How To “Win” At Divorce – Part 2

 

In part 1 of this blog, James Pirrie examined the different elements of a divorce, both practical and emotional, with a view to developing a pathway to a successful outcome. 

Of course, it may be different for the super-rich but those family lawyers working with client of more modest means are constantly struck by the paradox:

• that the court structure which is there to solve the problem
• actually, for many IS the problem:

In too many situations, it is the significant financial toll of court proceedings that is the greatest risk of all.

And it is not just the financial spend, as touched on in part 1 of this blog. Court-proceedings have various other sorts of cost:

• toil: running a court case is hugely demanding of your time: the lawyers work hard but they work hard with the material that you need to provide them – many individuals describe it as feeling they are at their worst and yet suddenly they have to take on another full-time job, on top of everything else.
• time: court proceedings will often take a year or more out of your life, during which time the situation may shift, your children will feel the uncertainty and your life may be largely on hold.
• toxicity: legal outcomes run on the fuel of each side stating their positions. All too often each position is stated robustly and positions are assumed out at the extremes, misunderstandings come back in fully pleaded allegations and the nastiness and re-writing of the marital chapter becomes the hallmark of this lost relationship.
• finally and perhaps for a minority, it is how you are thought of going forwards: naturally not all cases are heard and reported in public, but an increasing number now are. But it is not so much the occasional reputational damage of a public report but more the way that litigation can spill out into the way that individuals become thought of by their family and friends – so often the process ends up unfolding in front of not just a Greek Chorus but a whole theatre full of lookers-on.

And tragically, despite all of the effort, the solutions that exist at the end of the hard-fought case are usually not so very different from those that existed at the outset: you are not carried to a higher level of solution or thinking by all the outlay and effort involved in a court case. In fact, the solutions from court are usually expressed in the abbreviated vocabulary of court and with a menu of options that is far shorter than the wide creativity of the parties, when they are operating well and have good support.

There are processes that open up these creative options and work out the solutions that suit their particular priorities so much better. We also find that those who have felt they have to resort to court are taken back to when things change and may need tweaking: time at court so often becomes time and time again at court.

The alternative

Spotting this risk and knowing the connectivity between the parts, we now have the means to manage this problem. It unlocks the answer to the question we first posed in part 1: ‘how do you secure the negotiating high ground?’

What is really needed is to track back to the path that protects against the narrow option of litigation.  And we come face to face with the reality that the central element is that of the relationship:

• where we can summons respect for our partner and listen to their needs?
• when we get there, they are likely to have confidence to enter the process that better supports dialogue and the exploration of the solution that the parties will uncover rather than the solution the court will impose.
• This not only enables resources to be better targeted at each side’s different financial needs but it also preserves money otherwise spent on litigation to fund those futures …
• and, above all. they are futures that are more promising for any children because the children are able to see their parents holding each of them through the difficult transition that is separation and divorce and through to what comes after.

This is why your central safety strategy is likely to be to engage relationship support:

• to help you settle your thoughts;
• to start to focus on your priorities;
• to gather understanding as to where your partner is;
• to consider how the transition is is likely to impact upon your children and how they can best be carried through it all;
• and to start to plan how best to reach out for agreements.

It is why, seeking to manage your situation for the best, you would almost always engage someone from a relationship background in your team, someone like Jo Harrison.

How to “win” at divorce?

Like so many difficult questions, the difficulty is largely because this is the wrong question to be asking. If you are looking at winning you are coming at this with the wrong mindset: your attempt to win will generate the same attempts back and it will usually push you to court where everyone becomes a loser.

When you ask how to secure the negotiating high ground, what you may really be seeking is your safety and your children’s safety and expressing your fears about whether you will be able to achieve this.

We should stop thinking about how to seek out all the logistical advantages available, to be able to negotiate from a position of strength, because that approach will not work. All it is likely to do is generate the same behaviour in return and it provides the fast slide to litigation.

It should not be surprising that relationships are often best addressed by the relational skills of listening, respect, optimism and whole-family thinking. So what the majority of separating couples often need to be doing instead of reaching for litigation is:

• to seek to manage the safe and respectful start;
• to provide clear disclosure when needed;
• to take time and show they are listening to the other person; and
• gather the professional support that will best enable them to operate in this constructive way.

These are such difficult actions to take when trust is low and things are so bad in the home that the Armageddon of separation is underway. And yes, we know, this route is not for everyone: there are situations of risk and lies, when constructive steps will not change the other person’s behaviour. However, usually the people we work for find it in themselves to take this step of faith. They may have to hold the line longer than feels comfortable when there is no reciprocity but eventually there is change and a positive way forward for everyone emerges. By holding hard to principled approaches, often you will be the one who brings themselves, their children and indeed the other party through the best process to the best available set of arrangements.

Next?

So the next best thing that you can do if you know that separation is on the cards is to avoid thinking of this as a win-lose process and hold back from seeking out strategies to dominate. You would do better to draw breath and get yourself informed, carefully, about the options and start to work out a plan for constructive progress. We have written two booklets that look at the issues that you will need to think through. Reading one or both will help you to refine your plans.  You can find out about them here and contact us afterwards to talk things through.

We do many “what if” meetings for clients to find out about what may lie ahead – and they don’t all come back. Some of them, better informed by seeing what really lies ahead, are able to make choices that suit them better within the relationship and secure relational support to do so successfully.