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Getting Divorced Without Ruining Your Life

Fireside

Introduction to the Revised Edition

This book was originally written in 1990 and published in 1992. In the ten years since I wrote the first edition, some (although not most) of the thoughts I expressed in the original have changed, and there have been some small changes in the nature of divorce law. I have also worked with about 1,500 couples since 1990 and have a deeper pool of experience to offer. So I decided to revise the book to keep it fresh and up-to-date.

When I wrote the original I had only recently shifted my practice from a combined litigation and mediation practice to one in which I did mediation exclusively. I had begun a law practice in 1978 as a conventional divorce litigator. I had litigated several hundred cases as an adversary litigator and had gradually become disenchanted with the conventional divorce system. The divorce mediation movement was beginning to develop in the late 1970s and early '80s, and I was among the first lawyers to become involved. I started mediating in 1980. Over the next few years mediation grew from a small part of my overall practice to a large part. After three or fouryears I had had the opportunity to compare hundreds of litigated divorces to hundreds of mediated divorces, and I could not but notice the dramatic difference in the outcomes.

As a litigator I represented a husband or a wife while another lawyer represented the other spouse. These adversarial divorces typically took one to three years to resolve, depending on how adversarial they became. We almost always settled the case before the trial, though a few went to trial where a judge decided crucial issues about parenting, support, and property division. But in some 98 percent of the cases we negotiated a settlement, often at the courtroom door. As a mediator I worked directly with both divorcing partners, with their lawyers in the background. Most mediated cases were resolved within a few months. The cost for professional fees was typically a quarter of the cost of conventional divorce. Most important, the couples and their families seemed to do better afterward because the divorce process did not drain their emotional and financial resources.

Although I no longer litigate, the years as both litigator and mediator gave me a unique perspective. Lawyers generally see a case only through the eyes of one client, but mediators see the case through the eyes of both husband and wife. Mediating taught me how distorted the perspective of the adversary lawyer can be, and showed me how much unnecessary damage can be done by the adversary process. in this book I want to share what I have learned with divorcing couples so that they can avoid the worst aspects of adversary divorce and move on to new lives for themselves and their children as quickly and efficiently as possible.

Twenty years after I began to practice I am only more convinced that the present adversary system serves divorcing families poorly. Progressive change comes very slowly because judicial systems are very conservative, bar associations quite powerful, and legislators generally timid about taking on the bar. But we have seen some progress. When I first began to practice, the performance of the system with respect to domestic violence was nothing short of disgraceful. It took a great deal of prodding from women's groups, but lawyers, judges, and legislatures in most states finally became serious about protecting women from dangerous men and children from dangerous adults. This does not mean that domestic violence has declined very much, but it does mean that the response of the judicial system has improved. We have also seen some progress in the establishment of federally mandated minimum child support guidelines as well as federally mandated child support enforcement procedures. Although we continue to have major problems in this area, some of the more egregious abuses have been eliminated.

But overall, I think the divorce system has continued to get worse. Courts and legislatures continue to make divorce ever more procedurally complex. This is good for lawyers but bad for divorcing people. Legal fees in divorce continue to climb and divorce continues to take a very long time. In some states it can still take up to five years to get all the issues resolved. This is ridiculous for a process that should be completed in a few months. The same conclusions I reached ten years ago continue to apply. With a few notable exceptions:

• Women still get the kids but not enough money.
• Men get more of the money but too little of their kids.
• The kids lose big. They don't get the money, and many of them, for all practical purposes, lose their fathers. Too many of them end up living with mothers who are broke and overwhelmed and harboring anger.
• It is still impossible to look at the product of this system and not conclude that something is terribly wrong. In spite of all the expense, delay, and posturing, the legal system settles almost 99 percent of the cases before trial. With these numbers the entire system of adversarial divorce must be defined as a system of settling -- not trying -- cases. But it is an absurdly expensive, inefficient, and unfair way of settling a divorce.

The result of the last ten years of practice has only reinforced my view that mediation must become the primary way couples negotiate their divorce settlements.

Having now watched thousands of couples go through divorce, I have seen many who have done well and many who have done poorly. By doing well, I mean that the divorce ended an unhappy relationship and launched the couple back into the

world as individuals equipped to cope and to build something new. The couples who did poorly are the ones who did not succeed in ending an unhappy relationship but simply found a new way to relate destructively to each other. To an interminable marriage they added an interminable divorce -- a divorce that became the primary influence in their lives and the lives of their children.

When I compare the couples who mediated their way to settlement with those who took a conventional route, the percentage of those who did well is dramatically greater among those who mediated. The postjudgment litigation rate -- that is, the couples who went back to court after the divorce was over -- is about 5 percent among those who mediated and about 50 percent among those who use the adversarial process. I regard mediation as clearly superior.

Over the years, I have learned a great deal from my clients. I have learned that most people, even those in very great emotional pain, are capable of making responsible choices when information is presented so that they can hear it. I have learned that most people suffer from major misconceptions about divorce and about how they should behave during a divorce. In fact, I have come to believe that most of what people do "instinctively" when faced with a divorce is wrong. On the other hand, couples can be taught to behave differently and, for the most part, can avoid self-destructive behavior when provided with adequate professional leadership. I have also learned that even though divorce can bring out the absolute worst in most people, divorcing couples are motivated to retain as much dignity as they can.

Consequently, I do not agree that bad divorces are simply caused by vengeful people, although there are people who are so self-destructive that they will make a mess of it, no matter who tries to help them. I have seen many cases where bad divorces were caused by bad lawyers. Many of those I regard as bad lawyers are considered competent by their peers because they exhibit the most aggressive postures and are "tough" negotiators. But they are bad lawyers because they pursue a mindless advocacy that exaggerates the worst in their clients and feeds the flames of anger and recrimination.

Many bad divorces are caused by the nature of the legal adversary system. I have seen numerous cases where strategic interventions by a mediator or an attorney avoided what was sure to be a bloody war. And I have seen many protracted battles that could have been avoided but for the lack of sensitivity of one or both attorneys. All the carnage cannot be explained away by blaming the clients. Some of the blame must rest on the system itself.

I decided to write this book because I think that many more couples can divorce decently if they understand how to maintain control over their divorce. I also believe that people do not learn this from their lawyers. Although the organized bar includes many fine and decent people, many lawyers have little understanding of the psychological and philosophical prerequisites of decent divorce.

In summary, your chances of getting what you really need are not very good if you simply rely on your lawyers. The purpose of this book is to empower you to make your divorce suit your purpose and to help you spare yourselves and your children unnecessary grief. Although I believe that mediation is a superior way to negotiate a settlement, it does not work for everyone. Whether you negotiate with a mediator or through your lawyers, the principles remain the same:

• You can make choices that help rather than hurt you.
• You can keep control of the process, if you are determined.
• You can accomplish your goals instead of defeating yourself.

In this book, I will tell you how to do that.

Copyright © 1992, 2001 by Sam Margulies

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Excerpted from Getting Divorced Without Ruining Your Life by Sam Margulies Copyright © 2001 by Sam Margulies. Excerpted by permission.
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