Family Law Articles
38 Costly, Destructive Misconceptions About Divorce
MISCONCEPTION #1: Divorce is a contest. Not true. You and your spouse probably have different views, needs and goals. This may cause you to conclude you are in a contest that can be won, hoping that your views will be proved correct. But that’s not true. Instead, Divorce is a decision-making process. The process attempts to (1) find an accurate set of facts, (2) create a parenting plan in the best interests of your children and (3) divide income, assets and debts fairly. Then you and your ex-spouse go your own direction. No question, both of you will be disappointed with the result. But the more you understand about the process and when you are ready, the more quickly you move through it, the sooner everything will be over, the more money you’ll save, and the sooner you’ll be on the road to emotional good health.
MISCONCEPTION #2: I can win this battle. No, you can’t. Many people seeking a Divorce talk about “winning,” but if you remember nothing else I tell you, remember this: No one who goes through a Divorce ever wins. The end of the process is not victory; the end is that you and your spouse are Divorced. The process aims at fairness. If your spouse wants it all, you may feel that you won when the judge orders a fair resolution. If you want more than seems fair to the judge, you risk losing. When one spouse wants more than is fair, both lose tens of thousands of dollars to their lawyers for the cost of a Trial. If a judge concludes that your facts are true, and that your goals and needs are reasonable, you may feel as though you have won. But still you may not get what you want. The judge’s primary goal is to create the parenting arrangement that is best for your children and then fairly divide household income and property between you and your spouse.
MISCONCEPTION #3: Our opposing views will force a Trial. Not always. Confusion over which facts are accurate and true can force your Divorce to go to Trial. However, your differences may not force a Trial where the facts required for a good decision can be agreed upon or when the differences will not result in substantially different outcome.
MISCONCEPTION #4: The only cost of Trial is the money for the lawyers. Wrong! Trial will wring both spouses and all the children through an expensive, intense, emotional roller-coaster. Each person will be tossed out at the end, hurt, financially spent and emotionally exhausted. Everyone will be glad when the Trial is over, even if they are disappointed with the results. This will be true whether you have the most skilled or least able lawyer.
MISCONCEPTION #5: I will feel better after we go to Trial and my lawyer proves I am right. No you won’t. Right now, you may feel as though your fears and pain will end and that your hopes will be achieved by “winning” at trial. But this isn’t true. Even if your lawyer proves your facts are true, you may not like the judge’s decision. What’s more, your spouse may not accept the decision and continue the emotional battle. Your fears and pain may continue or grow even worse.
MISCONCEPTION #6: When the judge decides who gets what, the battle will be over. Maybe. The judge divides the assets and debts and decides on a parenting plan. Each spouse decides whether and when to heal emotionally and end the conflict.
MISCONCEPTION #7: I will feel better after the Trial is over. Probably not. Trial exposes misconceptions, false beliefs, lies, bad decisions and hurtful conduct. Trial is cold and cruel to feelings. It can create more upset and lasting pain. Trial often feels like the final betrayal. It leaves both you and your spouse to deal with your feelings alone. After the Trial you will have different problems, some resulting from the Trial. If you want a solution that will help you feel better, friends and therapists can help you with your pain, fears and feelings much more effectively and much cheaper than hiring a lawyer to go to war.
MISCONCEPTION #8: I can save money by hiring a cheap lawyer and limiting my lawyer’s preparation. Never. To come out ahead at Trial requires great skill and intense preparation, both of which are expensive. To win financially, you must weigh the cost and benefit of each dispute. If you’re thinking about going to Trial, look at two considerable risks: First, if you hire a cheap lawyer to save on fees, you increase your risk of not getting what you want. On the other hand, if you hire a trained family law litigator who prepares your case in great detail – which is essential for a positive outcome – legal fees could consume a good portion of anything you are awarded at Trial.
