Sarah and Jonathan had three children when they decided to divorce. Both decided that they didn’t want the ugly type of divorce they had seen from their friends and vowed to keep it civilized, not just for their own sake, but for their kids – but it didn’t take long for the cracks to show. When Sarah received the divorce papers from Jonathan she was shocked by the tone of their content, and Jonathan – who believed he was being generous with the divorce settlement – soon began to feel that Sarah was being greedy and vindictive. Relations deteriorated from there until most communication was through their lawyers. Many dollars were spent and anguish endured until a settlement was finally reached.
Sarah explained that although they anticipated hurt and hardship through the process of divorce, what was really unanticipated was the level of antagonism that quickly built up. Jonathan commented that what was really shocking was how fast the divorce process turned nasty.
No one starts out thinking that they will get divorced. From marriage vows to decree absolute is a journey that is always unexpected. But how is it that two people once believed that they wanted to spend the rest of their lives together, and who could once accommodate each other’s wishes, now sling insults and accusations at one another, and can’t talk civilly about the smallest of issues? How does this happen?
Starting with an Amicable Divorce
Most couples will start the divorce process with the will to sort out all issues as fairly and amicably as possible, and yet a few months in they find themselves at loggerheads. The first step many take in the divorce process is to take some legal advice, and this is a great idea, because navigating the divorce process is a difficult business and knowing your rights is important. The only problem is the tendency to start on what can be called the “divorce escalator.” Friends are quick to advise that you have to protect yourself, otherwise your partner will take advantage of you.
What Is the Divorce Escalator?
When you go to a lawyer, he/she will explain your rights and how you can protect and fight for them. In these situations, many believe that there is a need to take preemptive action to protect rights, you may need to put in a divorce petition which contains accusations of behavior you did not anticipate bringing up, or exaggerated or slightly skewed perspectives. You would be doing this to preempt your partner from “getting there” before you. (This is particular prevalent in cases where children are involved because the threat of not having access or custody of the children can scare parents into making claims that they did not initially intend on making).
In turn, upon receiving such a petition, your partner will be upset at the accusations and their lawyer will suggest that they retaliate in kind, and so you ride the divorce escalator to a level of antagonism neither of you had ever foreseen. The divorce escalator means that once on, it is hard to step off; the escalator keeps moving up with you on it.
The Incentive to Settle
In the United States, the level of uncontested divorces is at a high of 95%, which means that 95% of all divorces end with the parties agreeing on a settlement between themselves without having a judge decide for them. This is not to say that these uncontested divorces do not go through the court system – many of them start off as contested divorces, which are filed in court – but as the litigation process goes on and the costs and risks become higher, the incentive to settle becomes more attractive. The sad part is that the couple has often spent thousands of dollars and many hours of anguish through this process, which leads them to a settlement that they could have agreed to earlier and more cheaply.
How Can the Divorce Escalator Be Avoided?
One recommended way is to sort out a settlement and then present it to the court. Courts are usually very happy to accept a settlement which has been agreed to by the parties as long as they feel that there has been no undue force in obtaining the agreement of the couple, and that the children are not harmed by the agreement. Mediators and collaborative divorce lawyers can facilitate these agreements and make sure that all necessary points are covered. A mediator or collaborative lawyer would create a framework for the discussions to take place, and help the couple look at all the options that are available to them.
Different countries are encouraging couples to try and limit litigation by choosing other routes. The advantage to the courts are less files in the family courts, freeing up space for more complex cases and for the couples – hopefully a way to avoid the divorce escalator and find a cheaper, faster way to divorce. Cuts were made to the budget for legally aided cases for divorce in the UK, with more available for legally aided mediation to encourage UK divorcing couples to go to mediation.
Courts in many American states can order court-forced mediation, whilst a new law in Israel forces couples who wish to divorce attend a series of sessions with a social worker who can explain the alternatives to the adversarial and litigious route. Couples are still recommended to take legal advice, but perhaps hold off on acting on it, and try mediation or another form of alternative dispute resolution before they go to court. Despite some criticisms of the new system, and there are a few, other countries are watching closely to see how the Israeli model will work.
*Names and some details have been changed for the sake of anonymity.
Hadassah Fidler, LLB qualified as a lawyer in the UK and then retrained as a licensed mediator both in England and in Israel. She currently resides in Jerusalem, Israel, where she has a mediation practice specializing in mediation for English speakers.