'This Guy Walks into a Divorce Lawyer's Office ''

The litigation process encourages the attorney to take every available advantage for his/her client, put the client's case in the best possible light, refrain from offering evidence that is harmful to the client (with some exceptions), and challenge everything possible in the opponent's case. The opposing attorney has the same job.
Most attorneys in the adversarial process are so caught up with the client's 'cause,' that the attorney can lose sight of any and all sense of objectivity, which is required to analyze both sides of an issue. Many are all too willing to believe the 'emotional' version of the client's facts, and refrain from scrutinizing the information for false or misleading claims.

The contested dissolution-of-marriage case is a family disaster waiting to happen. As difficult and bad as things seem to be during the litigation of a family law case, the real conflicts are yet to be realized. After the final judgment is entered, if there are any issues over which the court has retained jurisdiction, such as ongoing financial support matters, an odyssey of struggle and conflict may ensue for as long as the court has jurisdiction over the parties and subject matter.

What can be done to avoid this 'never-ending' conflict resulting from litigating family law issues? Probably nothing immediately, but over time changes can occur that can result in the resolution of most of these issues without resorting to litigation and in a process that is more practical and simplified, but less costly, time-consuming and confrontational. However, change is slow in the traditional legal arena where attorneys are trained and experienced in relying upon precedent and stare decisis, and may be unwilling to consider different and creative means of representing a family law client. Furthermore, such changes may appear to be either unethical or in violation of the attorney's duties to fully represent his/her client. (Note, however, that procedural rules in many states now require alternate dispute resolution at various stages of litigation, as well as financial disclosure at the outset and supplemental disclosures periodically during litigation.)

The real change necessary to simplify and create a less confrontational atmosphere will result from the individual professionals involved ' the judge, the attorneys, the mental health professionals and the financial professionals ' taking appropriate action by 'assisting' the party/client/patient, rather than 'advocating.' The goal of the family law professional should not be to represent his/her client's interests blindly, but to be mindful of the client's best interests in light of the entire family's long-term interest, both financial and emotional. If children are involved, their interests must be paramount. If there are financial issues involved, they must be approached with a sense of objectivity and fairness to both sides.

Most parties arrive in the family law 'system' via the divorce attorney. Thus, it is he or she who most often has the first real opportunity to change the way the system operates. For example, a client comes to the attorney either asking advice regarding the potential for a divorce, or already knowing there will be one. The first contact between the attorney and client is critical and will probably set the parameters of their relationship throughout the entire case. A red flag for the attorney includes clients who say or exhibit the following:

