Essential Legal Guidelines for Navigating High Conflict Divorce

By Karen McMahon

Navigating divorce is a painful and unsettling experience.  Journeying through high conflict divorce is often terrifying and debilitating.  You can minimize fear and paralysis by being informed, setting realistic expectations and employing supporting experts and professional when needed.

The fear and uncertainty around your current and future circumstances understandably drives you to search for answers. Who you turn to for that information is crucial. Do not listen to your spouse’s take on what is going to happen (or what he/she thinks or hopes will happen).  His/her scenario is not real, it is simply one perspective.  

Do not listen to your friend, relative or colleague who got divorce, they have no idea what your experience will look like. They will share what they believe will happen because of what happened during their divorce. They are wrong.  Every divorce is different.

Knowledge is power. Gather legal information from a matrimonial attorney (not just any attorney) who knows your legal rights, how the process works and the players involved.  Note: Even this article is meant to guide you in gathering information, it is not a final word. Your matrimonial attorney should be consulted and involved in all decisions you make regarding the legalities of your divorce.

Often high conflict divorces end up in court (litigation) due to the imbalance of power in the relationship and/or the parties’ inability to communicate and compromise.  While mediation and collaboration are widely touted as the best and most cost effective approaches to divorce, they can be less advantageous and more expensive in high conflict cases.  Make sure you are using the right approach or you may end up starting over again in the court system after significantly investing in a process that is not a good fit for your situation.  Do your due diligence, ask all your questions and make sure you are comfortable with the legal approach you choose.

Litigating Your High Conflict Divorce

It is important to understand that just because you are using the ‘litigation approach’, which means your divorce will take place within the court system, does not mean you will go to trial. In fact most litigators will agree that less than 10% of cases go to trial and 90% of those settle before the trial begins or ends (meaning that the parties, not the judge, determine the final settlement).  

The court system is very helpful for high conflict cases because the judge appointed to your case has authority to enforce control over the pace of the case and ensure compliance of documentation submission and creating and overseeing compliance of court stipulations. Litigation can help your case move forward even if your soon to be ex is resistant to doing so. 

If you or your spouse have not filed required documents or are holding up progress, the judge has the authority to demand action. If your spouse is withholding money or time with the children, the court can mandate temporary support and/or a temporary parenting schedule while the long term details are negotiated.  The court is a neutral authority capable of moving things along and handling urgent matters as needed.

Litigation is also helpful when there are children involved and you are concerned about parenting cooperatively, making decisions collaboratively or even worse, about the safety and wellbeing of your children while with their other parent.  You may be dealing with a spouse with mental health issues, personality disorder or addiction or the complexities of inter-state or international divorce. If you are in the court system, you have access to a guardian ad litem, a custody evaluator and other support experts.  These experts are hired to assist the court in determining what is best for the child/children.  

A guardian ad litem (GAL) is an attorney that represents the children when the child is too young to act or ‘decide’ on issues on their own.  Neither your attorney nor your spouse’s can be neutral in representing the children. This individual is usually hired when there is significant conflict and concern around parenting time and decision making. He/she is hired by both parents and will meet with each to understand the situation and underlying issues.  He/she will meet more often with your children. Depending on the age of the children, the guardian is responsible to listen to the children’s desires, and then use their best judgement in advising the court. 

Note: The difference between a GAL and an attorney for the child/children is that a GAL represents younger children who cannot speak or act on their own behalf (baby, toddler, school age) whereas an attorney for the children is required to abide by the child’s demands (most often teenagers). The role and authority of these professionals vary from state to state. Inquire with your matrimonial attorney about how these expert resources work in your jurisdiction.

A custody evaluator is usually a social worker, psychotherapist or psychologist with an expertise in ‘psychological forensics’.  He/she is hired to assess all family members and will report their findings to the court including each parent’s strengths and weaknesses and an analysis of relationships and parenting.  In some states custody evaluators are required to make recommendations regarding parenting time and decision making.  

A custody evaluator will meet with parents together and separately as well as with each parent and the child/children and finally will meet alone with the children.  They may do home visits as well as office visits. They will speak to collateral parties such as teachers, therapists, clergy and others intimately knowledgeable about the family dynamics.  

The custody evaluator ultimately provides a report with recommendations around decision making and parenting time.  The impact of his/her report will vary depending on many factors. Speak to your attorney before hiring a custody evaluator to keep your expectations realistic.

Don’t Expect or Assume

A good litigator will tell you that there are no guarantees.  Just because you have been the primary parent or just because your spouse has a high conflict personality doesn’t guarantee that you will get the parenting schedule or decision making you believe is fair or in the best interest of your children. 

Assessing parental capability and mental health is a very grey area and the vast majority of divorce courts, attorneys and judges are unskilled at determining complex mental and emotional issues and are clumsy at best in making final decisions.  This is why most attorneys will advise that if there is any way for you and your spouse to craft an agreement, it is better than leaving it up to the judge (who does not know or love your kids as you do).  

Even with a custody evaluator and guardian ad litem, it is rare that you will emerge with your ideal settlement. 

Examine your wish list, then decide what is non-negotiable and what are your must-haves. Be as flexibilite as you can and discuss your wishes with your attorney so that your negotiations are realistic and productive.

If you are entering a high conflict divorce, listen to our podcast, Divorcing a Narcissist: Essential Legal Guidelines for Navigating a High Conflict Divorce with Randi J. Karmel, 25 year plus attorney with vast experience supporting clients in this space as she shares a considerable amount of information and advice.

If you are already in the process and struggling with the many stresses and tensions that arise, we are here to support you!  Reach out for a Rapid Relief Call and let us support you in gaining clarity and becoming a more effective partner with your attorney to attain the best possible outcome (while saving money on your attorney fees!)