“How to Avoid a Family Law War” by Attorney Michael Lundy

July 2, 2019

Family law litigation is unlike any other type of litigation.  For example, in most family law cases, the litigants still have to interact and deal with each other when the case is over.  Whether it be about children or finances, and even if the children are now adults, there is still a connection that can never be fully broken.  Another example is that every single aspect of a family law case is personal on some level.  It is nearly impossible for a party to be “stone cold” about every single issue.  There are plenty of other examples, but the bottom line is that family law litigation is unique and it can be the very worst type of litigation to treat as a war.  So how can you do your best to avoid a family law war?  Here are a few tips:

  1. Determine whether your attorney is too proud of being a great trial attorney.  Personally, I am proudest of my abilities as a problem solver and deal maker.  I also believe I am a great trial attorney, but I do my best to leverage my courtroom expertise to help my clients exercise good judgment and get deals done.  To me, trial is a last resort.  If you get the sense that your attorney it proudest of being a trial attorney, then you are likely to end up in trial.  And let me be clear, trial should be the very last resort for resolving family law disputes.  Any attorney who says otherwise is not an attorney you want to hire or see on the other side of your case.  Feel free to ask your attorney or to suggest your spouse asks his/her attorney about what percentage of the attorney’s cases go to trial, versus getting settled prior to a trial.  And to add to that, ask how often the cases are settled on the eve of trial.
  2. At your initial consultation with an attorney, if you feel like you are only hearing things that please you or that you wanted to hear, this is not a good sign.  I have always avoided any effort to “sell” myself to potential clients.  If I am selling anything to my clients, it is my judgment, my efficiency, my problem solving skills, my availability, my work ethic and my unequivocal honesty about both the good and the bad aspects of a case.  I never try to sell an outcome or a particular result, and any seasoned attorney knows that this is impossible.
  3. Early in your case, you should demand that both parties’ attorneys identify the material issues in dispute and begin encouraging compromises.  Your attorney should be able to determine with the opposing attorney, and you likely will be able to do the same with your spouse, where each side can and should be able to compromise.  Compromise is typically required by both sides in order to make a deal.
  4. Determine as soon as possible whether children are being used as pawns in the litigation.  If they are, then a mental health professional should be involved in the case immediately and, to the extent possible, all other issues should be moved to the back burner until the child-related issues are at least moving in the right direction.  Make no mistake about it — if there are issues between a party and the children and the other side refuses to involve a mental health professional to address it, this is a tell tale sign that the other side is going to improperly use the children in the litigation.  In my opinion, this type of behavior is the most reprehensible, but I am sad to say that it happens far too often.
  5. Demand that your attorney be prepared more than a couple of days in advance of mediations and substantive court proceedings and demand that you be a part of that process.  Unfortunately, many issues are settled only when there is pressure that comes from an important upcoming event.  The more in advance of that event both parties are talking to their attorneys, the more likely both parties are going to be to acknowledge the strengths and weaknesses of both sides’ positions.
  6. Recognize the following absolute truth and believe it: Anger, hatred, and resentment are feelings that hurt the person carrying them at least as much as they hurt the other person. When you or your spouse allows these feelings to play a part in making decisions about your case, you are both losing and so are your children (if you have any).  Take the adultery situation as a typical example.  Who can argue that cheating is wrong?  But once it occurs, there is no going back in time to reverse it.  It is simply an ugly fact and a bona fide betrayal.  If you are angry about it or if your feelings are very hurt, then you’re normal.  You are justified in having these feelings, but keep in mind that you, not your spouse, own them.  And in Florida, the simple act of adultery has literally zero impact on your divorce.  If your spouse spent money on an affair, there is a financial consequence for that and you are entitled to pursue it.  If your spouse introduced a paramour to your kids, that also may have consequences.  Get with your attorney very early about this type of issue and make sure that you understand the full scope of what should be a part of your case and what should not.  At the same time, get a therapist and work through this issue in a healthy way because it is best for YOU to not walk around angry, hateful or resentful.  Consider this “tough love” from a person that has seen other attorneys prey on their client’s emotions to widen the divide between people when that is truly the last thing they need.
  7. If you like the way your lawyer handled your case, tell as many people as you can.  And if you don’t like the way your lawyer handled the case, tell as many people as you can.  Your spouse should do the same.  Reputation matters.  Lawyers who encourage problems instead of solving them because it generates more attorney’s fees should bear the consequences of practicing in this manner.

The bottom line is this: Both you and your spouse should be considering all of these points because they ultimately are focused on what is in people’s  and their children’s collective best interests.  Family law is not an arena in which there often is a clear winner and a clear loser.  Approaching a case with a win-lose or zero sum gain mentality is a foolish exercise.  The approach should simply be this: in spite of how unpleasant this situation is and how wrongly one person has behaved, how can we work together to preserve our assets, our mental health and our children’s well-being, and to make sure that we can still look at each other and have a cordial conversation?  These are the things that ultimately matter when your case is over and these are the thing you will be living with while your attorney will have necessarily moved on to handle the next case…..

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