More Civility Needed in Divorce Cases for the Good of All

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A recent survey of members of the American Academy of Matrimonial Lawyers (AAML) across the country confirmed predictions that, post-pandemic, the rate of divorce filings has gone up just about everywhere. Some lawyers are reporting that they are busier than they have ever been. (The AAML is a group of about 1,600 prominent family lawyers located in every one of the 50 states.) Enforced isolation together for many months, in addition to all the financial and emotional upheavals caused by the pandemic, took a toll on many marriages, including some that were already troubled and some that were not—until confronted by unprecedented pressures.

But another somewhat unexpected issue arose in the AAML survey, mentioned by a surprising number of the responding attorneys. Lawyers commented that parting spouses these days are more intransigent and more “dug in” than ever before.

“I have seen a dramatic increase in unkind, aggressive and rude behavior towards me, opposing party and counsel, and the court in general,” said one attorney.

“I have never seen such entrenched positions requiring trial. My mediation failure rate is at an all-time high,” said another.

A third respondent commented, “It’s the level of nastiness and unreasonableness. In 25 years, I have never experienced the level of vitriol and inability to rationally make decisions that I have seen over the past 18 months.”

In my own practice and from what I am hearing from other colleagues in Houston and around the country, we are all experiencing the same phenomenon. Too many couples planning divorce have embarked on a do-or-die, scorched-earth policy, not realizing that scorching the earth leaves everybody burnt, including, unfortunately, any children who may be involved.

Of course, we understand that our country is deeply divided these days in terms of political attitudes, and that the extreme polarization has affected how we feel about health care, immigration, the economy, financial stress, the education of our children, and many other matters. But the new increased intensity in divorce negotiations often has little to do directly with divergent political positions. People are highly stressed and anxious to begin with because of all they have been through in the last two years and their fears of what awaits them in the future. They are more frightened than ever of what they might lose in a settlement and what they might not get that they believe to be essential to their ongoing comfort. Hurt feelings, free-floating anger, and extremely stubborn stances have overwhelmed rationality to the point that the demands of the parties will, in the end, get them less than they would have derived from a more orderly, cooperative negotiation.

In Houston, most family court judges require that a couple attempt mediation before they can even get on the docket to litigate a divorce. If the mediation fails because the two parties are not making a serious effort to arrive at a reasonable conclusion, the funds spent on mediation have been wasted, and now the parties face the additional costs of litigation.

I have heard one about-to-be ex-spouse say, “I’d rather spend the money on lawyers than give her another penny.” But family lawyers are not delighted with the additional income in such a situation so much as they are frustrated at seeing the costs of a divorce mount without a reasonable solution. Intransigence takes a toll on everyone involved with a case, including the attorneys and our judges.

Divorcing spouses who war to the end may lose more than money. In extreme high-conflict cases in which the two parties absolutely cannot come to a reasonable agreement, a judge may be forced to make decisions for them. At that point the parties have lost control of their own case and the judge’s rulings may not be to their liking.

What we really need now is a return to a baseline of civility and a rational acceptance of what is possible—in the self-interest of the parties themselves. Too often bitter squabbling lasts for years and, in the end, the parties may well arrive at the same essential deal that may have been offered to them on day one.

Parents sharing custody of children will have to deal with each other the rest of their lives.  Nonstop fighting and struggling for an advantage will darken the childhood of the kids and can also affect the ability of children to form their own positive relationships and lead productive lives as adults.

Unreasonable demands and incivility, refusal to budge on any issue, and nonstop anger do not lead to a “win” for anyone. Everyone loses.

Susan Myres, president of American Academy of Matrimonial Lawyers.

Susan Myres is a board-certified family law attorney at Myres & Associates. She has been practicing in Houston for over 35 years, and has served in leadership positions locally, statewide and nationally. She is also a past president of the American Academy of Matrimonial Lawyers (AAML).

Reprinted with permission from the June 30, 2021 edition of the Texas Lawyer © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com877-257-3382 -