Читать книгу The Separation Guide - David R. Greig - Страница 7

Litigation is a process that is designed to serve a very special and very unusual person. The ideal litigant is someone who —

• has genuinely tried all other dispute-resolution options and failed for reasons which cannot be remedied,

• has plenty of money for the process and for the lawyers,

• is strong, and

• can afford to lose.

There are two basic litigation processes: the inquisitorial system and the adversarial system.

The inquisitorial system is where the judge or adjudicator is charged with the duty of inquiring into the event at issue, finding out what happened, and determining the facts. The best example of an inquisitorial tribunal in our lives is the process that occurs after a major tragedy (e.g., a plane or train crash), where a panel of experts is assembled to investigate and find out what went wrong. Sometimes, it’s conducted as a coroner’s inquiry. Other times, it’s a government-appointed body that is gathered to get to the bottom of a particular tragedy, to find out what occurred and what can be done in the future to avoid a similar event. The purpose is not to find fault and levy blame.

The adversarial system has a very different objective and a very different process. The adversarial system is the typical court process that we all think about when we remember old Perry Mason episodes or recall scenes from the movie Judgment at Nuremburg.

Our litigation system is adversarial. That means that our litigation proceeds on the premise that if each party puts his or her best case forward and has a chance at a hearty cross examination, the truth will spill out and the judge can then assign fault or blame and fix everything. In the process, of course, a few heads are likely to roll. In family law, since we’re not really interested in knowing who caused the breakdown of the marriage, the purpose of the adversarial system is clearly misplaced. Why a marriage collapsed just doesn’t matter.

Because our system is imperfect, and not really designed for divorce law issues, other options have developed over the years. Now, in North America, there exist many alternatives to litigation. Some are inexpensive, speedy, and low-conflict. Others (i.e., arbitration) are similar to the existing legal system, but have cost and accessibility advantages. Some systems work for some people, while other parties simply cannot find peace no matter what they do. Regardless, the point is that if you are separating, you need to know about the alternatives, and you need to remember that full-blown litigation is, truly, the last option you should consider. Litigation should occur only when every other alternative has failed.

One reason for this is that even the strongest and wealthiest clients find the litigation process far too costly from both an emotional and a fiscal perspective. Some know that at the outset, and wisely resolve issues before the fight becomes too entangled. Others learn the lesson too late, and only set their sights on settlement after huge expenses and nasty affidavits. Even if you are rich, it should be remembered that litigation wastes money, and that’s money that can be better used for other purposes (e.g., children, counseling, luxuries, or charity).

A litigant must be internally strong, too. In order to effectively withstand cross examination, the taunting nature of the process, and all the twists and turns and uncertainties of a lawsuit, you need strength and confidence. Many who outwardly appear to have that strength overestimate their stamina and resources, and discover too late that litigation is simply overwhelming.

If you must litigate because there is no alternative, a lawyer can help you get ready for the process and guide you through the challenges. The following chapters describe what steps you can take before and during a lawsuit to improve your situation and increase the likelihood that you’ll be a good witness. If you must testify so be it; the point here is that most separating spouses have choices to make. Surprisingly, a majority still choose litigation.

Although the horrors of litigation cannot be overstated, every week I have clients insist on proceeding to court in search of justice. It’s almost as if hiring a lawyer and starting a lawsuit is a badge of bravado or a demonstration of strength. Very often I am able to dissuade these clients through calm discussion about the risks, expenses, and process associated with that. Often it’s hopeless — some people insist on going to court.

Sometimes, it’s absolutely necessary to go to court, but it’s rare. The vast majority of the cases that are argued in court might have been resolved if only the parties had remained committed to the process a little longer, or gone with slightly different approaches.

I think one reason why people almost automatically head to court during separation is that they lack confidence about whether the dispute can be resolved by any other method. They don’t know what the options are, and expect a conflict, so they want to “get started.” Having a case up and running reminds them that the relationship has ended and that they are doing something about it.

