June 2016

Helping Your Divorce Clients Help Themselves by Considering a Better Approach

By Paul McGuire

Attorney at Law

Divorces are complicated, emotional issues that often go beyond just the distribution of property.  People who may be tempted with vengeance, wanting to do everything possible to hurt their former spouse are likely to want to cause the most hurt possible.  If the other spouse has a similar mindset, discovery is likely to pile up along with litigation costs and attorney’s fees.  Often times this means clients will spend a lot of money to delay things and ultimately achieve nothing.  Most clients are not dealing with millions of dollars, and the fight can cause them more harm than good.  Helping your clients adopt an appropriate approach to their divorce will help make the process as painless as possible for them, and they may thank you later.

Avoiding the Potential Costs of Litigation Wars
Litigation wars are typically battled through formal discovery, escalating into motions to compel.  Though discovery is an important tool to uncover necessary information, it can also be an expensive pitfall where emotions are tested rather than facts.  Especially in the family law context, the process of obtaining court orders to obtain compliance may be counterproductive.  Not only do the parties suffer increases in attorneys’ fees, highly contested divorce cases can also take two to three years to complete. In the end if there was any equity in the house, it could be depleted to pay for attorneys.  Instead of money going to the parties and their children, the money is lost to the fight.  Forcing the other side to comply with court orders under threat of fines or imprisonment may cause the parties to build up walls, leading to further litigation rather than reaching out and moving on with their lives.  Is that in your client’s best interest?  Would the money be better spent building a new life?

Approaching the Other Side
Of course, no matter your client’s approach, an aggressive party or attorney on the opposing side can attempt to drag your client into a litigation war.  Your client may wish to respond in kind – this is why the type of approach divorce attorneys take matters so much.  Keep your client’s best interest in mind; it is important for divorce attorneys to focus on reaching the best result while acting in harmony with clients’ wishes.  Even if a client and their spouse do not want to speak to each other, divorce attorneys may open the dialogue by explaining the costs of litigation, and the benefits of taking a more cooperative approach.  Taking the time to consider strategy can save clients time, money, and avoid unnecessary emotional pain.

Considering Mediation
In some cases, a better approach may be mediation.  Private mediation may be superior if there are children involved because it helps minimize the damage done to the children by the public, extended litigation.  Additionally, fighting over children may increase the parties’ desire to take emotional positions, leading to further litigation. Many of those cases turn into a contest to show which parent is the least fit to care for the children. It is no surprise that when those court battles are over the parties have a hard time co-parenting and working together to implement small changes to custody agreements. After all, why would your client want to have a rational conversation with someone who just testified in court about how bad of a parent they are?  In the end, it may be in the children’s best interest for the parties to work together so they can remain flexible even after the court documents are entered.  It may also be helpful to explain to your clients that the money they save by avoiding a litigation war can help pay for their children’s necessities and their future.

Of course, every situation is different.  There is a time to fight, a time to make peace, and a time to move on.  Be the lawyer that is the right balance of fighter when necessary, counsel when asked, and mediator before everything else; that is the better approach.  There may be better ways for your clients to approach divorce than scorching the earth.  Though it may be difficult for them to see that in the moment, years down the road, they may thank you for opening their eyes to a better approach.

This article is for information purposes and does not contain or convey legal advice. The information herein should not be relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.