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Managing your divorce and custody is most likely one of the most difficult tasks in your life. What you want, what you need and what you eventually settle for are, in most cases, three entirely different things. Every divorce is unique and while it is generally best to avoid expensive lawyers, you may not be able to settle out of court, especially if you are in a highly hostile divorce in which one or both parties aren’t willing to compromise.
The obvious conclusion in such a scenario is that you would go to war and fight. You may have a good reason to. But you need to be aware of the consequences of such a decision and you may want to look at some alternatives. Single Parent Gossip has some food for thought.
It is interesting to note that most divorces are not handled by lawyers these days. In fact, 80% of couples divorcing in California are settling the matter on their own. However, there are countless cases that are relentlessly fought in family court and if you are just heading into a divorce and custody case then you surely wonder what you should do.
Do you simply go to a lawyer, because that seems to be the right thing to do? If so, which and what kind of lawyer do you choose? How do you build your strategy, because, in the end, you are looking to get something out of your case: And let’s be honest: We are not talking only about the children here. It is also about the money, house and cars. Other than that, you can care less who gets the family room couch and who takes the Kitchen Aid.
1. Your Motivation
Once you go to war, it is war. You can’t reverse your actions anymore. Your actions will fuel counter actions. It is difficult to stop this freight train from destroying other lives and possibly your own. You may be angry, your spouse may be unreasonable, you may be denied access to your children, there may be alienation going on and you may feel that life is unfair. But do not make a rushed decision to go to war against your spouse in an emotionally vulnerable state. Reasoning, common sense and the ability to think clearly are among the most important tools you have during a divorce. The decision should be made in a calm moment, with the help of trusted friends and also people who are not emotionally attached to you.
2. Your Goals
Know what you want out of your divorce! How much time do you want with your children? How important are your financial assets? Your lawyer will likely tell you that time and money is a trading game. If you have an advantage over the time with your children, you more than likely may be forced into a position in which you will have to negotiate time against money in a divorce war. But if it is time you want, and you believe it is in the best interest of the children to have a certain time with you, than the outcome will not be what you are looking for. You need to be honest to yourself and clearly know what your priorities are.
3. Your Strategy
Once you have figured out what you want and what compromises you are willing to take, you should be working on a plan how to get there. I cannot stress enough that a divorce with children and without children are very different. If you have children, your thinking needs to be guided by the interest of the children and your capability and, let’s be honest, willingness to remain in their lives. In most cases, you will have three choices to resolve a divorce: (1) You sit down with your spouse in a neutral place and settle without lawyers, (2) you settle in a collaborative divorce environment or (3) you go to war. Needless to say (1) is the solution that will prevent further damage you your kids, emotions and finances. (2) may cost a few thousand dollars, but the damage is limited. When you choose (3), you are already in a mindset that you are willing to accept significant emotional casualties and that you are willing to bet everything you have to achieve your goals. In many cases, this choice is very selfish, but if you truly believe that you only can ensure your children’s best interest by going to battle, then you need to do everything you can to make sure you succeed.
4. Collaborative Divorce
I will skip settling out of court here and focus on the two remaining options. Talibah Mbonisi has written an excellent article on collaborative family law. This process differs from settling in private that both parties have a lawyer as a consultant, but both lawyers are focused on finding a fair compromise. Rather than working against each other, the lawyers and spouses work with each other. Read Talibah’s article on Single Parent Gossip here.
War is really a choice you should only consider when there is nothing else left (and even then you may have another option, see below). There are so many reasons why you should not go to “war”, yet there may be very compelling reasons why it is worth accepting the downsides.
Do not be selfish! The reason for going to war is not because you may be hurt and because you feel that you have been treated unfairly. If that is the case then you really need to grow up and learn how to deal with your situation.
Psychotherapist Donna Ferber recently commented on one of our book reviews that is considered to be one of the key guides to a custody war and said that “looking at an impending divorce as war, only fuels the fire and creates an environment of acrimony. As a psychotherapist, who deals with families going through divorce words such as ‘winning’ creates an adversarial relationship which unfortunately continues long after the dust settles. Think of what happens after any war. The devastation is horrific and it takes years to rebuild. The biggest cost of any war-one fought between countries or parents, is always the children.
Children aren’t “won”. They are not a commodity. Rather than think of “winning children” perhaps we need to think about what is in the best interest of the children. In almost all cases, we know that a child who has easy , non-confrontal access to both parents will fair the best.”
However, what if a private settlement and a collaborative approach do not work, what if mediation has failed and you will have to go to war? What are the upsides?
Ultimately, if all reasoning has been lost, if you are dealing with an opposing lawyer who is just looking at your case as a business opportunity – and yes, there are lots of such lawyers out there – and if you truly believe that what you are fighting for is in the best interest of the children then, by all means, go and fire whatever you have. The typical advice is that you fire quick and hard. Do not hesitate. But be prepared that this will not be a sandbox battle. It will be expensive, it will be emotionally exhausting and destructive and it will teach you how mean and unfair life can be.
However, if you simply settle because it is the easier way to deal with your divorce and custody and you settle against what you believe is best for your children, you almost certainly will regret your decision down the road. Even if you do not achieve what you want, you will know that you have given your best and you know that at least you tried.
If you go to war, make sure that you choose an experienced litigation lawyer you feel comfortable with, make sure you read everything you can about custody and divorce law in your state, while not forgetting about your children, who should not be aware of the battle you and your spouse are going through. Brace yourself for a wave of filings and public exposure of your most private details and vulnerabilities. Know that a divorce and custody fight is a full-time job and you will need all your resources and mental stability to maintain a chance for emotional (and most likely) financial survival.
Be aware that, even in a best case scenario, you are unlikely to get what you want, even if the law is entirely on your side and if you believe that what you are fighting for is reasonable. You should not expect to get what you want.
In particular, you need to understand that a court battle means that you are giving up the opportunity that you and your ex-spouse are deciding how you both share the time with your children. What you will get are expensive lawyers and third party experts who surely will determine when you can see your children and when not, laying the foundation or years of hostility. In my personal opinion, that cannot be in the best interest of the children.
You may wonder why I haven’t mentioned any other alternatives before. The reason is that even if you may be in a serious fight with your ex-spouse, you can change your own perception of your argument and positively impact the outcome for your children. No matter how bitter the fight is, you want to make sure that your children are left out of your confrontation. They have enough problems as it is and they certainly do not need to know that their parents are still fighting.
Consider your argument a game of chess or a business negotiation. Change the vocabulary. You will be surprised how much of the bitterness is removed from the fight and it may even lead you to a situation in which you and your ex-spouse can become the parenting partners you are supposed to be. You need to remember that your battle may never be over if you cannot find a way to amicably resolve it, whether that is now or in ten years.
And that, of course, means that your focus should never be on the next filing you are planning against your ex-spouse. Your focus needs to be on your children and resolving your issues so that you can start working on your children’s future and your own life again.