What is “High-Conflict” Divorce?
“High-conflict” was a foreign term to me years ago when my own divorce commenced. Although the initial dissolution of my marriage was relatively painless, when my former spouse attempted to wrest primary custody from me three years later, it opened a Pandora’s Box of drawn-out ugliness and expense. Suddenly, his attorney began insisting that our matter was “high-conflict.” I remember thinking there was no particular reason for our custody matter to be high conflict other than a one-sided desire to make it so. I eventually discovered that getting a case labeled “high-conflict” in court is a strategy used to escalate a small, straight-forward matter into a big, expensive case. If you can get ahead of this strategy and avoid it before it’s too late, you should.
So what exactly is “high-conflict”? The answer is complex . . .
Courts often use this term differently than psychologists do, which is emblematic of a problem in family law - courts’ disregard for all but the most severe mental health issues in family matters.
From a court’s perspective, a high-conflict divorce is one wherein the spouses perpetually have significant disagreements that they cannot or will not work out amicably. Instead of agreeing and going their separate ways, the parties often take their case to trial or to the brink of trial. High conflict cases typically involve a deluge of court filings, extensive discovery, use of various expensive family law “professionals” to assist the court in decision-making, and tens of thousands, if not hundreds of thousands or millions in legal fees and expenses.
Many courts initially view such cases through the lens of, “It takes two to tango.” They may also cast blame onto the party whose behavior superficially appears to be more emotionally-driven and least cooperative. Courts do not spend significant time looking at the details and are easily swayed by hasty first impressions. This is critical to understand when your ex partner or their attorney is highly skilled at subterfuge and smear campaigns.Ernest practitioners with a psycho-legal background often see high conflict cases differently. Approximately 15% of family law cases become high conflict. Within that 15%, chances are one of the parties has a personality disorder or significantly strong traits that match a diagnosable disorder, although at a subclinical level. Not every high conflict case involves a personality disordered litigant, but all of them involve at least one high conflict person, which I would define as: an emotionally or psychologically dysfunctional person who either overtly or covertly, consciously or subconsciously, seeks to delay or derail what could be a smooth divorce so as to remain engaged with, and inflict pain upon, the other spouse. It is common for these individuals to be family abusers - emotionally, verbally, psychologically, financially, spiritually, and/or physically. I use the term “family abuse” instead of domestic abuse or intimate partner violence intentionally to include child abuse, because up to 60% of spousal abusers also abuse their children, and because exposing children to spousal abuse is a form of child abuse.
In my experience, usually only one party can accurately be described as a high conflict person despite many courts operating as if the situation or the dynamic between the parties is what is high conflict. It is not a high conflict case; it’s a high conflict person within a case. Courts and lawyers often make statements such as, “the parties cannot communicate,” when in reality one of the two parties intentionally plays games with communication or refuses to communicate at all. It is often said that the “parties can’t get along,” when the reality is that getting along is not on a high conflict person’s agenda. He or she may claim they want to get along, but a closer look at their conduct and communication tells another story. An analysis of a high conflict person’s behavior frequently reveals a person who struggles with honesty, gets an energetic charge from conflict, seeks to “win at all costs” (including at great cost to their children), and for whom fairness, compromise, and following rules or orders feel like an existential threat. Unfortunately, high conflict people can appear calm, charming, and convincing in court.
High conflict people create high conflict divorce and custody matters, and contrary to popular opinion, it takes only one to tango.
Copyright © Jody Willson Pasicznyk, 2023, all rights reserved. Any unauthorized copying, reproducing or reuse will constitute an infringement of copyright.