MISCONCEPTION #9: I can win custody of the kids and then calm things down by giving the other parent more liberal or flexible time. In essence, by being a good guy, I can resolve the emotional conflict after I get control. It sounds possible, but it doesn’t work. The children get hurt on the first day of separation and conflict. That injury develops scars. You start working together when you start working together. Working together stops further injury and helps start healing. In addition, children need the insight of both parents. We avoid serious parental mistakes best when we have a second involved, committed parent thinking about and offering insights about the children. Working together doesn’t start when one parent gets control. It happens when both heal enough to accept the situation and cooperate. The more you cooperate in making decisions and caring for the children, the better the children will do. The less you cooperate, the more pain you inflict on the children and their chances of future success plummets.
MISCONCEPTION #10: I can win the children’s love and loyalty by exposing my spouse’s failings and mistakes. Bad idea. Sorry, not a bad idea but a horrific idea. Saying things in front of the children to express your own pain or expose your spouse’s failings injures the part of the children they identify with your spouse, each and every time. When the kids lose feelings and loyalty for either parent, they lose feelings and respect for themselves.
MISCONCEPTION #11: I will be happy with the judge’s decision. Maybe or maybe not. You will be pleased with the result to the extent that your hopes are based upon the decision-making process. You will not win all of the assets. Instead, you will win a more or less fair division of assets. You can get custody of the children. But you will have healthy, happy children only to the extent that the parenting plan keeps both parents involved in parenting. A good parenting plan allows each parent to offer positive skills to the children and keep the children safe from both parents’ worst weaknesses.
MISCONCEPTION #12: I can win if I delay giving information, hide assets and avoid questions. Wrong! If you delay giving information, hide assets, hide evidence of value, avoid questions or give obscure answers, your Divorce will cost more money. Also, Judges are human beings and choose sides, early and often. Your Trial Judge will be prejudiced against you and you will not get the result you want.
MISCONCEPTION #13: I can get revenge by taking the assets and the kids and leaving my spouse with the debts. No. The decision-making process aims at fair division of assets and debts and a parenting plan that best nurtures the children. This usually means both parents spending time with the children in important ways.
MISCONCEPTION #14: I should be open with my children about my pain, injury and grief. Not a good idea. Sorry, not just a bad idea – that would be one of the worst decisions you could ever make. If you share your pain, and talk about the confusion and difficulties caused by your spouse, you sound as if you are blaming your spouse for the Divorce. Your child understands that you are hurt, plus your child knows that good people don’t hurt other people. As a result, your child concludes that your spouse is or may be, therefore, a bad person for doing this to you. What’s more, your child sees you are injured and wants to be loyal to you because of your circumstances. Now imagine your child hearing the pain, confusion and frustration of your spouse. Your child understands your spouse is hurt, and knows that good people don’t hurt other people. As a result, your child concludes you are or may be a bad person. What a horrible position for a child to be in – thinking that my parents are not the best people – thinking my parents are not who I thought they were. And, trying to process how do I pick a side and how will that parent react? Or feeling so horribly alone as anything positive that your child might say about your spouse may be viewed as being disloyal to you. Even then, if your child chooses a side, even your side, it means that one of your child’s parental relationships has been damaged, possibly beyond repair, which is very destructive to your child.
MISCONCEPTION #15: I should keep quiet about the Divorce and not tell the children what’s going on. Yes and no. Children should not know the legal details of the Divorce, nor should they hear bickering about what the other spouse said and whether it’s true. Children do need to know about the events that will affect them, stated as clearly and objectively as possible. A mother might say, “Tomorrow, your daddy will be moving to another house.” The child understands this will happen the next day as a planned event. A father might explain, “You will still be living with both of us. Sometimes you’ll be at your mommy’s house and sometimes you’ll be here with me.” To explain going to Court, a mother might say, “Your father and I are trying to make the best decisions about how to live in two houses and provide the best care for you. Today, we’re getting help from someone who knows more about this than we do.”
MISCONCEPTION #16: I should be honest and open with my children and treat them as if they are adults. No, you shouldn’t. This type of openness, in which you give children details only adults would understand, poisons the child against the other parent. In this way, parents traumatize their children. Note, we’re not speaking only about young children – we’re speaking to teenage children and even children who are young adults.
