Vengeance and Retribution

The Merriam-Webster Dictionary defines vengeance as "punishment inflicted in retaliation for an injury or offense." Many people going through a divorce are seeking vengeance. They feel like they have been wronged. They feel like they have suffered injury as a result of a spouse's conduct. They believe that their spouse deserves to be severely punished through the legal system in a divorce.

The situations in which people believe they are entitled to vengeance or retribution are numerous. In some cases, there has been an actual physical injury for which a party deserves compensation. In other cases, there have been injuries of the psyche as a result of a spouse's conduct. In some cases, people believe that they are entitled to retribution simply because their spouse is asking for a divorce.

People want vengeance because their spouse had an affair; because their spouse drank too much; because their spouse spent all of his/her spare time hunting or fishing; because he/she took care of his/her spouse when he/she was sick, because he/she feels like he/she gave up his/her career; etc.

In these cases, is a person seeking vengeance and retribution through the legal system  likely to be successful? Probably not. Instead, a tremendous amount of money will be spent on attorney's fees, and a great deal of emotional energy will be wasted all without merit in the end.

The vast majority of people that are going through a divorce have suffered some degree of emotional stress. The reason they are seeking a divorce is to bring an end to the pain. The courts see these cases from a different perspective -- the courts are primarily concerned with how to end the pain, divide the property, and provide for the children in the future. If the courts punish one or both parents, it will only hurt the children in the end. Furthermore, the courts do not view the facts as all one-sided -- they frequently see that there are two sides to a situation, and feel that the person seeking vengeance is not being fair to the other party.

From an attorney's standpoint it is quite easy to convince most clients to head down the course of seeking vengeance or retribution. Here is an example: Ms. Jones comes in, is 37 years of age, hasn't worked in five years, has a one-year-old child, and has just found out her husband has had an affair with a colleague at work. It is very easy to phrase the questions along the following lines:

At this point an attorney can quote Ms. Jones a rather high fee, promise to go after the husband, expose the dirty details of his affair, depose the husband, depose the girlfriend, etc. Ms. Jones may get an emotional charge from the potential for vengeance. She may enjoy the fact that her husband has to squirm in his chair while somebody questions him about his affair. Ms. Jones may enjoy it when the girlfriend is subpoenaed for a deposition. Ms. Jones may even eventually come to believe that the judge is absolutely going to crucify her husband for the wrong he has done.

The problem with this approach is that the court is not likely to put much emphasis on the affair and Ms. Jones may very well be disappointed at the outcome. All of the legal efforts seeking vengeance are likely not to produce the desired results even though they can be expensive.

Instead of the affair, the court is going to look at visitation in terms of the child's best interests --- we know that children raised without active involvement of both parents have a substantially greater risk of juvenile delinquency, criminal activity as an adult, drug use, dropping out from school, failure to get a job, failure to go to college, etc. The courts have learned that if both parents are actively involved in the child's day-to-day life after divorce, there is a substantially greater probability that the child will grow up successfully. Therefore, the court is not likely to let the issue of vengeance or retribution affect its decision regarding the custody and visitation.

Regarding child support, most states have child support guidelines that take into account many different factors. One factor they do not take into account is the wrongs that one parent may have done to another parent. In other words, the courts are not going to punish a parent for his/her behavior and require excessive child support as a punishment.

Texas is a community property state. Texas views everything acquired during the term of the marriage (except for inheritance or gifts) as partnership property subject to a "just and right" division upon divorce.

In Texas, the courts certainly can take fault in the breakup of the marriage into account in determining whether to award a disproportional share of the property to one party or the other. However, fault is only one of about 15 to 20 different factors that the courts take into account. While fault plays some role in the court's decision, other factors are much more important in the courts division of a disproportional share – such as the disability of one party; differences in levels of education, differences in ability to earn income; etc. Most courts operate in the narrow band of 50/50 to 60/40. Very rarely will a court award more than 60% of the community property to one spouse.

If the only issue is the division of a $50,000.00 401K account and the judge awards a party 60%, the difference is only $5,000.00. The court probably would have awarded the same division if it was shown that the husband has been fully employed, the wife has stayed home, and the wife has to reenter the job market. This would be significantly less costly than if the husband and girlfriend were deposed and all the gory details brought to light in the courtroom. Many times seeking vengeance has no real effect on the courts' ultimate division.

One of my favorite techniques when working with a client that I suspect wants vengeance or retribution is to go through a question and answer scenario like set forth above. Then, at the end, I add these questions:

• Ms. Jones, what you really want is vengeance for this affair, isn't it?
  Answer: Yes.
• Ms. Jones, you think that there ought to be retribution, don't you? Ms. Jones, your spouse should be punished for this affair, shouldn't he?
  Answer: Yes, he should be punished.
• Ms. Jones, our firm provides the service of seeking vengeance and retribution through the legal system. For that we charge an additional attorney's fee of $10,000.00. Are you willing to pay an additional $10,000.00 fee to seek vengeance?
  Answer: You mean it costs money to seek vengeance for an affair?
• Mr. Grubb: Oh yes, if we are going to get into the gory details of his affair and depose him, subpoena his girlfriend in for a deposition, etc., it is going to make it into an extremely time-consuming case to handle. 
  Answer: Well, maybe really what I ought to look at doing is dividing the property and moving on in life.

When meeting with a new client, I frequently advise them:

• Not to ask their attorney to try to make their soon-to-be ex-husband or ex-wife into a nice person. The attorney can't do that.
• Not to ask the court to make their soon-to-be ex-husband or ex-wife into a nice person. The court can't do that.
• Admit that their ex-husband or ex-wife may not be a nice person and that they are powerless to do anything about their ex-husband or ex-wife and are best served by moving on.

In summary, the legal system is very effective at meeting out vengeance and retribution.  If you feel that you have a need for vengeance or retribution, you may be better off if you work the issues out with a therapist, rather than trying to address them with your attorney.

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John K. Grubb practices family law in Houston. He has a BBA, MBA, and a JD Degree. He can be reached at (713) 877-8800. View his website and Divorce Magazine profile.

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