Realities of Divorce: The Two Paths Forward

Almost everyone who is getting a divorce goes through one of two sets of processes, both legally and psychologically, that have very different outcomes. Let’s look at those two in the broadest sense, and why it matters which one your lawyer believes is likely to apply.

Opening Interrogations
At the beginning, each person talks to their own lawyer about their legal situation. They ask the same basic questions: “Will I get custody?” “Will there be spousal/child support, and how much?” “What will I get out of the property division?”

The ‘fork’ in the paths of divorcees depends on how their lawyer answers those questions; there are really only two broad options:

• The lawyer answers as though all issues will go to the judge and the judge makes all the decisions, or
• They answer as though all issues will be settled between the divorcing spouses, and the judge is only there to step in if the settlement reached is obviously inappropriate somehow.

These are two extremely different sets of answers, and they create extremely different expectations in the lawyer’s clients.

If the Judge Decides
If the divorcing spouses are unwilling or unable to settle the issues on their own, the judge is forced to step in and create an agreement based on Michigan’s laws and guidelines. (We’ve talked extensively about these in this blog — just use the Tag Search and look for “division of property,” “spousal support,” “child support,” and “child custody.”)

Generally, according to the legal guidelines, things turn out in a formulaic, standardized fashion with exceptions for extreme circumstances such as abuse, mental illness, or addiction. The one thing you can count on when the judge decides is that neither party will be completely happy with the result, because the law doesn’t do a lot of adjusting for the specific circumstances of the divorcees.

Furthermore, the simple fact that the judge is deciding means that the couples are having a bitter divorce. It means that the process is adversarial, like all courtroom proceedings, with each lawyer arguing for their client in front of the judge and the judge reviewing evidence and arguments to decide which case is stronger. This is where almost all divorce horror stories come from, and if your lawyer tells you about this option at the default, you will go into your divorce expecting the worst — and you’re likely to get it.

If the Couples Decide
When the couples sit down and come to a settlement that they can both live with, there are still laws and guidelines that apply. But instead of being the default, they only come into play if the judge decides that the settlement as written is unfair, coerced, or goes against the interests of the child(ren) involved. Which means the vast majority of the time, two divorcing spouses who settle independently get exactly what they agree to.

This has an amazing effect on the psychology of the divorce — suddenly, rather than both spouses getting something inflicted on them by an outside force, they’re both getting something they agreed to. Which means instead of walking away bitter and unhappy, they’re generally walking away committed to the agreement (at least, at first).

Which is Right?
The fact is that upwards of 95% of all divorces are settled without a trial. Sometimes they get staggeringly close to trial, but less than 5% of divorces actually end up with any issues settled by a judge.

The reason a lawyer would decide to tell their clients otherwise? There are two. The cynical would say the answer is money: a family attorney gets paid quite a bit to prepare for a trial, even if that trial never actually happens. But in our experience, the reality is that attorneys are pretty good at determining whether their current clients are in that 5% that will need a judge to resolve disputes by force of law. So if your lawyer starts you down the path of “the judge will decide,” it’s usually in your best interests to prepare for a struggle.