So, you find yourself facing a crisis in your marriage. You land on the side of divorce. Now that it’s decided, can you keep things ethical? Can you find a way to do what’s best for both parties? While only 5% of divorce cases today are actually litigated, that process is rooted in finding out where to place guilt and fault. It really got me to thinking, what is the role of ethics in divorce? And how does it show up?
With the business of divorce, ethics may show up in the many times you comfort a crying client, reassuring them that everything will be ok. Letting them know that divorce does not mean economic demise. You may think about the recommendations made to couples telling them the very best thing for them to do is sell their house, despite their emotional attachment and desire to stay. As a financial advisor who digs into every minute detail of their finances, you are often the only person who realizes that keeping the house would lead to financial devastation. While this is difficult news to deliver, it is better than the news of a looming foreclosure or bankruptcy that some face when trying to keep a marital house. The truth is that concern should be for the ultimate stability and welfare of both parties in the divorce, regardless of who the client is and especially if there are children involved.
Perhaps that's the real difference. Regardless of who the client is, the goal is to help this couple become the best divorced family they can be, because they're still a family! The goal being to get the couple through the process without either of them feeling like a criminal. Because of the way we treat divorce in the U.S., I've seen couple after couple after couple embark on the litigation process only to end up feeling punished, angry, financially devastated, and anything but a winner. After witnessing the divorce of a close family member, I have come to the conclusion that we've got it all wrong.
It is a major miscalculation to think of divorce as a legal dispute that can only be handled in a courtroom. Our process neglected to understand that this is not primarily a business dispute, it's a family situation. Notice I didn't even say dispute. My experience has been that differences in opinion around the division of assets only become disputes when fueled by the misguided advising of combative attorneys or family and friends. Now don’t get me wrong, there are very ethical attorneys out there. But unfortunately, the language of law is very confrontational and combative. So even with good intentions, it appears that someone is picking a fight.
The reality is the legal system is not created for family situations. It's created for crime. And almost without exception every couple I have known that has gone through the litigation process for their divorce has ended up feeling like a criminal. Of course they do! That's what the system is for! But with the recent growth of the Collaborative process and options like mediation, it’s moving towards a more ethical process. The beauty of being human is we can change. We can decide that something doesn’t work and do it differently, better. We can help families that have decided that the best answer for their family is two households not one, to make that situation work with love, understanding and a system that supports them.