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 are looking for in court.
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 has 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, however, is that it’s mostly an elusive feeling, as a person rarely achieves a sense of justice through a litigated divorce or finds emotional closure in a courtroom.
Facts Not Feelings
Divorcing couples are often motivated by emotional turmoil more than they are by 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. 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 the “good spouse.” Divorce court for the most part is not a punitive process. In a divorce proceeding, a judge determines factual things—like 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 such as in cases of violence or substance abuse. But for the most part, courts are simply looking at the facts as presented to them through legal documents and making a decision based on those facts. In the majority of states, a 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. So, 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.
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 and not allow emotions to play into outcomes like determining spousal support and divvying up a property. So, 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 your story to the judge.
Litigation not only keeps you in the swirl of intense emotions while trying to reach a resolution but also prolongs the entire divorce process (for months and maybe even years). It’s also super expensive. Every time you go to court (or your lawyer goes on your behalf), you’ll have to pay attorneys’ fees and filing fees and take time off from work. The whole process is very disruptive and often counterproductive to reaching an agreement. In fact, time at court often magnifies spouses’ hostility toward one another.
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 to 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—and it often gets in the way of 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 getting emotional justice can be shortsighted and self-defeating. People often pursue fights that cannot be won or cling to unrealistic ideals, which only intensifies their emotional injuries. During the course of it all, they lose sight of the big picture: to dissolve their marriage contract and move on. No win really wins in the pursuit of emotional justice in court.
Resolving Disputes With a Mediator
So, 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 divorcing couples to handle some of the emotional issues related to their divorce is through mediation. During the mediation process, an impartial mediator moderates dialogue between you and your spouse as you work together to resolve disputes and find solutions. The mediator doesn’t represent either of you but is invested in shaping an answer that meets your joint and individual goals and will contribute legal expertise in helping 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 can decide what is best for you and your family by designing an agreement that is tailored to your lives and unique situation.
Because mediation is a cooperative process, it is suited for couples who share the same goal—to reach 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. It doesn’t even mean that you like each other anymore. But it does mean that you both believe there is a better way to divorce than fighting in court and letting a judge make decisions for you.
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 is going to keep the house. Or maybe you feel hurt and emotional because your ex wanted a divorce and you didn’t. Having the professional advice and assistance of 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, you may still have some unresolved (and sometimes intense) feelings toward your former spouse. So, where do you go to get the emotional justice you crave if you aren’t getting it from your ex or your attorney or the court system? 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 a lot of soul-searching and hard work. The first step, though, 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 a lot 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 keeps 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 can be the greatest tool in your healing process.