As a divorce lawyer, I wonder this all the time. People who love(d) each other, who dated, married, and had children often seem to love to fight. Why?
Why does it often take months (or years) before people going through a divorce realize there is no "winning," that the best they can possibly do is move on with as little damage—and cost—as possible?
I guess the easy answer is people want "justice," or "revenge" or "their fair share." The biggest problem I encounter is the failure of people to recognize that, in a divorce, everyone will wind up with less. When one entity (a marriage) divides into two entities, the assets do not similarly double. They just don’t.
But who should take the biggest hit? That is often what the fight is about. Each will suffer. Each will have fewer assets and less time with the kids than was had together.
So, how can a case ever settle? Time. That's the answer.
Over time, people eventually realize what divorce lawyers see every day—that settlement, resolution, and closure is the closest they may get to a "win." Of course, there are times when a trial is deemed necessary; but so often, even at trial, the result is something the parties, had they worked hard at it, could have achieved themselves.
All too often, that thought of "justice" or "revenge" or "their fair share" gets in the way of clear thinking. And, in fact, lawyers will try their best to explain to clients that the cost to proceed to trial will likely outweigh any enhancement of the outcome. Such advice often falls on deaf ears.
Until both parties in a divorce recognize that trial is a crapshoot, and no outcome—except one that both parties agree upon—is guaranteed, people will continue to follow their hearts, gut instincts or best friend's advice and fight for as much as they can get.
It is difficult to compromise with someone you feel has deserted you, or ended the most important relationship and investment you have ever been involved in. But if people could look ahead, see their future selves, and envision how they'd like to reflect on the way they resolved their divorce, my guess is that most would wish they had resolved it sooner, more cheaply and less adversarially.
It's hard to quantify, but there is great value in taking such an approach. In fact, it may be the greatest value of all.
Written by Randall Kessler
Randall M. Kessler founded the law firm Kessler & Solomiany Family Law Attorneys, a 30-person family law firm in Atlanta. He is the author of many family law books, including Divorce: Protect Yourself, Your Kids and Your Future; The GA Library of Family Law Forms; and How to Mediate a Divorce. He is an adjunct professor of Family Law Litigation at Emory Law School. Mr. Kessler has served as the Chair of the Family Law Sections of the American Bar Association, the State Bar of Georgia, and the Atlanta Bar Association. He has over 30 years of experience in domestic relations and family law matters, including divorce, custody, paternity, prenuptial agreements, and child support. He is the Editor Emeritus of the Family Law Review for the State Bar of Georgia and has lectured at over 500 programs. Learn about Randall and his practice at www.KSFamilyLaw.com.