There is an African proverb that says “When elephants fight it is the grass that suffers.” Much can be drawn from this wisdom. There is a lot of collateral damage that arises from conflict and there is often harm done to the innocent bystanders looking on. In the divorce setting those innocent victims are often the children. I think it is safe to say that in contentious divorces it is the whole family and all who have any connection to it that suffer. The elephants engaged in the fight are also certainly suffering every bit as much as the grass. In this week’s blog we explore the notion of winning, losing and fighting in divorce, what it is we are fighting about, and what our responsibility might be to turn down the heat and stop throwing fuel on the fire.
What are we fighting about? I recently saw a list that had been compiled of the top 10 reasons that couples get divorced. The list included infidelity, money problems, lack of intimacy, lack of communication, constant arguing/conflict, lack of equality, unrealistic expectations, weight gain/loss of attraction and abuse. From these reasons for the breakdown of the marriage come all the accompanying emotions; anger, resentment, mistrust, a strong desire for retribution, fear and loathing. Right along with all of this comes a natural breakdown in the couples ability to effectively communicate, or often their desire to communicate with each other. With this backdrop, couples now need to embark on handling the business of their divorce. The stage is certainly set for fireworks and high conflict.
Winning and Losing. Before you begin reading this upcoming paragraph I warn that you may encounter sarcasm and a bit of hyperbole. With that disclaimer, let’s move forward. If I were King for a Day and could put in place a system of divorce to best move a couple from this challenging place referenced in the prior paragraph, to the most effective resolution of their case, here is what I would do: I would make it about winning and losing and having each spouse strive for getting the most they can. I would have them each find their own professional, and have them each secretly meet behind closed doors to plan the best path to their own victory. I would set up a public place to be the arena for this fight to take place. I would have each side write up why they should win and why the other spouse should lose and would have these write-ups entered into the public record. I would encourage the skeletons to be brought out of the closets and public exposure of the flaws and shortcomings of the other side. I would give everything time to bubble and simmer and would make sure that months and even years would pass before decisions were to be made. I would assign a stranger to step in and make all the decisions for the family. I would have it be extraordinarily expensive just because.
You might say that it is a good thing that I will never be King for a Day. I am with you on that. Unfortunately, my description above is not too far off the mark from the traditional litigated model of divorce that is the norm today. We have a system in place that takes couples that are primed for the fight and then invites them into a process that adds fuel to the fire. I question the intelligence of whoever it was that decided to put such a system in place to be our preferred model for resolving divorce. It is as if we are inviting the elephants onto the lawn and encouraging them to fight.
Before I move on, I need to take a step back and qualify my remarks. I am passionate about there being a better way but I also need to make it clear that I am not attacking our hardworking and compassionate Judges, and my fellow Family Law Attorneys. I have stopped litigating but I spent years of my career doing it. I know there are unsettleable cases and there are situations where people need to be told what to do and how to behave. I know there are hard decisions that need to be made and even reasonable people sometimes can’t agree. There is a place for litigation. I am really just saying that it should not be the norm. It should be the exception to the rule.
What is our responsibility? I write this blog as a conversation with my fellow divorce professionals and with my clients who are facing divorce. So when I say “our,” who am I talking to? For us professionals, we have decided to work in a field that has a very unique emotional charge to it that must be navigated. To accomplish what is best for the family we must consider one of our tasks to be finding a way to turn down the heat on the conflict which will allow the negative emotions involved to move toward dissipating. For all of us, this means working together to gather and exchange all the information needed to make informed decisions. This means beginning a dialogue that finds solutions that treat each side fairly. It means finding ways to solve challenges quickly as they arise. It hopefully means taking the high road and avoiding dredging up the past and instead looking to ensure a better mode of interaction in the future.
The issue in divorce is not the conflict that naturally exists at the beginning. There is history and actions that have resulted in the breakdown of the marriage. Those need to be navigated. We just shouldn’t be eager to lead couples into the arena to fight. That may be what everyone feels like doing given the emotions. We must not forget about the grass and all the other collateral damage that comes from the fight. There is a lot on the line. There is a lot to be gained from finding a path focused on restoring peace. Divorce is not about winning and losing. It is about taking care of matters so that life can move forward for everyone involved.