MISCONCEPTION #17: I can win my Divorce by out-maneuvering my spouse. Odds are you won’t. Maneuvers cost both you and your spouse money to figure out and counter. Lying and trickery require skill and effort to expose. Once exposed, the Judge tends to make the trickster pay a portion or all of the added fees for both spouses.
MISCONCEPTION #18: I will win this battle by proving my spouse wronged me and is bad – and by proving that I am good. No. Your efforts to prove your spouse bad and you good will result in a costly Trial. Efforts to prove good and bad confuse your efforts to set up a parenting plan and to justify custody. Proof of parenting skills or lack of parenting skills aims at showing which parent can better serve the needs of the children. If you try to prove things in front of your children, you hurt the children. If you try to prove bad and good in front of the Court, you have a less effective case for custody. Your effort to point a finger at your spouse discloses an unwillingness to heal emotionally and stop the conflict. It predicts extended conflict with your spouse and injury to your children. It justifies unnecessary litigation.
MISCONCEPTION #19: I can get even. Not true. Divorce is an attempt to stop the fighting between you and your spouse. If you want to get even, then your aim is to continue the fight. Your spouse will then defend herself, and you will continue to be hurt. And if the Court sees you continuing to fight, the judge may hold it against you. Instead of fighting, focus on caring for yourself and your children.
MISCONCEPTION #20: I can cleanse myself of fault before my parents, friends, children and me. Probably not. A custody Trial requires, in part, proof of bad judgment, bad actions and bad intentions. But just as you will prove your spouse’s faults, your spouse will prove yours.
MISCONCEPTION #21: I will feel better after the judgment is entered. No. You may feel relief in having the Trial and uncertainty over. But you, your spouse and your children won’t feel better. Courts deal only with legal separation and nothing more. The emotional process is left for you to work through by yourself or with friends or therapists. When you try to use the legal process to deal with your emotional pain, your costs and disappointment multiplies.
MISCONCEPTION #22: Blaming is important to the legal process and to my well being. No. The Divorce Act hasn’t required fault – adultery or cruelty – to grant a Divorce since 1968. Each spouse has a different view of why things went wrong that usually starts with their spouse’s bad conduct. If you blame your spouse, you may justify and win more support from friends, family and children. But blaming prevents introspection and avoids using your power to accept responsibility for your mistakes and move forward with your life.
MISCONCEPTION #23: I am innocent and I want the Court to know I had no part in causing the problems that brought our marriage to an end. Wrong! Blaming your spouse for the failure of your relationship has no place at Trial in Ontario. Innocence, fault, guilt and blame are part of the emotional contest and only increase your cost, pain and confusion during Divorce.
MISCONCEPTION #24: My situation is unique. The Courts have never seen a case like this before. Not very likely. Thousands of couples have worked through similar situations. The process of getting a Divorce is well worn, thoroughly explored and well understood. The successes and failures of previous couples have taught lawyers and the Courts a great deal, which they pass along to you in the form of advice and orders. Good advice can move you through the process faster, more effectively, and at less emotional and financial expense than anything else.
MISCONCEPTION #25: Each dispute requires one-upsmanship, stealth, deceit and trickery. Not true. These types of tactics only multiply the expense of Divorce. Courts are designed and lawyers are trained to discover and prove these deceits. When proven, they can anger the Judge and result in the trickster paying for the other side’s fees.
MISCONCEPTION #26: The children will benefit from getting rid of my spouse. Not true in almost every case. Children need to have their value confirmed from contact with both parents. Ontario Courts give great weight – significant importance – in a custody decision when one parent is seen supportive of the other parent’s relationship with the children.
MISCONCEPTION #27: The children will know my spouse is no good by her actions, and I will imply it in my conversations with them. Maybe true, and you could. But these actions injure children and give your spouse evidence to prove that you should not have custody of your children.
MISCONCEPTION #28: The children will have sympathy for me and my difficulties with my evil spouse. They should not. Telling your children about your injury or using them as a source of emotional support stands parenting on its head. It asks children to parent the adults.
