There was a time in America when business was done on a handshake.  Businesspeople negotiated million-dollar deals and expected that the other person’s word was their bond.

A handshake is a low cost, low effort way to reach agreement, but it requires something usually lacking in divorce cases:  high trust.  The iron law of trust and cost is that where there is low trust there are high costs.

Consider what happens when divorcing parents can’t reach agreement.  In many cases a parent will seek to sabotage the other parent.  Lawyers contribute to this with nasty letters about that e-mail that was sent or that text message.  The parties come to court in armed camps ready for battle.  Repeated court intervention becomes necessary because the parents, wary and distrustful of one another, engage in the following low trust behaviors:

  • Divorcing couples lace their necessary communications with unnecessary, emotionally charged statements judging the other party;
  • Out of mistrust, a divorcing party will not cooperate by making reasonable concessions;
  • Once agreements are reached, a party fails to deliver on a promise, lowering trust further.

Ask family law practitioners what they would do in their own cases, and their number one response is to avoid court.  But what tends to happen is that the litigation takes on a life of its own, as the parties incur “sunk costs.”  A sunk cost is like a down payment on something that turns out to be not worth the price.  For example, if you spend $100,000 to build half a bridge, and it will cost another $100,00 to complete the bridge, but the bridge will bring only $50,000 worth of value, is it rational to complete the bridge?  The answer is “no.”  The value of the completed bridge is less than the cost of completing it, so the rational decision is to leave it half built and save the remaining $100,000.

What tends to happen in litigation is that as the parties spend more and more, they become more “invested” in the case.  It becomes harder and harder to get off the merry-go-round.

This is why I encourage divorcing spouses to have a conversation at the beginning of the case.  They should strive to see the matter from the other’s point of view, and let go of resentment.  Finding a good divorce mediator at the outset will allow the parties to create a new form of trust—not the trust that married people have in a committed marriage, but at least the trust that comes from a shared interest in staying out of court, saving money and raising happy and well-adjusted children.

A family law trial is a hugely expensive and painful way to resolve disputes that can be settled through a mediated discussion with your spouse or co-parent.  The handshake is strictly optional.

Very truly yours,

Thomas D. Ferreira, Esq.

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