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“High Conflict” Divorce: What it is, and what you can do to mitigate its ugliness.

No uniform definition has yet been broadly accepted to define “high conflict divorce”(s), with the field of study almost taking a Potter Stuart “I know it when I see it” approach [see Stuart’s concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964)](It’s a good read). Dr. Janet R. Johnston of Stanford University, very aptly in my opinion, separates the various flavors of high-conflict divorce proceedings into the domain, tactics, and attitudinal dimensions (Johnston, Janet R., “High-Conflict Divorce,” in The Future of Children, Spring 1994)(

Domain conflict comes from the parties seeking to rigidly stake out what is theirs. This type of conflict is characterized by cutting off their spouse from resources, places, and even the children. Tactical conflict comes from unnecessarily nasty or intrusive litigation tactics. Examples would include unreasonably long or arduous document requests, subpoenaing unnecessary witnesses, etc. Attitudinal conflict simply comes from the parties’ attitudes about one another and the way those attitudes manifest themselves in the divorce proceedings. A good hypothetical would be if an offer for personal property awarded one party “the Sea-Doo I bought for him while he was off with that ……”instead of just saying “the Sea-Doo.” It’s the same piece of property no matter how it is characterized, but the ‘attidudinal’ (I am making that a word) conflict could prevent resolution.

With all this in mind, here are three ways to at least mitigate, if not prevent, high-conflict situations.

1. Do not Engage

I say this all the time, and only some clients believe me, but whether or not to engage is your decision. It may be hard to resist, but it is up to you. A verbal engagement isn’t like a physical one, it requires both parties actively participate in the conflict. This is where attorneys are so useful. That is what we are here for. Whenever the other side tries to engage, tell them to speak to your attorney about it. Say the mantra over and over in your head and get comfortable with it. If the other side refuses not to attempt to engage you directly (and the vast majority will stop if you make it clear you will not reciprocate), you have to move to the next step.

2. Separation

High-conflict divorces can be a nasty business, and none of us are perfect. If you find yourself unable to avoid engagement, or that the other side’s abuse has started to affect other parts of your life (work, friends, your ability to parent, etc.), you are not in a healthy place, and need to leave. That can mean moving to the guest bedroom, leaving the house or insisting the other side leave, or simply adjusting your schedule in a way that limits contact. If it has become too much, it is important to speak to your attorney about your options. Family attorneys are experts at creating separation while protecting your interests.

3. Speak to Someone

‘Counselor’ may be synonymous with ‘attorney’ in the United States, but we are best at protecting your legal interests from your emotions, not actually dealing with those emotions. This is where friends, family, religious leaders, and mental health experts come in. Remember, seeking mental health does not mean there is mental disease. We all need help, and the best of us cannot get through high-conflict situations without injury. Speaking to someone can be one of the best ways to prevent or heal those injuries.

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