Sunday, May 9, 2010

Ducks Marry Ducks


I didn't create the title to this post. It's a phrase I've heard around the courthouse for years, mostly from judges, social workers and therapists, to explain why both parties in a divorce are often afflicted with the same or similar problems. Even though the lawyers and other professionals usually recognize this phenomenon, the ones who don't realize it are the ones most involved. The ducks themselves. Our clients. I am writing this to clue in the ducks so maybe they will have an easier time navigating the family law system.

Family law legal issues usually range from very emotional to extremely emotional. Luckily, clients have attorneys to help them deal with the process. In litigated cases (in contrast to Collaborative Law cases), the parties and their attorneys often spend a lot of time preparing for court, or at least preparing for heavy negotiations. The attorneys always want facts from their clients. Some attorneys focus almost exclusively on the negative, while others try to balance the mud slinging by getting evidence/witnesses about the positive aspects of their client's situation (their hard work, honesty, generosity, willingness to change diapers, etc.).

Maybe it's easier to come up with negative things, maybe it's more emotionally satisfying, or maybe people think that negative attacks are more persuasive than just saying nice things about oneself. Whatever the reason, parties (and attorneys) tend to spend more time developing evidence of negative traits than positive.

And that's where the problem arises. In case after case, I see the same thing. It's "the pot calling the kettle black". Here are some common issues where I see it:
  • Having an affair. It's amazing how many times one party gets all worked up because the spouse is having an affair, and it turns out that the one who's upset is also dating someone else or has in the past.
  • Drug use. When I hear claims of someone smoking marijuana or using other drugs, it's almost always true that the other spouse is also a druggie. (Although the person usually claims to be a "former" user.)
  • Forgery. There are frequent complaints that the other party forged a signature on a check or tax return or some other document. Just about the time that the victim works up a lot of righteous indignation, we discover that the "victim" also has forged the other party's signature on other similar documents.
  • Bad housekeeping. I actually had one party go through the house that he and his wife were sharing and take pictures of messes (which he then ignored, although he was unemployed at the time). Once he moved into his own house, he was able to match his wife's messiness, and even surpass it in places. (She went into his house and took pictures, also.)
  • No cooking or bad cooking. If there's one of these allegations, they probably eat fast food all the time --neither cooks.
  • Running up excessive debt. Most often, each has their favorite money pits and they each run up debt. Usually, the one complaining louder is the one who makes more money.
  • Nude pictures or movies. It's either: guess who was also participating when the pictures or movies were made, or the pictures may have been taken illegally.
  • Hiding assets. Distrustful spouses often are married to equally untrustworthy spouses.
  • Being uncooperative or unwilling to compromise. It really just depends on the issue involved. There are almost always some issues where one party simply will not budge, and the other side complains mightily, even though the positions are often reversed on other issues. Usually, each side has some non-negotiable issues.
The old double standard is clearly alive and well. It's so much more fun to attack and criticize the other side in a family law case. Unfortunately, a lot of time and money can be wasted mounting attacks on issues that make both sides look bad.

What to do about it:

  • Come clean with your attorney. Be honest and admit your shortcomings. Don't try to hide or downplay the dirt on you. It won't be the first time your attorney has heard about such things. It's not the attorney's position to judge you. Your lawyer is there to help you develop the best case and to achieve your worthwhile goals. The lawyer can't help you if s/he gets surprised in court.
  • Be realistic. Nobody's perfect. Admit to your attorney when you messed up, so the attorney can help you develop a strategy to deal with the bad facts. Everyone has at least a little dirt. Honesty can really help you in court when you admit your weaknesses. Your attorney will help you to figure out the best way to present things.
  • Try to come up with positive points about yourself. This is often overlooked. Judges get tired of all the negativity they see and hear. Telling the good things about yourself can make a really strong impression on the judge.
  • If the kids are involved, try to objectively look for their best interest. This is something judges are interested in. If you demonstrate your commitment to the children's best interest, it will pay off for you. If you are not sure about what would be best, or if there's some other way to do things, get help from a parenting professional. We use them in Collaborative cases, and there's no reason why you can't consult with one in a litigated case.
  • Be open to new options. The court may send you to Access Facilitation or a social worker with the county to help you develop a parenting plan. You will probably go to mediation if you don't settle early on. With any of those options, keep in mind that you are being helped by people who are experienced and can come up with many different models that have worked for others. Consider seriously any suggestions you get.

Remember, many of the issues you think are dynamite will fizzle out for a lot of reasons. One of the most common situations attorneys see is one party complaining about something that they are also guilty of, and that should be avoided. Ducks marry ducks and for many issues, there's virtually no benefit from bringing up issues that apply to both parties. Instead, look for things that will distinguish you in a positive way.

1 comment:

Mister-M said...

I think you're on the mark to a point, and in my early-years interactions with my ex-wife, I certainly contributed mightily to escalations. However, I also think it's overly broad to apply that philosophy to all cases since personality disorders so often drive family court litigation and it's not often/always both parties "equally" no matter how much the court or other outsiders like to believe that's the case.

The easiest way to demonstrate this in my own circumstances is that NONE, and I mean NONE of the issues that existed between my ex-wife in I during our relationship nor since it's demise exist in my relationship with my partner today. Is that because I've managed to so dramatically change myself or is it because I'm with a partner whose life doesn't revolve around high-conflict with anyone about anything?

One major life change for me is how I approach disagreements, as few as my parnter and I have. We talk things out rationally. We each state our respective positions. Sometimes, we don't resolve it, sometimes we do... but say our side and move on, quite quickly actually.

One thing I would contend based upon what I know, have experienced, or have learned through others is not so much that the accusations are often a two-way street (in whole or in part), but the most vociferous of objectors is usually the one guilty of what's being accused... whether it's substance abuse, physical abuse, mental abuse, irresponsible spending, hidden income, cheating, etc.

And when Family Court so often puts the burden of proof on the accused... well... you have a whole myriad of reasons why it's so hard to make headway in family court.

Overall, I think you have some valid points but ultimately it's only a small portion of what's what that is grossly complicated by the way the Family Court Cartel handles cases to keep the money flowing.