Bill and Sarah have decided to divorce. Neither spouse trusts the other anymore. Their ability to communicate has deteriorated over the past year. Both Bill and Sarah want an amicable divorce. They both want to share custody of their children, divide their marital estate and continue as co-parents post-divorce. However, they are both afraid of the choices the other party will make. Bill is afraid if he doesn’t hire the most aggressive attorney in town then Sarah will ruin him and take everything. Sarah is afraid if she doesn’t hide assets and convince the children they want to live with her then Bill will leave her with nothing. They both decide to “lawyer up.” They hire the most aggressive attorneys in town and engage in battle.
Both Bill and Sarah want an amicable divorce, but neither dares to cooperate out of fear that the other will act selfishly and they’ll be left with nothing. This is known as a “prisoner’s dilemma.” The prisoner’s dilemma is a scenario that illustrates a paradox of cooperation. Two purely “rational” individuals might not cooperate, even if it appears that it is in their best interest due to the fear that the other will act selfishly. As a result, they both lose.
Few experiences are more difficult than a divorce. For many people, they have already experienced a loss of trust and confidence. Some people have endured years of betrayal, emotional, verbal or physical abuse, and problems with addiction or mental illness. Divorce is expensive, scary, and complicated. Divorcing spouses face the fear of losing financial security, assets, and even time with their children. How do you avoid the prisoner’s dilemma when there is so much to fear?
The first step is to understand the situation you are in. Texas has a statutory family code that gives guidelines for the division of the marital estate as well as visitation schedules for children. Spend the money to have a consultation with an experienced attorney who can explain how the applicable law would apply to the facts of your case. An attorney cannot tell you whether you will win or lose, but they can tell if something is a serious issue or not.
Second, if you are not facing an urgent deadline, then consult with a few attorneys. If you were facing a serious illness, you’d get a second opinion. Do it for significant legal issues too. Find the right person to represent you. Look for someone who you trust and feel confident with. Changing attorneys halfway through a case may increase your legal fees. Changing attorneys frequently gives the court an appearance that you are difficult and unreasonable to work with.
Hire an attorney that has the most experience for your income level. A divorce is a marathon, it’s not a sprint. Don’t hire the most expensive attorney in town if you can’t afford him or her. Likewise, don’t hire the cheapest attorney in town if you can afford to pay more. Attorneys increase their hourly rate as they gain experience. Also, consider the complexity of your situation. If you have a complex property division, or a high conflict custody case then you’re going to need a more experienced attorney. Gauging that can be difficult, but hopefully you’ll have a better understanding of your needs after a consultation or two.
Hire an attorney who advocates for an amicable divorce. An amicable divorce doesn’t mean that you forego uncovering assets and liabilities. It doesn’t mean that you refuse trial at all costs. An amicable divorce means that someone with experience will help guide you through the process with knowledge and understanding of a reasonable outcome. They will act as a guide and advisor to help you avoid making decisions out of fear.
Look for an attorney who can work with the opposing counsel. Some people going through a divorce make the mistake of assuming that the best attorney for them is the one who is the most aggressive and combative. They assume that when attorneys get along with opposing counsel that they are conspiring against them. That is not so. Family law attorneys, in particular, are accustomed to having friendly disagreements. They can debate an issue in court and shake hands at the end of the case. The rare attorney who cannot get along with others is a detriment to your case because they make reaching a reasonable resolution difficult, if not impossible to achieve.
Be wary of the “bulldog attorney.” The bulldog is an attorney who knowingly takes unreasonable positions and creates unnecessary conflict. The perception is that an overly aggressive attorney will increase your odds, but in reality they increase cost and extend litigation. Attorneys can be experienced litigators without being a bully. Look for people who encourage reasonable resolutions.
Some people facing divorce try to avoid the prisoner’s dilemma by simply avoiding hiring an attorney altogether. The problem with doing that is that there are important nuances in the laws that are difficult to understand unless you are an attorney practicing family law. Even family law attorneys gain more experience and understanding after years of practice. In Texas, generally, once the property division is done it cannot be redone. Even though issues involving children can be modified in some circumstances, those changes are not easy nor are they inexpensive.
Divorce is scary and it’s easy to act out of fear, but with the right guidance you can minimize your risks and avoid ending up in a prisoner’s dilemma.