Actively participating in your legal team vs. closely adhering to your lawyer's guidance

As much as you may sometimes want to turn your divorce over to your lawyers and step out of the way to let them handle it, my experience tells me that the process is likely to be smarter and saner if you stay involved.

In the ideal situation, you will have a relationship with your lawyer that turns the two of you into a dependable team where you both actively contribute to your divorce.

Building the trust needed for that kind of reliable teamwork requires time. Fortunately, in many divorce situations, you can foster this connection at a pace that lets you handle your feelings and the grieving process associated with the divorce so you’re calm enough to make decisions together.

When There's No Time to Establish Trust with Your Attorney

However, in specific divorce scenarios, usually in higher conflict divorces, circumstances may not give you the time you need to develop such a relationship of trust with your attorney.

This usually occurs when the other side engages in shock and awe tactics, where they do things to needlessly escalate or activate matters.

 For example, the other party may:

• Terminate the family health insurance plan.

• Refuse to pay for the child’s private school tuition

• Switch beneficiaries on retirement or life insurance plans.

It's only natural to feel emotional when faced with these situations. Who wouldn't, especially while still processing the pain of a divorce? It's possible that you're experiencing a whirlwind of emotions toward your spouse, perhaps even contemplating halting the divorce and returning to how things used to be.

But here’s a little-known secret: your spouse has already moved on. They may have been planning this divorce for years. They want out of this marriage, and they are willing to project their feelings onto you through this divorce process, even if it costs them during the divorce. In essence, they are being emotional, too. That’s what shock and awe tactics are all about.

Luckily, the active litigation that comes with such tactics usually comes in waves.

Following the initial wave of surprise and disbelief of being on the receiving end of one of these high-drama legal assaults, there typically comes a cooling-off phase—a moment you can use to regroup. The other side is likely to step back to gauge the impact of their shock and awe campaign on softening your positions. To determine where you stand in this divorce in terms of the budget—how much time, money, and emotion you’ll be willing to use up.

It's akin to someone having subjected you to a waterboarding session for a few minutes; they're now pausing to see how much you’ll keep resisting and if you're ready to give them what they want.

A Case Study

Imagine, for example, that you are in the process of a divorce, and your spouse is the one with the higher income, earning over the current child support cap in 2023 of $163,000. The negotiations falter when your spouse agrees to pay child support, but only up to the cap amount, which is around $2,000 per month.

However, you are seeking $4,000 per month. When you take this to court, your spouse agrees to halt the divorce proceedings and proceed with mediation, which was your initial preference. So, you instruct your lawyer to move forward with mediation. But there’s a catch. The mediation process is an attractive distraction, and your spouse just deceived you into proceeding with mediation before you resolve the child support issue by entering into a specific order for them to pay you child support.

You may be saying they agreed to pause and work things out with you; what is the problem?

The problem is you have yet to receive any money, and they can now not be forced to give you any money in mediation unless you come back to court, which takes a lot of time and energy, not to mention money.

If you have an attorney you trust who is willing to talk through the offer, you can get the benefit of what I think of as preventive legal care, which can provide you with insights into the pros and cons of the proposal. Your “preventive care” lawyer can help you see the traps and the other side’s real strategy.

However, if you're unable to communicate with your legal counsel due to extreme discomfort, and your lawyer is pushing for a quick decision, then you're certainly in a tough spot. Some lawyers aren’t that interested in “preventive care.” They’re eager to play the role of a decisive surgeon. So the question becomes: are you going to place your faith in this lawyer, or are you hesitant to fully trust her? You can see her determination, yet you need more time; you need a deeper understanding. 

Unfortunately, it often seems like the court won't grant you additional time to make your decision. So, your options are to either stall for time or make a choice. But always bear in mind that it’s smartest to keep your long-term goals at the forefront, not just your immediate desire for a quick divorce.

If you encourage your lawyer to go for mediation when your partner dangles an invitation with strings attached, like refusing to participate and negotiate a support award at this point, you’re missing the fact that they are actually presenting you with an ultimatum. You may convince yourself that they have changed, and celebrate that they are finally willing to cooperate. However, the truth is they have yet to agree to pay you anything. The proposal was merely a diversion tactic aimed at your fears— the fear of the difference between the cap amount and the amount exceeding the cap, i.e., the $2,000 vs. $4,000. Then, they exploited your vulnerabilities—your time constraints, emotional capacity, and energy levels, by suggesting that you go for mediation.

Consider These Questions

As you face such scenarios, it's essential to maintain your position within a proactive, preventive legal team, rather than being subject to the uncertainties of an unfamiliar attorney who has yet to rise to trusted advisor status. Even under stress, you can take a deep breath and cut through your own fog of emotions by asking questions like these:

• What are the other party’s motives? Why must certain decisions be made in court during such an emotional time?

• Couldn't these decisions have been sorted out earlier?

• If there's a mutual agreement to resolve matters, why is the other side persisting with challenging divorce negotiation strategies? 

• This sounds promising, but what’s the catch? Is there something I’m missing?

Once you see things through that more curious, critical perspective, then you become an active, helpful, and vital part of the litigation team. You’re back to preventative care. But if your emotions are getting the best of you, and you are not stepping back to see the game that is played, you are not dotting the I’s or crossing the T's, asking questions, and looking out for yourself in your divorce. That puts you into the surgical aspect of the divorce litigation dyad, where you need to follow the advice of someone who specializes in “major surgery”—and that’s probably going to be costly.

Choose The Right Divorce Lawyer For Your Budget

If the attorney leads you to a bad choice, then you have to rethink why you chose them.

Was it their marketing? Did they promise to take care of you just the way they take care of their A-level clients? A lot of divorce attorneys are better marketers than attorneys, promising that they have the heavy artillery to handle everything for you in a high-conflict divorce with little involvement (besides footing the bill) from you.

Not to go into much detail now, but if you are not really a high-net-worth client, I would not suggest you choose an attorney who focuses on that demographic unless you can withstand high divorce fees from the divorce attorney rock star who is likely to parlay the case to their associate.

Instead, think about working with your attorney in a preventive care type of team that both of you put thought and energy into, building trust as you work toward your divorce goals together.

You will have to do the personal work that will let you move past grieving the end of your marriage, and you’ll need to be less emotional so that you can contribute meaningfully to the divorce team. It’s challenging. But it’s worth it. Otherwise, you are stuck in the surgery mode of divorce lawyering, in which case I hope you pick a good surgeon!