Ideally, the outcome of a divorce or separation is that the parties achieve a clean break by signing an agreement that secures their best interests or getting appropriate court orders. Those agreements or orders should set out workable arrangements for the children (if any), including custody, care and control and access; resolve child maintenance and spousal support issues; and determine whether either party should acquire jointly owned property or sell it and share the proceeds.
Unfortunately, those neat packages are too rare, and in the process of the ensuing legal battles, there are many casualties. First, the parties become more embittered as court hearings wear on. Resources become stretched because they must now support two households instead of one, and funds are redirected to cover mounting legal fees. Second, despite frequent references to the children’s best interests, the children can only be seen in the rear-view mirrors as the parents race towards yet another crash with each other. Third, the mental health of all of the parties is jeopardised.
Over many years of handling high-conflict divorce matters, I recommend that parties consider adopting some of the following strategies:
- Attend therapy for therapy’s sake. The remedies that are available in court do not address the emotional roller coaster of divorce. Counselling and psychological support for the parties and the children are complementary to the litigation process, but should never be used as a litigation tactic. Although there may be a need to rely on a therapist’s report at court, the best outcomes are achieved when the need to get that report is not the focus.
- Write things down. Parties often obsess and often repeat details because they fear that they will forget them. The best solution is to write things down so that the mind does not need to be constantly occupied with them. Moreover, the journal will become very useful if there is a need to prepare affidavits for filing at court.
- Be patient. Whether a party is going through negotiations or court proceedings, anxiety will derail the best-laid plans. There is no instant gratification or guaranteed outcome in court, so it is imperative to mentally prepare for the process to unfold and recognise that litigation is uncertain. Hearing dates at court tend to be far apart, so litigation should not be commenced without recognising this.
- Exercise proper self-care. Parties need to be mindful of their diets and take mental breaks to preserve themselves during negotiations and court proceedings by engaging in meditation and exercise. Too much caffeine will increase anxiety, and, as one writer said, “it is difficult to think about your problems when you are gasping for breath”.
- Focus on your accomplishments. It is difficult to remain encouraged when your ultimate objectives are not met. However, as court proceedings unfold, little accomplishments along the way should not be overlooked.
- Honestly assess your motives. Almost all parties will say that all they want is what is “fair”, but when you analyse it carefully, what they really want may be revenge, an apology or for the other party to feel some pain. An honest assessment of the motives behind every action will help parties to rationally assess what is achievable through litigation.
- Be willing to compromise. It may be difficult for parties to accept the adage, “A bad settlement is better than the best trial”, but it is true. Litigation is uncertain, and you invite a stranger (the judge) to tell you how to organise your lives and affairs when you could negotiate a settlement that reflects what you are prepared to live with. Bear in mind, though, that there can never be a settlement if it means that a party must win on every issue.
In my opinion, no family matter is incapable of resolution if both parties are willing to open their minds to the fact that they have the ability to work things out.
Photo by Zoriana Stakhniv on Unsplash.