The View from A Senior Family Law Lawyer

Why Family Court is Likely Your Very Worst Option

Over the course of decades of practice, I have had many clients step into my office who are ripe and ready for a battle. They have been secretly recording their spouse’s actions and conversations. They have gained access to their spouse’s computer files and accessed private information. They have coached the children to report that they wish to reside with them. They have disclosed to the children the wrongdoings of the other spouse. They have made a journal of all of their spouse’s misdeeds, for weeks or months. They have come to the table with bared fangs.  With every one of these interactions, my spirit wilts, for this is the most tortured and unproductive way to approach the end of a relationship; the reorganization of a family or couple’s life and the creation of a healthy future.

What amount of gentle coaching and guidance will it take to allow these clients to see that their family law needs will be best served by consensual solutions and a kindly parting – not in cloaks, daggers and bloodied battlefields.

These clients are the product of our traditional method of family law dispute resolution, in which disputes are solved by battles and results are imposed by a higher power (a judge), who takes on an almost parental authority. In the process, the parties are pitted against each other. They share every insult and degradation that they can bring forth to crush their opponent. So you must ask yourself, is this what you want for your family? And you must choose a divorce lawyer who will steer you in a healthier and more productive direction.

From the perspective of a senior family law lawyer, these are some of the many reasons why you don’t want to end up in Court.

Court Requires the Meting Out of Harm

If you and your partner had a hope of moving forward in a calm, cost-efficient and civil way, this hope will likely be dashed by the requirement to show a Court why you are the better choice. In doing so, you will, almost inevitably, put forward information as to why your spouse is flawed, unworthy and, sometimes, downright bad. It doesn’t matter if the reality of your relationship and parenting is somewhat more nuanced, or that goodwill and trust are the best tools to encourage resolution. You are forced to bear arms and deliver harm. Yet how will this serve you when next you and your former partner meet at the children’s soccer games, their weddings or their graduations?

Court Encourages a Win-Lose Approach

In Family Law, couples may part ways but, in most cases, they share children. Their children will be a tie that binds them together for years to come. Their ability to work with each other kindly and respectfully will be a strong predictor of the wellbeing of their children. When one party is invited to bash the other, and should one emerge victorious (with the other in tatters), this is generally a very poor starting point for healthy and cooperative future communications. It is a bruised and battered place from which to build a new life.

Court is Punishingly Expensive

It can cost thousands of dollars to simply initiate a Court Application – just to stick your toe into the Court pool. This sum will be expended by each party. And this will be just the first of many required steps in the Court process, necessitating various Court filings and costs with each step. The costs will not stop until the case is settled, or a judgment is rendered. Months after you have begun the Court process, you may find yourself mired in cost and walking through the required steps of the Court process, with no end in sight. You may find yourself helpless to stop the process or the financial drain. In the worst-case scenario, you may be compelled to surrender your family law entitlements simply because you can’t afford to go on.

Court Takes Away Your Right to Self Determination

Try to imagine a third party assuming your right to make decisions about your children – the little people whom you brought into the world, and whom you have guided, loved and coached to this very day. Now, a judge – someone who knows one millionth of their story and yours – will take away your right to decide where and how they live, and how they are raised. You will find that you have surrendered your right to choose in relation to those who are most precious to you. You will find that you have overlooked alternatives to Court that could have allowed you and your spouse to map out your children’s post-divorce lives, with your unique and loving understanding of their needs. Those who surrender their autonomy to choose, generally experience some level of despair.

Court Puts Your Children in the Battlefield

No matter how much you believe that you are hiding the Court dates, the poison and the stresses of the adversarial process from your kids, rest assured that they know a good deal of what is going on. They can feel the toxicity of battle. They can feel your stress, anxiety, sadness, anger and depletion. The greatest predictor of harm to children in a separation is conflict. Difficulties in school, sleeplessness, acting out, emotional health problems and physical health problems are just some of the harms suffered by the children of parents in conflict. Court feeds on and encourages conflict.

Court Discourages Solution Focused Thinking

You and your partner know your circumstances and your children best. You are best situated to find solutions that will encourage your separated family to thrive. You shouldn’t need, or want, a stranger to tell you how to live your lives. Rather, you need a facilitator to help you get over the challenges that impede you from coming to your own winning solutions for your separated family. There are many non-Court and low conflict options for resolving your family law concerns without ever darkening the doors of a Courthouse. Thus, one should never retain a family law lawyer who simply streams you into the adversarial process.

Ask your divorce lawyer about civil, counsel negotiations, mediation or collaborative family law. Ask your divorce lawyer about their approach to resolving family law concerns. You should know whether your divorce lawyer attaches importance to low conflict resolutions. You should know whether your divorce lawyer is concerned about the fact that conflict drives up cost. You should know whether your divorce lawyer is interested in maintaining your wellness, and the wellness of your children, throughout your family law journey.

This senior family law lawyer can tell you, without hesitation, that unless you find yourself in a situation of emergency, ensure that you always investigate non-Court Divorce options for resolving your Family Law issues before you consider Court.

Stay tuned for future articles with tips to achieve a successful family law outcome and manage your family law costs.