The divorce tactics primer is my gift of sanity to all those people stuck in a high conflict divorce. Using this guide will make help make your divorce and you calmer, clearer and more likely to win.
When you’re involved in a high-conflict divorce, it can feel as though you’ve been thrown into a boxing ring with an opponent you need to defend yourself against at all costs. The problem is that at first—and even well into the process—you may not understand the art of the fight, what strategies are being used against you, and what strategies might be most effective against the other party.
So I’d like to break down a few basic styles and tactics that I commonly see, and coach you—or anyone caught in a high-conflict divorce—on what’s going on, and how to respond. These fundamentals won’t turn you into your own lawyer, but they’ll help you see what’s happening, what’s important, and what you need to do to stay sane and effective.
There are actually three common approaches to resolving a divorce:
The collaborative model looks for everyone to win. The diplomatic model similarly wants everyone to win, but realizes that a diplomat may have to suffer short-term losses for long-term gains. But if you’re in a high-conflict divorce, those aren’t the styles that are in play. Instead, you’re facing the competitive, win-at-all-costs model, a fight to the death of the relationship in which you are likely to damage it beyond repair. The tactics are aggressive, compromise is a last resort, and the fighting may be, or seem, petty and underhanded.
You’ll need to stay level-headed and remember that your attorney is like a boxing trainer who’s helping you prepare for your day in court, the day you actually step into the box for cross examination. The attorney can’t help you on cross, but s/he can prepare you, help you conserve your energy and keep your focus, and ensure that you haven’t wasted time, money and emotional capital on diversions that won’t help you win.
Just as in boxing, divorce cases are won and loss primarily in the mind. The client who wins may not be the strongest, but he or she will always be the one who is smarter in executing certain tactics that increase the probability of success.
If you want to win, these are the four primary tactics you’ll need to understand and know how to counter.
Tactic No. 1: Swarming
(The Pressure Cooker)
A divorce attorney who’s a Swarmer applies constant pressure. Swarmer’s believe that the best defense is a good offense. And their offense of choice is “death by a thousand cuts.” Not only will a Swarmer try to slowly impeach your credibility by raising to the judge every imaginable issue. S/he will also fight every issue in an effort to overwhelm you.
If you’re a dad fighting for custody, the Swarmer might raise issues such as, “He let the six-year-old cross the street by herself,” or “He was late two times last week picking the child up from daycare,” adding a new one every time you turn around.
At the same time, Swarmers fight off compromises. If you ask a judge to award child support from the mother, the Swarmer will make a motion to claim that the mother needs the father to pay for “extra child care now that she has to work harder to make more money to support the children.”
The Swarmer’s goal: To ask for the sun, moon and stars, beat you up for years over nonissues, force you to needlessly spend money on litigation over those nonissues—and make a lot of money in the process.
The Swarmer’s end game: The Swarmer keeps litigation dragging on, but doesn’t actually have a case. Those thousand paper-cut issues don’t add up to a victory for the client, so after collecting large fees for the case, the Swarmer eventually settles at a reasonable or just about reasonable level if they don’t over power you.
What the Swarmer doesn’t want you to know: The swarming strategy is strong evidence that your case is a persuasive. The Swarmer is focused on the time the six-year-old crossed the street without supervision because s/he doesn’t have anything better, while you may have a knockout punch or two.
How you win against a Swarmer
1. Don’t take the bait. Don’t respond to everything the Swarmer throws at you, or possibly even half of it. Many of the attempted “cuts” will come in emails and letters. And the court isn’t aware of any of it until it comes in the form of a motion or is discussed at a court conference.
2. Don’t sweat the small stuff. Ask your attorney this key question: On a scale of one to ten, how relevant is this to the main issue of our case? If it’s under a 4, don’t react at all. If it’s a 4, 5 or 6, wait to see if it’ll turn into anything. Take notes and keep a journal tracking how serious the Swarmer seems to be about the issue. Of course the Swarmer is going to try and inflate the importance of the issues but even here, it may be just a red herring, so be careful.
3. Know why you’re responding. Ask your lawyer: Do I need to use my resources, my time/money/emotional capital, to respond to this issue?
4. Stay on point. Know your argument and stick to it. Don’t let the Swarmer distract and overwhelm you with nonsense. Be like a politician with talking points that you keep bringing the discussion back to. It may feel good to fire off a response to the latest insult or jab, but if you do it, you’re playing into the Swarmer’s strategy by giving energy to their arguments. Step out of the way, return the focus to your own argument, and let the Swarmer punch away at air.
Tactic No. 2: Brawling
Brawlers, unlike Swarmers, have more than “paper cut” jabs—they are armed with issues that can knock you out with a one-two punch. They know or imply you’re a workaholic who’s always out of the country, trying to get sole custody, while the other parent works from home and could pay more attention to the child. Perhaps you were having affairs and making the kids complicit. Or had an addiction problem or criminal history or financial entanglements.
It takes elite-level defense to face off with Brawlers, and getting that level of defense has as much to do with you as with your lawyer.