Some folks even believe that there is a tactical advantage to being the first litigant. They believe that being a defendant is a disadvantage. That’s untrue, of course, but I wonder how many lawsuits have been started with that thought in mind.

Many litigants get into the courts because they assume that their spouse is foolishly stubborn, won’t settle, can’t understand logic, and won’t listen to his or her lawyer or mediator. That kind of thinking may cost thousands of dollars and a great deal of anguish.

Having said all that, there exist numerous examples of cases where the absolute fear of lawyers and litigation has proven disastrous. There are circumstances where legal advice is worth its weight in gold. You just have to know when, where, and how to use a lawyer.

Several years ago, I had a man come to see me for a free initial interview. He told me his entire story, and I gave him some advice and ideas about various options. He was grateful for the information and left.

About a month later he called again. He wanted another appointment, so I agreed to meet a second time. We talked further, and I answered a series of specific questions. At the end, I told him that he must get proper legal advice before signing anything, and I warned him about the risks of homemade agreements. I did not believe he was being suitably cautious, and I was worried about his rush to resolution. He seemed absolutely focused on getting a deal even if it was a bad deal. Troubling, too, was the fact that he wanted a great deal of free advice about tricky concepts, and he wanted to pay nothing for it. This reminded me of the adage about being penny wise and pound foolish. I made a note of this, and told him that there would be a fee for the next meeting.

I didn’t hear from him until a year later. At that point, he wanted another free consultation, this time about the divorce. I apparently forgot that he had already milked me for tons of free advice, and so I agreed to a short third and final meeting.

He made the appointment and showed up for the last bit of free information. We exchanged pleasantries, and I asked him if he had resolved matters with his wife. He said he had, and proudly announced that he’d done everything himself. I congratulated him, but reminded him that I had told him on both prior meetings that he must see a lawyer before signing anything. He said yes, he remembered that, but was confident he hadn’t needed counsel and said he really didn’t want to spend money on lawyers. He had heard what I told him, but insisted that he knew what he was doing. He then proceeded to tell me that in resolving matters with his spouse, they had agreed to share the registered mutual fund portfolio.

In Canada, where I live and work, separating spouses can divide a registered savings portfolio (which is a tax deductible savings instrument) without incurring any income tax. To obtain this benefit and insulate themselves from tax, however, the deal must be contained in a written separation agreement and accompanied by a form (T2220 E). If that’s not done, the transaction triggers tax, payable immediately.

The man didn’t know that. He hadn’t asked me about it, didn’t tell me he planned to do it, didn’t ask anyone else, and didn’t think it was important to find out. More importantly, he didn’t see counsel before signing the agreement. Not knowing about the tax benefits of the law, he cashed out his fund and divided the spoils.

At the time, the husband and wife had about $200,000 in this registered savings portfolio. When the fund was cashed in, the liability for tax was triggered, and the government scooped about $60,000. The husband and wife then shared the remains (about $70,000 each) and went their merry ways.

By saving the $500 I would have charged him, the man and his separating wife needlessly gave away about $60,000 to the tax department. Had either of them sought basic legal advice, the fund could have been divided in specie, meaning there would have been no tax payable. Nothing!

For this man, the desire to save a few hundred dollars in legal fees cost, quite literally, $60,000. That’s an example of a case where a little advice goes a long way.

However, many people regularly overpay lawyers for work and services that are either not necessary or not helpful. In saying that, I’m not suggesting that lawyers are dishonest with clients about work that needs to be done. Very often in my own practice I will recommend clients against taking a particular course of action, only to have them insist that I do their bidding. Although I don’t enjoy working with clients who won’t take my advice, at the end of the day I have to remember that the client calls the shots. As long as the instructions do not involve something improper or unlawful, it’s not really my place to demand that all clients do exactly as I command. That’s not really how the relationship works.

