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3 Things You Should Not Do In a Divorce

Curtis W. Harrison | July 21, 2014

The simple truth is that when a person is placed under extraordinary stress the universal human instinct for survival frequently tends to temporarily override rationality, common decency, and even parental wisdom.

Virtually everyone who has faced the prospect of a separation or divorce has felt the extraordinary pressures that it causes. Most of the pressure is routed in fear: Fear the unknown; fear of the lack of perceived control; and fear of the decisions the other spouse will make during the divorce.

These fears drive some divorcing couples to make terrible mistakes that will haunt them and their children for years to come. Some of the mistakes are made long before either spouse consults with a divorce attorney.

After practicing Family Law for over 20 years both in and out of the courtroom, I have noted three fundamental mistakes that divorcing couples make more frequently than any other. Of course, there are plenty of others, but these seem to be the most frequently made mistakes and the ones most likely to leave lasting scars:

1. Involving the Kids – Although this should be obvious, it is the most common – and by far the most tragic – mistake that I see couples make. Here are a few examples: (i) Mom and Dad cannot or will not contain their so-called “adult conversations” (arguing) in the presence of the children. (ii) Dad picks up the kids to take them for the weekend and Mom tells children she will “miss them terribly” instead of encouraging them to have a great time. (iii) Mom is forced to tighten the budget at home out of necessity while Dad, who has recently moved into his new man-cave, starts lavishing the children with Playstation 4’s, off-road bicycles, and trips to Disney.

All of these examples, and countless others, place the children squarely on the chess board of the divorce. The parents — whether they realize it or not — have made their own children the pawns in the chess match. Don’t make this mistake.

2. Making Unilateral Decisions. Cleaning out bank accounts, buying a new car, or leaving town with the kids are all examples of decisions most people would never consider making without discussing with their spouse. Yet, faced with divorce, that little voice in our head we call common sense seems to take a vacation. Making important decisions that affect others without discussing it with them virtually guarantees you a quick trip to the courthouse for a contested hearing. Don’t make this mistake.
3. Over-Lawyering. You can tell a lot from a name. I frequently meet with potential clients who have already been served with a divorce suit and I have learned that you can predict with reasonable accuracy just how ugly and expensive a divorce is going to be simply by the name of the other lawyer. Individual lawyers have individual reputations, and if a spouse wants to hire a Rambo-style litigator it is not hard to find one.

The problem is that hiring a hyper-aggressive lawyer is usually a self-defeating proposition. While it is true that some cases truly require court intervention, most do not. In fact, approximately 90 to 95% of all divorce cases ultimately settle out of court. That’s right. Only 5 – 10% of all contested family law cases proceed to a judge or jury for final trial.

So, Why do people in this day still seek out Rambo lawyers? Again, fear is often a prime motivator. Fear, when mixed with grief and anger, constitutes a cocktail of negative emotions can be overpowering. These emotions often drive otherwise rational people to make decisions that are not in their own best interests, much less in the best interest of their family.

Ironically, folks who seek out the Rambos typically do so either to (i) make sure they get their “fair share”; or to (ii) get their pound of flesh. The irony is that they will pay a $25,000 initial retainer to Rambo to fight for a larger piece of a shrinking pie instead of looking for ways to work cooperatively with the other side to minimize conflict and costs.

As for getting the pound of flesh, nothing is free: Every pound of flesh you acquire will cost you something. That something could be your children’s emotional well-being, or bitterness in your own heart that reduces your quality of life for years to come. It’s like taking a dose of poison every day and hoping the other person will die from it. Don’t make this mistake.

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