I have long been a critic of the adversarial system of litigation in family law matters. It is, in so many instances, an atrocious method of solving the problems that beset an intimate couple as they dissolve this powerful, attachment-infused bond. I still remember a case I had years ago when I was still representing people as a divorce lawyer. I was working with the wife and the husband’s lawyer was a top level, high integrity, low stirring-the-pot guy. We ended up settling the case after a full-day settlement conference and when it was over, my client had such contempt for her husband – she felt so ill-treated by him through the process, that I came away convinced that, even if the lawyers are solid and solution-focused, the process, itself, is hell on people’s psyches. In the ensuing years, I have often felt enormous gratification helping a divorcing couple manage to resolve their legal issues while keeping the pain, anger and fear within manageable levels. Mediation and collaborative law permit people who can work together with respect and some degree of empathy to arrive at an outcome that keeps their post-divorce relationship from diving into the pit of chaos and alienation that I so often see in the aftermath of almost every litigated divorce I have encountered.
That said, there are times you’ve just gotta go to court.
Presentation of a dispute to a judge or court commissioner may be the unavoidable choice one must make in order to establish boundaries. Ultimately, the legal rules and decisions by a court…and the court orders that result, establish boundaries of behavior for the individuals involved. This may be necessary when one or both people are unable to do this themselves. One such circumstance arises when one divorcing party deeply objects to the divorce and is filled with such outrage and betrayal that efforts to reach agreement with that person on any but the most onerous and unrealistic terms are impossible. Some people’s pain drives the couple into court so that the man or woman sitting on the high bench in robes must establish those boundaries. I recently experienced a case such as this, in which the angry party’s lawyer enabled them in their hyperbolic sense of outrage, only to result in a brutally unfavorable court ruling for his client. She was unable to acknowledge basic boundaries of behavior and insisted upon maintaining her righteous anger. That anger cost her dearly, but she was constitutionally incapable of managing her part of the conflict. Another situation which will necessitate litigation is if one of the parties is struggling with a personality disorder, which is a “locked in,” very rigid manner of responding to stress which prevents that person from managing the anxiety and challenges of conflict. These people need boundaries established and, usually, the court is the only instrument by which this can be accomplished. Also, untreated substance abuse presents a significant challenge to the establishment of boundaries of behavior which will be respected. In this minority of situations, you gotta go to court.