How you win against a Brawler
1. Come clean with your lawyer immediately about any strong weaknesses. Many clients find it hard to admit the truth early in a litigation, but it’s essential. Sit down with your attorney, or better yet, write a long email (uploaded to a client portal for security measures not through Gmail) and then sit down with them a week later and really tell them the truth. If you don’t, there’s a strong probability you’ll get destroyed later on—and also have to pay the other side’s attorney fees.
2. Give your attorney any case-ending leverage you have against your ex. Maybe you are a workaholic, but the other guy is a cocaine addict or child porn watcher. Be sure your attorney knows.
3. Don’t make up allegations. The “you’ll get destroyed and pay the other side’s legal fees” cautions apply here too.
4. If you’ve got the goods, fight back. Brawlers may overly depend on knock-out punches. If you are 100% sure that the allegations the other side is making against you are nonsense, then your attorney will be able to duck, weave and cover as the brawler takes aim during trial, neutralizing attempts to weaken your credibility.
5. Stay on point. When you’re dealing with a Brawler, knowing your argument and sticking to it is the only way to win.
Tactic No. 3: Winning on points (“Boxing”)
Every fight is not a knockout. A particular breed of attorney, the class act I call the Boxer, seems to adhere to the legal equivalent of the Hippocratic Oath: First do no harm. Boxers focus not on tearing the other side down, but on building a defense. They can bob and weave so well it’s hard to hit them where it hurts. Elite levels of the form use devastating counterpunching as their offense by creating a counter theme that is as strong as any offense the opposing attorney may lob your way.
Boxer attorneys are both patient and quick, waiting for openings and then striking. They can ride out attacks and have the self-control to use aggression only when it’s measured and appropriate.
How you win against a Boxer:
1. Know that Boxers are likely not building to an earth-shattering moment that destroys your credibility. The real goal is to win more arguments on balance than you do, so that when the court balances all the factors, the probabilities favor them, not you.
2. Work to control the narrative. For example, if they try to win a high level of child support by claiming that you use your business to pay for big ticket personal expenses, don’t get sucked in and become single focused on defending yourself. Instead, change the narrative to offense, and hit them with a counterpunch of “the father is underemployed”—and trying to use child support really as spousal support. Now you have a real fight and when the dust clears, you will be ahead on points, if your attorney is skillful enough and prepared enough.
3. Stay on point. Remember that the way to keep a Boxer from winning on points is to win on points yourself, giving the court reasons to support you that don’t hinge on “I didn’t do what the other guy said.” Stay focused on the points you want to make, not the ones the other side is dictating.
Tactic No. 4: Hiring a Top Dog
Top Dogs are expensive, elite attorneys who have the defensive capability of the Boxer coupled with the punching power of the Brawler and the Swarmer’s ability to apply unrelenting pressure. These attorneys are usually named partners with several associates. Billing is also the name of the game with these toughies.
If your ex hired a Top Dog, you and your divorce attorney are in for a real test. The only way to beat this type of attorney—and yes it can be done—is to hire an elite counterpuncher (the most skillful of Boxers). This case will not end early unless the Top Dog is distracted by other larger cases in the office. Top Dogs will not be your best friend. They will either be rude and obnoxious or coolly distant and super professional. They will work to control the momentum of the divorce. But you can slow them down if you make them pay every time they try to hurt you.
If the courtroom fight is between two Top Dogs, yours and theirs, be prepared for one of two scenarios. There’s an off chance of a quick settlement in which each side names a figure to wrap things up quickly. But most likely, you’ll be facing a pointless, 12-round battle in which the evenly matched Dogs earn gold-plated fees, and no one really gets hurt in the end—professional courtesy. Unless you relish the thought of prolonged, top-dollar litigation, hiring an elite Boxer is the best way to face off with a Top Dog.
How you win against a Top Dog:
1. Respond strategically, not reflexively. Ignore about 95% of what they say but have at the ready three to five powerful comebacks every time they try and inflict pain on you at conferences by hurting your credibility. Hurt theirs too.
2. Make your moves when the Top Dog is muzzled. This happens two times in the divorce: during the deposition and during the cross examination.
3. Show at the deposition that you can hurt the Top Dog’s client. If you can do this, s/he may be willing to come off of unreasonable positions and thus shorten your litigation.
4. Use expert counterpunching on cross-examination. This is the hard way of winning, but it can be done, especially if you give your lawyer an edge in two simple ways:
a. Have the judge order two court reporters so you can get dailies, which are the court transcripts for each day. This will allow your attorney to get up at the crack of dawn to review the transcripts for any weaknesses and bring real firepower into the cross-examination, since it’s possible to use the other side’s testimony against them.
b. Have an extra set of ears at trial, not necessarily another sophisticated attorney, but a paralegal who may hear things you or your attorney cannot.
Even having a general understanding of these tactics and the basic ways of responding to them will help you stay focused. Anytime you feel overpowered, remember: The party who’s the smartest, sanest and most strategic is very likely to win. And that party can be you.