Sunday, August 24, 2008


Winning is the subject of innumerable books, movies, lectures, motivational speakers, preachers and web sites. If you believe what you read, it seems that with just a little effort, or maybe with a big effort, you too can be a winner! I've had people ask how many cases I had "won". While winning has its place in sports, games, quiz shows, politics, gambling and many other endeavors, it should not be considered a goal in divorces or family law cases.

It's easy to see who wins an Olympic contest, a Jeopardy game, an election (usually), and most other contests, but how do you determine who wins a divorce? I guess it depends on what standard is used to measure success. Is it who has the greatest value of assets? Or who has primary custody? Is it the party who was able to drag out the divorce for 2 or 3 years? Or the party whose attorney fees and court costs got paid by the other party? Was it the party who managed to get 50% of the assets? Or the one who got 55% or 60% or 65%? What defines victory and defeat in a divorce or family law case?

Do you "win" a divorce if you destroy your spouse? Or if you manage to limit the time your children get to spend with their other parent? Do you have to clean out your spouse to claim a victory? Do you win if you got 40% of the overall assets, but got the single most important item you wanted?

What if you get part of what you wanted, but not all? What if each party gets some of what they wanted, but not everything? Do they both win or both lose? What if you and your ex-spouse end up sharing time and responsibilities with the kids? Who's the winner? Hint: maybe it's the kids!

The answer to all of the above questions: It depends on what you were after. Many times you win by sharing. You can also win by minimizing your losses. One thing you can expect in litigation in family law is that each side normally gets at least some of what they want. It almost never happens that a judge rules 100% in favor of one side -- it normally would be considered "an abuse of discretion" by the court and would probably not stand up on appeal. In other words, you should expect to only prevail on part of what you want.

Why it's hard to be a "Winner"

Americans are a very competitive people. We like to keep score and we usually want to feel like we came out ahead. Unfortunately, in family law matters, it is hard to come up with a clear cut win for several reasons.

  • Judges usually will try to give something to each side. They rarely make awards that 100% favor just one party.

  • What may be important for one person may be totally insignificant for the other party. How do you score that?

  • There are normally multiple issues, so each party will usually win some and lose some. Issues may have different levels of importance; it's rare that every issue would be equally important.

  • The facts and situations change over time in a divorce, so what may have seemed extremely important at the beginning may have no value later. If you "win" that issue, so what?

How to become a "Winner"

You may be reading this because you want to learn how to win in the family court system, you want to be a winner. Likewise, I want to have a winner with this post, so here's some ideas on how you can be a winner.

1. Take the time to create your own list of important high level goals. They might include such things as being able to have a good start on your retirement savings or being able to train for a new career once you are divorced. You might want to have an everyday presence in your children's lives. Or you might want to ensure that the children maintain close relationships with the extended families on both sides of the family.

2. Create new ways to accomplish your goals. Don't settle for standardized solutions or formulas. Brainstorm and come up with new ideas. Don't limit yourself to standard guidelines or practices.

3. Create opportunities for you spouse to achieve his or her goals or get what's important to them. If your spouse can feel like a winner, your life sure gets better. And you end up with a better settlement.

4. Take the high road and avoid fighting. From experience, you know how much fighting helps you accomplish your goals. You know how fighting helps you feel so much better. You know how it creates a stable, supportive and safe environment for the kids. Think before you react. Get professional help if needed, but stop fighting!

5. Keep the children away from any conflict between you and your spouse. The kids don't need to take sides. They don't need to experience the anger, frustration and pain you are feeling. They will come out a lot better if they are not caught in the middle.

6. Seek professional help throughout the process. You need to have an experienced attorney, but you may also benefit from using a CPA, a counselor, a financial planner or other professional. A therapist is often a valuable helper in dealing with situations that can be overwhelming. Getting help doesn't mean you're crazy.

7. When you seem to come to an impasse, back up and try a different approach. Don't take "no" as a final answer. There are always other solutions. Start from common ground and move from agreement to agreement. If progress stops, step back and reconsider your overall goals and needs and look for other solutions.

Don't be a Loser

The approach I have not suggested that still might work is for you to decide to spend your children's college funds on your lawyer. If you don't mind giving up your savings or financial security, you can have your attorney out work his or her opponent and wear out your (ex) spouse by creating multiple hearings, doing written discovery and depositions, getting psychological evaluations done and generally hiring multiple experts. Many lawyers don't mind doing that and some actively encourage it. You can decide whether that makes sense for you.

Setting Goals Makes You a Winner

While it's easy to keep score and see who the winner is in a baseball, football or basketball game, it's not so easy to determine a "winner" in a legal case. There are normally multiple issues in a court case and it's not realistic to think that one side will win all the issues. It's much more meaningful to spend some time at the outset and figure out what your goals, needs and interests are. Then figure out ways to achieve the goals and meet the needs and interests you have. Instead of getting into a competition with the other side, spend your time, energy and money focused on what's important to you. Then you'll get a meaningful result, which is winning.

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