Category: Family Law Posted on Apr 08, 2015

The Circus is in Town – Divorce Litigation Style

Some people have no choice but to jump into the fray of divorce litigation. In cases where a spouse is suffering from paranoia, is overly aggressive, has uncontrolled anger, possesses an unrestrained need to control, or just simply wants to be mean and inflict punishment, the tried and true method of divorce litigation is our strongly-recommended solution. There will be opportunities during a typical case for mediation and rational discussion, but all too often, if a spouse has a difficult personality or a confrontational lawyer, things will deteriorate. At that point, when the spouses and their lawyers are unable to reach a conclusion, the need arises to go to the “circus” at the courthouse to have some motion heard or to have a trial to settle the divorce.

Truth be told, there are some lawyers who have trouble coming to conclusion, have trouble giving their clients practical advice, and have trouble playing fairly.Unfortunately, you can have the best, most knowledgeable, and extremely practical lawyer, but if your spouse hires the bully and/or overly-aggressive type, you are in for a ride on the circus train.

There is another – and better – way, but more about that later. Let me first describe the “circus” we call the Superior Court. It is not planned as a circus; there are no producers in the background hiring clowns, lions, tigers, and oddly-dressed carnival sideshow types – yet they are all there. All comers are welcome at the Family Session of the Superior Court. No problem if you can’t afford it, because you don’t even have to pay for a ticket. Not only is everyone welcome – they all come to the show on the same day and the same time.

Court starts at 10:00 a.m., yet 30 or so people usually arrive early. You are not permitted to see the judge to decide your motion until you first meet with one of the highly-trained family relations officers. The goal is to see if you can work out an issue – such as why mom is saying bad things about dad, how much mom should pay for child support, or who is going to get to live in the house during the divorce. There are always a few “tigers” who run ahead to be first on the list to see family relations.They know that if you don’t put your name on the list in the first hour or so, you may not be seen until much later in the day. If you are there with your lawyer, he or she is likely charging you for all or some part of the time spent waiting – for your spouse’s lawyer to arrive, for the family relations officer, or for your case to be called in the court. You may wait 30 minutes, or it may be hours before you are able to see the family relations officer. They are doing the best they can – listening to the never-ending stream of litigants all wanting to be heard, all frustrated or angry. These family relations officers skip breaks, they skip lunch, they do all they can, but it sometimes just takes time.

If you do work things out, you can’t just leave and go home. You still have to wait for a judge to get whatever you decided approved and entered on the record. You could skip that step, but considering how difficult it was to come to an agreement, and considering that the agreement is not binding on anyone unless approved by the judge on the record, you might as well take another hour or two to wait for a judge. You’ve already used up the better part of a day.

What would a circus be without a midway? The Hartford Superior Court has a narrow hallway filled with frustrated and angry people – those lions, and tigers, and bears. Some bring their children – how sad. Some of those kids are running around – alternately cute and misbehaving. Others bring their new significant others, which can really rile up those animal instincts. There is often yelling, there are vicious stares, and yes, there are even physical fights. It often does resemble a circus – unfortunately, without the fun.

THE BETTERWAY: First, here are some truths . . .

In 90% of the cases where people are fighting about access to the kids, both will ultimately end up with access, but only after spending months and thousands, or tens of thousands, of dollars on lawyers and experts. Of course there are times when a fight is unavoidable; in just the last few months I have been involved in some cases where the child was wrenched from the arms of the other parent and custody awarded to our client. It was sad, but the court thought it necessary and in the best interest of the child.

If the fight is about the money, the harsh reality is that in 90% of the cases, the argument will only be about 10-20% of the money.The court does not want to give it all to one or the other. People can fight for years, again spending tens of thousands of dollars, arguing over far less money.

If the disagreement is about the kids, they will be better off if the parents find a way to move on. If one party wants a divorce, it will happen.The children want to know that their parents are there for them, and available to help them. Parents don’t do that well if they are unable to show respect for each other.

Mediation and Collaborative Law are both better ways to handle a divorce. Of course we do the litigation if needed, but we recommend Mediation and Collaborative Law if our clients and their spouses are willing.

In Mediation, if I am serving as the mediator, I meet with the spouses, often without other lawyers.We talk about their goals and expectations. It is my job as the mediator to provide a safe environment for both to express themselves. I do not make recommendations, but I can suggest alternatives. I can prepare the necessary paperwork to start the divorce case. I can, and do, prepare the written agreement which defines all the terms of the divorce, division of assets, any support obligations, and issues dealing with the children if there are any. Each party is urged to hire a lawyer of their own to review what we come up with, and to educate them on what they can or should expect. The emotional and financial cost is typically small in comparison to a full fight in the circus.

In Collaborative Law, we often include a mental health professional in the process to assist with the rough spots.We can include a finance professional to deal with complicated financial situations, a child expert to deal with serious issues concerning the children, or any other person needed for their special expertise or ability. The process is like mediation, but it happens at a slower pace. It is particularly helpful with situations where mediation seems impossible because trust first has to be rebuilt. In many cases, one spouse is angry or frightened.The Collaborative Law process allows for more time and the professionals help build a relationship. This is especially important for parents who recognize that they will be co-parenting with the other for the rest of their lives. The goal is – as so many judges will say – for both parents to someday be seated together at their child’s wedding, without the child worrying about whether they will get along. No one wants that special day to turn into a circus.

Mediation and Collaborative Law are better, kinder, and more efficient methods of settling a divorce. If there is no way to come to agreement other than through the Superior Court route, expect the chaos of a circus sideshow, and trust your lawyer to help you deal with the wild animals.

Bruce Stanger

My litigation experience includes family law, divorce, product liability, construction law, professional negligence, shareholder disputes, legal malpractice, and general commercial litigation.