I've seen it in my practice a million times a spouse comes up with a million reasons why their ex is a horrible person, shouldn't see the kids and should be in jail. But in the end, the kids are hurt by lack of access to both parents, both parties suffer in a torrid, expensive court case, and the "victim" comes off as a drama queen to friends, family and their employer.
The real culprit: Divorce guilt.
All of your reasons for getting divorced are completely subjective, but totally valid. In New York, as in all states, you can file for divorce under "No Fault" grounds by showing that the marriage has "irretrievably broken-down." This means all the dirty laundry accumulated during the marriage should not need to be presented to the Court in order to meet grounds requirements. (And grounds are the reasons why you are getting divorced.)
But what do you tell your friends? And how do you respond when your coworkers or your mother says "not to throw a good man away" or "she's not so bad, try more counseling."
Many people already feel a lingering sense of guilt and doubt during the divorce -- even the ones who initiated the divorce. But sometimes, rather than deal with those feelings in a healthy productive way (like personal therapy, meditation, exercise or chocolate), they start recasting the marriage in an ugly way. This nasty portrait helps justify the divorce, so that when they explain "why" the marriage failed, they feel better about it -- because it wasn't their fault.
This behavior turns the divorce towards extreme conflict: every argument was "verbal abuse"; that beer after work was "alcoholism"; missing Junior's monthly piano recital was "total disinterest in the children"; and that time your ex -- accidentally bumped into you is now "assault." You start to feel that this domestic strife needs to be documented in the Court to be valid. What does this contested scene look like? In my office, we call it the Two-Step:
Step One: Get an order of protection based on trumped-up or exaggerated facts (or in some cases complete lies).
Family Court temporary orders of protection are ex parte that means that the Court only hears from one party and will issue an immediate temporary order based on the facts portrayed by that person. These types of orders are extremely important and needed in domestic violence cases where there is violence going on in the home.
But these orders are also abused by spouses looking for an advantage in a nasty divorce. A "full stay away" order will result in ejecting one spouse from the home. Even a limited ("refrain from") order is dangerous because the alleged violation of such an order can lead to immediate arrest. Little proof is needed for such an order. I had one attorney, whom I thought of as a mentor, tell me that if my client's wife was going to lie to get an order of protection, I should tell my client to "break a vase over his own head and claim she did it" so that he could get his own order. (Suffice to say, that attorney is no longer on my mentor list).
Step Two: Up the ante and leverage the possibility of jail for violating the order so that you can get a better deal (more support, more property, and of course custody) -- because who wouldn't trade it all to get rid of criminal charges?
It takes patience and determination to get to the point where I can show the Court the truth: the underlying motives and inconsistent evidence are exposed. But the emotional toll is high. Worse, in cases where there are children, what was already a difficult communication problem between mom and dad has now turned into a train wreck.
Maybe one spouse didn't listen that the marriage was in trouble until it was too late. Maybe one spouse is a stubborn jerk. But being a jerk is not grounds to warrant an order of protection. If you feel like your guilt is getting in the way of having a lower conflict divorce, explore those feelings with a therapist and try to get over it in a positive way.
This blog is also published at The Divorce Artist.