One of the most pervasive and unfortunate myths about divorce is that it is essentially a legal matter. For most people considering divorce the first step appears to be to find a lawyer to tell you about “your rights.” So the first stop is for a consult with a lawyer typically recommended by some friend who says this is a good and aggressive lawyer. The happenstance of that consult often determines whether you will have a decent or a horrifying divorce.
Not all lawyers are the same.
Any reasonably competent divorce lawyer can provide the legal fundamentals. Child support is determined by court guidelines. There are no alimony guidelines; it all depends on a half dozen factors that can be described but outcomes cannot be predicted with any certainty. You both have a right to contact with your children and if you can’t agree the judge decides. Finally, marital property is generally divided equally with an occasional departure from 50/50.
But you are likely to emerge from that consult not much wiser than when you went in. A lot will depend on the personality and style of the lawyer. Few lawyers will tell you that almost all divorces, between 98% and 99% settle before trial. So with all the references to the judge you are unlikely to ever get before the judge. Negotiated settlement is the overwhelming norm. Some lawyers will tell you this. They will also tell you that ideally a settlement will be negotiated resolving all issues of kids, money and property, before anything is filed with the court. And they will encourage you to not file anything in court until there is a settlement or until and unless the other side proves intractable. But you are also likely to get a lawyer who is eager to get the case into litigation because that is where the bigger fees lie. So the lawyer frightens you into believing that unless you get this under the jurisdiction of the court right away, your spouse will take terrible disadvantage of you. Sp you agree, pay a hefty retainer and the lawyer files a complaint in the court thus beginning an expensive inefficient and destructive process. And all you know is that you were just doing what the lawyer told you because, after all, he/she is the expert and is only trying to protect you. Poor you.
Although there are inevitably some legal aspects of a divorce, that is not what divorce is really about.
Divorce is about change and the way you manage that change. Unless you are among the wealthy, much of that change is economic. You have to live on less or you have to reorganize your life to produce more income. Or, you have to do both. It often means changes in housing, career, management of children and reduced discretionary spending. It means that your social life changes as you go from member of a married couple to single and for some, particularly stay at home mothers, a radical increase in the burdens and responsibilities of your life. How you manage these changes will shape your life. If you resist, dig in your heels and try to maintain the status quo while shifting all the changes to your spouse you will have an awful divorce and no cooperation from your ex. If you slip into recrimination and blame and argue that because it’s his entire fault, he should be the one to suffer, you will have a war of attrition no one can win and which you can only lose. Moreover, the financial cost of the war to avoid changes often eats up the very savings that wisely used, could have solved many problems. So it comes down to a simple choice. Follow your lawyer into battle and your divorce will be ugly, long and destructive. In the end you will not win and will have a harder time because of it. Winning in court is a myth that does not apply to divorce.
In the alternative, find a way to collaborate with your spouse in designing a settlement that addresses the needs of all family members. It will not be based on marital fault but rather, what you all need going forward. You do this with a mediator ideally, or if that doesn’t work, with two lawyers committed to a “collaborative” law process in which both commit to not going to court and commit to working out a constructive agreement. But choose a path that is not a struggle in court and that focuses on building new lives rather than vindicating the past. That cannot be done.
Which path you choose will often depend on the wisdom of who you listen to when you are thinking about divorce. Beware of friends and relatives who counsel fighting and seeking the toughest lawyer. They are ignorant and know nothing about how to get a good divorce. Some therapists can be useful although many are too timid to help. A few clergy can help but most are still too confused about their own feelings about divorce and may give bad advice. Today the most reliable pool of good advice is probably among experienced mediators. The mediation movement has grown up in the past thirty years and there are experienced mediators in most places. Just because you consult with a mediator does not mean you have to mediate, or mediate with that mediator. But it should point you toward a strategy that minimizes the damage and promotes a cooperative divorce. Most experienced mediators are often lawyers and can provide basic legal information as well.
Before he was a divorce mediator, he was a divorce attorney. Sam Margulies, Ph.D., J.D., is one of the most experienced mediators in the United States. Since 1980, he has mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.
Author of several books on divorce, Sam Margulies is an empathetic and knowledgeable guide through the difficult journey of divorce. Contact Sam with your questions and to talk about your divorce.