Still, from time to time, I have to put my foot down. At this point in my career, I actually do that with greater frequency, sometimes based on principle. For instance, I rarely engage in custody litigation except in special circumstances because I have a personal belief that the process is simply too destructive. The exceptions would include cases of genuine alienation, violence and abuse, and real danger. I don’t accept retainers for cases where the parents are simply fighting over the kids on the basis that one parent is “better” than the other.

I’m also not interested in acting for clients who lie to me, won’t pay child support, or expect me, as their lawyer, to prove a fact which is unimportant in law, such as adultery. However, that’s just me.

What I see, with some frequency, are clients who have wasted money on lawyers. These would include spouses who have deposited a big retainer with a lawyer, and then instructed the lawyer to “process the divorce.” Sometimes, equally vague and ridiculous instructions such as “do your best.”

I know this happens because I often encounter counsel on the other side of a case who is unaware of exactly what their client wants. As I write this paragraph right now, I am handling a case that is set for trial in three months. We have had several days of discoveries (what most Americans would call depositions) and a few pretrial motions. The case has been going on for about a year. During that time, I have written to opposing counsel three times asking for a response to our offer, a counterproposal, or anything resembling a reply, but I have heard nothing. It is all quite exasperating.

I know that the other party has already paid a little more than $15,000 in legal fees so far, and is probably about to spend a similar amount over the next few months. I suspect the amount that we’re arguing about (the “quantum” in issue, and the amount which separates our clients) is $40,000 to $80,000. It may be that if I could encourage the opposing party to simply respond with an offer or counteroffer, I could encourage my client to settle, but I can’t. I cannot negotiate with myself.

Worse still, I know that the other side will soon be forced to describe the demand, because at the start of the trial, the judge is going to ask.

In this case, I suspect that opposing counsel is well retained and simply allowing her client to call the shots. The client doesn’t know exactly what she wants, because she (like Mrs. G, in the example in Chapter 1) is really pursuing something other than a solution — she wants blood, or justice, or some other ill-defined objective. Sadly, none of those can be achieved through litigation.

What should really be happening is this: The opposing lawyer should sit down with the client and have a heart-to-heart and say something like this:

We’re now at a point in this lawsuit where we know enough about the facts to respond to the offer that’s on the table. We should do that. I have done everything I can for you. You and I know that there’s a range of possible outcomes here. If I do a brilliant job, I can obtain for you a resolution that is beneficial to you and within that range. I cannot, however, change your spouse’s personality, get you all of the assets, or perform miracles. Your spouse offered to pay you $80,000 for your claims. I know you want more. Your case may be worth more, but it’s not worth $150,000. Let’s talk about a response now. It is time to find out if we can settle. If we don’t settle now, I’m going to have to explain your position to the judge in a short while so we might as well know that now.

Sometimes, that is a conversation that can and should occur at the outset of the retainer. Maybe the discussion cannot be so pointed and direct at the start of the solicitor/client relationship, but something similar can and should occur. This is what I mean when I say that I believe that clients waste money on lawyers. If you don’t know what you want or expect at the outset, how can you provide proper instructions to the lawyer? That’s like getting in the car to go for a drive, but not having any idea where you want to go or if you have enough cash to get there.

I know that it’s often impractical for lawyers and clients to have settlement instructions at the beginning of the retainer. Quite often, the basic facts about the case are not known. A party cannot be expected to give settlement instructions if the issues aren’t identified, the facts are unclear, and the options have not been explored. Giving settlement instructions and clear directions early on may not be possible.

Still, in the vast majority of cases, the client knows enough at the very first interview to give directions. Most spouses don’t know the precise fair market value of the home in which they live, but they have some idea. Similarly, they may not be intimately familiar with every detail of the savings portfolio, but they know where to find out (usually, with a phone call). After all, it’s their life that’s at the center of the case, and most of the facts that the lawyer needs to know can be ascertained in that first meeting. There may need to be subsequent phone calls or inquiries for details later, but the big picture can be learned quite simply in an hour or so.

