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The high price of high-conflict separation and divorce

Updated: Nov 23, 2020

Ending a common law relationship or marriage is never easy, even when a couple has the best intentions to be amicable. Often, the process of separating amplifies the very conflicts that cracked the foundation of the union –– infidelity, differences in parenting styles, lack of intimacy, money management problems and mounting pressure from marital debt.

If you watched the Netflix movie Marriage Story, you will recall when Charlie and Nicole decided to call it quits. They were adamant about doing it in the friendliest way possible. They wanted to protect their eight-year-old son, Henry, from conflict.

They agreed to avoid lawyers. Their specific approach to resolution proved disastrous. The conflict escalated. Nicole hired a high-conflict litigator and Charlie had to follow suit. Before long, they were enmeshed in a bitter custody battle for their son.

The movie is, of course, dramatic fiction, yet high-conflict separation and divorce cases often involve character assassinations, relocation of children and the quest to “win” at all costs.

Separation and divorce ought never to be about winners and losers. It should be about negotiating a win-win scenario for both spouses, taking into consideration the best interests of the children. Sadly, however, too often this is simply not the case and not in the cases that come across my desk.

Signs your divorce may be high-conflict

When one party has a high-conflict personality, a negotiated settlement is extremely difficult to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles. High-conflict people have great difficulty accepting and coping with a marriage breakup and will go to extreme lengths to stonewall the process.

People with high-conflict personalities have an ongoing pattern of all-or-nothing thinking, unmanaged emotions, extreme behaviour or threats, and a preoccupation with blaming others, says Bill Eddy, a lawyer, therapist, mediator and the co-founder of the High Conflict Institute.

“Splitting up with high-conflict people is often when you see the most extreme behavior of all,” he writes.

In the more than 33 years I’ve been practising family law, I can confidently assess within the first couple of minutes of taking on a new client, whether or not we’re in for a high-conflict scenario. Here’s an inexhaustive list of some of the signs:

· A history of emotional/physical abuse between the spouses;

· Financial control by one party over the other

· Claims of no income or low income by a party who’s living a middle-class to upper-class lifestyle

· The other party has hired a high-conflict lawyer

· One party has a mental health issue, such as a personality disorder

· Drug or alcohol abuse

· Overt and covert actions to alienate a child from the other parent.

The price of a bitter separation and divorce

Not only does a high-conflict separation divorce leave parties emotionally drained and psychologically scarred it can also take a huge financial toll. Some people spend years going in court, fighting over children, possessions, assets and debt.

There are a multitude of issues to be sorted out in divorce: determining custody of the children and visitation schedules, dividing assets the couple has accumulated throughout their union and figuring out what to do with the marital home, for example. In every instance where the parties can’t reach an agreement, lawyers will invariably have to spend more time working on the file, either in negotiation with the other side or in court, which is where legal costs can skyrocket.

In more complex cases, family law lawyers frequently enlist third-party experts, such as private investigators, accountants, mental health professionals and business valuators, all of which add to the tally. For example, in a high-conflict divorce where one spouse is suspected of hiding assets, a lawyer might recruit both an investigator and an accountant.

Enduring impact on children

Children are often the casualties of high-conflict separation and divorce. Social science literature has made it very clear that children do not emerge unscathed. They frequently have poor outcomes in their social connections, emotional problems, low self-esteem and an inability to trust and form meaningful relationships over the long-term.

In one study evaluating more than 30 years of research on the effect divorce has on children, researchers found children of divorce were less competent in multiple areas of life, including family relationships, education and future earning power.

Choose a lawyer with experience in high-conflict divorce

The majority of family law and divorce cases I’ve handled, fall into the high-conflict category. I know from experience that it’s critical to have strategies in place to move the process forward.

For example, the biggest mistake lawyers make when dealing with high-conflict parties on the other side is to proceed with the false hope that encouraging negotiations or inviting the other party to see reason are helpful. I usually make one, sometimes two attempts to ascertain if the other side wants to be reasonable. If not, we move straight to court. Otherwise, it’s a waste of time, energy and, most importantly, the client’s money.

The reality is that not every divorce is a candidate for a negotiated settlement. I often take over files where previous lawyers have spent months waiting for responses, thereby prolonging the entire ordeal, adding unnecessary legal costs and unnecessarily expending a client’s patience. From my perspective, it becomes evident rather quickly whether a file will require a court date or whether I have a bona fide opponent ready to negotiate.

It’s also crucial for lawyers to recognize when their own client is the high-conflict party. I see it a lot in my own practice. In some cases, these clients avoid following proper legal advice. They prefer to advance their own agenda of retribution. They prefer to litigate at all costs and lose all perspective in their determination to wreak havoc on their spouse to inflict pain. It requires a great deal of skill, patience and determination to refocus those clients on what is required and necessary for them to move on and for their victimized children. Thankfully, I am able to effectively rely on what I’ve learned through years of reading, research, mediation and arbitration training, and litigation expertise in order to help clients focus on the task at hand. I am well able to avoid their emotional triggers.

Identifying the potential for a high-conflict separation and divorce at an early stage is important. These cases cannot be managed through self-representation. It’s imperative to work with a lawyer who has the requisite experience and a successful track record in managing high-conflict cases. Failure to choose the right lawyers in such cases can lead to disastrous consequences.

Photo Credit: via ESS Global Corporation

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