a skilled mediator or lawyer, he or she will do the same thing. The mediator may not be able to resolve all the issues, but can probably find some common ground on some issues and capitalize on that. Small successes can lead to a trend.
You may want to start off with something that really is a nonissue. For instance, if you know that you have to pay child support and you know (roughly) what the amount will be, engage in a conversation about that. You may want to pretend that you need to discuss the topic because you want to talk about the format for the payments (whether it would be agreeable to split the payments in two, and pay half on the 1st and half on the 15th of each month). You do that knowing it’s non-contentious, and hoping that the discussion