Divorce is costly. The settlement need not be.

A new wave of legislation aimed at rectifying perceived injustices in divorce cases is rolling into state legislatures. For example, in Massachusetts, a controversial “father’s rights” bill would create a presumption of joint child custody, and proposed changes to alimony statutes would limit the duration of spousal support. All of these proposals will probably face stiff opposition.

Whatever the outcome of these legislative battles, however, three underlying problems will remain – and it is these problems, and not the adjustments that might be needed in alimony or custody statutes, that make divorce a disaster for many families.

Three underlying problems

First, the cost of litigating alimony and child custody issues imposes an unmanageable burden on many couples and their children.

Second, choosing to litigate these issues means relinquishing control to courts over what we hold most dear – our children and our financial survival.

Third, divorce litigation almost invariably ratchets up antagonisms to a point where children get caught in the crossfire.

Electing to use more effective tools for dispute resolution, such as mediation and the collaborative law process – a decision that any divorcing couple can make – addresses all three of these problems and can lead to better outcomes in both alimony and custody conflicts. Here’s why.

Although proposed custody legislation in Massachusetts and other states levels the playing field for both parents, it does not eliminate the requirement that the court determine a parenting schedule that serves the “best interests of the child.” Joint custody does not inevitably mean equal parenting time. And courtroom battle is a blunt, expensive, and often ineffective instrument for deciding what is in a child’s best interest.

Likewise, while proposed alimony statutes in several states would regulate the duration of alimony, most of them stop short of creating alimony formulas that dictate the amount to be paid.

Instead, courts would be required to make the same highly discretionary determinations that they make now, involving such imprecise factors as a spouse’s employability and the divorcing couple’s standard of living during the marriage.

The impulse to fight

These financial and child-related issues will continue to breed litigation, regardless of legislative reform, unless counsel and clients strenuously resist the impulse to go to war over them.

Unfortunately, the economics of law practice reinforce the impulse to fight. Litigation is more profitable than settlement. In addition, new research in neuroscience – applicable to both counsel and clients – suggests that while we may be hard-wired to enjoy cooperation, “winning” may be even more enjoyable.

To counter those powerful forces, fueled in many instances by the anger that accompanies the dissolution of a marriage, divorcing couples need to make tough choices.

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