Seems like an easy question on the surface. When going through a divorce most of the clients that come before me basically want a fair financial settlement, a fair parenting plan with their children and to avoid being “screwed over” during the divorce process. These client needs are modest and I generally always can help produce an agreement that meets these requirements.
Some clients are experiencing such pain from the divorce that their needs for a fair agreement fall victim to the need for causing the other party pain by treating them unfairly during the divorce. In this case is it the individual’s best interest to succeed in taking advantage of the other party? It won’t ease the pain of the failure of the relationship. It won’t address the emotional wounds of rejection or betrayal. In fact down the road after the emotional wounds are acknowledged some guilt may be felt about treating the other party so unfairly.
Many clients also become fearful of the divorce process or their spouses. Fears of unfair treatment can cause an individual to react defensively or aggressively in an attempt to compensate. Fears about losing the home or children or financial security can cause most people to assume a fighting stance to aggressively defend their interests.
In any case you can start to see how easily fear and pain can drive what defines a husband or wife’s “wants” from the divorce. The difficult part is becoming aware of how “wants” may not be the same as best interests. Let’s look a few examples to illustrate the point.
1) During her marriage a loving mother, dissatisfied in her relationship with her husband, rejects her husbands affections, and files for the divorce. During the divorce his pain at being rejected causes an underlying need to hurt her in return to share his pain. His want is to let her know just how much she hurt him by hurting her. He aggressively pursues the majority of the parenting time and hires a lawyer. The husband’s desire to take the children away becomes the agenda and the attorney obliges and they are successful. The children are removed from the loving mother and the husband achieves his goal of hurting his ex-lover. Were the best interests of all achieved or even observed?
2) During the marriage the wife is emotionally unstable and the husband makes many attempts to help her but eventually gives out and files for a divorce. During the divorce process the wife is unreasonable and demanding. Seeing the end of her support system she becomes tenacious and seeks aggressive financial awards from the divorce. A sympathetic lawyer advocates for the wife and extracts a heavy settlement and high spousal support from the husband. In this case while the wife’s interests may be observed it occurred at the expense of the the husband and this violates fairness which, if observed, is in the interest of both parties.
Both of these examples illustrate some interesting dynamics about what is fair, and how best interests can be different than what individuals are desiring. To make matters more complicated lawyers who are required to adhere to their obligation to assert their client’s rights and desires can exasperate the problem. Not all attorneys are this way. But in general they must only concern themselves with their client’s needs (“wants”). I’ve seen it so many times where this allegiance produces outcomes as in our two examples above.
My job as a mediator is to concern myself with the overall parties satisfaction with the agreement. Both sides must agree that the agreement is fair. Sometimes this compels me work with one of the couple to examine their selfish motives. This can be seem by some as a breach of ethics where the mediator crosses the line and advocates for the other party. This is not allowed by most mediator ethics. I find that this, at times, conflicts with another mediator ethical obligation which is to produce fair agreements that comply with the underlying healthy interests. As a professional mediator I will not write an agreement that I feel is completely unfair, even if the parties agree on the terms. This is too much of a conflict for me and compels me to withdraw.
In mediation the lawyer working with their client can make the same decision and I think the better ones do. I’ve seen mediations where a lawyer recognizes the value of setting reasonable goals with their clients and try to lean towards a fair agreement. I’ve also seen mediations where a lawyer continues to support unfair goals for their clients and intimidates the other party into an agreement that they are not comfortable with. The latter doesn’t happen too much in my office, but as I can’t control clients, nor would want to, it unfortunately does happen sometimes.
So the determination of what is fair and what are “best interests” is not only influenced by the internal emotions of the divorcing couple, but also the ethics and motivation of the lawyers, and to some degree the mediator. Very fertile ground for confusion and exploitation of the aggressive. Times like this the Court is a blessing to sort through things and help bring a sense of fairness to it all. Even then the Judge, who doesn’t know anything about you, will make a snap decision about the case and do their best.
The best outcomes I’ve seen are when the couple have reasonable and fair expectations and can separate their emotional needs from their sense of fairness. Parties going through a divorce are easy prey for manipulation by lawyers who represent authority with the ability to influence the outcomes of very important issues like division of assets, child support, spousal support and parenting time. Attorneys who cater to client’s emotional desperate demands are upholding their obligation to serve their client. Someone has to look out for the overall best interest of the big picture. The Courts are the only one with the authority to render such sweeping decisions, however by the time they are in the position to do so, much damage to the integrity of the overall case can already occur.
If you are a couple going through a divorce:
Please be reasonable. Don’t let your emotional trauma interfere with what is fair. Don’t say things like “I’m losing my life partner and I need to be compensated.” Grow up. There is no guarantee that anyone but God, if you so believe, shall love you unconditionally. You should not be entitled to financial compensation if your heart is broke. Don’t let your uncontrolled emotions turn you into an unreasonable tyrant during your divorce. You would not be complaining if things turned out better, right? The fact that it didn’t work out doesn’t mean you get to act like a fool and punish the other party. Even if they did you wrong. End the relationship and your reward is getting away from someone who does not deserve your love and time.
If you are a lawyer:
Help your clients work through what is fair instead of what you can get them. This is the biggest area of pain that I’ve seen in the mediation office. Clients who seek “what they think they can get” instead of what is fair cause more pain and fear and rupture the whole potential of fairness. Plus if a client with unreasonable emotional demands is validated by victory a bit of a monster is created, don’t you think? Those going through a tough emotional ordeal like a divorce may not want to hear that they are being unreasonable, but it may be in their best interest.
I realize that this particular article may seem like a lawyer bashing rant. While there are certain attorneys I hope read this and take it to heart, on the whole most attorney’s I’ve dealt with are reasonable and want a fair settlement for their clients. For those, you have my respect. For the rest of you I hope reading this gives you at least a slight pause and perhaps even consideration. In general this article is really intended for the clients, the couple going through the divorce. Be aware of your own motivations. Be aware that others will take advantage of you, with the disguise of helping you, during this difficult time. Two of the most costly factors using attorneys is having them serve as your therapist and legal avenger.
In the end your “victory” cost you a substantial portion of your marital estate that could be used for starting over and healing. The costs of such a victory to the other party and the children (and their children, etc) are incalculable. Read my other article on the impacts of divorce for some more though provoking points.
In this world of blaming other people for our problems and social irresponsibility we must strive for personal accountability or we will create a legacy unfit for our children. “Because I can” is one of the most hurtful and disrespectful phrases I’ve ever heard in divorce. It is a weapon and it will not feel good if it is ever turned on you.