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McCourts Divorced by MLB

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As a mediator and blogger, I've used the McCourt divorce as an example of how not to get divorced a few times over the past couple of years. After all, nothing says "I love you" like $19 million in divorce fees (and that was only part way into the process).

But the stakes are higher now. As Major League Baseball assumes control of the Dodgers, neither of the McCourts will own or operate the team.

Synopsis: The McCourts are married for 30 years. They do a post-nuptial agreement, which is basically a prenup you prepare after you get married. The McCourts said (or at least Jamie said) they did a post-nup to limit their liability as a couple for risky ventures like the Dodgers and for estate planning purposes, not to establish which spouse owned which marital assets. About 5 years later, they're getting divorced and Frank McCourt attempts to have the post-nup admitted as evidence in the divorce proceedings. According to the post-nup, Frank owns the Dodgers. Jamie McCourt, a lawyer herself, claimed she didn't understand the agreement and contested Frank McCourt's attempt to use it in their divorce hearing. The court agreed with Jamie and the happy couple continues to own the Dodgers together.

At least until now. As of now, Major League Baseball is in charge of the Dodgers.

To my mind, this only underscores the foolishness of using litigation to get divorced. Although Jamie McCourt "won" her case to have the post marital agreement which awarded the Dodgers to Frank McCourt, her husband of 30 years, thrown out, turns out she actually lost. And so did Frank.

That's the irony of litigation. Ordinarily, it creates one winner and one loser. But the winner is usually only a winner for awhile. Then the fall-out starts. Your kids stop speaking to you because of the conflict, or you have to declare bankruptcy because you ran up so many legal fees. You lose 2-3 years of your life (and sometimes more) litigating your case, and you fall behind in your career because you're so consumed with the divorce and court case. Friendships evaporate as you can't stop complaining about your spouse to everyone who will listen.

Who's the winner now? Nobody.

And never mind that the loser is watching you like a hawk, waiting for his or her chance to return to court for vindication. If it's a custody battle, they're just waiting for you to slip up and they can move to modify the order, switching custody to them. If it's about alimony and spousal support, they're just waiting until you move in with someone so they can ask for a reduction. If it's financial, they bide their time and wait to make a case that you lied to the court and make a case for fraud.

And it's not just the McCourts who are experiencing the lose/lose of court.

Sure, the stakes are higher for the McCourts than for most of us. But is this fight really that different than the litigation I've seen (and participated in as a lawyer) over Beanie Baby collections, Barbie clothes in storage, pottery, furniture, and 1 or 2 days a month of child custody? I am not kidding here. These are all cases in which I was one spouse's attorney in divorce court.

How on earth does this happen?

The object in dispute becomes symbolic of the marriage and the divorce. To let go of the object and "let the other side win" would mean ending the power struggle and moving on. For some people embroiled in a divorce battle, they simply can't stomach that idea. The devil they know--their current spouse, the fight in court--is better than the devil they don't---having to go back to work, dating again, facing life as a single person, for example.

Conflict equals contact. And the fear is that lack of conflict would mean emptiness and facing an unfamiliar future.

Is it healthy? Of course not. Does it happen all the time? Absolutely.

Is there an alternative? Could the McCourts have had an uncontested divorce in California? Of course. But they have to choose it. They have to want it. They have to see an amicable or at least collaborative divorce as something they value. And as much as they have the money to finance the litigation, surely they could've figured out a better use for that +$19 million dollars.

And at the end of the day, they've both lost.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana's divorce blog on the Huffington Post