By now you know that I dislike adversarial divorce intensely and that I work to help people avoid it. I added this page to explain why.
When you ask most people how the typical divorce happens, they’ll probably say something like, “I guess both spouses hire lawyers, and they go at it.” By now, you probably know that’s wrong.
Adversarial divorce accounts for a relatively small portion of the actual divorces granted. Most divorces are uncontested.
- But adversarial divorce is what the judges see.
- Adversarial divorce is what the lawyers see.
- Adversarial divorce is what the politicians see.
- Adversarial divorce is what the police and prosecutors see.
- Adversarial divorce is what the reporters see.
- Adversarial divorce is at least disproportionately what the therapists see.
As a result, it’s what we often hear about. But it’s not the typical way most people get divorced. Most people are smart enough, or poor enough, to realize that it’s foolish to spend the little bit of money they have fighting about their divorce. They just quietly get about the painful business of ending their marriage and moving on with their lives. You can, too.
I think the main reason adversarial divorce tends to take a long time is that there are so many parties who have to participate. In order to take any significant action in an adversarial divorce, you have to be present and ready. Your spouse has to be present and ready. Your lawyer has to be present and ready. Your spouse’s lawyer has to be present and ready. And the judge has to be present and ready. If any one of those parties is not both present and ready, your case probably will get continued. You’ll go back home and wait several more weeks or months for the next setting of your case on the court’s docket.
Lawyers who spend most of their time doing adversarial divorce (I call them gladiators) learn to gear their lives by the court’s calendar. That means that if your case doesn’t have a court date coming up in the next week or so, it’s often difficult for your lawyer or your spouse’s lawyer to focus attention on it. That means there will be long stretches when nothing will happen.
You’ll be wallowing helplessly in the Discovery Money Pit. You’ll get frustrated. You’ll get angry. You’ll complain. And still nothing will happen.
Gladiators will never admit this, and some of them may not even realize it, but gladiators use delays in the progress of adversarial divorce to soften up their clients. The concession that you think now to be overreaching on your spouse’s part and to amount to unconditional surrender may seem much more palatable after six court appearances spread over 14 months, and after you’ve spent $20,000 on legal fees. It’s brutal, it’s wasteful, and it’s abusive. But I see it nearly every day. You can find out all how this dreary process works by reading An Open Letter from Your Divorce Lawyer.
Adversarial divorce costs a lot of money for the same reason that it takes a long time — because so many people get involved in it. Most gladiators charge by the hour. So every time you visit with your lawyer, and every time your spouse visits with your spouse’s lawyer, and every time the two lawyers visit with each other, and every time the lawyers visit with the judge, and every time either lawyer spends time working on your case, or just waiting to meet with someone, you or your spouse pay more money.
It’s easy to lose control of your divorce, and there are plenty of examples of divorcing couples who have run up bills of $30,000, $50,000, or even $100,000 because they lost control of the process. Most people going through divorce get tired of the fight before that, however, or maybe the money runs out. For whatever reason, most adversarial divorces end up in the range of $4,000 to $10,000 in total fees. By any measure, we’re talking about a lot of money.
The nature of divorce is that nobody really “wins.” After an adversarial divorce, nearly everybody who went through it feels like a loser in some way.
Because so few people are satisfied with the results reached in adversarial divorce, they’re likely to return to court later to fight about something. They come back to fight about compliance with the property settlement. Or about alimony. Or about child support. Life after divorce becomes a succession of meetings in lawyers’ offices, new petitions, and court hearings — living your life by lawyers’ rules.
If you and your spouse have children, you’re going to have to be parents together as long as both of you are living. Athletic events, recitals, graduations, weddings, grandchildren, funerals — all require that the two of you come in contact, and hopefully cooperate, so your conflict doesn’t take center stage. You’ll have to be able to communicate.
You will not learn to do that in adversarial divorce. You’ll learn to seize on every statement your spouse makes for use in litigation. Because your spouse is doing this too, you’ll learn to be ever so cagey about what you say to your spouse or to anyone who may talk to your spouse, including your own children. You’ll learn never to admit that you’ve done anything wrong, even when you’ve screwed up.
You won’t learn the skills you’ll need to communicate with your child’s other parent in a matter-of-fact, businesslike way. You won’t learn to negotiate effectively, one-on-one, with your child’s other parent. You won’t learn to move past the conflict between the two of you to concentrate on your child.
Unfortunately, you don’t always get to choose whether your divorce is going to be adversarial. If your spouse is taking a position that’s fundamentally different from how a judge would rule, or if your spouse refuses to have any discussions with you other than through lawyers, you may have no choice but to resort to adversarial divorce.
Just make sure you think strategically and stay in control. Make sure your spouse knows that you’re always ready to talk whenever they are. And make sure you don’t get sucked into the emotion of the fight. Do what you have to do to protect yourself, but keep your cool. You may be surprised how quickly your spouse will be willing to talk with you directly.