MISCONCEPTION #29: The best lawyer is the toughest, meanest and most cutthroat. Not true. Hiring a tough, mean, cutthroat lawyer may satisfy your need for protection and revenge. It may satisfy your fears. But a mean lawyer’s conduct only complicates the process, delays resolution and multiplies your lawyer’s fees. The best lawyers cooperate in moving you through the process swiftly and fairly. They have the skills and experience to find and present evidence that communicates convincingly. They sense your pain and can direct you to help outside the legal process, without disrupting the legal process. In addition, the best lawyers can coach you through the decision-making process so you better cope with parenting, legal, and financial challenges while you recover emotionally.
MISCONCEPTION #30: When I delay the Divorce process, I help assure that I am dealing carefully with this decision. Not so. The only thing that helps you make careful decisions is to have accurate information on which to base your decision. Delay helps only when gathering the evidence requires additional time.
MISCONCEPTION #31: The Court needs to know that my pain and unhappiness come from my spouse’s failures. Not true. This is part of the emotional recovery process. Making it part of the legal process complicates the Divorce and increases your expenses.
MISCONCEPTION #32: I have no power in this matter. Wrong. This feeling comes from the failures that have occurred in your marriage. Each choice you make today demonstrates your power. Your failure to choose and failure to act delays the solution and complicates your Divorce, increasing your costs and your risk of failure.
MISCONCEPTION #33: Divorce is a negative process and offers no opportunities for the future. Not so. While divorcing isn’t fun, it gives you the opportunity to learn, grow and attain a healthier and happier situation. The good choices you make today should build the foundation for the balance of your and your children’s home, family and parenting. Understanding the mistakes you made in this relationship may give your next relationship life that this one did not have.
MISCONCEPTION #34: I need a lawyer to help me prove that my spouse is wrong. Not so. The best lawyers find and prove facts that help you show why your desired resolution provides better parenting for your children, more accurate values on assets, and a more fair and reasonable result.
MISCONCEPTION #35: I should believe supportive comments by friends, such as “She is such a jerk,” “She will take the children,” and “She will take everything.” Bad idea. Friends give far better emotional support than lawyers, and at less cost. Their friendly support helps with the emotional conflict, injury and healing. But when it comes to the legal Divorce process, you should trust your family law lawyer to help you make decisions. When you allow friends’ emotional comments to influence your choices, you increase the conflict, complexity and expense of your Divorce.
MISCONCEPTION #36: I will do all of the above, but I will be fair. Not so. The act of carrying out the above misconceptions injures you, your spouse and your children by delaying resolution, intensifying conflict, increasing costs and suffering. Divorce should be part of a healing process for you, your children and your ex-spouse, who is now your partner in the business of raising the children.
MISCONCEPTION #37: The more you pay to hire a lawyer, the better the lawyer and the result. Not so. The more you pay, the more you pay. Often high fees pay for the prestigious office space, plush decor and abundant staff. Select the Divorce lawyer you like who (1) answers your calls and your questions, (2) understands the process thoroughly and helps you makes sense of it, (3) uses your efforts to help gather evidence early, (4) coaches you past mistakes, (5) directs your behavior in unfamiliar circumstances, and (6) understands and explains your story well. Can your lawyer help you understand and make cost-saving decisions even when they increase some risks of failure?
MISCONCEPTION #38: I can represent myself in this process even though we dispute everything. Not a chance! The family law lawyer who represents himself has a fool for a client. The client who represents himself is lost. You can almost always do some of the work yourself. And in some cases, you can do much of the disclosure gathering work yourself. Having a family law lawyer review and direct your efforts can multiply your effectiveness and eliminate costly mistakes. Making the truth-discovery process work requires more than making it look like a Trial, more than understanding the Family Law Rules in Ontario, more than having good people skills. When you hope for a Trial to work without understanding the law or the process, and while emotions range from high to low, you hope for the impossible. Personally, when I need help in court, I hire a lawyer to advise me and I do the legwork. You can, too.