That’s not the case, of course, if there are safety issues, hidden assets, or other special considerations. In those cases, information gathering may be involved, and the legal issues complex. In most separations, however, the basic information — the basic story — is actually quite straightforward. In such circumstances, it’s quite possible at the first interview to form a general idea about where the settlement discussions should be headed. If that’s not possible, the discussion should occur as soon thereafter as possible, in order to ensure that counsel and the client are on the same page, and in order to focus the legal work.

Too often that appears not to happen until after countless hours of legal work have been done. At that point, the parties have incurred legal expenses and become positioned in their views, and settlement becomes more difficult.

In most cases, it’s important to know what you want and expect at the outset. It’s important to think about those objectives before you commit resources to the exercise. It may also be important to know what the law permits. You should know what you are entitled to before you provide final settlement instructions. Saying to the lawyer “all I want is what I’m entitled to” is almost certain to lead to big legal bills, delay, and frustration. Know what your rights are, but seek relief that matters. And always keep an eye on settlement.

There are, of course, exceptions. As I explain in Chapter 4, if there is oppression, violence, or dishonesty in a relationship, it may be necessary to litigate, or at least commence litigation before you can meaningfully discuss settlement. Moreover, if one of the parties is disabled, the litigation process may need to be invoked for other reasons.

For the vast majority of separating spouses, however, litigation is just not necessary or productive. The clients who profit from litigation, who are able to endure the process and come out “better for it,” are few and far between. For most spouses, lovers, and parents, the court process is a costly and horrific system that brings little happiness and leaves few survivors.

There’s a story that is sometimes told about a wealthy and successful American entrepreneur. During an interview with a reporter, the entrepreneur is asked about his successes. He rambles on for several minutes about his properties, about various stock deals, land swaps, and several other clever accomplishments. He boasts about his cars, his corporate holdings, and his growing wealth. Then, the conversation turns to failures.

The reporter asks if the wealthy businessman has ever suffered losses.

“Oh yes,” he reported, “I’ve had two very bad financial failures. Once, I lost a lawsuit. That cost me a king’s ransom.”

Then reporter asks, “ … and the other time?”

“ … was when I won a lawsuit.”

There are many reasons to avoid litigation. Some of the most common reasons are financial. However, some of the best reasons for avoiding a lawsuit have nothing to do with money.

Civil litigation is a process that should be utilized for resolving disputes which cannot possibly be resolved by any other means.

In some matters, litigation is inevitable. For instance, if the truth is impossible to ascertain unless tested by a judge, a lawsuit may be unavoidable. In family law, however, the truth is rarely the main frustration. Most often, spouses know the truth and getting to the bottom of the story isn’t the problem. Parties may occasionally lie or fudge the facts, but the truth is at least ascertainable, even if it’s denied.

There may be a few exceptions to this generalization, of course. Sometimes, the facts are truly disputed. If one spouse believes, for instance, that the other spouse has been hiding assets (and it is denied), it might be necessary to test that hypothesis in front of a judge, where credibility can be determined. Usually, however, the “he said/she said” contest in family law is largely immaterial, even though many litigants enrich their lawyers in the pursuit of winning such arguments.

In most family law cases, the facts are known with a high degree of certainty. That’s because the two star witnesses in the case have “lived” the facts, and are intimately familiar with them. Even though they may disagree about what’s best for the children, whether support should be paid, and who should get the home, there’s often little argument over the facts.

As a result, litigation in family matters is rarely truly necessary.

What’s surprising, however, is the number of family law cases where the parties approach litigation as (a) the best dispute resolution option, and (b) a practical method of resolving their dispute. In almost all families, better options exist. Moreover, litigation is usually anything but a practical method. Going to court to resolve matrimonial disputes is almost always expensive, unpleasant, cumbersome, and unnecessary.

