Through the Lens of a Litigator: A Deliberate Switch from One-Sided Advocacy to Collaborative Solutionslitagation

By Kristen Devaney

Divorce changes the expectations of life’s path and then throws in all the emotions attached to the grieving process.  Most think that the only space for divorce is the courtroom. But welcoming divorce into an adversarial legal system yields an automatic loss of control–not only over the process but over what you are allowed to feel, what you are allowed to prioritize, and ultimately how you are allowed to compromise.

As a litigator who has represented both sides in divorce cases, I have come to understand that the concerns and worries of each party are generally justified and reasonable—they are concerned about their children’s well-being, housing, retirement accounts, standards of living, etc. After removing all of the layers, the underlying concerns that overwhelm both individuals, even if they are different, are undeniably sensible.

Litigation solves the parties’ concerns by looking solely at the legal component. Statutes and case law dictate the future of individuals and their children.  Despite such a life-altering and grief-stricken event, emotions are removed from the process.  Divorce in the adversarial system is a game of self-survival.  To win the game, the destruction of the other party is necessary, and facing internal emotional upheaval is avoided.  When both sides engage in this gamesmanship, the process is a soul-sucking, financially-draining, and impossible-to-win scenario. Even winning means losing.

There must be a better way.

The truth is that collaboration is the key to finding a better way to approach divorce.  This requires a change in perspective and a change of heart—within the attorneys as much as within the parties themselves.  Collaboration is a commitment—a dedication to problem-solving by examining the individuals and families as a whole, not within the context of a solely legal analysis.  Because of the nature of family issues, intertwined within varied levels of personalities, emotions, and livelihoods at stake, solutions require flexibility and creativity.

In divorce, there need not be an equation with sides. There needs to be a safe space where empathetic listening, professional representation, emotional support, and legal advice can all coexist.  By changing the language, the perception, and win-lose presumptive, we can find a better way to handle divorce.

There is a better way. 

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