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One Lawyer's Opinion: Last week, I was having a casual conversation about settlement of divorce cases, and commented: “each side chooses their weapons. The husband will use custody to push the wife’s buttons; the wife will use financial issues to push his. Wind blows, fire burns. It’s just the way it is.”
I don’t think there are any lawyers or clients out there that openly admit to following this playbook. Kids are people, after all, not the wedding china, the plasma TV, a 401K or the myriad of other things that family law attorneys use to equitably divide assets during a divorce. Still, my recognition and arguable acquiescence to “the way it is” proved problematic to my preferred practice model.
Where does this assumption come from, then?
While I don’t use this strategy to leverage a settlement, it is still prevalent in practice, so much so that I subconsciously admitted that that was inherent to divorce and family law practice. The answer, it seems, would be more complex. Certain biases are ingrained in all of us and show when the emotions of divorce, litigation, and the ultimate fear of loss causes us to shed our talents for rational analysis and appeal to our more basal "fight or flight" responses. In effect, we "go for the jugular", and hit the other side where it will hurt the most.
I’m not saying the traditional wage-earning parent cares less for the children, or vice versa. Rather, the "money-versus-custody" mindset plays on the biases regarding the traditional wage earner vs. caregiver roles. Divorce forces the parties out of their individual role in the family and forces each side to accept new responsibilities; to a certain degree, each parent is now a caretaker and a wage-earner.
At its lowest common denominator, these claims are usually not a fight over money or children, but a fight over identity and what makes each of us who we are. The emotional threat (or fear) of taking away purpose or identity is the biggest stick any of us can wield, and not surprisingly, it can make any process far more contentious than necessary. We (both attorneys and clients) should be aware of it, prepare for it, and most importantly, provide clients with the peace of mind to know that although the climb might be difficult, the views from the summit are pretty good.