In family law, almost all litigants lose. Even a wholly successful spouse, who claims to get everything, will typically later concede that the victory was illusory, unsatisfying, or Pyrrhic — achieved at excessive cost. Success in divorce litigation can bring some financial rewards, but it’s rarely a pleasing process. I think this is because of what’s at stake in family law litigation.

When couples who were once in love, raised children together, or shared aspirations, dreams, disappointments, and sleeping accommodations suddenly separate, discomfort is almost inevitable. Sometimes it’s downright nasty. These feelings of loss tend to increase the stakes and make the transaction (the “business” of separation) seem more dramatic and traumatic than it needs to be.

It is normal to have differing views about what’s right, how the spoils of the relationship should be divided, and what is best for children. Nuclear families argue about such matters all the time. When the parties are separating, it’s to be expected that the dispute will appear to be more acrimonious and troubling. It is partly for that reason that non-acrimonious methods of resolving the dispute should be explored. Unfortunately, many separating spouses do not know what the options are, or why litigation is neither realistic nor affordable.

Some spouses can resolve their contests in a civil and friendly way, but they are the exception. Others must resort to dispute resolution systems such as arbitration, mediation, collaborative law, or the courts. Those who find a solution with minimal legal trauma are likely to be happiest.

The fact remains, however, that not all separating couples can sit down at the table and work things out. Sometimes, despite best intentions and sensible attitudes, settlement-minded spouses encounter difficulty. In fact, some of the most reasonable, wise, and balanced parents can lose all objectivity when it comes to divorce. Even good people may behave poorly during divorce.

Usually, when separating couples argue and go outside the relationship for help, they become involved in a process which was designed for general use by other people. In making these inquiries, the spouses may receive a referral to a mediator, counselor, or other expert. Maybe they’ll start with a lawyer, their accountant, or their spiritual advisor. Whatever the case may be, spouses often look outside of their own family for advice and guidance when the topic of divorce comes up. Sometimes the advice that they receive is good, well intentioned, and helpful. Other times the advice is poor, incorrect, and potentially dangerous. Occasionally the advice is just plain bad, based on inaccurate information or ideas that aren’t likely to be helpful. Getting really good and accurate information at the outset is very important.

Whenever spouses enter into mediation, arbitration, or the litigation process, some of the decision-making power is transferred, or downloaded, away from the couple to a person who is an outsider. In arbitration, the parties hand over the decision-making power to someone who is similar to a judge. The process itself may be more friendly, streamlined, and less costly than court, but it’s really the same sort of system.

In mediation, the parties retain the decision-making power and control the process to a greater degree. Still, they are engaging in a time-limited and costly program. Even though mediation may be the least costly of several alternatives, it will often involve lawyers and other experts, including the mediator who will charge for the service.

In a court case, the litigants throw up their hands in a sense of helpless dismay and say: “Here, judge, you decide! We know you’re a complete stranger and you really don’t know anything about us, but we would like to entrust you to make a good decision about us and our kids.”

In some cases, the litigants then proceed to offer up a one- to ten-day Reader’s Digest condensed version of their lives and disputes before asking the judge for a ruling. It’s all very artificial and, quite frankly, a little weird. It’s also very costly.

I have been appearing before judges for 25 years. During that time, my office staff has dispensed more Kleenex than most funeral homes. We have also listened to more stories about relationships than most people can imagine … and some of the stories we’re told are incapable of being imagined by anyone. As we often say, the difference between truth and fiction is that good fiction must sound as though it could be true. That’s not so with the truth. The stories told in our offices sound like they couldn’t possibly be true, even though they are.

By far the greatest influence on my understanding has come from the several thousand divorces I have handled over the years. While it’s overstating the obvious to say that each divorce case is unique, it may not be so obvious (though far more important) to note that in many respects, every case is the same.

