There are five main reasons that families today can find themselves in an adversarial divorce process. These reasons are caused partly by the divorce industry, and partly by people not wanting to take full responsibility for keeping their divorce non-adversarial. It's up to us to change things!
True or false?
1 "We didn't want it to get nasty, but we couldn't stop it becoming adversarial"
2 "I have to fight for a good settlement and what's fair or I'll lose out"
3 "He/she have become completely unreasonable so mediation won't work"
4 "I feel betrayed and if I have my day in court, I will feel compensated for my suffering"
5 "I don't understand the process so I need a lawyer to take control of the process for me"
So are the Big 5 truths - or are they really myths?
Well of course they seem pretty true to a lot of people finding themselves going through family breakup. But in my experience I see that they are in fact myths, and here is why:
1 "We didn't want it to get nasty, but we couldn't stop it becoming adversarial"
True or False?
I'll give it to you straight. The common denominator in adversarial divorce seems to be adversarial lawyers. No matter how much you want to "break up right - please don't fight"™, once you start giving over responsibility to the divorce process to traditional family lawyers then communication often breaks down, and the process can become adversarial, expensive, and very slow to resolve. This is why it is vital to clearly understand your choices from the start.
For example, if you use mediation, you only need to use solicitors at key points for some independent legal advice including turning your final agreement into something that a court will recognise and accept. If your want lawyers all the way through the process then use collaborative lawyers - you won't be able to go to court and the process focuses on direct communication, not expensive letters flying backwards and forwards.
If you really want an amicable divorce, then it's up to you to choose the right people to help you, and the first divorce lawyer you interview may not be the right person for the job.
2 "I have to fight for a good settlement and what's fair"
True or False?
False. Particularly for mothers, the idea that negotiating a settlement and ongoing financial support for the children will be less fair - or let's speak plainly here - less money - if they use mediation for example, is not only illogical (how can a mutual agreement between you and your ex be less beneficial than an arbitrary decision by a judge?), but it is also not statistically true.
US studies have shown that women using mediation end up with higher maintenance payments over a long period of time, than women who go through the courts. And that's not taking into account the cost of court hearings and legal fees which can fritter away money better targeted on university fees or investing it in a business start up opportunity.
3 "He/she have become completely unreasonable so mediation won't work"
True or False?
This is the myth that really annoys me the most. EVERYONE is unreasonable and sometimes a little bit mad when going through divorce (or everyone I know, anyway). Family breakup and divorce is one of the most traumatic, horrible experiences a person can go through, and feeling anger, pain and grief are all natural human reactions to the process. Deal with the emotions, and then the brain kicks back in.
Not only do mediation and collaborative law allow couples to feel listened to, to express their feelings and to then be supported to find the best way forward for the family as a whole, but with the support of other experts in coaching for example, that 'unreasonable' ex can express and work through their anger, fear - or whatever is driving their destructive behaviour - and providing their ex has not risen to the bait and has held a reasonable and consistent space for open and safe communication, then that unreasonable ex will usually decide to work with you rather than against you. It is invariably in their interests to do so.
I have often heard of ex partners who are determined to drag their ex through the courts, who suddenly 'wake up' when they realise how much money, time and energy this approach is taking, and the harm it is doing to their children. But keeping that faith in your ex being ultimately an intelligent and good-hearted person when their behaviour is not reinforcing that, is a real challenge. But challenges are what make us grow and evolve as human beings so bless them for giving you that opportunity, get appropriate support (not an adversarial lawyer, please) and hold on tight for the ride!
4 "I feel betrayed and if I have my day in court, I will feel compensated for my suffering"
True or False?
A family law barrister told me recently, that when a couple take their divorce into the courtroom, they might as well toss a coin as to who will 'win' and who will 'lose'. And of course in reality, no-one wins, and an adversarial approach costs both sides money, time and stress. Not to mention the serious effects on the children.
If you are parents, you will not like what I'm going to say at this point, but for your children's sakes' I'm going to say it anyway: Divorce is not what causes harm to children. Adversarial divorce is what causes harm - more than you can imagine. A long term study has shown that children whose parents divorce through the courts - compared to those parents who were randomly chosen in the study to use mediation - that those children of the adversarial divorce process were significantly less likely to be in regular contact with both parents post-divorce. Other studies confirm that: "Children who are exposed to more intense conflict between parents are more likely to suffer harm resulting from their parents' divorce. The lower the level of conflict between parents, the more likely those children will emerge emotionally whole."
The judge is not interested in your pain. But if you are a celebrity the local press may well be, and they are allowed to come into the courtroom and report on whatever dirty laundry is paraded before the judge. If you choose mediation or collaborative law, your ex has the opportunity to really listen to you in a supportive environment, as part of the process of seeking a sustainable settlement and a way to start over as separate people. And you have the opportunity to really listen to them, too. As co-parents, that is a good way to begin the many years of co-parenting that lie ahead. If you're really clever, you'll do some work singly or together with a relationship coach as well, which can transform the way you negotiate the divorce journey and make staying out of an adversarial frame of mind much much easier.
5 "I don't understand the process so I need a lawyer to take control of the process for me"
True or False?
As the creator of the Alternative Guide to Divorce, I am of course going to say that lawyers are not all that they are cracked up to be - but the truth is, they can be worth their weight in gold - but you need to be careful that you talk to a lawyer who is aligned with what you really want as an end result. So if what you really want is for your kids to not be traumatised by their parents having an angry divorce battle that rages for years, then choosing to involve family lawyers who are trained in mediation or the collaborative process to advice you at key points in the process, makes sense, as they are going to be more likely to steer a non-adversarial route.
But it is you who is getting divorced - not the lawyers. You are in charge of your divorce, not the lawyers. Which is why getting a clear overview of the process from a wellbeing and financial and parenting perspective is so important. Every divorce is different, and only you can hold the bigger picture as a vision of what you want to achieve, and it is you who needs to take responsibility for getting the right support at the right time.
Luckily, you know better than anyone what you need. Talk directly to all those experts offering clarity on how to stay out of court, helping you to open your heart to CoParenting, plus saving you money and stress in the process.
At Divorce in a Box we're different. We've taken an industry that is resisting change, and used our own twist to shake it up a little - to make sure everybody wins...