' This will be an easy case.
' My spouse has threatened to kill himself/herself if I go through with the divorce.
' I do not want this divorce.
' I do not have time for this divorce, including meeting with you and filling out papers.
' I need legal representation, as I was served with legal papers 2 months ago.
' I am presently being represented by my third attorney, who is not representing me to my satisfaction.
' Are you the best attorney? I need the best I can possibly afford.
' Can you beat my spouse's attorney?
' My spouse's attorney is an (expletive).
' I will never, ever pay my spouse's attorney. I will go to jail first.
' I am a fighter. I never lose. Will you fight for me?
' I have standards and principles I must vindicate.
' My spouse and I do not communicate with each other.
' I want to limit my spouse's contact with our children.
' As a result of his/her adulterous relationship, I am going for full custody of the children.
' I want you to subpoena his/her 'lover.'
' The other party/parent does not deserve to have regular contact with the children, as that person was never involved with the children during the marriage.
' I want to move with the children to a state 2000 miles away.
' I will not pay one red cent
in alimony. I will go to jail first.
' Did I mention that this was an easy case?
' I will allow the other spouse to see the children, but only if I receive financial support.
' I am unwilling to assume primary care (custody) of the children if things don't go well financially.
' I will pay financial support, but only if I am allowed contact with the children first.
' I have an answering machine screening and limiting phone calls from my spouse to our children.
' My spouse and I (or either one) are citizens of another country/culture.
' Can you 'get to' the judge and influence him/her?
' I want this case over as soon as possible.
' Money is no object.
' I have no money to pay your fees.
' My spouse has complete control over family finances, as well as all the documents and papers. I have no knowledge of our income. My husband/wife pays all of the bills.
' I am without any knowledge of
my financial status, which will require you to deal exclusively
with my accountant/businessmanager/other persons.
' The other party will have to pay all your fees.
' I am unable to afford a divorce now.
' I do not have any money, as my spouse has withdrawn all the money from our bank account.
' I want to keep secret certain financial transactions that are not designed to be uncovered.
' I am due a large financial bonus in the next few weeks, but do not want my spouse and his/her attorney to know.
' I have a bunch of cash. Can I take a trip to Las Vegas and get rid of it?
' My spouse owns and manages a business that receives most of its
revenue in cash receipts.
'My spouse under-reports his/our income to the IRS.
' Can I cancel my spouse's use of all credit cards?
'Can I charge all credit card accounts up to the maximum allowable balance in order for my spouse not to be able to incur charges?
' I want to close all liquid asset accounts to prohibit my spouse from taking any of these funds.
' My spouse is devious and I do not trust him/her. He/she said I would get nothing if I contested anything.
' My spouse worships money.
' My spouse has threatened bankruptcy.
' I am angry at my spouse.
' I love my spouse and will give him/her anything he/she wants.
' I want my spouse removed from the home, notwithstanding the fact that we are barely meeting our financial obligations as it is.
' My office is in my home, and my spouse has informed me that he/she is going to seek my removal from the home.
' I pushed and shoved my spouse last night, and he/she said he/she would have me removed from our home.
' I am unable to make any decisions and will rely upon you, as my attorney, to do so.
' I want to tell the judge my side of the story.
' I want my 6-year-old child to tell the judge how he/she feels about the other parent.
' This is, after all, an easy, straightforward case.
' Will I be divorced by this summer?

The list goes on and on. The attorney can easily take sides with the client, support the client in every way, and begin planning a strategical attack on the other side at this beginning point. Or, the attorney can sit back and listen to the client (listening is, of course, an excellent communication technique). At some point, however, the attorney must ask some questions, explore the facts not being volunteered by the client, and inform the client of reasonable expectations notwithstanding the client's feelings, wishes and concerns.

A problem-solving approach would include:
' Assessing whether the client really needs an attorney at this point. Is the marriage really over? Is it realistic to consider saving the marriage?
' Assuring the potential client that the divorce process should not be used for emotional satisfaction or relief.
' Emphasizing a cooperative problem-solving approach, as opposed to a confrontation or competitive 'win-lose' approach.
' Counseling that children are not to be 'used' as pawns. Rather, their best interests must be considered, which normally means regular, frequent contact with both parents.
' Guaranteeing that complete and accurate financial disclosure will be promptly compiled and provided, as well as any supplementary information due to changes occurring during the process.
' Encouraging or discouraging communication between the parties, depending on the parties' relationship and their feelings toward each other.
' Avoiding any action that will result in antagonizing the other side or in engendering distrust. Typically, an attorney's letter articulating his/her client's grievance or position may result in additional ill-will between the parties. Consider picking up the telephone and talking with the opposing lawyer first regarding sensitive and potentially confrontational issues.
' Treating the other side with courtesy. Try to overlook actions that will appear to be, or are, in fact, uncooperative or insulting. Instead of responding in a similar fashion, the attorney should begin by attempting cooperation. Avoid emotional reactions and deal logically with the factual issues.
' Insisting that the client follow the attorney's advice and make personal decisions based on that advice. Listen very carefully to the client and have the client listen very carefully to you. Insist upon the client's cooperation.
'Understanding that reasonable people may differ. If resolution of all differences does not occur, the last resort is to submit the dispute to the court.
Lastly, I have found it helpful in my divorce practice to submit to each client upon engagement an open letter describing and stressing the importance of a friendly, cooperative, rather than an adversarial approach to the divorce process.