Every separating spouse comes to me with a certain set of concerns. These concerns are universal. They arise independently of whether the relationship involves young or aged spouses, gay or straight parties, married or common-law couples, or any combination of the above. Somehow, they all have the same kinds of problems. Familiarity with these themes and issues is something which allows me the opportunity to explain how separating spouses can resolve their disputes without a legal bloodbath.

It all really begins with one simple commitment — that separating spouses must make a good, solid, and honest effort to solve their matters outside of court. It’s that simple. If you have that commitment, anything’s possible. If you don’t care and you’re ready to go to court, good luck to you.

You may not have the commitment I speak of on the day you separate. Your world when the relationship ends is more likely filled with anger, disappointment, self-doubt, and other legitimate worries. About the last thing you want to do right after separation is offer commitment and accept your estranged spouse’s professed commitment. There’s no need to be reasonable — you’re angry and hurt.

When you separate, you should settle your case without court (but probably with legal advice) in order to save money, save hardship, and avoid making a public display of your misery. Do it without court for all these and many more personal reasons.

Court is not a reasonable alternative. I say that in this book about 100 times, mostly because it’s so important that I hope it will be remembered. And I say it knowing that those who work in the justice system (the courts) do their absolute best. I know as well that judges work hard and do their best with the information at hand.

Almost every time I appear in court, I’m impressed with the insight, intelligence, and clear thinking demonstrated by the judiciary. Time and time again, I hear persuasive and convincing arguments by skilled counsel, who offer up well-reasoned presentations for judges who are duty-bound to dispense justice. It’s an awesome process indeed. If you ever doubt the integrity of this system, I urge you to sit through three complete trials. I warrant that your respect for the North American justice system will be indelibly affirmed in the process. Really, it’s a remarkable system.

Having said all that, court can be a costly, slow, and awkward process. Judges do the best they can with the information they have, but it’s no easy task. The court can apply the law to the known facts, but legally trained judges are not omniscient and they do not practice psychiatry. They are not counselors, and they are not permitted the luxury of sympathy. Judges are paid and duty-bound to decide cases and that’s what they do. And almost every time a judge decides a case, somebody’s unhappy. Sometimes, both parties are unhappy.

When litigants give over to a judge the power to decide their future, they enter into a process that’s full of risk and uncertainty. Our justice system is not only harsh, traumatizing, and slow, it’s also very costly. In Canada (where I practice), the cost of an average divorce trial is between $25,000 and $50,000. As I often tell my clients, “I’ve been a divorce lawyer for 25 years, and I couldn’t afford me.”

There are other costs to litigation as well. Telling strangers about your life, your secrets, your desires, and your worries is upsetting. When warring spouses download their personal information to a judge or an arbitrator, the opportunity for more hurt feelings is expanded and amplified. The chance to resolve the dispute in privacy and with dignity is gone. As a result, the litigation process itself may make matters worse. I see this sometimes in my practice. It’s a situation that is played out with regular frequency. Imagine the following scenario:

The wife retains counsel because she’s in need of spousal support. All she wants is some support (alimony) for a few years so she can get back on her feet. She’s been out of the job market for a few years, and wants to retrain. Her lawyer must start a lawsuit to obtain that relief. He prepares affidavit material, explaining briefly the history of the marriage, and the career circumstances, and he describes the roles which the parties assumed during the relationship. He hopes to use these materials to persuade the court that the support is merited. As part of that process, it is explained that the wife ended her studies at university to raise the couple’s only child. The lawyer thinks this may be important. The wife’s affidavit also says that in recent years, she’s longed to upgrade her skills and return to school, but never had the time or the opportunity. It’s all pretty innocuous stuff. It is, however, necessary to deliver it to the husband and his lawyer to get the process started.

