Skip to main content

QUESTION OF THE WEEK: Why do divorces get so contentious?

One Lawyer's Opinion: Last week, I was having a casual conversation about settlement of divorce cases, and commented: “each side chooses their weapons. The husband will use custody to push the wife’s buttons; the wife will use financial issues to push his. Wind blows, fire burns. It’s just the way it is.”
I don’t think there are any lawyers or clients out there that openly admit to following this playbook. Kids are people, after all, not the wedding china, the plasma TV, a 401K or the myriad of other things that family law attorneys use to equitably divide assets during a divorce. Still, my recognition and arguable acquiescence to “the way it is” proved problematic to my preferred practice model.
Where does this assumption come from, then?
While I don’t use this strategy to leverage a settlement, it is still prevalent in practice, so much so that I subconsciously admitted that that was inherent to divorce and family law practice. The answer, it seems, would be more complex. Certain biases are ingrained in all of us and show when the emotions of divorce, litigation, and the ultimate fear of loss causes us to shed our talents for rational analysis and appeal to our more basal "fight or flight" responses. In effect, we "go for the jugular", and hit the other side where it will hurt the most.
I’m not saying the traditional wage-earning parent cares less for the children, or vice versa. Rather, the "money-versus-custody" mindset plays on the biases regarding the traditional wage earner vs. caregiver roles. Divorce forces the parties out of their individual role in the family and forces each side to accept new responsibilities; to a certain degree, each parent is now a caretaker and a wage-earner.
At its lowest common denominator, these claims are usually not a fight over money or children, but a fight over identity and what makes each of us who we are. The emotional threat (or fear) of taking away purpose or identity is the biggest stick any of us can wield, and not surprisingly, it can make any process far more contentious than necessary. We (both attorneys and clients) should be aware of it, prepare for it, and most importantly, provide clients with the peace of mind to know that although the climb might be difficult, the views from the summit are pretty good.

Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann . Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?" I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “W