Marriage is a sacred union but most recently it is seen as a contract once there is a breach it should be dissolved.
A lot of times parties to the union are hard headed and tends to pay the other back by bringing the children into the scene. Using the children as weapon is the most unhealthy act of a parent.
The thought of going to court is all that rings in their head thinking the judgment of the court will finally put to rest all they so desire. Little do they know.
As lawyers and mediators we try to give alternatives but we often meet a brick wall. I have had clients take their file at the point where we try to settle ancillary reliefs in the best interest of the children of the marriage, because they can’t just place why the other person should have that leverage.
They swim in denial that parental rights is for the party that works best and want to have it all to themselves forgetting that parental rights and access to the children are shared to both.
Being selfish and want to have it all to yourself will not work as the court’s eyes won’t focus on your stand but on the principals governing divorce involving children. Thus deciding the case at hand paramountly in the best interest of the child or children of the union.
There is a common misconception that walking into a courtroom is the first step toward “fixing” a broken dynamic home. People often view the law as a grand arbiter of truth that will finally make a spouse see reason, apologize, or change their ways.
In reality, that is not the position as the legal system is a surgical instrument, not a therapeutic one. It is designed to sever ties, distribute assets, and establish cold mandates.
When couples invite the court into their private lives, they often realize too late that the court doesn’t possess the tools to repair, rather, they only have the power to dismantle.
1. The “Justice” Paradox
One of the biggest mistakes couples make is seeking moral vindication in a legal setting. You might want the judge to acknowledge how much you’ve been hurt or how “wrong” your partner has been, it is well pleaded in the facts of the petition, but it is on the quick lane to the burial of the marriage.
a) The Reality: Family law is increasingly “no-fault.” Judges are generally uninterested in who started the argument or who forgot the anniversary. They are looking for the elements that shows the marriage has broken down irretrivably.
b) The Result: By focusing on past grievances to “win” a case, couples deepen the resentment, making any future co-parenting or civil interaction nearly impossible with their spouse despite the intervention of lawyers trying to give a soft landing for both parties.
2. Outsourcing Intimacy to Strangers
When you ask a judge to decide your holiday schedule or how you should raise your children, you are handing the most intimate details of your life to a stranger in a robe who likely has few minutes to review your file.
a) The Mistake: Believing a third party can craft a better life for you than you can craft for yourself. As lawyers we try to explore the use of terms of settlements to propose a workable solution with the participation of both parties to reach the settlement. But sometimes the hate is revealed in this process. It takes professionality and mediation skills to navigate this part to get justice for all with the best interest of the children at the front.
b) The Breakdown: Once a court order is signed, the flexibility of a relationship is replaced by the rigidity of law. You lose the ability to compromise, as every disagreement becomes a potential “contempt of court” charge. This is very true but quickly forgotten by the parties once the judgment is read out in the open court.
3. The Adversarial Trap
The very structure of the court system is adversarial. It pits “Petitioner” against “Respondent.” To get what you want, your lawyer must often highlight the worst traits of your partner where the parties resort to play dirty.
a) The Erosion of Trust: Seeing your spouse’s “burn book” of your flaws presented as evidence is a bell that cannot be un-rung by reason of hate of what was once love and all smiles.
b) Financial Depletion: The “repair” budget moneys that could have gone to counseling, a new home, or the kids’ college is instead diverted to legal fees used to fuel the conflict because couples refuse to forgive, accomodate one another’s flaws and move on.
4. Relinquishing the Power of Choice
In a marriage, you have the power to negotiate. In a courtroom, you have the duty to comply. Couples often forget that once the court is invited in, it is very difficult to ask it to leave except the petition is withdrawn.
The court’s primary mandate is “finality,” not “harmony.” It wants the case closed, not necessarily the hearts healed as there is a limit to what the court can do which is tailored according to law.
How to Protect the Connection (If Possible)
Before filing that divorce, consider these alternatives that prioritize resolution over litigation. Talk to your lawyer about it. Some of us lawyers also counsel and mediate especially for the best interest of the children. Only when it is inevitably that you must both pathways before we may proceed and that is when violence and threat to life is glaring without a doubt.
The Bottom Line is the court is an essential institution for protection and the fair division of property, but it is a demolition crew, not a renovation team when it comes to divorce.
If there is a spark of the smallest love left to save, we are willing to guide you, to keep it far away from the witness stand. The law can grant you a divorce, but it cannot give you peace.
TINARIS WORLD 