Although the allegations are not particularly provocative, the husband is upset by them. He worries that he’s being persecuted, and wonders if the judge will tag him for some unmanageable monthly sum. As a result, the husband becomes defensive. He meets with his lawyer, and they prepare an affidavit in response. (This responsive material tends to be slightly inflammatory, based on the theory that a good offense is the best defense. The lawyer wants to have a fighting chance.) Accordingly, in the material, the husband says that the wife was always a little on the lazy side, and that’s why her career never advanced. Really, it wasn’t his fault — he wished she had worked more, and contributed to the family pot. He deposes that he often asked her to return to work, but she declined his sensible proposals.

The husband’s affidavit goes on to refute the allegation that there was no time for school — and he points out that the wife always had time for secret romantic visits with the neighbor (partly because he feels that’s relevant, and partly because he wants someone else to know what she did to him). It ends with his comment that he’s exhausted and depressed as a result of her adultery, an allegation that may or may not be true, but is probably irrelevant in most jurisdictions. Anyway, the husband throws it in, saying that her infidelity has affected his ability to work overtime, and he says he’s struggling at work. He needs time to take care of his personal issues, and is no longer willing or able to work overtime. This too has a financial cost.

She responds angrily. Initially, she felt that her allegations were all relevant and “sanitized,” but her husband’s comments have hurt. This time, she deposes that he was nasty throughout the relationship — his behavior drove her into the arms of the neighbor. She says that she resisted her husband’s obsessive demand for her to perform meaningless fast food restaurant work because she knew that their ADHD child needed help with schoolwork and he was always unable to understand that. She uses unpleasant adjectives to describe his character flaws. She closes with a shot about how he’s tired because he’s overweight from beer consumption and watching sports on TV (something he did all day, every weekend) and that he’s never been any good at getting available overtime.

Now the nastiness takes on a life of its own, and the course is set. The mother, who initially only wanted a little spousal support, is embroiled in a complex web that involves escalating legal expenses and revolving accusations. With each passing day she remembers something else that should be included in yet another affidavit, and she’s on the phone with the lawyer twice a week. The husband cannot focus on work, and is considering stress leave. He starts to gather documents to prove what he says, and drops them off at his lawyer’s office. There are more documents each week.

Soon, this little brush fire will spread. In a moment of extreme despair, the wife may even tell their daughter about the problems and Dad’s allegations, and then, because she needs support for her position, she will involve the child in the dispute. The child will want to support her mom, because all kids say what they believe their parent wants to hear. Accordingly, the daughter may say that she doesn’t want to see her father, thinking this will please her mother. Soon, the father begins to fear parental alienation.

Meanwhile, the father will attempt to garner sympathy by sharing information about the spousal infidelity. He’ll tell his friends, and maybe the wife’s sister (he’s always liked her). The husband decides that if there’s going to be a war, it will be necessary to hide some of the savings, and soon this brush fire becomes a raging inferno. The lawyers gobble up retainers at breakneck speed, and as the stakes increase, both litigants are beyond the point of no return very quickly. The equity they once had in their family home will be squandered on legal fees, transcripts, and document production. In the end, everyone loses.

At the end of this case, both spouses are miserable and broke of course. Their child is confused and unhappy. Had the parents settled, their daughter could have attended college. Instead, the lawyer’s kids get a master’s degree. Really, it’s survival of the fittest in this melee.

What has occurred in this hypothetical example is a disaster which is played out regularly in law offices and courtrooms every day. It starts rather simply, with a short affidavit in support of a motion for one form of relief. Soon, the dispute expands, and the allegations grow like a life-threatening cancer.

The affidavits, which start the process off, are particularly toxic because of the procedure — they are “sworn” and usually “served” (delivered by a process server). And because the words of the affiant (a person making an affidavit) are sworn to as part of a Jurat (a certificate or place on the affidavit stating the time, place, and witnesses of affidavit) and given under oath, they are particularly stinging. Nothing hurts like the accusations of a spouse, sworn and shared.

Litigants know that the material is seen by at least several lawyers, secretaries, and court staff, and they may even believe (rightly or wrongly, depending on where the case is proceeding) that the lawsuit is a matter of public record, to which the world has access. Lawsuits, generally, are not secret.

