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Remove the word win from your vocabulary. The only important word is resolution. The greater the extent you can come to an amiable resolution on the legal issues needed to obtain the divorce, the less costly, faster and less injurious to your children the process will be.
A big win for your ego in the divorce, will cost your pocketbook in the long run with continued battles in the War of Vengence, and will destroy your children's emotional lifes and ability to have normal relationships as adults. If your motivation is to win, then you are to blame, no matter what bad deed your spouse did.
Understanding why the structure of the litigation system undermines good resolution for divorcing parties is the first step in the process of knowing the right way to proceed when you cannot mediate your divorce.
Alternatives
In typical litigation, the parties come to court for the final resolution of issues. There is no expectation that they will want to or need to speak to one another after the court makes its decision. It is also expected that they will attempt to obtain their objectives through the court only as the last resort. The structure of the system and the procedures employed support this and provide a consistent, but expensive way to resolve issues between strangers.
The first problem with the adversarial system is there is no alternative to obtain a divorce. Even if you mediate the terms of your divorce, one party must file a complaint stating a cause of action (bad acts that constitute grounds for divorce) and it is unlawful to conspire upon an agreed set of grounds for the purpose of obtaining a divorce.
There is no consent divorce, so the parties are foced to designate one of them as the defendant who is the marital wrong doer.
So, in the divorce litigation context, where it is crucial for the parties to be able to talk after the divorce to resolve ongoing issues about their children, the parties are forced to take adversarial positions.
Admission by Silence
The second way that the adversarial system forces the parties into conflicting positions is Admission by Silence.
The premise is that by positioning parties in an adversarial position, the truth will emerge from the conflict. The plaintiff makes their complaint. If the defendant does not dispute it, then there is nothing to resolve and the plaintiff wins.
The precedent is that:
Silence means admission or agreement
Hence, a party cannot stand by, or they lose by default. Even when the application has no merit but asks for relief, failure to respond allows the non-meritorious party to prevail. Thus, forcing the attacked party to counter with their version of the truth.
Which Truth?
Finally, the system becomes distorted because there are different truths to address:
- The Truth of the Legal Issues - Under the law, which party is entitled to what rights; versus
- The The Truth of Moral Rightousnes - Who was at fault for the demise of the marriage.
The law does not consider fault. The law is concerned with rights and obligations and the legal issues involved is determining those rights and obligations.
Therefore, if the parties were simply considering the truth of the legal issues at hand, "Is this property part of the marital estate?" for example, then the adversarial system works well.
However, when a party uses the system to establish the truth of who is to blame, then the adversarial system makes things much worse.
Parties as well as their lawyers, should be cautious not to fuel controversy over moral issues or who was right. It does nothing to help the parties acheive their ultimate goal of getting divorced, and simply makes the process much more costly and time consuming.
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