Dear Clients,
I have engaged in divorce practice for quite some time. I have found the adversarial system to be largely unworkable, nonproductive, inefficient and overly expensive, while only continuing to fuel the fire of acrimony and bitterness. I, therefore, expect all of my clients to take the high road, if you will, and ask that you pay specific heed to the following standards of conduct that I require, and which will ultimately serve your best interests:
Each person involved in a divorce (attorneys and clients on both sides) has the absolute obligation to operate appropriately, regardless of the behavior of the other side. You must avoid stooping to lower levels of behavior, if displayed by the other side. That is, try to do the right thing regardless of how the other side behaves.
Fighting accomplishes nothing. Fighting only sets up another future fight. No matter how strange or outrageous another's actions may seem, his/her behavior makes sense to them, and that person can most likely justify it, no matter how misguided or incorrect it appears to us. In a marriage, all disagreements finally come down to giving in or giving up. If you insist on being stubborn, or on always being right, or demanding your own way, you doom your divorce to never-ending conflict. All harmonious human relationships require compromise, even in divorce. Negative emotions are premised upon pain. Hurt involves pain experienced in the present; anger is brought about by pain experienced in the past; fear is worry about possibility of pain in the future.
Arguments are usually caused by fear. Jealousy can be caused by fear of loss. Anger can underlie a fear of domination or control, particularly where there is a history of being dominated. Resistance is sometimes motivated by a fear of being overpowered. In order to overcome fear, you must show courage. Willingness to be open-minded and view your spouse's behavior in light of new information is evidence of your courage. In order to show courage, the first thing you must do is to temporarily give in. You must surrender pride, stubbornness, vindictiveness, contentiousness or a desire for revenge.
I will consistently expect you to demonstrate courage, respect and rational behavior.
In divorce, punishment in any form, particularly in attempting to maintain power and control over the other, is likely to make unwanted behavior continue. Dirty looks, insults, bringing up past mistakes and shouting are all forms of punishment. Why should you stop punishing your spouse? Because you will feel better about yourself, look better, show and generate goodwill and reduce tension.
It is only human for each party to see the rightness of his or her side and to deny the rightness of the offending party. Both can conjure up all kinds of arguments and find support for their side in books and with friends, but usually the truth is that there is some right on both sides. When two people are right and each tries to make the other see his or her side, they rarely succeed. Only by trusting and conceding can the deadlock be broken. It is respectful to try to satisfy your spouse's wishes, if they are reasonable and it is possible to do so.
If you want to convince your partner of your goodwill, do not tell him or her. Rather, demonstrate your good behavior. Do something you know he or she will consider nice. Remember: actions speak louder than words. Kindness and understanding can repair anger and hurt. Even if your spouse is really as bad as you think, describing his or her defects is not going to cure anything, and, certainly, repeating old criticisms or past mistakes is not going to undo them. In fact, if you find the right opportunity, you might seriously consider validating and acknowledging some of your spouse's good qualities (especially a spouse who shows signs of bitterness and anger toward you).
A productive divorce is a function of mutual cooperation or reciprocity. Equals treat each other fairly and expect the same treatment in return. Your unfairness toward, or mistreatment of, your spouse will be indicative of your not treating him/her as an equal and will only lead to conflict. Other ways of making spouses feel unequal is by criticizing, ridiculing or ignoring them, comparing them unfavorably, finding fault or acting in a superior or arrogant manner.
If you have the attitude that you have to be right, prove your correctness, have your own way and win, you may have the pleasures of your short-gained victories at the expense of totally unsatisfactory long-term results. Finally, if I suggest counseling to assist you in being more productive, more constructive and more objective, please do yourself a favor and follow my advice. Often, the emotional adjustment in the divorce process is extremely difficult and will determine whether or not a case is settles.
Over the past few years, I have only taken one or two cases per year to trial. I expect, even almost demand, that every case be settled. If you want to fight and punish your spouse, please rethink your decision to hire me as your attorney. I fully understand that the entertainment media and some conventional folk wisdom might lead one to conclude that raking one's spouse over the coals is the approach to take within the context of a divorce, and that not to do so is a sign of weakness. I can assure you that this is a far cry from reality and that solutions collaboratively developed are superior to, and more durable than, those won in an aggressive competition.
I look forward to working with you.
Very truly yours,
(Your Name)

Setting the Scene for Success

The traditional adversarial system continues to draw criticism when aggressively applied to family law cases. Apart from the inefficiencies, impracticalities and associated costs of strongly competitive approaches, the reasons for abandoning these poorly conceived methods of dispute resolution should be obvious:

' Combative fires tend to be fanned and magnified with each contested court proceeding, thereby creating the potential for long-term conflict;
' The parties' negative emotions and feelings are allowed to significantly impact the attorneys' actions on behalf of their clients;
' The potential for professional ill will between attorneys and/or professional experts is created, while heightening the potential for gross animosity between attorneys and opposing parties.