In this example, the cost of the litigation grows exponentially with each new event. It’s not unusual for the litigants to spend $10,000 in the first few months of litigation. That’s before the matter actually reaches court for final determination. In fact, after all this hypothetical matter has gone back and forth, the prospects of settlement have become more distant than they were on the day of separation.

The spiraling costs of lawsuits are, however, but one reason for giving resolution without litigation a real and serious chance. Unspeakable accusations, affidavits that can’t be withdrawn or forgotten, and allegations that contaminate parental relations are some of the other reasons.

Having said all that, I need to be cautious. No spouse should “turtle” on his or her basic rights just because of a fear of litigation. If you or your spouse face an unresolved legal issue, it may be necessary at some point to seek justice in the justice system. That system exists in our magnificent democratic society so that we can get help and justice when we need it. And, as I point out in Chapter 4, there are some specific circumstances in which litigation is the only option. In cases where one spouse has financial or psychological dominance, where abuse prevails, where children are at risk, or where assets have been hidden, a court case may be absolutely critical and the only route to peace.

In the vast majority of cases that I see, however, that’s not so. I would estimate, in fact, that almost 90 percent of the cases where litigation has started are ultimately resolved outside of court. Many of the spouses who end up in litigation started in litigation, and they did so without finding out what alternatives existed. Many parties have not explored or exhausted the opportunities for a negotiated settlement when they consult counsel, and that is a mistake. Indeed, in most cases, it’s never been tried. Often, that’s because the parties simply don’t know how to talk, how to negotiate, or what to do.

As you read the coming chapters, remember: The process of negotiation and settlement is something that your mediator or lawyer is going to engage in at any event — so why not at least try it yourself first?

If you’re overweight, have high-blood pressure, and smoke cigarettes, you shouldn’t be surprised when you go to the doctor for a check-up and receive advice about necessary changes. Unless you have absolutely no insight into the essentials of good health, you should be able to anticipate what will happen.

Yet when I see separated spouses and ask if they can really talk with their spouse or have a calm and meaningful discussion (in person or in writing), I often get a glazed look in response: “Can I do that? Can we talk?” is the question.

The answer, of course, is yes. Unless there’s a restraining order that prohibits the parties from communicating, separated spouses should talk, provided it can be done respectfully and sensibly. If you can’t do that, and every thought, proposal, and idea has to be delivered through counsel, you’re going to need a patient lawyer and a large pile of money to resolve the issues.

At the start, I always tell my clients that the discussions have to begin somewhere. Try a simple issue that’s not too emotionally charged and not likely to create great hardship. Establish rapport and build trust. Show your spouse that talking about the issues (in person, on the phone, or by email) doesn’t need to be traumatic.

If you end up with a skilled mediator or lawyer, he or she will do the same thing. The mediator may not be able to resolve all the issues, but can probably find some common ground on some issues and capitalize on that. Small successes can lead to a trend.

You may want to start off with something that really is a nonissue. For instance, if you know that you have to pay child support and you know (roughly) what the amount will be, engage in a conversation about that. You may want to pretend that you need to discuss the topic because you want to talk about the format for the payments (whether it would be agreeable to split the payments in two, and pay half on the 1st and half on the 15th of each month). You do that knowing it’s non-contentious, and hoping that the discussion will send a message that you intend to be fair. This kind of approach can help to create and build calm.

Even if you know that your spouse will never compromise on certain issues (custody, for instance), you may want to try to settle other issues such as money matters and leave the “unresolvable” custody issue for later. At the end of your discussions, you may be surprised to find that you have accidentally settled everything. Or perhaps you’ll settle most of the issues and only need help on a couple of contentious points. If you eventually go to a mediator or lawyer with one issue instead of five, you’re likely to be far more satisfied with the justice system, and you’ll save a lot of money.

Before you do any of this, however, it’s important to mentally prepare, which leads us to Chapter 3.