J. Richard Kulerski is a divorce attorney with more than 40 years of experience who practices in Oak Brook, Illinois. He has been trained as a mediator and settlement negotiator at Harvard Law School. Mr. Kulerski is the author of Divorce Buddy System, a guide to negotiating a divorce settlement without going to court. Recently, Mr. Kulerski took time out of his busy schedule to answer LoveToKnow's questions.
Divorce Buddy System: A Path to a More Reasonable Divorce Experience
LTK: In your opinion, does the adversarial system of determining how matrimonial property and other issues will be decided in a divorce make the process more difficult (and more expensive) for the participants than it needs to be?
No, it does not make the divorce process harder or more costly than it has to be. At least, not in the way this question suggests. It is obvious that the public is displeased with the divorce legal system. Most people that I talk to complain that it takes too long, costs too much, has not kept pace with the rest of the world, and is no longer serving the needs of the public. However, the adversarial system is not the problem at hand. The real culprit is a more fundamental problem…one that the public does not know is a problem.
We do not know how to settle our divorces before they reach the divorce legal system. If we did, Question One would be moot. This is where society has failed us and this is what needs fixing. Society teaches us from an early age that it is always in our best interest to be respectful to those from whom we want something (e.g. parents, teachers, traffic cops, coworkers, bosses, neighbors, customers, etc.). However, it somehow failed to impress upon us that this teaching also applies in divorce.
At the mere mention of the "D" word, we get tense and defensive and react counterproductively. We unknowingly help to set the stage for our own demise. We unwittingly say and do things that cost us pain and money. Society does not stress the importance of using salesmanship to persuade our soon-to-be exes to agree to the settlement terms that we want them to agree to. Instead, it conditions us to enter divorce with a skeptical, distrusting, defensive, and confrontational mindset that promotes war instead of promoting settlement.
Your odds of having a less difficult and less costly divorce are dependent upon how nicely and how sensibly you treat your spouse during the divorce. The adversarial court system is not the enemy - your words are.
LTK: Is there ever a time when litigation makes sense in a divorce action?
A case is in "Litigation" from the time it is filed until the time that a judge decrees that the case is over. Going to court in divorce makes sense only when you have no other choice. If your spouse will not agree to a settlement that is better for you than what you can reasonably expect to get in court, then you have no real alternative but to litigate.
The reason it rarely makes sense litigate in divorce is because litigation does not end the problem as it does in other fields of law. In divorce, it usually stirs up other family problems that can take years to overcome.
Feelings, Facts, and Competition
LTK: In your book, "Divorce Buddy System", you state that divorce court is no place for a divorce. Why is that?
Largely because divorce court is not family-friendly and because divorce is about feelings and divorce court isn't. Going to court is competition and competition between family members is unhealthy. It has no place in divorce and hurts everyone, especially the kids. Divorce involves some of the most painful feelings a person can have, e.g., loss, upheaval, anger, resentment, fear, anxiety, self esteem issues, etc., and going to court makes the pain worse. Divorce brings enough pain all by itself, we should do everything we can to prevent the rigors of the legal system from adding more. The pressure of court brings out our worst at a time when our best interests (and those of our family) require us to be at our best.
Even though divorce involves only intra-family rights, divorce court cannot relax its strict standards and treat family law cases differently from how it treats cases involving life sentence penalties or multi-billion dollar corporate litigation.
LTK: The "Divorce Buddy System" is one that recognizes that the parties' feelings are an important part of the process. Does the court system fail people by basing decisions on the facts and the law only?
No. The court system is not letting us down. It is merely doing the job that society hired it to do - which is to decide cases based on hard evidence and the law, fairly and without bias, prejudice, or pre-disposition. While the courts cannot consider feelings, divorce negotiations, on the other hand, are primarily about feelings. Showing concern and respect for the other side's feelings is the best negotiation tool in the world. To attempt to persuade your spouse to agree to an out-of-court settlement without considering his or her feelings can be compared to tying your hands behind your back in a boxing match.
No one is ready to consider a compromise settlement until they have said everything they feel is important and they know the other side has listened carefully to their every word. We do not let go of our desire to fight as long as our feelings are still bottled-up inside of us. Divorcing spouses sound like they are basing their settlement positions on numbers when, in reality, their thinking is based more upon feelings. You cannot soften your partner's thinking until listen to their concerns and then validate their right to feel as they do. You don't have to agree with their thinking, but you cannot criticize or judge anything they say. When they know you have listened and that you comprehend the reasoning behind their concerns, the doors to settlement swing open. Until then, you are talking to a brick wall.
Negotiating a Settlement
LTK: Is it really possible for a divorcing couple to negotiate a settlement they can feel good about?
Yes. This happens only if all five of the following occur:
- Both parties have ample opportunity(ies) to explain their feelings and settlement thoughts to one another.
- Both feel they said everything that they needed to be say.
- Both are convinced that the other party truly listened to everything they said.
- Both believe the other party treated their message with understanding and respect.
- Both are satisfied that the other party validated their feelings and comprehended the reasoning behind their settlement position.
LTK: Are there situations in which the "Divorce Buddy System" approach will not be successful?
Sure. It is not for everyone. It only works for reasonable people. Many people are unable to see the other side of an issue and the book will not help them. Being unwilling to do what it takes is a non-issue because if you can do it, you will do it. The alternative will be unacceptable.
LTK: What advice do you have for people who are contemplating a divorce?
- Understand that your spouse will see things differently from the way you do. Accept the fact that you will never be able to change his or her mind. It is impossible, so don't annoy them by trying.
- Keep an open mind to their settlement thoughts and let them you have made room in your mind for their concerns.
- Do more listening than talking and repeat their words back to them. This establishes that you care and that their view is important to you.
- Treat everything they say and think with respect and understanding.
- Always wait until it is your turn to speak.
- Never argue with them about anything.
- When it is appropriate for you to express your disagreement, wait until it is safe to do so, and then proceed with the utmost diplomacy.
- Do not blame, criticize, or challenge them.
- Be patient. It takes time to settle a divorce case. We all fell a lot when we were first learning to walk. See this as the same thing. It is not meant to happen in one shot.
- Stay focused and calm when your spouse rejects your proposal. There are usually a few NO'S before you can expect a YES.
- Keep in the back of your mind that this is not about who is right or wrong, this is about your money and not throwing it away. Nothing else matters. You can always get mad later when it doesn't cost so much.
- Expect your spouse to lose it. Be ready to be insulted, blamed, yelled at, threatened, etc. and do not go nuts when it happens. Their behavior is predictable and does not count. The only thing that matters is how you react to the rage. The ideal reaction calls for you to speak slowly and no louder than normal. Ignore their outburst, as if it never happened.
- Do your best. Your family, your sanity, and your wallet are counting on you.