It is true that people who can navigate a divorce amicably and respectfully often find the process to be easier, faster and much less expensive. They will also be more satisfied with cooperative agreements they reach than combative parties who need a court to make decisions for them.
That said, it is not always advisable to play nice or excuse destructive behaviours during a family legal conflict. When ought you and your lawyer to seriously consider going to court?
1. FALSE ALLEGATIONS – The other person is making false allegations that if believed could materially affect the outcome. An ex might accuse you of abuse or other types of bad behaviour. They may be trying to make you look bad to others, gain sympathy or sway court decisions in their favour. If their statements could trigger criminal charges, embroil the Children’s Aid in your case, alienate your children from you (see #3 below), or otherwise compromise your core rights, then it might be necessary to have a court clear your name. The same goes if their false statements (especially if they are broadcast outside of the litigation process) could affect your business or reputation.
2. MANIPULATION – An ex is trying to take advantage of you or manipulate you. In some divorces, a manipulative or controlling party may use their power and position to take advantage of the other person. They might use threats and/or guilt or empty promises to get what they want. Standing up for yourself and working with legal professionals throughout the process can protect against this. This might involve court but it might not.
3. PARENTAL ALIENATION – The other parent is turning your child against you. Parents who are angry or suffering from a mental illness may try to manipulate a child to get them to turn on the other parent. This is parental alienation, and it can be devastating for a child and the alienated parent. Thus, if you believe this is happening, with your lawyer you should consider court action along with other potential remedies.
4. LETTER WRITING MARATHON – Some lawyers can wear you down with their endless letters. Consumer Warning! – Lawyers’ letters are not the be all and end all, believe it or not. Where two lawyers communicate effectively via letter and are both committed to finding effective and practical solutions, then that’s great and you might be well served by that process. But if you are being caught up in endless letters back and forth and no progress is being made, especially where a potentially detrimental status quo is being cemented through the passage of time, then you should surely consider court and other more definitive remedies.
Court is not the only effective remedy. Other expeditious procedures such as a combination of mediation and arbitration (known as “med-arb”) can be equally or more effective. Some cases are better suited to patient negotiation provided that full financial disclosure is made promptly. But there are situations where you just cannot and should not avoid court. It’s not always right to “place nice”.
Outside of these and other combative situations, there are most surely multiple benefits to being respectful and cooperative for the purposes of reaching resolutions during a divorce. However, when your rights, reputation or relationship with your child are on the line, playing nice may no longer be in your best interests.