Clean Break

The notion that hiring a lawyer puts you in a position of control is a myth. Once you and your spouse retain lawyers, you’re at the mercy of the system.

When the possibility of divorce looms large on the horizon, many people default to the conclusion-jumping tendency society has engendered in us: “I really don’t want to waste my money on a lawyer, but I need to take some control. I feel like my life is spinning out of control and there’s nothing I can do or say to stop it. If I hire a lawyer, I’ll be heard, and I’ll finally get the fair treatment I deserve.”

Once you hire a lawyer and head down the path of traditional divorce, you surrender most (if not all) of the control you may have had over your destiny. You may, in the end, see justice, but in today’s system of divorce, “justice” often bears little resemblance to “fairness.”

It boggles my mind: How can society operate under such a startling misconception? It’s time for people to start demanding accountability!

An outtake from the 1991 film Other People’s Money seems apt. Danny DeVito, as Lawrence Garfield, says, “Lawyers are like nuclear warheads. I have them because the other guy has them, but the first time you use them, it fucks everything up.”

Before I retained my first lawyer, a different lawyer (who is also a good friend) warned me I’d be surrendering control over my case. At the time, though, I just couldn’t see a better alternative because there wasn’t one.

There is actually very little in life over which we have control. But we have 100 percent control over our own decisions, including the decision about whether to hire a lawyer. We may not be able to take control in the truest sense of the words, but we can keep whatever control we have by not giving it away.

As I work with more and more couples, I become increasingly disheartened at the unfairness of the current system. I recently met with a couple in my office. Both are highly paid specialists, one in medicine and the other in business. They have three children under the age of eight. And they’ve fallen out of love. Neither is a bad person; they’ve simply grown apart and lost interest in one another.

Their case had been in the hands of two of the city’s top matrimonial lawyers for six months before they came to me. Already, they had incurred over $75,000 in legal fees, and they’d gotten nowhere.

What upsets me most and makes me so passionate about advocating for change is that their lawyers had instructed them to not talk to one another about anything!

This is exactly the problem. Here are two people who once loved each other and who had three children together. Neither has any desire to destroy their assets or their children’s self-esteem or the other person’s future. Yet the ensuing correspondence between the lawyers was threatening the remaining bonds of their relationship and creating a massive amount of fear. They were both at wits’ end, but had nowhere to turn until they heard about Fairway Divorce Solutions.

I can well imagine what the outcome would have been. More than likely, their lawyers would have recommended property valuations, business appraisals, and parental assessments along with the ever-flowing stream of letters and affidavits that had already been wreaking havoc on both parties’ happiness. Before it was all over, their fees would have been well into the six figures.

What’s worse, their three children would have seen Mommy and Daddy (who had always had an open, healthy co-parenting relationship) stop communicating with one another and, in time, stop respecting and trusting and caring for one another. The children would be the real victims, and who would be left to clean up the mess? Two adults who had come to despise one another.

Is the current system flawed? You can decide for yourself, but I certainly know what I think. That’s why I’m so committed to offering a fair alternative for divorce because every day I hear stories like this one.

Except where there are extenuating circumstances (for example, spousal or child abuse or a party’s refusal to divulge financial information), divorce simply doesn’t belong in the current system.

The system as it is destroys people and relationships and money and self-esteem. It destroys trust. And hope. And it destroys without discrimination.

While the law is necessary to protect people’s interests, the lawyers are often dispensable. They’re rarely needed to bring about a resolution. In fact, they tend to get in the way of resolutions rather than facilitating them, often making their exits only when little remains but ashes and animosity. As American author Jean Kerr humorously observes, “A lawyer is never entirely comfortable with a friendly divorce, any more than a good mortician wants to finish his job and then have the patient sit up on the table.”

The current system is adversarial, not resolution based. And it destroys lives with no accountability. The entire model is profoundly flawed.

Unfortunately, the traditional system of divorce is occasionally unavoidable when, for example, one party refuses to consider an alternative course of action.

