Those going through a divorce are often dismayed when their spouse takes an extreme view about issues needing to be resolved. In Carrie’s case, her husband Scott insisted that the divorce settlement had to give him sole legal and primary physical custody of their two boys, with Carrie relegated to seeing them every other weekend and having to acquiesce to Scott’s decisions as to what was in the boys’ best interests. Scott was taking this position even though he could not point to any way in which Carrie had been a bad or inappropriate mother or had made bad decisions.
In another case, Ken couldn’t believe that his ex-wife was refusing to consider a reduction in her alimony payments even though his income had been reduced by more than 50% and the parties’ divorce agreement specifically provided for a modification of alimony in such a circumstance. Melissa simply insisted that she had made certain financial choices based on the agreed level of alimony, and that Ken to make the payments he had agreed to make.
What can you do if you if your spouse takes an extreme position? Here are four concrete suggestions.
- Have realistic expectations. If you are in a situation like Carrie’s or Ken’s, you need to be patient and maintain your cool. Be clear in your own mind that it will take longer to resolve the issues in your case than if both parties are taking reasonable positions. Don’t overreact – or even react at all – to your spouse’s position. Simply listen and keep your own counsel. And remember – as a case progresses and more information becomes available, there are more opportunities to understand and use creativity to negotiate around the other party’s perspective and/or position.
- Get advice from an experienced divorce attorney, and then trust your attorney. When you meet with an experienced divorce attorney, he or she will be able to tell you whether your spouse’s position is within the range of reasonable outcomes if you were to go to court. Your attorney can then leverage that assessment to steer productive settlement discussions—or prepare for court, if necessary. For example, Carrie, who is a resident of Washington, DC, needs to know how the factors that a DC court will rely upon in deciding child custody apply specifically to her family. She also needs to know how best to gather the facts and witnesses to make the case in court as to those factors, and she needs advice as to how to nurture opportunities for reaching agreement with Scott as they occur. Similarly, Ken, who also lives in DC, needs to know the DC case law about divorce contracts and their modifiability, and what standard a judge will apply in his case. DC law may vary from the laws of Maryland and Virginia, and these differences can be significant.
- Seek to understand what the real issue is. In life in general, but in divorce situations in particular, the actions that people take often stem from strong emotions lying beneath the surface. Relying in part on the experience and guidance of your attorney, try to uncover the motivations behind your spouse’s position. Is Scott trying to overcompensate because he worries he was not around for the kids enough when the marriage was intact? Or is he concerned because he thinks Carrie wants to move out of DC to be closer to her family? Does Melissa believe that Ken’s income has not actually been reduced? Or is she worried about her own escalating costs of living? Working with your attorney to figure out what the real issues are can help you to develop an effective strategy to address those issues.
- Be creative. Once you have a sense as to what may be going on below the surface for your spouse, you have the opportunity to think creatively about how to address those concerns and feelings. Both Carrie and Ken could think about structuring an opportunity for their spouses to talk honestly about their anger, fear, sense of betrayal or sadness and propose practical solutions. For example, if Scott really is concerned that Carrie is going to move away with the boys, the parties can put specific provisions in their agreement about how many miles is acceptable, how much notice of a move must be given, and other provisions relevant to a potential move. And Ken and Melissa could modify the duration of the alimony payments in exchange for a lower monthly amount, to ease the immediate burden on Ken while still giving Melissa the security she bargained for.
If you are faced with a stated position which is outside the range of reasonable alternatives, work closely with your divorce attorney to overcome this obstacle to eventually reach a good outcome.