Winners, Losers, and Divorce

Winning and losing looks a lot different in divorce law than it does in other types of legal challenges.

It happens all the time. A new client meets me and tells me that his or her primary goal is to go after the spouse — no holds barred. He or she is typically in a combined state of anger, sadness, fear, and resentment and wants the spouse to feel some emotional pain as well.

However, a client must also assume that his or her divorcing spouse feels just as wronged and justified in their position. The movie Marriage Story (2019) captured this reality when viewers sympathized with the character Nicole (Scarlett Johansson), whose husband Charlie (Adam Driver) was cheating on her and had long ignored her. The surprise for viewers came when Charlie launched his own attack that Nicole drank too much and hacked his email; although it's implied he may have exaggerated her drinking, the email hacking — even when it's your spouse — is a criminal offense.

Divorce is not about winning or losing.

In reality, divorce is about compromise and finding a reasonable and equitable solution for you, your spouse, and your children. I always advise my clients on strategies that have their best interests and that of their children in mind.

It is important to understand that the concept of “winning” your divorce is a complex one. Seeking simply to punish your spouse is not a wise strategy or mindset. A good attorney will counsel her client to find an equitable financial resolution and a custody schedule which allows the children to thrive. This is especially true if a client is consumed by emotional and financial worry.

What does it mean to “win” your divorce?

Perhaps one of the more memorable observations on the concept of winners, losers, and divorce comes from 1989 movie “War of the Roses” when Danny DeVito proclaims: “When a couple starts keeping score, there is no winning! Only degrees of losing!”

When you make the decision to divorce, you might think the answer is obvious: get the judge to penalize your spouse for his or her bad behavior and award you the financial resources and custody rights that you believe are clearly and rightfully yours. Is this a realistic goal? If it can be achieved, can it be achieved without expending thousands of dollars on attorney fees, countless hours of preparation and court time, draining your emotional, mental, and physical reserves and potentially damaging your children’s well-being while the case drags on? Usually not.  

It’s a good idea to consult your attorney who can help you consider which things are worth fighting for and which desired results are reasonably attainable. Does it make financial sense to spend $50,000 or more to fight over a $5,000 issue? Probably not. The longer the case continues, the more expensive it will get for both of you.

Different divorce attorneys have their own unique approach as to how they handle a case and how much they will fight to achieve a certain outcome. At the outset of a case, I make it a point to advise my clients how I work from a financial perspective as well as from a legal one to ensure an open and honest relationship between us as well as the best outcome for them and for their family.

It’s been reported that the standard of living for both men and women drops quite a bit after a divorce, in part, because each is now living on a single income. In cases with younger children at home, paid child care may be needed to fill in the parenting gaps resulting from a newly single parent household. Depending on your finances, this could be an added stressor.

If you have children, it's all the more difficult to go through this process for months, potentially years. Even if a judge ultimately finds in your favor, it may not feel like you have won.

In divorce, there's always another side to the story.

Just because the client believes his or her position is a compelling argument does not mean the judge will agree. A client must assume that his or her divorcing spouse feels just as wronged and justified in their position. In fact, the vast majority of New York State divorces are “no-fault,” granted on the grounds of an “irretrievable breakdown in the relationship for six months.”

Judges typically assume each side's story has some merit. In affairs of the heart, there are rarely clear winners and clear losers. Even if you disagree with this, the role of court is not to chastise an offending spouse. A judge’s role is to help the parties find an equitable and fair resolution to the divorce. 

Chances are, your kids don't want you to "win” your divorce.

You may hate your spouse right now, but it is unlikely your children feel the same. Most kids want to love and be loved by both parents. They may even want you to stay together. Most kids don't want either parent to suffer and do not want to be placed in a position of choosing one parent over the other. The long-term impact on children who have been placed in the middle between divorcing parents is well known and can lead to depression and other mental health issues.

If a judge perceives that you are trying to influence your children against the other parent, this can backfire and the Court can limit your access to your children.

There are always exceptions, such as in cases of child abuse or neglect or spousal abuse witnessed by the child. Abuse charges refer to any injury inflicted on a child, whether the injury was intentional or otherwise; physical or emotional neglect is considered a substantial failure of a parent or guardian to provide for a child’s basic needs, including: appropriate guardianship, physical needs including food and shelter, medical attention, proper education, and emotional attention.

Legal protections for abused or neglected spouses and children are available and your attorney will help you navigate those laws with your – and your children’s – safety and best interests as their primary concern.  

When it comes to divorce, vengeance does not bring happiness.

Sometimes it helps to imagine your best post-divorce life. Home time is peaceful. You can finally enjoy a good night's sleep, find time to read and share easy and relaxing meals with your family. At work, you can focus and find yourself 'in the zone'. You may see your kids less than you used to, but your time together is calmer than before -- maybe even more special because you don't take it for granted. Your daily routine feels stable. You have hopes and dreams for the future. 

In my experience, your best post-divorce life will not depend on whether you "won" the litigation. Your happiness will not depend upon your ex-spouse's defeat.

With more than 35 years of experience representing thousands of clients, Faith Miller is one of New York’s most sought after matrimonial and family law attorneys. She has represented both adults and children in high-profile cases presenting some of the most complex financial and custodial issues.

If you are in search of an attorney to represent you, or need a attorney for your child(ren), look no further. Contact Faith Miller today for a consultation.