As Abraham Lincoln once said, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses and waste of time." Judge Learned Hand, a famous New York Jurist, shared a similar philosophy. He said, "I must say that, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death."

Despite good advice from outstanding Americans, this is just the opposite of what we see in most divorces today. The way most marriages end is the worst way possible. It is me versus you. One party sues the other to end the marriage. This causes unnecessary conflict, anger, hostility, bad feelings, emotional pain, and sometimes even physical trauma. By "going to trial," we force the parties to dig in their heels and fight for their rights. Their attorneys are thrust into a similar position, whether by choice or necessity.

Anyone who has been involved in or around a contested divorce knows they are charge and counter charge. Spouse A claims the other did something wrong. Spouse B denies it and attacks the first with equally harsh counterclaims. It is like watching a prize fight with each side trying to draw first blood.

A divorce shouldn’t be a legal matter. It really is just the disintegration of a relationship with some legal consequences. If you break it down, there are three elements to a divorce: legal, financial, and emotional. The financial and emotional elements are usually the most important., but they receive the least attention in most divorce cases.

By their nature, divorce cases are difficult for the parties and their attorneys because of the highly charged emotions and the uncertain outcome. A divorce is far more difficult for all concerned than your average case because so many decisions are driven by emotions and not logic or money.

If you think about it, a divorce is a fairy tale gone sour. Once upon a time these people fell in love, shared their deepest thoughts and feelings, built deep emotional bonds, brought children into the world, and then watched, helplessly, as the fairy tale collapsed around them.

It doesn’t matter who or what caused the divorce, it is a traumatic experience for both. No one wins. No amount of money can salve the hurt feelings, the damaged psyche, the sense that something important and wonderful has died.

Divorces are equally traumatic for the attorneys. Parties arrive with unreasonable expectations no attorney could satisfy. They want to "punish the wrongdoer" (the other spouse because your client never did anything wrong–it was all "his" fault). A common theme is "I’m going to take him for everything he has, that rotten no good dog."

Divorce clients often ignore their attorneys’ advice and pursue actions the attorney knows can not be won. The attorney has to try to meet the client’s needs and expectations, maintain credibility with the court and fellow attorneys, and avoid crossing the line which violates the code of professional responsibility.

Another problem is nonpayment of fees. Virtually every divorce client walks away dissatisfied because he (or she) didn’t get everything he wanted. Disgruntled clients often ignore their unpaid legal fees. This puts the attorney on the spot. Does the attorney pursue collection action and strain an already damaged relationship with the client or just eat the loss. If the attorney tries to collect the unpaid fees, the chances of a complaint being filed with the Bar association just increased geometrically. More complaints are filed against family law attorneys than almost any other category. Even though most complaints are resolved in the attorney’s favor, it takes a great deal of time and expense to explain what happened.

Neither side wants the truth to come out. Each wants to win. Each deliberately avoids the bad evidence and bring up the good. Each twists and bends the facts to fit their purposes. Attorneys become advocates and combatants, not seekers of the truth. The trial judge is left to try to find the truth, but he is faced with two people intent on selling their version of the facts. The judge must decide whose version wins and how the case should be decided. Since judges are human, perceptions–and not reality–often carry the day.

When the trial is over, no one wins. Both are financially drained, emotionally distraught, embittered, and scarred by the process. If there are minor children and shared parenting responsibilities, the battlefield may shift from the courtroom to the hearts and minds of their children. Losing parents take it out on the winning ones by making unreasonable demands on their former spouses and their children. Despite judicial instructions to the contrary, they try to force the children to take sides and to act as informants against the other parent. The children become the real losers. They are no longer flesh and blood children–they have become "property" to be fought over.

We know our divorce structure is unsatisfactory. What can we do besides educating our children before they get married to reduce the chances of divorce? Churches and other groups offer premarital counseling to engaged couples and counseling to couples experiencing problems in their relationships to help them overcome their issues. This helps. But what about those marriages which cannot be saved? Should we offer these couples a kinder, gentler divorce procedure that minimizes anger, frustration, hostility and stress. Next week I’ll talk about one such alternative.

© Jerry E. Shiles 2004

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