The litigation process encourages the attorney to take every available advantage for his/her client, put the client's case in the best possible light, refrain from offering evidence that is harmful to the client (with some exceptions), and challenge everything possible in the opponent's case. The opposing attorney has the same job.
Most attorneys in the adversarial process are so caught up with the client's 'cause,' that the attorney can lose sight of any and all sense of objectivity, which is required to analyze both sides of an issue. Many are all too willing to believe the 'emotional' version of the client's facts, and refrain from scrutinizing the information for false or misleading claims.

The contested dissolution-of-marriage case is a family disaster waiting to happen. As difficult and bad as things seem to be during the litigation of a family law case, the real conflicts are yet to be realized. After the final judgment is entered, if there are any issues over which the court has retained jurisdiction, such as ongoing financial support matters, an odyssey of struggle and conflict may ensue for as long as the court has jurisdiction over the parties and subject matter.

What can be done to avoid this 'never-ending' conflict resulting from litigating family law issues? Probably nothing immediately, but over time changes can occur that can result in the resolution of most of these issues without resorting to litigation and in a process that is more practical and simplified, but less costly, time-consuming and confrontational. However, change is slow in the traditional legal arena where attorneys are trained and experienced in relying upon precedent and stare decisis, and may be unwilling to consider different and creative means of representing a family law client. Furthermore, such changes may appear to be either unethical or in violation of the attorney's duties to fully represent his/her client. (Note, however, that procedural rules in many states now require alternate dispute resolution at various stages of litigation, as well as financial disclosure at the outset and supplemental disclosures periodically during litigation.)

The real change necessary to simplify and create a less confrontational atmosphere will result from the individual professionals involved ' the judge, the attorneys, the mental health professionals and the financial professionals ' taking appropriate action by 'assisting' the party/client/patient, rather than 'advocating.' The goal of the family law professional should not be to represent his/her client's interests blindly, but to be mindful of the client's best interests in light of the entire family's long-term interest, both financial and emotional. If children are involved, their interests must be paramount. If there are financial issues involved, they must be approached with a sense of objectivity and fairness to both sides.

Most parties arrive in the family law 'system' via the divorce attorney. Thus, it is he or she who most often has the first real opportunity to change the way the system operates. For example, a client comes to the attorney either asking advice regarding the potential for a divorce, or already knowing there will be one. The first contact between the attorney and client is critical and will probably set the parameters of their relationship throughout the entire case. A red flag for the attorney includes clients who say or exhibit the following:

' This will be an easy case.
' My spouse has threatened to kill himself/herself if I go through with the divorce.
' I do not want this divorce.
' I do not have time for this divorce, including meeting with you and filling out papers.
' I need legal representation, as I was served with legal papers 2 months ago.
' I am presently being represented by my third attorney, who is not representing me to my satisfaction.
' Are you the best attorney? I need the best I can possibly afford.
' Can you beat my spouse's attorney?
' My spouse's attorney is an (expletive).
' I will never, ever pay my spouse's attorney. I will go to jail first.
' I am a fighter. I never lose. Will you fight for me?
' I have standards and principles I must vindicate.
' My spouse and I do not communicate with each other.
' I want to limit my spouse's contact with our children.
' As a result of his/her adulterous relationship, I am going for full custody of the children.
' I want you to subpoena his/her 'lover.'
' The other party/parent does not deserve to have regular contact with the children, as that person was never involved with the children during the marriage.
' I want to move with the children to a state 2000 miles away.
' I will not pay one red cent
in alimony. I will go to jail first.
' Did I mention that this was an easy case?
' I will allow the other spouse to see the children, but only if I receive financial support.
' I am unwilling to assume primary care (custody) of the children if things don't go well financially.
' I will pay financial support, but only if I am allowed contact with the children first.
' I have an answering machine screening and limiting phone calls from my spouse to our children.
' My spouse and I (or either one) are citizens of another country/culture.
' Can you 'get to' the judge and influence him/her?
' I want this case over as soon as possible.
' Money is no object.
' I have no money to pay your fees.
' My spouse has complete control over family finances, as well as all the documents and papers. I have no knowledge of our income. My husband/wife pays all of the bills.
' I am without any knowledge of
my financial status, which will require you to deal exclusively
with my accountant/businessmanager/other persons.
' The other party will have to pay all your fees.
' I am unable to afford a divorce now.
' I do not have any money, as my spouse has withdrawn all the money from our bank account.
' I want to keep secret certain financial transactions that are not designed to be uncovered.
' I am due a large financial bonus in the next few weeks, but do not want my spouse and his/her attorney to know.
' I have a bunch of cash. Can I take a trip to Las Vegas and get rid of it?
' My spouse owns and manages a business that receives most of its
revenue in cash receipts.
'My spouse under-reports his/our income to the IRS.
' Can I cancel my spouse's use of all credit cards?
'Can I charge all credit card accounts up to the maximum allowable balance in order for my spouse not to be able to incur charges?
' I want to close all liquid asset accounts to prohibit my spouse from taking any of these funds.
' My spouse is devious and I do not trust him/her. He/she said I would get nothing if I contested anything.
' My spouse worships money.
' My spouse has threatened bankruptcy.
' I am angry at my spouse.
' I love my spouse and will give him/her anything he/she wants.
' I want my spouse removed from the home, notwithstanding the fact that we are barely meeting our financial obligations as it is.
' My office is in my home, and my spouse has informed me that he/she is going to seek my removal from the home.
' I pushed and shoved my spouse last night, and he/she said he/she would have me removed from our home.
' I am unable to make any decisions and will rely upon you, as my attorney, to do so.
' I want to tell the judge my side of the story.
' I want my 6-year-old child to tell the judge how he/she feels about the other parent.
' This is, after all, an easy, straightforward case.
' Will I be divorced by this summer?

The list goes on and on. The attorney can easily take sides with the client, support the client in every way, and begin planning a strategical attack on the other side at this beginning point. Or, the attorney can sit back and listen to the client (listening is, of course, an excellent communication technique). At some point, however, the attorney must ask some questions, explore the facts not being volunteered by the client, and inform the client of reasonable expectations notwithstanding the client's feelings, wishes and concerns.

A problem-solving approach would include:
' Assessing whether the client really needs an attorney at this point. Is the marriage really over? Is it realistic to consider saving the marriage?
' Assuring the potential client that the divorce process should not be used for emotional satisfaction or relief.
' Emphasizing a cooperative problem-solving approach, as opposed to a confrontation or competitive 'win-lose' approach.
' Counseling that children are not to be 'used' as pawns. Rather, their best interests must be considered, which normally means regular, frequent contact with both parents.
' Guaranteeing that complete and accurate financial disclosure will be promptly compiled and provided, as well as any supplementary information due to changes occurring during the process.
' Encouraging or discouraging communication between the parties, depending on the parties' relationship and their feelings toward each other.
' Avoiding any action that will result in antagonizing the other side or in engendering distrust. Typically, an attorney's letter articulating his/her client's grievance or position may result in additional ill-will between the parties. Consider picking up the telephone and talking with the opposing lawyer first regarding sensitive and potentially confrontational issues.
' Treating the other side with courtesy. Try to overlook actions that will appear to be, or are, in fact, uncooperative or insulting. Instead of responding in a similar fashion, the attorney should begin by attempting cooperation. Avoid emotional reactions and deal logically with the factual issues.
' Insisting that the client follow the attorney's advice and make personal decisions based on that advice. Listen very carefully to the client and have the client listen very carefully to you. Insist upon the client's cooperation.
'Understanding that reasonable people may differ. If resolution of all differences does not occur, the last resort is to submit the dispute to the court.
Lastly, I have found it helpful in my divorce practice to submit to each client upon engagement an open letter describing and stressing the importance of a friendly, cooperative, rather than an adversarial approach to the divorce process.

