Fact: You Won’t Get “Emotional Justice” in Divorce Court
Divorce, by its very nature, creates upheaval. It can bring about some of the strongest emotions a person has ever experienced: sadness, grief, anger, frustration, and despair – and sometimes even blame, shame, guilt, humiliation, rejection, hopelessness, or a desire for revenge. Even those divorcing amicably are bound to feel the emotional weight of ending a relationship with a person they once loved deeply (and maybe still do). All of these emotions influence how people handle the "business" part of a divorce.
Let's say you're in the midst of a divorce. And it sucks. Your spouse has left you for somebody else. You feel betrayed, wronged, and shamed. Your spouse is being completely unreasonable when it comes to community assets and spousal support, and things just don't feel fair. The two of you can't come to an agreement. So, you turn to the courts to litigate your divorce. Surely a judge will side with you and punish your ex's bad behavior. All of those awful feelings will disappear, and you will have achieved "emotional justice," right?
Unfortunately, you're not likely to find what you're looking for in court.
What is emotional justice?
What exactly is "emotional justice" when it comes to divorce? It's when a person seeks a sense of fairness or retribution from the court system. It's the deep desire to right perceived wrongs and have feelings validated in a court of law. And sometimes, it's the desire to punish your former spouse for the failure of your marriage.
The problem with seeking emotional justice is that it's mostly an elusive feeling. Rarely does a person achieve a sense of justice through a litigated divorce. Emotional closure is seldom found in a courtroom.
Facts, not feelings
Often, emotional turmoil motivates couples more than their legal issues. The majority of divorce cases that go to trial are based on emotional attachment to a perceived sense of being right. But the courts are concerned with the law of divorce, not the emotion of it.
Unfortunately, plenty of couples enter the divorce process without really understanding the role of the court. Courts aren't designed to punish "bad actors" or reward "good spouses." Divorce court, for the most part, is not a punitive process. In a divorce proceeding, a judge determines factual things such as property and asset division, child and spousal support, and child custody and visitation. Sure, people may have to pay sanctions or lose custody of their children if they are endangering them, as in cases of violence or substance abuse. But for the most part, courts are simply looking at the facts as presented through legal documentation and making a decision based on those facts.
In the majority of states, the court isn't even responsible for determining fault. There's rarely blame (unless you are using the legal process in bad faith) and rarely any vindication. In fact, trying to get emotional justice from a court can work against you. Let's say, for instance, a husband cheats on his wife. During the course of the marriage, the husband protects his separate property by using it to pay for marital assets. Thus, his wife ends up with very little community property. Now, the husband seeks to lower spousal support in a "law and motion" (short) hearing because his earnings have gone down slightly. The wife feels deeply wronged and opposes the motion.
In California and many other states, the court is likely to modify support downward if the loss of the husband's earnings is due to a reduction in pay. There are exceptions, of course, like if he reduced his income on purpose. But for the most part, it's a "winning" motion for the husband and a lot of attorney fees for the wife to litigate the issue. She's not going to feel like "justice" occurred, and he might even feel more empowered by the system.
Moral failings don't factor in
No matter how compelling your story, a judge doesn't care (or isn't supposed to care) about your former spouse's moral failings. It's a judge's job to remain neutral, forbidding emotions to play into outcomes like spousal support and property division. Therefore, it's misguided to think that telling your story to a judge will swing the court's decision your way. In most instances, you won't even have the opportunity to tell the judge your story.
Litigation not only keeps you in a swirl of intense emotions while trying to reach a resolution, it prolongs the divorce process (for months and maybe even years). It's also extremely expensive. Every time you go to court (or your lawyer goes on your behalf), you must pay attorneys' fees and filing fees and take time off work. The whole process is disruptive and often counterproductive to reaching an agreement. In fact, time in court often magnifies spouses' hostility toward one another.
Some lawyers prey on emotions
Some lawyers add fuel to the emotional fire. They may prey on the emotions of their clients, attacking the former spouse to make their client feel better. They may even mislead their clients, telling them they can win the case. What some of them fail to do is inform their clients about the actual rules for deciding divorce issues and that the court is required to follow these rules. In fact, this desire to "win" in court can be all-consuming and even take over your life. Often, it interferes with good decision-making. In your quest to punish your spouse, you may sacrifice family relationships and friendships, or worse – the emotional and developmental health of your children.
Crafting your divorce strategy around emotional justice can be shortsighted and self-defeating. People often pursue fights that cannot be won or cling to unrealistic ideals. This only intensifies their emotional injuries. During the course of it all, they lose sight of the overarching goal: to dissolve their marriage contract and move on. So you see, no one really "wins" in the pursuit of emotional justice in court.
Consider resolving disputes with a mediator
While it may be tempting to seek emotional justice from the court system, you're better off (in most cases) keeping the divorce process out of litigation. A better way for many divorcing couples to handle some of their divorce-related emotional issues is mediation.
Read: Types of Mediation
During the mediation process, an impartial mediator moderates the dialogue between you and your spouse as you work together to resolve disputes and find solutions. The mediator doesn't represent either of you. Rather, they are invested in shaping an answer that meets your joint and individual goals. And they contribute their legal expertise to help you get there.
Mediation provides an opportunity for you and your ex to create an outcome that is guided but not bound by your state's family law rules. Together, you decide what is best for you and your family by designing an agreement tailored to your lives and unique situation.
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A cooperative process
Because mediation is a cooperative process, it suits couples who share the same goal of reaching a resolution. That doesn't mean you agree (yet) about every issue, and it definitely doesn't mean mediation is an easy or unemotional process. In fact, it doesn't even mean that you like each other anymore. But it does mean you both believe there is a better way to divorce than fighting in court and letting a judge make decisions for you.
Maybe you have doubts ...
You might think mediation isn't for you because you and your ex have a hard time being in the same room. Or perhaps you don't see eye-to-eye about who should keep the house. Maybe you feel hurt and emotional because your ex wanted a divorce and you didn't. A certified mediator can help you navigate the emotions, find common ground, search for a value-added resolution, and maybe, just maybe, bring you back some peace of mind.
Getting the emotional justice you deserve
Even if you settle your divorce through mediation, unresolved or intense feelings toward your former spouse might persist. So, where do you go to get the emotional justice you crave? You get it from you. Ultimately, a sense of emotional relief or peace can really only come from within. It might not feel like it, but you are in the best position to repair your divorce wounds. Coming to terms with divorce isn't easy. It requires lots of soul-searching and hard work. The first step is to end your search for justice from outside of you. It means turning inward and doing the tough work of processing your emotions, really feeling it all – the anger, the grief, the hurt, the depression, you name it – and then letting go of those emotions. It means accepting that your marriage ended in whatever manner it did and finding meaning from the experience. True emotional freedom requires you to grow and evolve through the pain. Once you do, you can step more confidently into the next chapter of your life.
It's a lot . . . I know. But there are lots of really great tools and resources out there to help you. Seek emotional support from family and friends. They love you and will listen to you, often validating your feelings of anger, disappointment, and fear in a way the courts never would. Sometimes, all you need is someone to hear you and acknowledge your painful experience. You might call on a therapist, spiritual mentor, or other professional to help you process your emotions. Therapy provides a safe space for you to share your thoughts and feelings without judgment. It can help give you a healthier outlook on divorce.
When you're ready (no rush), work on forgiving your ex – and forgiving yourself for whatever "junk" you brought to the relationship. Holding on to resentment only drags you down and prevents you from moving forward. It can weigh your kids down, too. Forgive as much as you can because forgiveness gives you back your power (and hopefully a sense of justice), and it can be the greatest tool in your healing process.