Now.. let me think..
Divorce is hard.
I know. I've been through it, and for 27 years have been helping others go through it.
I understand, first hand, the emotional roller-coaster, the fear, the uncertainty, the anger, the sadness, the guilt.
It is not an experience that necessarily brings out the best in us, nor the most rational part of us.
As I've also learned in studying the neuroscience of negotiation, when we are at our emotional peaks of anger, sadness or fear - our rational thought processes actually break down. Our rational brain actually becomes less functional as our "fight or flight" mechanisms kick in, and our limbic system takes precedence over our frontal cortex (which controls rational thought processes).
In the animal kingdom, this makes abundant sense.
As a lion comes charging out of the savanna at us, should we:
a) Run like hell to shelter; or
b) Stop to consider the relative speed of the lion to our own potential running speed, to ask ourselves whether or not a lion can climb a tree, swim across a stream.. but, then, again, considering the relative depth and speed of the river's current and whether a death of being eaten by a lion would be quicker, and therefor preferable to a death to drowning...
You get my point.
Our limbic system evolved to allow us to make quick, instinctual decisions in the face of a life-or-death emergency.
And because of that, not only does the limbic system become engaged in such an event, in fact, to assure that we don't sit down and contemplate our options as the lion charges towards us, our frontal cortex, our rational brain, actually shuts down to give the limbic system precedence.
Now.
Consider that in the context of divorce.
Over and over again in my 27 years as a lawyer I have seen first hand the downside of the "fight or flight" reflex when applied to making decisions in a divorce action.
Anger.
Fear.
They so often lead to irrational, impetuous, and damaging decision-making. Emptied bank accounts, complaints to Revenue Canada who, in turn, reduce the family assets precipitously, and, worst, children being drawn in to the dispute by parents who "need to explain what is going on" to them - typically in some warped pseudo-reasonable fashion that helps them understand how half of their parents are sadistic hateful creatures.
The limbic brain kicks in, the cerebral cortex shuts down, and battle ensues. More often than not, to no one's benefit but a couple of divorce lawyers who watch their billings increase dramatically.
Much as I enjoy my ability to support my comfortable lifestyle, I recommend giving as little money as possible to your divorce lawyer.
Which means forcing down your "fight or flight" reactions, and ramping up your rational thought processes.
And, yes, I know it's not easy, but it is eminently possible. By force of will. By obtaining counselling to help you understand that whatever you are dealing with it is quite certainly not an immediate life-or-death situation. You have time. Your life will go on post-divorce. It will get better.
If you can't get to a counsellor immediately, make a list.
"A list of what?" you may ask.
It doesn't really matter too much, actually.
During a course on negotiation, I picked up some excellent advice from a psychologist-turned-lawyer who pointed out that the process of making a list REQUIRES engagement of the cerebral cortex, of the rational thought brain. And it doesn't matter too much what your list is. Groceries to buy, possible future holiday plans, favorite 70's songs.. just make a list.
It will kick-start your rational brain and begin to shut down your limbic brain, and will make reasoned and helpful decisions much more possible.
Which, at the end, leads to the point of my blog today.
The function of a party in divorce is, at its simplest, taking some time to consider in a very rational way, the costs, the benefits, and the risks or whatever your course of action is.
Cost? Well, lawyers are, at the end, in business. Unless you've won the lawyer-lottery, you are paying your lawyer. And as I mention over and over again to my clients, the inherent reality of that creates an inherent conflict of interest between every single lawyer and their own client.
At it's simplest, the reality is that the more you fight, the more your lawyer earns.
That bears repeating.
The faster you settle, the less money your lawyer makes.
Think about that FIRST, before all else, and keep that in mind whenever your lawyer gives you advice. Because, unfortunately, the costs of a divorce lawyer have increased quite a bit over the last couple decades, and a full-blown trial can cost you tens of thousands of dollars.
Tens of thousands of dollars that you could use to put your kids through college, that you could use to fund a trip to Rome or Paris, that you could put in an RRSP and save for retirement.
So, to begin with consider "cost".
And remember - the "cost" isn't simply financial. It is also emotional and physical. Stress takes a toll on our minds and bodies. And it clearly takes a toll on our children who watch it - even if those children are adults. So, when you are putting together your ledger of a cost/benefit analysis of your proposed course of action, put a very real value on the value of certainty and resolution. Of how it will feel to move forward and put this chapter behind you.
Benefit? Consider what you are truly fighting for. Do you really need possession of the house - or is it more than you want it so your wife or husband can't get it? Is your action going to provide something worthwhile, or is it just perpetuating a battle? To be sure, there are times where litigation is warranted and necessary. But be realistic in asking yourself whether paying $10,000.00 to obtain $20,000.00 is actually a good decision, when you take other factors into account.
Risk?
This is really part of the cost/benefit analysis - but I separate it, because it is so often ignored by clients and even their legal counsel.
How "guaranteed" is the outcome of my proposed course of action? Generally, my experience in litigation is that there is no such thing as a "guarantee" in court, and if your lawyers says there is, they're probably lying or incompetent.
Judges are human beings. They have their own idiosyncrasies, their own strengths and weaknesses, and their own biases that they bring into the court room with them.
Family law, more now than ever, is a process in which, most often, a Judge can do pretty much whatever they want. Most legislation allows them to make decisions which are "reasonable", which are "in the best interests of the children", which, at the end of the day, means pretty much whatever the Judge wants it to mean.
So - as much as your mom, or your close friend, or your lawyer makes you feel that you have a "no lose" case - trust me, you don't.
I have often said to a client who is suggesting they have to go to trial over some issue, "Would you go to your bank today, withdraw or borrow $10,000.00, and to go Las Vegas and put it on "red" on a roulette wheel - which gives you almost a 50/50 chance of success?
If you wouldn't do that - you might want to think twice about running a trial. Because the odds, typically, aren't much better than that. It's a crap shoot, a roulette spin, take your metaphor - the point is, litigation is inherently uncertain. And it's expensive. And it's incredibly stressful.
For me?
It's great. I enjoy the adrenalin rush, the combat, the war of wits with fellow counsel and the Judge. And because I am so transparent with my clients regarding cost and risk, once I step into the court room my stress is greatly reduced, personally, because I happen to think I'm pretty good at what I do, and I feel I've given my client the best advice possible to understand the risk of that battle.
But I generally don't recommend it.
I used to carry out two to three Queen's Bench trials per year - now, it's more like one every two years. Even though I feel less stress and more confidence, and feel, quite certainly, that I'm better now than I was 20 years ago - I also understand more clearly the risk of litigation - and I'm better at helping my clients understand that risk.
So less trials.
And if this blog helps you avoid a trial - well, it's 30 minutes well spent.
Even if I didn't get paid a dime for the advice.
(Next blog: Don't Over-Estimate How "Rational" You Are in Divorce)
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