If you do end up in the traditional system during your journey through divorce, you may find yourself feeling an immediate and overwhelming loss of control. Like a common criminal, you become open to applications, affidavits, discoveries, expert witnesses, and assorted other legal assaults.

Furthermore, North American courts are busy and backlogged, and you may have to wait for months or even years to be heard in front of a judge. This long wait can be excruciating, but you’re powerless to accelerate the process.

Nor do you or your lawyer have any say in who will hear your case, and while most judges are fair, you may end up with one whose personality or whose biases clash with your own. Let’s not forget they are, after all, human.

Remember, too, that judges must operate within the constraints of an overloaded system. They have limited time to evaluate each case and must rely on evidence, including affidavits prepared and submitted by lawyers and presented in the courtroom.

An affidavit is, by definition, a sworn statement of truth. But when you factor in the emotions that go along with marriage and divorce and kids and money, truth has a tendency to unravel. Perception is often far removed from reality, yet your spouse’s affidavits about what kind of parent you are or how you handled (or mishandled) the family finances or how many times in the past year you drove after drinking or smoked marijuana are mostly expressions of his or her perceptions packaged as truths.

All these uncontrollable factors make divorce court somewhat of a crap shoot. Justice may prevail, but fairness may not. Are you prepared to bet your future financial security and your children’s emotional security on what may be a roll of the dice?

Committed as I was to taking the high road during my divorce, I endeavored at all times to be honest in my affidavits while recognizing, of course, that honesty is a function of grayish perception rather than black-and-white reality. I remember asking one of my lawyers, “What happens if my spouse submits a work of fiction that contradicts my affidavit? What will the judge do?”

Her reply: “The judge will accept both as statements of fact. He’ll assume you’re both attempting to tell the truth. The court assumes you are both honest citizens doing your best to reach a resolution.”

I was perplexed. “But that’s a faulty assumption. People lie, especially people who are in the habit of lying, or perhaps people who are getting dragged through a divorce they never wanted. Surely the court understands that truth gets tainted by affairs, anger, jealousy, addictions, and spite?”

“Truth. Lies. In the eyes of the court, there’s often no telling them apart. Unless there’s evidence of abuse or some equally serious criminality, a judge hears both sides of an argument and then has to decide what is truth and what is fiction. It makes sense then, with two affidavits in hand from two emotionally charged divorcing parties, that perhaps the truth lies somewhere in the middle. And if you really think about it, the approach is reasonably just.”

“Sorry, that’s just the way it is. The judge has to assume that both parties enter the system in good faith and will put forth truthful information. No one ever said the system was perfect.”

My first mistake was trusting conventional wisdom, which says, “Hire a ruthless go-getter who’ll really stick it to the other side.” Wrong, wrong, wrong: This proved to be a just-add-money recipe for extortionate lawyers’ bills as my file became a battleground of legal egos.

If I had it to do all over again, I would use Fairway Divorce Solutions, of course. But if that wasn’t an option (as indeed it wasn’t at the time) and I absolutely had to hire a lawyer, I’d have waited for Tom to choose his lawyer first. Then, to mitigate against a lengthy spectacle of one-upmanship, I’d have hired Tom’s lawyer’s best friend or the closest thing to it. (Remember, in any given city, many of the lawyers went to school together, attend the same conferences, sit on the same committees, and rub elbows with one another at social functions.)

If that wasn’t an option, I’d certainly have done my research. Did my prospective lawyer have a personal vendetta against Tom’s, or did his have one against mine? What sort of reputation did he or she have in the legal community? And among former clients?

Another important question: On average, how often do they go to court? The higher the number, the redder the flag that says, “I’m just no good at negotiating resolutions.”

Current caseload is another important indicator. An overloaded briefcase screams, “Take a number. I’ll get around to your concerns when I get around to them. And don’t hold your breath.” Of course, a lawyer with no other cases on the go may not be a safe bet either.

If you must hire a lawyer, learn from my mistake. The cost of my decision to “take control” is that I gave it up altogether.

A fair approach to divorce allows all parties to maintain control over their decisions and, ultimately, their destinies.