Editor’s note: Randy Kessler is the founding partner of the Atlanta firm Kessler & Solomiany Family Law Attorneys. As a divorce attorney, he has represented high-profile clients for more than 25 years and is the author of “Divorce: Protect Yourself, Your Kids, and Your Future”. He is on Twitter.
In my nearly 30 years of practicing divorce law, I have seen people make mistakes of all kinds. When you mix some of the core elements of marriage -- including financial decision-making and concern for children -- with the animosity between former best friends and lovers that results from a breakup, it’s often a recipe for chaos. Add to that, the need to reach an agreement or resolution with that other person before you can move on with your life, and missteps are almost inevitable. It can be an overwhelming process and sometimes a trial is necessary, but the process may go a lot more smoothly if you can avoid these five mistakes that so many people make:
5. Thinking (or demanding) that you will retain “the lifestyle to which you have become accustomed.”
That sounds nice and sounds like a good argument -- from a TV lawyer show, perhaps. But as soon as you start to consider how that could work, it should be apparent that it cannot. Two households cannot survive in the same manner and style as one. When spouses separate, the same level of income and finances that were used to support their lifestyle together must be divided somehow -- even if not 50/50 -- to support two households.
4. Hiring the meanest divorce lawyer.
Many people think that the way to achieve your goals is to hire a mean, aggressive divorce lawyer. Unfortunately, the lawyers whose reputations liken them to pit bulls and sharks do carry that reputation with them, and it backfires. Judges know they are aggressive and will discount their arguments. Opposing counsel often simply ignore the rhetoric or worse, buy into it, and the case becomes much costlier than it should be, since divorce lawyers typically bill by the hour. Do you want to pay your lawyer to make or respond to allegations about your spouse, or to help you achieve a stable and secure future?
3. Refusing to attend mediation.
While many people believe that attending a mediation session with their spouse and the lawyers for each side is a waste of time, I beg to differ. Even if mediation does not resolve the case, it may resolve part of it (custody?) or it may lead to a better understanding of why the other side is requesting certain things. When you begin to understand your opponent, you can begin to reach true resolution. And even if no resolution is ever reached and a trial is necessary, mediation affords you an opportunity to size up the other side and their position(s) (and their lawyer). Isn’t it better to hear the other side’s argument before you hear it for the first time in trial?
2. Making a “take it or leave it offer.”
While this may work at a car dealership, in a divorce there is no option to walk away. There will be a final decision, either by agreement or court order. And it will be between the two divorcing parties. They cannot simply storm off and go to another “dealership.” The deal must be made with that “dealer,” their spouse. So if a “take it or leave it” offer is made, there will still be a deal, it just may be one imposed by a court, which should be the last resort, since judges will have a hard time comprehending all the details of the parties’ lives, and may not be as precise with how they divide property and children as the parties could be if they would only work together. Take it or leave it offers, or refusing to attend mediation, can often do more harm than good.
1. Not accepting any responsibility for the end of the marriage.
Yes, there are situations where the relationship ends because of the conduct of one party, but often there are two sides of the story. And perhaps more importantly, the decision-makers – judges -- will likely find it hard to believe that your spouse is all bad and you are all good. More importantly, accepting responsibility, admitting blame, may be what creates sympathy for you. And it may lead to a faster, out-of-court resolution. Many people cannot bring themselves to settle their own divorce case until they feel vindicated. If letting your spouse feel at least partially vindicated is something you can do, why not do it? Is it really worth spending all that money and time to go to court in the hope you will be vindicated? And from experience I can assure you, rarely if ever will a judge determine that one side is perfect and wonderful while the other is pure evil. And even if they do, the resolution will likely not be as good as one the parties could have worked out themselves.