Dear Clients,
I have engaged in divorce practice for quite some time. I have found the adversarial system to be largely unworkable, nonproductive, inefficient and overly expensive, while only continuing to fuel the fire of acrimony and bitterness. I, therefore, expect all of my clients to take the high road, if you will, and ask that you pay specific heed to the following standards of conduct that I require, and which will ultimately serve your best interests:
Each person involved in a divorce (attorneys and clients on both sides) has the absolute obligation to operate appropriately, regardless of the behavior of the other side. You must avoid stooping to lower levels of behavior, if displayed by the other side. That is, try to do the right thing regardless of how the other side behaves.
Fighting accomplishes nothing. Fighting only sets up another future fight. No matter how strange or outrageous another's actions may seem, his/her behavior makes sense to them, and that person can most likely justify it, no matter how misguided or incorrect it appears to us. In a marriage, all disagreements finally come down to giving in or giving up. If you insist on being stubborn, or on always being right, or demanding your own way, you doom your divorce to never-ending conflict. All harmonious human relationships require compromise, even in divorce. Negative emotions are premised upon pain. Hurt involves pain experienced in the present; anger is brought about by pain experienced in the past; fear is worry about possibility of pain in the future.
Arguments are usually caused by fear. Jealousy can be caused by fear of loss. Anger can underlie a fear of domination or control, particularly where there is a history of being dominated. Resistance is sometimes motivated by a fear of being overpowered. In order to overcome fear, you must show courage. Willingness to be open-minded and view your spouse's behavior in light of new information is evidence of your courage. In order to show courage, the first thing you must do is to temporarily give in. You must surrender pride, stubbornness, vindictiveness, contentiousness or a desire for revenge.
I will consistently expect you to demonstrate courage, respect and rational behavior.
In divorce, punishment in any form, particularly in attempting to maintain power and control over the other, is likely to make unwanted behavior continue. Dirty looks, insults, bringing up past mistakes and shouting are all forms of punishment. Why should you stop punishing your spouse? Because you will feel better about yourself, look better, show and generate goodwill and reduce tension.
It is only human for each party to see the rightness of his or her side and to deny the rightness of the offending party. Both can conjure up all kinds of arguments and find support for their side in books and with friends, but usually the truth is that there is some right on both sides. When two people are right and each tries to make the other see his or her side, they rarely succeed. Only by trusting and conceding can the deadlock be broken. It is respectful to try to satisfy your spouse's wishes, if they are reasonable and it is possible to do so.
If you want to convince your partner of your goodwill, do not tell him or her. Rather, demonstrate your good behavior. Do something you know he or she will consider nice. Remember: actions speak louder than words. Kindness and understanding can repair anger and hurt. Even if your spouse is really as bad as you think, describing his or her defects is not going to cure anything, and, certainly, repeating old criticisms or past mistakes is not going to undo them. In fact, if you find the right opportunity, you might seriously consider validating and acknowledging some of your spouse's good qualities (especially a spouse who shows signs of bitterness and anger toward you).
A productive divorce is a function of mutual cooperation or reciprocity. Equals treat each other fairly and expect the same treatment in return. Your unfairness toward, or mistreatment of, your spouse will be indicative of your not treating him/her as an equal and will only lead to conflict. Other ways of making spouses feel unequal is by criticizing, ridiculing or ignoring them, comparing them unfavorably, finding fault or acting in a superior or arrogant manner.
If you have the attitude that you have to be right, prove your correctness, have your own way and win, you may have the pleasures of your short-gained victories at the expense of totally unsatisfactory long-term results. Finally, if I suggest counseling to assist you in being more productive, more constructive and more objective, please do yourself a favor and follow my advice. Often, the emotional adjustment in the divorce process is extremely difficult and will determine whether or not a case is settles.
Over the past few years, I have only taken one or two cases per year to trial. I expect, even almost demand, that every case be settled. If you want to fight and punish your spouse, please rethink your decision to hire me as your attorney. I fully understand that the entertainment media and some conventional folk wisdom might lead one to conclude that raking one's spouse over the coals is the approach to take within the context of a divorce, and that not to do so is a sign of weakness. I can assure you that this is a far cry from reality and that solutions collaboratively developed are superior to, and more durable than, those won in an aggressive competition.
I look forward to working with you.
Very truly yours,
(Your Name)