Ten Traps Series – Trap #3

“The other side wants . . .!”  In prior blogs we focused on the fact that while people are rational, they can be trapped into making poor choices. The third trap is convincing people that they have a dispute with the other parent.  The assumption that people going through a divorce have a legal dispute is so pervasive and so deeply embedded in the system that it is hardly noticed.  Why can an attorney not represent both parties in a divorce? Why do we refer to the other attorney as “opposing counsel?”  Why do we call mediation an “alternative dispute resolution” procedure? Why do attorneys set up a simultaneous choice situation by asking parties separately what their positions are on all of the legal issues?  Doing so inevitably establishes the dispute that we all assume is there anyway.  Why do we call agreements “settlement” and the process of getting there “negotiating” and “bargaining?”

When people are convinced that they are in a dispute, they align with their warrior, their attorney, and prepare to do battle in a competitive atmosphere.  They tap into that psychological need to prevail.  The “other side” becomes the enemy, the obstacle to getting what each souse wants.  Spouses vilify one another the way all humans vilify rivals.  Before long, spouses who used to and perhaps still do love one another cannot stand being in the same room and act like they have never met.  The most rational strategy in such a situation is mud-slinging.  As they inevitably experience the losses involved in a divorce undergirded by the belief that they are in disputes, bitter resentment settles in, sometimes for life.

In amicable divorces, the parties do not fall for the traps.  They realize that they are not in a dispute but rather in a transition from married life to separated life.  Rather than bitter resentment, they experience and process the sadness.  They view their attorneys as guides rather than as warriors.  They still see the other spouse as a human being, not a rival, and recognize the mixed feelings they have for one another.  We look at amicable divorcing spouses as the rational ones, but they are the irrational ones because they are not playing the divorce game the way it is set up – as a dispute.

One can view spousal support, for example, as a dispute between someone who wants to pay less and someone who wants to receive more.  Or, it can be viewed through a planning lens: what level of support will help both divorcing spouses to reach their long-term financial goals.  In other words, all of the issues in a divorce can be viewed as problems: specifically, how to reach long-term goals from the current situation.  There can be , likely will be, disagreements in the planning process but a disagreement, likely with solutions, is not a dispute to be litigated.