A Comparison Between Actual War and Family Law Litigation

It has long been said that the tongue is sharper than any sword. In fact, the Bible says, "Reckless words pierce like a sword, but the tongue of the wise brings healing." (Bible, Proverbs 12:18 (NIV)) Of course, in litigation, we place such words into correspondence, declarations and pleadings in an effort to coerce a "settlement" or otherwise persuade a judge. As they say, "the pen is mightier than the sword." This may be why litigation is often compared to war wherein the lawyers are the warriors. Since they are retained to "win" the war, they operate on a "take no prisoners" philosophy. Clients frequently manufacture or otherwise embellish facts. The attorney does anything in their power to assist their client in prevailing, including efforts to legally exclude evidence that would otherwise weaken or destroy their client's case. After all, who cares whether the result makes sense based upon all the facts, as long as our client prevails. It should be noted that in actual war, the warriors themselves may or may not support the underlying basis for the war itself and are not the ones making the policy decisions. However, a "take no prisoners" philosophy in war applies to the actual warriors. In litigation, that philosophy actually applies to the "policy holders," the parties themselves. Yet, we expect those same parties to effectively co-parent throughout the litigation and thereafter.

Preventing future violence following military intervention is always a concern because violence begets violence. The potential for future violence exists because the underlying conflict was never actually resolved. The ultimate goal is to somehow break the cycle of violence. What, if anything, is done in family law matters to break the cycle of conflict? As with military actions, handling the conflict through coercion does not resolve the underlying conflict. When families are involved, doesn't it make more sense to try and minimize the conflict than attempt to break the cycle of conflict that was exacerbated by litigation? Remember, after figuratively "killing" the other party, they are expected to play nice. Does anyone really believe that if a warrior were literally killed as a result of a "take no prisoners" philosophy somehow returned from the dead, they would let bygones be bygones?

People don't get along well after having litigated against each other. Nonetheless, we subject parents to the litigation process and somehow expect that they will react differently because they happen to have children together. Does that really make sense? Can we really expect that families won't be permanently damaged by litigation? Remember, everything is a matter of perspective. We expect post divorce families to look a certain way because they are post-divorce families. However, if the only post-divorce families we see are those that litigated their divorces, might our perception be skewed?

As an aside, it should be noted that relationships are formed between children and step-parents. A number of years ago, I received an email from someone advising me that I was only "touching the tip of the iceberg" in an article I had written. She explained that she had recently divorced her husband of 27 years. They each entered into the marriage with a daughter from prior relationships. In the two years since the divorce, her "grown daughter had never gotten over losing a 'father' and a 'sister' as a result." She said, "I never thought in a million years that my daughter would be so touched by my divorce." She ended her email as follows: "Write more about this Mark, and do what you can because it is more than just the small children who are affected. My adult daughter can't get past it and will not talk about it with anyone. She just wants her family back. I had to thank you for your compassion on this issue, one that most people never consider."

By the same token, we should be cognizant of the fact that parents with adult children still have children together. Absent unusual circumstances, children outlive their parents. Therefore, parents are in essence bound together for life by their children. We must not ignore this reality just because the court does not have jurisdiction over such issues. Things that parents do to each other during a divorce either on their own or with the assistance of their attorneys have consequences. We must be mindful of this because material possessions come and go, but family is forever. While some families are functional and others are dysfunctional, they are still families.

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