Breakups & Divorce

Divorce Court is No Place For Divorce

I was never ruined but twice: once when I lost a lawsuit and once when I won one. -Voltaire

Divorcing parties will either agree to an out-of-court settlement as to “who will get what in the divorce,” or they will run the full gambit of the legal system and a trial judge will decide this for them.

This article separates myth from reality. It gives those who are unable to settle their divorces a candid look at what they can expect at the finish line.

First, please consider this question: When was the last time you heard anyone say a good thing about the divorce legal system?

Most of us say Never. And here are two reasons why:

Our legal system cannot give us more than we have when we enter it.
No matter what we have when we enter the system, we will leave with less.

And this is before the lawyers get a dime.

The outcome of a divorce trial can define only the extent of one’s loss. It does not define victory because victory is not in the cards. There are no winners in a divorce battle; everyone loses.

Typically, disputes over financial issues begin when one of the parties perceives that the other’s settlement position is unreasonable. The real trouble starts when we discover that we are unable to get through to our partner.

If we cannot reason with someone who is being unreasonable, it catapults us to a new level of frustration and anger. This is when our human frailties take over and tempt us to react in ways that will only add to our frustration and anger. This is also when divorce can really become expensive. If you reach this point, it helps to know what the divorce legal system can actually do, or not do, for you.

Litigation does make sense when it is a last resort. If you married a negotiation bully or a person whose wiring is similarly incapable of compromise, you have a genuine need to go to trial. A judge will always treat you better than this type of person will.

Participants in competition, and this includes divorcing parties that go to trial, are not objective. As each day passes, they tend to become more driven and set in their thinking. Settlement is for those who may lose, and we plan on winning. Besides, we do not wish to appear scared or weak, so we tend to act tough and unyielding.

If settlement is touched upon, we may scoff with disrespect. Our posturing intensifies as we take turns shooting down the other spouse’s settlement overtures. In general, things escalate in the wrong direction.

The real problem is that litigation reduces cases to black and white, and this is pure fantasy when it comes to divorce. It makes us think there is, indeed, a possibility of a happy ending. Right. Ask around and see how many former divorce litigants you can find who were happy at the end of their cases.

Everyone leaves the litigation process feeling frustrated, disillusioned, and poorer. It’s like mental cruelty all over again.

Spouses entering the divorce legal system for the first time mistakenly believe they will get to speak their minds in court. Finally someone will actually listen to what they’ve had to go through! However, this rarely happens. In the first place, over nine out of every 10 divorcing spouses will reach a settlement before they ever get to speak to a judge.

More importantly, even those who actually do testify at trial do not get to say what they want to say. They are allowed to speak only when answering questions put to them by the lawyers, and the rules of evidence allow the lawyers to ask only what is legally relevant. This rarely includes the injustices, the dishonesty, the betrayal, the adultery, the lies, the pain, the unfairness, and most of the other things that the parties think the judge should hear.

Instead, when deciding a case, the judge must stick to the relevant facts and the applicable law. The court is unable to consider the parties’ underlying humanity, which is the very fulcrum upon which the parties base their sense of justice and entitlement.

Simply put, the law is the standard by which the court will judge your case. Your emotions, feelings, and pain do not count in a courtroom. The judge will not even learn of these things, because they are not admissible.

The judge’s hands are often tied because the real boss in this context is the state legislature (the lawmakers) which tells the judge what he or she can or cannot do.

Judges determine what happens to real people in real-life situations. They have to look people in the eye and dispense what is often cookie-cutter justice. The lawmakers don’t have to look anything in the eye but another cigar; they do not see the faces and tears of those most affected by the laws they write.

Judges do the best they can, under the circumstances, to achieve equity and fairness. They try to give every litigant fair consideration, but they can go only so far. In the final analysis, the judges must follow the law as it is and not as it (so often) should be.

Litigation is an emotional vampire that sucks the spirit out of people. In other areas of law, litigation puts an end to a problem. Divorce does bring legal closure, but it often causes additional family problems.

Litigating a divorce case can cause emotional devastation to the family unit that can last for decades.

J. Richard Kulerski is a veteran divorce lawyer in the Chicago area. He is a Harvard-trained negotiator and mediator and the author of Divorce Buddy System – The Real Secret to a Reasonable Divorce.

Author: J Richard Kulerski
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