Judge’s Bench™: Why Good People Have a Bad Divorce

May 2, 2019 | From the Judge's Bench | By familyplan

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In my mediation practice, I often encounter cases in which very smart, very kind, and otherwise rational people find themselves engaged in a divorce-related battle for reasons that would surprise someone who knew them outside of the situation.

Some of these cases involved matters that are truly worth fighting over. This includes serious issues such as domestic abuse or custody of children where one party is not fit to parent. More often, a bad divorce gets hung up on a particular issue or set of issues. Then the ill-feelings generated by that particular issue multiply and infect all of the other areas where the parties might otherwise have been able to come to an amicable agreement. ​

I’ve seen cases where the sticking point is a particular painting. Where it is a totally generic item – like dinner plates. One party could easily go out and purchase exact duplicates for less than the attorneys’ fees to argue about them. In one memorable case, everything was settled except for a set of granite steps. You might think they would naturally go with the house that they were attached to, but no.

Why is this? Well, first of all, it is because we are all human. We like to think of ourselves as beings that are primarily rational whose decisions are occasionally influenced by emotions. However, psychologists and sociologists know that people react to stimuli first in their amygdala (where emotions live). Mid-brain reactions happen next, and then last is the prefrontal cortex, where rational thought can override instinctual fight or flight impulses.

Second, experienced financial advisors tell us that people’s investment decisions are usually motivated by a mix of greed and fear. In a perfect world, we would all want to stay invested in a particular stock until it was just at its high point and reap our gains before the stock goes down. But we never know in advance exactly where that high point will be. Ultimately, our greed sometimes encourages us to stay in an investment long past when we should have sold it. Or, our fear sometimes motivates us to get out of a particular investment while there are still additional gains coming.

So, emotion vs. rationality and greed vs. fear motivate people in the family law arena just as in everything else. People want to get “their fair share” of the marital assets, but a party’s assessment of what is “fair” is often influenced by greed. Fear often drives the decision-making process when one or both parents are afraid of losing their financial stability or losing the affection of their children, or both.

However unlike other situations we find ourselves in, these two “ordinary” elements of human behavior are often aggravated by the fundamental structure of the Anglo-American legal system. It is very important to realize that our laws and courts evolved from English common law. These things evolved from medieval concepts of dispute resolution, such as trial by combat. 

If you are a fan of “Game of Thrones” you have seen that system at work!  It is no longer possible for us to hire a sellsword to literally fight our battles. But, we do a pretty similar thing when we hire attorneys to act as our advocates in an adversary system. Court systems are extraordinarily good at some things (resolving contract and real estate disputes). They are passably good at others (compensating victims of negligence). But, they were never designed to be, nor are they, very good at micromanaging the intricacies of human families or divorce.

But, we all have to function within whatever system for resolving disputes our society provides. For now, the system that we have is closely based on the adversarial system used to decide guilt or innocence in criminal matters.

If you’re a good person embroiled in an unwanted fight, what do you do? In the book, “Do Your Divorce Right” co-written with Judge Andrew Horton, we suggest first identifying who drives the nflict.  If you are the primary driver, why?  Are you fighting to protect a child from harm, or are you fighting to gain an economic advantage?  If the other party is the driver, there are approaches you can try to help short-circuit the conflict. When lawyer is the driver, it may be time to switch attorneys.  If the other party’s lawyer is the driver, it becomes challenging. There may be little you can do to change the dynamics unless your partner wakes up and smells the coffee.

You may settle for things you don’t want in order to resolve your case, which may result in a cold peace.  But as one of my colleagues here at Family Plan™ wisely observed recently, “a cold peace is better than a warm war,” but that takes a rational, not an emotional, perspective to grasp…

David Kennedy

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